law, it may go no further than to adopt the state statutes "as near as may be." R. S., § 914. Whether the committing magistrate, therefore, may disregard this requirement of the state statute in a proper case, and take the bond demanding an appearance at some other time than the next term, I shall not now decide, because I see in this case no special reason for departing from the ordinary practice, and have determined to allow this defendant to give bond to the next term of the court at St. Louis, as the commissioner did. I shall not interfere with his action further than to reduce the amount of bail as before indicated. The prisoner will be allowed a few days to communicate with his friends, who live some distance, and in the mean time will remain in the custody of the marshal, with leave to the district attorney to make a further appli cation for a removal warrant, if bail be not furnished. So ordered.

UNITED STATES v. AMBROSE.

(Circuit Court for Ohio: 7 Federal Reporter, 554-558. 1881.)

Opinion by MATTHEWS, J.

STATEMENT OF FACTS.-This proceeding is a scire facias in the name of the United States against Harry T. Ambrose and Thomas Ambrose, upon a recognizance entered into by them in this court, in the sum of $5,000, conditioned for the appearance of Thomas Ambrose, from day to day, to answer to an indictment pending against him, and not depart the court without leave, at the April term, 1880, and alleging a breach of the condition. The answer denies the breach and the replication perfects the issue. To sustain the issue on its part, the United States introduced and read a record of the court showing that on a certain day during that term the necessary steps for the purpose of working and declaring a forfeiture of the recognizance were taken. To that the defendant offered testimony to prove that the facts stated in that record, showing the forfeiture, were not true; that, in point of fact, Thomas Ambrose was not called as therein recited; and that, in point of fact, Harry T. Ambrose, his surety, was not called upon to produce his body, as therein declared, and the question is whether or not that testimony is competent. I think it is not.

§ 1538. A recognizance is matter of record, imports absolute verity, is an estoppel against the parties to it, and cannot be contradicted by any testimony.

The proceeding with reference to a recognizance is a proceeding of the court. The recognizance itself constitutes a part of the records of the court; it is a contract of record. The proceeding in the forfeiture of a recognizance is a proceeding of the court, and is a matter of record; and it seems to me that it is, as in other cases of records, a case where the record imports such absolute verity that no one against whom it is producible shall be permitted to aver against it. In the case of The King v. Carlite, 2 Barn. & Ad., 362, which is fully cited in the note to the Duchess of Kingston Case, in Smith's Leading Cases, "the defendant had been convicted of a seditious libel, and brought a writ of error to the queen's bench, assigning for error in fact that there was but one of the justices named in the commission present when the jury gave their verdict. On the record returned to the king's bench (and which was made up in the ordinary way) it appeared that a sufficient number of justices were present, and the court held that it was not competent to the defendant to question the fact as stated." In delivering the opinion, the court said that it was clear upon the authorities that a party cannot be received to aver, as error in fact, a matter contrary to the record.

In 1 Inst., 260, Lord Coke says: "The rolls being the records or memorials of the judges of the courts of record, import in them such incontrollable credit and verity as they admit of no averment, plea or proof to the contrary. And if such a record be alleged, and it be pleaded that there is no such record, it shall be tried only by itself; and the reason thereof is apparent, for otherwise (as our old authors say, and that truly) there should never be any end to controversies which would be inconvenient."

The rule is stated in Starkie on Evidence, 317, with a good deal of terseness, and makes the distinction, which is to be borne in mind, that there are two purposes for which a verdict or judgment may be offered in evidence: First, with a view to establish the mere fact that such a verdict was given or judg ment pronounced, and those legal consequences which result from that fact; and, second, with a view to a collateral purpose,- that is, not to prove the mere fact that such a judgment has been pronounced, and so to let in all the necessary legal consequences of that judgment, but as a medium of proving some fact as found by the verdict, or upon the supposed existence of which the judgment is founded.

The author of the note in the Duchess of Kingston Case, in referring to that distinction, divided judgments into two kinds, viz., judgments in rem and judgments in personam, or judgments inter pirtes, and says: "With regard to both of these classes one observation may be made; that is, that for the mere purpose of proving the existence of a julgment the production of a record of either sort is conclusive upon all the world."

The particular question, in its application to recognizances, has more than once been decided, and especially in the case of Calvin v. State of Ohio, 12 Ohio St., 60, where the facts of the case are not distinguishable from the facts in this case, and wherein the court, through Judge Peck, says: "The settled practice in these cases, which may be said to be the law of such judicial undertakings, required that Squires should appear in said court on the day named in the recognizance, and answer to the criminal charge specified therein, and that the defendants, his sureties, should have him then and there for that purpose; and that, if Squires was not so present or produced, the several parties. to said recognizance were to be called and required to comply with its obligation; and also that, on a failure to comply, it would be the duty of the court before which it was acknowledged to declare it forfeited, and that the forfeit ure so declared should forthwith be deemed a record of said court.

"Such being the law of this species of undertakings, how can it be said that the calling and forfeiture of such a recognizance is an ex parte proceeding in the sense alluded to by the counsel for the defendants? They voluntarily appeared in open court, and became parties to an inchoate judicial proceeding, and were conversant, or, at least, cannot plead ignorance of the legal course prescribed for its fulfillment and its forfeiture. They therefore knew, or must be presumed to have known, when entering into that engagement, that, in case of a default, it would be the duty of the court before whom it was acknowledged, without process or further notice, to enter against them a forfeiture of the entire penalty, which entry would have all the force and effect of a record of the court. It was ex parte, perhaps, but only so in the sense in which a judgment made by default, where a service of notice has been acknowledged, could be so termed; and no one would say that a judgment so rendered is not final and conclusive against the defendant, until reversed or set aside in due course of law.

"The record may be only evidence of the forfeiture, but it is, by the statute, evidence of a superior degree-evidence by record,—and, on general principles, cannot be met and overthrown by testimony of an inferior grade, as was attempted in the case at bar."

And the opinion of the supreme court of the state of Ohio is sustained by citation of authorities from Iowa and New York to the same effect.

Now I am referred, on the other side, to two cases only: One in 9 Wall., 13 ( 1541-45, infra), the case of Reese v. United States, where all that was decided is that the contract of suretyship in a recognizance is like a contract of suretyship in all other cases in respect to this point: that in case the contract is altered in respect to the principal by the consent of the party to whom the recognizance is given, that that releases the surety. The other case is that of Griswold v. Stewart, 4 Cow., 457. That was a scire facias against Stewart, and set forth a judgment of the court in favor of the plaintiff against Walton for $5,000 and costs, on the 29th of October, 1813; that execution thereof still remained to be made; that Walton was dead, and commanded the sheriff of Columbia county to warn the heirs and tenants of all the land in his bailiwick whereof Walton, or any person or persons in trust for him, was seized on the 29th day of October, 1813, the day on which the judg ment was entered, or at any time after, to show cause why the debt and costs should not be made of those lends and tenements. Stewart being warned as one of the tenants on the day of the rendition of the judgment, appeared and made the plea that on the day on which the judgment was entered Walton was dead, and that consequently the judgment was void by reason of the want of jurisdiction in the court over the person of Walton for the purpose of rendering the judgment. It was held that that plea was a good ple, because it did not contradict the record, but only undertook to avoid the effect of it by showing that the court had no jurisdiction to render the judgment. But it did not contradict the fact of the rendition of the judgment, or any of the transactions of the court which took place on that day, and I see nothing in that which is not consistent with the rule that is applied in the other case.

There will, therefore, be a judgment for the plaintiff for the amount of the recognizance.

TAYLOR v. TAINTOR.

(16 Wallace, 366-377. 1872.)

ERROR to the Supreme Court of Errors of Connecticut.
Opinion by MR. JUSTICE SWAYNE.

STATEMENT OF FACTS.- This is a writ of error issued under the twenty-fifth section of the judiciary act of 1789, to the supreme court of errors of the state of Connecticut. The attorney of the state for the county of Fairfield presented to the superior court for that county, at the August term, 1866, an information charging Edward McGuire with the crime of grand larceny. A bench warrant, returnable to the same term, was thereupon issued. McGuire was arrested and held in custody. The court fixed the amount of bail to be given at $8,000. On the 24th of September, 1866, McGuire and the other plaintiffs in error entered into a recognizance to the defendant in error in that sum, conditioned that McGuire should appear before the superior court, to be held at Danbury, in Fairfield county, on the third Tuesday of October, 1866, to answer to the information before mentioned, and abide the order and judgment of the court. McGuire was thereupon released from custody. He failed to appear according

to the condition of the recognizance, and it was duly forfeited on the 16th of October, 1866. This suit was thereupon instituted in the superior court of Fairfield county to recover the amount of the obligation. The facts developed at the trial, and relied upon by the defendants to defeat the action, were, according to the practice in that state, found and certified by the court, and became a part of the record. So far as it is necessary to state them, they are as follows:

After the recognizance was entered into McGuire went into the state of New York, where he belonged. While there, upon a requisition from the governor of Maine upon the governor of New York, he was seized by the legal officers of New York, and was by them forthwith, on the 19th of October, 1866, delivered over to the proper officers of the state of Maine, by whom he was immediately and against his will removed to that state. The requisition charged a burglary alleged to have been committed by McGuire in Maine before the recognizance in question in this case was taken. At the time of the forfeiture of the recognizance McGuire was, and he has been ever since, legally imprisoned in Maine. In June, 1867, he was tried there for the burglary charged in the requisition, and convicted and sentenced to confinement in the penitentiary for fifteen years, and was, at the time of the trial of this case in the court below, serving out his time under that sentence. Neither of the sureties knew, when they entered into the recognizance, that there was any charge of crime against McGuire other than the one alleged in the information in Connecticut. If the testimony were admissible, the plaintiff proved that the sum of $8,000 was placed in the hands of the sureties to indemnify them against the liability they assumed, and, if the testimony were admissible, the sureties proved that the money was not placed in their hands by McGuire, nor by any one in his behalf; and that, so far as the sureties knew, it was done without his knowledge. The superior court gave judgment for the plaintiff. The defendants thereupon removed the case to the supreme court of errors for Fairfield county. That court affirmed the judgment, and the defendants thereupon brought this writ of error.

§ 1539. The liability of sureties not affected by the fact that they are indemnified.

The fact that the sureties were indemnified was proper to be considered by the superior court upon an application for time to produce the body of McGuire. Bank of Geneva v. Reynolds, 12 Abb. Pr., 81; Bank of Geneva v. Reynolds, 20 How. Pr., 18. But it could have no effect upon the rights of the parties in this action, and may, therefore, be laid out of view.

§ 1540. Sureties not discharged where the principal is unable to appear on account of his arrest in another state.

It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the law. People v. Bartlett, 3 Hill, 571; Co. Litt., 206, a; Bacon's Abr., tit. "Conditions," (2); Viner's Abr., tit. "Condition" (Gc.), pl. 18, 19, and (I. c.), pl. 16; Hurls., Bonds, 48. Where the principal dies before the day of performance, the case is within the first category. Where the court before which the principal is bound to appear is abolished without qualification, the case is within the second. If the principal is arrested in the state where the obligation is given and sent out of the state by the governor, upon the requisition of the governor of another state, it is within the third. State v. Allen, 2 Humph., 258; Devine v. State, 5 Sneed, 626; State

v. Adams, 3 Head, 260. In such cases the governor acts in his official character, and represents the sovereignty of the state in giving efficacy to the constitution of the United States and the law of congress. If he refuse, there is no means of compulsion. Commonwealth of Kentucky v. Dennison, 24 How., 66 (S$ 3615-25, infra). But if he act, and the fugitive is surrendered, the state whence he is removed can no longer require his appearance before her tribunals, and all obligations which she has taken to secure that result thereupon at once, ipso facto, lose their binding effect. The authorities last referred to proceed upon this principle.

It is equally well settled that if the impossibility be created by the obligor or a stranger, the rights of the obligee will be in nowise affected. People v. Bartlett, 3 Hill, 570. And there is "a distinction between the act of the law proper and the act of the obligor, which exposes him to the control and action of the law." United States v. Van Fossen, 1 Dill., 409. While the former exonerates, the latter gives no immunity. It is the willing act of the obligor which crates the obstacle, and the legal effect is the same as of any other act of his, which puts performance out of his power. This applies only where the accused has been convicted and sentenced. Before judgment - non constat but that he may be innocent.

Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies alike in both civil and criminal cases. Hagan v. Lucas, 10 Pet., 400; Taylor v. Carryl, 20 How., 584; Troutman's Case, 4 Zab., 634; Ec parte Jenkins, 2 Am. L. Reg., 144. It is, indeed, a principle of universal jurisprudence, that where jurisdiction has attached to person or thing, it is unless there is some provision to the contrary exclusive in effect until it has wrought its function. Where a demand is properly made by the governor of one state upon the governor of another, the duty to surrender is not absolute and unqualified. It depends upon the circumstances of the case. If the laws of the latter state have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied. The duty of obedience then arises, and not before. In the case of Troutman, cited supra, the accused was imprisoned in a civil case. It was held that he ought not to be delivered up until the imprisonment had legally come to an end. It was said that the constitution and law refer to fugitives at large, in relation to whom there is no conflict of jurisdiction.

The law which renders the performance impossible, and therefore excuses failure, must be a law operative in the state where the obligation was assumed, and obligatory in its effect upon her authorities. If, after the instrument is executed, the principal is imprisoned in another state for the violation of a criminal law of that state, it will not avail to protect him or his sureties. Such is now the settled rule. Withrow v. Commonwealth, 1 Bush (Ky.), 17; United States v. Van Fossen, 1 Dill., 406; Devine v. State, 5 Sneed, 625; United States v. French, 1 Gall., 1; Grant v. Fagan, 4 East, 190. When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and, if necessary, may break