Page:Federal Reporter, 1st Series, Volume 7.djvu/567

Rh brose and Thomas Ambrose, upon a recognizance entered into by them in this court, in the sum of $5,000, conditioned for the appearance of Thomas Ambrose, from day to day, to answer to an indictment pending against him, and not de- part the court without leave, at the April term, 1880, and alleging a breach of the condition. The answer denies the breach, and the replication perfects the issue. To sustain the issue on its part, the United States introduced and read a record of the court showing that on a certain day during that term the necessary steps for the purpose of work- ing and declaring a forfeiture of the recognizance were taken. To that the defendant offered testimony to prove that the facts stated in that record, showing the forfeiture, were not true; that, in point of fact, Thomas Ambrose was not called as therein recited; and that, in point of fact, Harry T. Am- brose, his surety, was not called upon to produce his body, as therein declared, and the question is whether or not that testimony is competent. I think it is not.

The proceeding with reference to a recognizance is a pro- ceeding of the court. The recognizance itself constitutes a part of the records of the court: it is a contract of record. The proceeding in the forfeiture of a recognizance is a pro- ceeding of the cotirt, and is a matter of record, and it seems to me that it is, as in other cases of records, a case where the record imports such absolute verity that no one against whom it is producible shall be permitted to aver against it.

In the case of The King v. Carlile, 2 B. & Ad. 262, which is fully cited in the note to the Duchess of Kingston Case, in Smith's Leading Cases, "the defendant had been convicted of a seditious libel, and brought a writ of error to the Queen's Bench, assigning for error in fact, that there was but one of the justice's named in the commission present when the jury gave their verdict. On the record returned to the King's Bench (and which was made up in the ordinary way) it appeared that a sufficient number of justices were present, and the court held that it was not competent to the defend- ant to question the fact, as stated.”

In delivering the opinion, the court said that it was clear