Page:Federal Reporter, 1st Series, Volume 2.djvu/156

 tJNITED STATES ». EVANS. 149 �ant William Tinder is deceased, and that H. B. Wilson has been appointed his administrator, and that judgment may be pronoimeed as though the record showed these facts, and a regular revivor had been had against said administrator, who was regularly in court by proper process. It ia also agreed that if a motion to quash the scirefacias could be sus- tained, or the scire facias be had on demurrer, or on plea of nul tiel record or motion in arrest, judgment may be rendered for the defendants; otherwise judgment to be ren- dered against E. L. D. Evans, W. E. Evans, and H. B. Wilson, administrator of William Tinder, for the sum of |5,000 and costs, in each case in favor of the United States — the whole record to be used and relied on in the argument. �Hammond, D. J. This is a scirefacias upon a forfeited recog- nizance submitted upon the foregoing agreed statement of facts and the record of the prooeedings in the case. It is first insisted by the defendants that the indictment is bad in not charging the offence to have been committed on a particular date. The caption is "May Term, A. D, 1876," and the offence is alleged to have been committed "on the — �day of, A. D., 1876." It is urged that for this �defect, upon conviction, the judgment wouid be arrested. Whart. Cr. Law, § 264. It is denied for the plaintiff that this case falls within that rule, if, indeed, such defence can be made to the scire /acias, which is also denied. �I express no opinion on the sufficiency of the indictment, for, eonceding it to be defective, and fatally so, it is, I think, no defence to this scire facias. In the first place the bond did not bind the defendant to answer this indictment, but only a "charge against him for passing counterfeit money." He was bound to appear to answer the charge, whether upon this indictment or some other indictment, or information to be preferred against him. His appearance at court was the thing to be secured, and a furtùer condition was that he should continue in attendance until diseharged by the court. He eannot abscond, forfeit his bond, and on the scire faoi/ia try coUaterally the merits of the case upon the sufficiency of the indictment or other matter of defence. The defendant ����