United States v. Winstead

• Decision Date: 01 January 1882
• Citation: 12 F. 50
• Parties: UNITED STATES v. WINSTEAD and another.
• Court: U.S. Court of Appeals — Fourth Circuit

12 F. 50

UNITED STATES v. WINSTEAD and another.

United States District Court, W.D. North Carolina.

April Term, 1882

James E. Boyd, Dist. Atty., for the United States.

Keogh &amp Barringer, for defendants.

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 upon 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 such default and before the service of a scire facias, does not entitle the bail as a matter of right to claim an exoneretur.

In criminal cases, where a recognizance of bail is entered into the surety is considered in law as having the custody of his principal. He cannot commit his principal 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 condition 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 can 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-certified copy of the proceedings which show his liability as bail.

After default and an absolute judgment the bail has no power to make an arrest of his principal for...