United States v. Insley
54 F. 221
8th Cir.
1893
Check Treatment
THAYER, District Judge,

(after stating the facts as above.) When this case was before the supreme court of the United States on appeal from a former decree of the circuit court, dismissing the bill, it was held that the appellees could neither invoke the plea of laches nor limitations as a defense to the right of the United States to redeem. U. S. v. Insley, 130 U. S. 263, 9 Sup. Ct. Rep. 485. We ■are relieved, therefore, of the necessity of considering such defenses, and will confine our attention to the question whether the second decree dismissing the bill can be sustained upon the ground on which the circuit court appears to have rested its decision. The circuit court held, in effect, that a bail bond or recognizance taken in a federal court or before a United States commissioner sitting in Kansas, for the appearance before a United States court of that district of a person charged with an offense against federal laws, can only be enforced in the mode prescribed by the laws of Kansas; that by the statutes of that state (paragraph 5218, Gen. St. 1889) such bonds and recognizances can only be enforced by a civil action brought in some court of competent jurisdiction after the lapse of the term at which the forfeiture is declared; and that the judgment in favor of the United States against McElroy was null and void, and not merely voidable, because it was rendered on scire facias, and before the adjournment of the term at which the forfeiture was declared. As the view thus.entertained by the trial court places the federal courts in a condition of practical dependence upon local laws in a matter which is intimately connected with the efficient exercise of their criminal jurisdiction, we think it should not be adopted, unless it is clearly warranted by some federal statute.

It has frequently been held that United States commissioners derive their power to take bail for offenses against the laws of the United States from section 1014 of the Revised Statutes of the United States. That section provides that, “for any crime or offense against the United States, the offender may, by any justice or *223judge of the United States, or by any commissioner of a circuit court to take bail, or by a.ny chancellor, judge, * ⅜ * or other magistrate of any state where he may be found, and agreeably to the usual mode of process against o ¡Tenders in such state, * ⅛ * be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.” By reason of the provision contained in that section, that federal judges and commissioners shall proceed “agreeably to the usual mode of process against offenders in such state,” it has also been held that the purpose was to assimilate all proceedings for holding accused persons to bail, to answer before a court of the United States, to the proceedings in vogue for similar purposes in the state where the proceeding should take place. It has accordingly been ruled that recourse must be had to the laws of the state where an examination is held to determine a commissioner’s power to take bail for an appearance before himself, as well as to determine his right to adjourn a hearing, and the length of, time such hearing may be adjourned. U. S. v. Rundlett, 2 Curt. 41, 48; U. S. v. Case, 8 Blatchf. 250; U. S. v. Martin, 17 Fed. Rep. 150; U. S. v. Horton, 2 Dill. 94. The decisions construing section 1014 have thus far only gone to the extent of holding that state laws control as to all questions of procedure before a United States commissioner up to the time the proceedings are certified to the court having- jurisdiction to try the offense. But it has never been decided, so far as we are aware, that, in enforcing a forfeited recognizance or bond taken in a criminal case, the United States is restricted to those remedies which are provided by the laws of the state where the court happens to be held. As certain state magistrates were authorized by section 1014 to commit persons for trial who were accused of offenses against the laws of the United States, it was eminently proper to provide that, in the discharge of such duties, they might proceed in accordance with state laws, with which they Avere familiar. But no reason exists for limiting the federal courts, when proceeding to enforce a forfeited recognizance or bond which, has been taken or duly lodged therein, to those remedies which are prescribed by state statutes. In the trial and disposition of criminal cases the federal courts proceed according to the course of the common law as modified by acts of congress. It has recently been held that the competency of witnesses in criminal trials in the courts of the United States is not governed by the statutes of the state where such trials are had, but is to be determined by the common law. Logan v. U. S., 144 U. S. 263, 303, 12 Sup. Ct. Rep. 617. Sees also, U. S. v. Reid, 12 How. 361, 363. We think there is equal reason for holding that the courts of the United States may resort to such remedies for enforcing a bond or recognizance which has been duly returned by a federal commissioner or other committing magistrate, as are given by the common law. The federal courts, we believe, have heretofore acted upon the assumption, and with great unanimity, that, in the matter of enforcing a forfeited bond or recognizance, it Avas proper to issue a scire facias, and to enter a final judgment *224against the principal and Ms sureties on tbe return of sucb process duly served, if no sufficient cause was shown for setting aside tbe forfeiture. That is one of tbe approved common-law methods of enforcing sucb obligations after a forfeiture is declared, and it has on some occasions been supposed that it was tbe only appropriate method, although it is now well settled that an original action may also be brought on bonds of that character. Com. v. Green, 12 Mass, 1; Com. v. McNeill, 19 Pick. 127. We are constrained to hold, therefore, that the judgment against McElroy in the sum of $2,000, wMch was rendered by the United States «district court for the district of Kansas on the 6th day of November, 1869, was a valid judgment, and that it was not even voidable.

Another position was taken by the defendants in the circuit court, and seems to be relied upon in this court, that the marshal’s deed to the lot in controversy, wMch was executed after the death of McElroy, is void, and conveys no title, for the reason that the action was not revived in the name of his heirs or legal representatives before the deed was executed. With reference to that contention, it is only necessary to say that as the sale of the lot was made and approved, and a deed was ordered to be executed, during the lifetime of McElroy, we do not perceive that the right of the United States to redeem is in any way impaired, even though it be true that the deed is in fact void. The deed is the mere evidence of transactions that had been fully consummated in the lifetime of the judgment debtor. But we are unwilling to concede that the deed is defective for the reasons above stated and urged. The law seems to be quite well settled that a deed made under such circumstances is valid, notwithstanding the failure to revive. Herm. Ex’ns, § 213, and citations. The decree of the circuit court is therefore reversed, with directions to enter a decree in favor of the United States, in such form as the parties have heretofore stipulated shall be entered in case the right of the United States to redeem was sustained.