indorsing her name upon it, and received for it any cash or credit or property and Irvine's due-bill or note, and thus appropriated tbe money to his own use, and that he subsequently neglected or failed, on demand, to pay the amount of the check, or any part of it, to the nensioner, it is your duty to find him guilty under this indictment. The fact that Irvine has seen fit to pay the money to her cannot be a defence to the defendant on the facts of this case. Take the case, gentlemen, and consider your verdict. Verdict of guilty, and new trial refused.
.NOTE. Consult the following decisions on this section, (5485, Rev. St.:) U. S.v. Benecke, 98 U. S. 447; U. S. v. Irvine, Id. 450; U. S. v. Sncyw, 23 Int. Rev. Rec. 78; U. S. v. F'airchilds, 1 Abb. 74; U. S. v.Marks, 2 Abb. 531; U. S. v. Chaffee, 4 Ben. 331; U. S. v. Howard, 7 Biss. 56; U. S. v. Bennett, 12 BIatchf. 345; U. S. v.8chindle1·, 18 BIatchf. 227; S. C. 10 FED. REP. 547 ;U. S. v. Connolly, 1 FED. REP. 779; U. S. v. Dowdall. 8 REP. 881; U. S. v. Mason, rd. 412. Compare, also, Sup. Rev. St. pp. 386, 602, and sections 3477, 4745.2414, 2436, 4747, 5435, 5436,4783, 5486, Rav. St.
see u.s. Y. Bevill. 11 j'E]). Ru. 243.
WINSTEAD and another.
(District Court, W. D. North Oarolina. April Term, 1882.)
JUDGMENT-ON FORFEITED RECOGNIZANCE.
A judgment upon a forfeited recognizance of bail is absolute, and is not judgment nisi. .. . .
RECOGNIZANCE-JOINT JUDGMENT-REVIVAL AGAINS'f REPRESENTATIVES.
Where the judgment on a recognizance was joint as against the principal and sureties, and the principal dies, a scirejaciafl. will issue to revive the judgment as against the representatives of deceased, and on its return the questioll of remission of the penalty will be considered.
At the last term of the court W. H. Winstead failed to appear and answer to a criminal prosecution, and judgment was entered against him and his surety oq a. forfaited recognizance of bail. Upon this judgment a sci1'efacias was issued to the parties, to show ca,l1se why execution should not be issued. At this term the surety filed a plea stating that the defendant had died before the service of the scire facias, and the surety now asks to be discharged from his liability as bail. James E. Boyd, Dist. Atty., for the United:States. Keogh tX Ba1'ringer, for defenda.nts.
tlNITED STATES V. WINSTEAD.
DICK,D. J. The entry of judgment nisi in this case at the last term was irregular. State v. Smith, 66 N. C. 420. A judgment nisi is one that is to be valid unless something else should be done within a given time to defeat it. When a witness is duly summoned to appear at court and fails to do so, a judgment nisi may be entered for the penalty imposed by law for such default; and uP0l). being served with a scire facias he may show cause at a future day why the judgment nisi shall not be made absolute. If the witness should die before such judgment is made absolute, the proceeding abates and cannot be revived against his personal representative. A recognizance duly entered into is a debt of record, and the object of a scire facias is to notify the cognizor to show cause, if any he have, wherefore the cognizee should not have execution of the same thereby acknowledged. State v. Mills, 2 Dev. & Bat. 552. The recognizance is in the nature of a conditional judgment, and the recorded default makes it absolute, subject only to such matters of legal avoidance as may be shown by plea, or such matters of relief as may induce the court to remit or mitigate the forfeiture. The death of a principal, after suoh default and before the service of a scire facia8, does not entitle the bail as a matter of right to olaim an
In criminal cases, where 8 recognizance of bail is entered into, the surety is considered in law as having the custody of his principal. He cannot commit his prinoipal to prison for safe-keeping, but he may arrest him and deliver him up to an officer of the law at any time before the liability as bail has become fixed by a forfeiture judicially declared on failure to comply with the oondition of the recognizance. For the purpose of making an arrest, the bail is invested with all the authority of an officer of the law, except. in committing to prison, as he oan have no mittimus from a committing magistrate. If the principal escapes into another state, the bail may pursue him by obtaining from the clerk of the court a duly-certUied coPy of the proceed· ings which show his liability as bail. After default and an absolute judgment the bail has no power to make an of his principal for the purpose of surrendering him in of .a liability fully incurred. The principal is not discharged from his liability for the alleged crime, but he oan only be arrested· by process from· the court. When an arrest has been thus made and the prin9ipal has been tried, the court generally, as a matter of favor and indulgence, will remit or modify the liability of the bail.
Iilsome states statute provisions have been made conferring on bail the power of arresting the principal, even after forfeitures, and tiull'endering him to the court before final judgment on a scire facias. As the judgment in this case was joint, the execution must follow the judgment, and cannot be issued against a dead man's estate until his personal representative has had a day in court. I therefore direct a scire facias to be issued to the personal representative of the deceased principal, returnable to next term. When such scire facias has been duly served or returned, I will hear evidence and consider the question of remitting or modifying the forfeiture in accordance with the provisions of section 1020 of the Revised Statutes.
STATES V. STEPHENS.
(Circuit Court, lJ. Oregon.
May 15, 1882.)
SPJRITSAND WINE-INTRODUCTION OF INTO ALASKA.
By the act of March 3, 1873, (17St. 530,) the introduction. of spirituousliquol'8 and wine into Alaska is absolutely prohibited, subject to the power of the war department to permit such introdu!Jtion for the use of the army therein; and, semble, that section 2 of the Alaska'act of June 27, 1868, (15 St. 240; seCtion 1954, Rev. St.,) which gave the president" power to restrict and regulate or to prohibit the importation and use of .. .. .. distilled spirits" into Alaska, is still so far in force, notwithstanding the passage of said act of March 3, 1873, as to authorize him to permit the intrOduction of' said spirits, but not wine, as a regulation of the subject.. '
ATTEMPT TO INTRODUCE !:ll'iRITUOUS LIQUORS INTO At:4SKA.
By section 20 of the,act of June 30,1834, (4 St. 729,) extended over Alaska by ,.. the act of March 3, 1873, 8upra, it 'was made a crime to attempt to introduce spirituous liquors 01' wine' into Alaska. Held, that a person resideJit in Alaska who ordered of whisky to be shipped to him at ,Alaska,. by a wholesale dealer in San Fran(lisco who had the whisky on hand and for intent to introduce 'the same into Alaska, was not guilty of such attempt, cause he had done no act to a'Ccomplish his illegal intent of which the lliw wi'll take cognizance; the offer to purchase the liquor, and even the purchaseitself. being acts preparatory a.nd indifferent in their 3.
8emble, that a criminal attempt to introduce liquor into Alaska be committed unless the act done in pursuance of the illegal intent perfornied after the liquor is brought so near some point or place of "the main-land, islands, or waters" of the district as to render jt convenient to introduce ·it from there, or to make it manifest that suc.h was the present of parties concerned. ·. '