the cognizee should not have execution of the same thereby acknowledged. State v. Mills, [19 N. C.] 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.

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"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 modifying the forfeiture in accordance with the provisions of section 1020 of the Revised Statutes."

There is nothing in the record to indicate the term at which judgment was entered in the foregoing case. However, the court in that case treats the judgment on a forfeited recognizance as being absolute, and it is obvious from an examination of the opinion of the court that the term at which the judgment was entered had expired before the defendant made application for relief; and the court held that the facts were such as to entitle the defendant to make application in accordance with section 1020 of the Revised Statutes.

In the case of United States v. Barger (C. C.) 20 Fed. 500, heard by Acheson, District Judge, the application was treated as a motion to vacate a judgment, and it was held that a judgment or order, however conclusive in its character, is under the control of the court pronouncing it, during the term at which it is rendered; and that the same may be set aside, vacated, or modified; and, upon the ground that the court can correct, modify, or vacate a judgment during the term at which such judgment may be entered, relieve the party from liability upon payment of the costs. In that case the court said:

"The recognizance here was taken, not for the defendant's appearance for trial, which strictly seems to be the case contemplated by section 1020, but after trial and conviction, and was conditioned upon the defendant's appearance on the first day of the present (May) term to abide the sentence of the court. He did not appear then, but did subsequently during the term and was sentenced. The party making application for the remission is the bail, who certainly was guilty of no 'willful default,' however it may have been with the defendant himself. Public justice does not require the penalty to be enforced if the defendant pay his fine and costs. The case is within the spirit and reason of the said section 1020, and substantial justice will be subserved by remitting the forfeiture upon terms."

This court, in the case of United States v. Alonzo Robinson et al., 158 Fed. 410, 85 C. C. A. 520, considered the question involving the power of the court, in the exercise of its discretion, to grant relief under this section, but the question as to when application should be made was not determined in that controversy.

It is true the Attorney General in 1854 (6 Ops. Attys. Gen. 408), held:

"That when the proceedings have reached the final point of return of execution to judgment in scire facias they have passed beyond the stage at which the courts can remit, and the only relief which can be given to the parties is by pardon."

Notwithstanding this opinion the greater weight of authority is in conflict with the views entertained by the Attorney General in that case. In referring to this subject, the American and English Encyclopedia of Law (2d Ed.) p. 724, says:

"In the United States it has been held by eminent authority that such power existed at common law, of which the statutes were merely declaratory, and this power as a common-law right has been very generally exercised by our courts. In many states the matter has been made, as in England, the subject of special statutory provision."

In note 2, on the same page, is the following:

"At common law, where the recognizance has been forfeited and was sent to the exchequer, the party became an absolute debtor to the crown, but by statute that court was then empowered to discharge on petition any person whom it thought a fit subject to favor. 1 Chitty, C. L. 92; In re Pellero, 13 Price, 299; Rex v. Tomb, 10 Mod. 278."

Chapter 33, § 83, Battle's Revisal, which is now section 3220 of the Revisal of North Carolina 1905, provides as follows:

"The judges of the Superior Court may hear and determine the petition of all persons who may conceive they merit relief on a forfeited recognizance, and may lessen or absolutely remit the same and do all or anything therein as they may deem just and right, consistent with the welfare, of the state and the persons praying such relief, as well before as after final judgment is entered and execution ordered."

It will be observed that this section empowers the court to remit or lessen forfeited recognizances, either before or after final judgment; and, in an application of this kind, it is within the judicial discretion of the court below, in a proper case, to remit the penalty; and, in the case of the Board of Education v. Moody, 74 N. C. 73, it was held that the action of the court in remitting the penalty under this section is not subject to review except for some error in matter of law or legal inference. This provision of the North Carolina statute is almost identical with the terms of section 1020, Rev. St., with the exception that it is more definite as to the time when application in pursuance of its provisions may be made. We find, upon examination of the decisions of the courts of the various states, that the weight of authority is to the effect that a court, wherein judgments of this kind are rendered, has judicial discretion to grant at any time the remission of penalties. While this provision of the North Carolina law is not controlling in this instance, inasmuch as Congress has seen fit to legislate upon the subject, nevertheless we feel that this statute should be considered in this connection, inasmuch as it tends to show the policy of the Legislature, as well as the courts, in dealing with this question. While neither the Circuit Court of Appeals of this or any other circuit, or the Supreme Court of the United States, have passed upon this question, yet some of the Circuit and District Courts have passed upon it, and are almost of one accord in sustaining the view that a proceeding under section 1020 for the remission of a penalty is not to be treated as a motion to vacate, modify, or set aside a judgment, and is, therefore, not subject to the rule that such application must be made during the term at which the judgment was entered. This legislation was evidently intended for the purpose of enabling

sureties situated as in this instance to obtain substantial relief by the payment of such costs as may have been incurred by the issuance of a scire facias, judgment, etc. There is every reason why such relief should be granted, and we know of no valid reason in support of the contention that sureties in cases of this kind should be required to pay into the registry of this court the entire penalty of a bond, when the requirements of such bond have been complied with, and the undertaking of the surety entered into in the first instance has been substantially performed. It is inconsistent with the principles of justice and equity to insist upon any other rule; and, while counsel seem to have prepared their briefs, as we have said, upon the theory that this is in the nature of a motion to set aside a judgment, evidently the court below had in mind section 1020, and, we think, under that section, had ample power to render the judgment it did.

That a surety, with the rarest exception, in a case where the defendant is produced, stands his trial and is acquitted, understands that such trial not only exonerates the defendant in so far as the charge against him is concerned, but likewise has the effect of releasing the surety from liability on his bond, is within the knowledge of every one familiar with proceedings in criminal cases. Under such circumstances, it is but natural that a surety, not being versed in legal procedure, should fail to file an answer to the sci. fa., and thus have the case regularly disposed of according to the strict rules of procedure. It is highly important that parties arrested and charged with crime. should give bond rather than be confined pending a hearing at the expense of the government. If all the parties who have been arrested on charges of violating the Internal Revenue Laws had been confined in prison to await trial, the expense of such confinement would have been enormous; and, for several years after the enactment of these laws, we doubt very much if the government could have found accommodations for this class of defendants. Therefore, unless there is some way by which relief of this character may be afforded to sureties in cases wherein the default is not willful, and the trial of the accused has been, or can be, had, it would be well-nigh impossible for any defendant to secure bail when charged with a crime. The purpose in granting bail is to secure the prompt appearance of the accused at the term of the court at which his trial is to be had. This is the sole purpose sought to be accomplished, but, in a case like the one at bar (wherein it appears that the defendant was sick and unable to attend the term of court, and appeared at the next term of court, was tried and found not guilty), it would be unjust and inequitable to require the defendant to do more than pay the expenses and the costs incident to the sci. fa.; and, when a sum greater than that amount is exacted, under such circumstances, such judgment renders it possible for the government to take from the citizen such amount without the slightest justification, and we feel sure that there is no disposition on the part of the government to deprive a citizen of its property without compensation.

Chief Justice Marshall, in the case of United States v. Feely, supra, in referring to this view of the matter, said:

"The object of a recognizance is not to enrich the treasury, but to combine the administration of criminal justice with the convenience of a person accused, but not proved to be guilty. If the accused has, under circumstances which show that there was no design to evade the justice of his country, forfeited his recognizance, but repairs the default as much as is within his power, by appearing at the succeeding term, and submitting himself to the law, the real intention and object of the recognizance are effected, and no injury is done. If the accused prove innocent, it would be unreasonable and unjust in government to exact from an innocent man a penalty, intended only to secure a trial, because the trial was suspended, in consequence of events which are deemed a reasonable excuse for not appearing on the day mentioned in the recognizance. If he be found guilty, he must suffer the penalty intended by the law for his offense, and it would be unreasonable to superadd the penalty of an obligation entered into only to secure a trial. The reasonableness, then, of the excuse, for not appearing on the day mentioned in the recognizance, ought to be examined somewhere, and no tribunal can be more competent than that which possesses all the circumstances of the original offense, and of the default."

Section 1020 is remedial in its character, and we must if possible construe the same so as to give full force and effect to the legislative intent; and thus afford the relief contemplated therein. While this section is not as broad in expressed terms as to when application may be made as the section of the North Carolina Revisal to which we have referred, yet it should be borne in mind that this statute contains no limitation as to the time when such application is to be made; and, from the very nature of things, being different in its character from the ordinary motion to vacate or set aside a judgment, cannot be treated as a motion of that character. At the time of the enactment of the section in question, the rules of procedure relating to motions to vacate or set aside judgments were well established, and the rights of parties clearly defined. The remedy afforded by this section does not undertake to authorize the court to vacate or set aside judgments of this character, but, on the other hand, its sole purpose is to empower the court to remit the whole or a portion of any penalty for which a surety may be liable upon a forfeited recognizance. Therefore, if it had been the intention to provide that the remedy was to be by motion to vacate or set aside a judgment, it would have been an easy matter for Congress to have said as much; but, inasmuch as the statute undertakes to vest the court with discretionary power, it was clearly the intention of Congress that the court should have the power to act whenever it was made to appear that an applicant under this section had brought himself clearly within the purview of the statute. At the time this statute was enacted, sureties had the right to move to vacate or set aside a judgment, and, if this was the only purpose for which the statute was enacted, it would, indeed, be a useless piece of legislation. Therefore, inasmuch as it was evidently the purpose of Congress to afford relief to all parties in cases like the one at bar, it necessarily follows that, in all such cases, application may be made at any time before property is sold under execution, and that it was the purpose of Congress in the enactment of this statute to give the court wherein such judgments are rendered control over the same, withi full power, in its discretion, to remit the whole or a part of any penalty upon a forfeited recognizance, "when it shall appear to the court that there has been no willful default of the party, and that a trial can, not

withstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced." No possible harm can come from the construction which we place upon this statute, inasmuch as all matters arising thereunder are to be passed upon by the judge of the court wherein forfeited recognizances are recorded, and it is but fair to assume that judges, in the exercise of their discretion, will amply protect the interests of the government when applications of this character are made.

For the reasons stated, we are of opinion that there is no error, and it necessarily follows that the judgment of the court below should be affirmed.

Affirmed.

MCDOWELL, District Judge (dissenting). I find myself unable to concur in the opinion of the court. Leaving out of view section 1020, Rev., St., for the present, the judgment sought to be reviewed appears to me to be one by which a judgment rendered over 13 years previously was in large part vacated and set aside on the ground of excusable neglect in failing to make defense to the scire facias. Section 513 of the North Carolina Revisal of 1905 reads as follows:

"Mistake, surprise, excusable neglect. The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict, or other proceeding taken against him through mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding."

Waiving all question as to the time within which application for relief must be made under this statute, it seems to me settled that no state statute, adopted since 1789, can give to a federal common-law court power to vacate or modify its judgment of a former term for excusable neglect or other distinctly equitable ground for relief. The reason for this conclusion is set out at length in the concurring opinion in Virginia, etc., Co. v. Harris, 151 Fed. 428, 430, 80 C. C. A. 658 et seq., citing, inter alia, Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. Reference is made to the foregoing state statute because this case was argued wholly without reference to section 1020, U. S. Rev. St.

The next question is whether or not section 1020, Rev. St., can be considered as giving the court in or to which a recognizance or bail bond is given or is returnable the power to remit all or a part of the penalty of the bond after the end of the term at which final judgment is rendered on the scire facias. To my mind this statute gives the court no power after the end of the term at which final judgment is rendered in the scire facias proceeding.

(1) It may be argued that there was no reason for enacting the statute if it relates only to the powers of the court at, or before, the term of trial of the scire facias proceeding. But this argument can be made with equal force as to any one of the numerous statutes which are merely declaratory of the common law. And it is not altogether improbable that the chief purpose of the statute was to emphasize the fact that the courts must not (at the trial term) remit the penalty where the default was willful.