Page:Federal Reporter, 1st Series, Volume 7.djvu/569

 UNITED STAIiEe ». AMBBOSE. 5S7'' �aiitt reqiiired to comply'Withita obligation'; ahd alad'tliat, oii-a failufe to coftiply, it would: be the dntyiof .llhecourt before wh^ch jt vaa acknowl- e^gedto declare it;forfei(ed,,and,,thali,,tlie .{o^^eiturc sp decl^red should forthwith bedeemed a record of said, court. ' '' �" Siich being tiie law of this specielrt)f undertakings, how can it be said thflt the calling' and forfeiture of anch a recogaizance is an ete parte pro- ; ceeding in, the Seftse alluded to by the-sconnsel ior thp defendants ? They voluntarily appeared in open. coijrt, and became parties to an incboate judicial proceeiding', and were conversant, or, at least, cannot plead ignor- ance of the legal course pfescribed forets fulfllmeht and «Its forfaiture. They, therefore, knew, or musthe piresumed to h^ye known, when enter- ing jnto that eng^igenjent, that, jn, cafie 9f a default, it would be the duty of the court before wbom it was acknowledged, wit'hout process or further notice, titj ehtef against thein'a ioi-feiiMreoi thieentire' penalty, whioh' cntry would JiaTCiall the f orcfe and e'flect of a record of theicourt. i It was^«f,^perhaps, but iqnly s9!i9f,f)ie,^jBn^^ in which fk Judgmpnt njade bj default, wh,ere a service of ijotice bas been acknowledged, could l)b 80 tei-tdE'd'.-and nobfte would saythat a' jiidgm'ent' sb reiideted is n'bt fitfel Und oonclMsiV^ 'agaifet- the deifendaiit, tinta «reversed b't ■■ Bet 'dgide in �due -cctaj^ of : l^fWs. - : . j ,;r -! f!:,;;]', ;,,:-; / .•.,■,,',!.„; ; �" The record may be only eYideuce fiE th^ ^orfefturie, but it js,l^y the statutc,. evidence of a superiordegreeT— «oiaen'c«'fty Vecor^and, on genefal pMcii)lei','({ytfaot'^be%WaM 'a*k^ettb*-wfti' b^te'atiiiieiiy ^^^ grade, as wasattempted in the case.at>bar!,'?.-,;M(j.),,! j ij i ■ )iir:v'(ii; ijjf �And the opinion of the supreme court of the state of Ohio is sustained by citation of authorities from lowa and New York to the same effect, �Now I am refefred, on 'Eye o'tter s^iaei 16 Wo cases only: One in 9 Wallv'^SO, the ca^ae of >lRec«e ViiTAe UMted States, where all that.was d^cided is,th3,t.t.bis .oontiract of anr,etyfihip^ in a recogaizaiice is like, a eontraot of suretyship in all other caees in respect tu this JJbint: that ih case the contrabt is altered,in respect tc!.the principal 1)y the consent df th§ party towhonathe. recognizanc.e' is.given, that that releftses the surety. ■■ 1. mI' : • �The other case is that of Qriswoldy. Stewart, 4 Cow. 457. That was a scire facias against Stewart, and setforth a judg- ment of the court. in favorofihe plaintiff against Walton for $5,000 and eosts, on the twenty-ninth of October, 1813; that execution ther^of still remained to be ma^e; that Waiton was deadj.and commanded the sheriff of Columbia county tp wam the heirs and tenants of all the land in his bailiwick whereof Walton, or any person or persons in trust for him, was ��� �