U.S. Supreme Court UNITED STATES v. MACK, 295 U.S. 480 (1935)

[Page 295 U.S. 480, 482]

the judgment of the court. A copy of the bond is printed in the margin. [Footnote 1] The members of the crew were brought to

[Page 295 U.S. 480, 489]

conditions is that a trial can still be had. This appears from the statute which is quoted in the margin. [Footnote 3] The trial, of course, must be a reality, not the shadow of a name. At best, remission of the forfeiture is granted as an act of grace. The remedy for that reason is by motion or petition, not by answer and a plea in bar. Detroit Fidelity & Surety Co. v. United States, supra, 59 F.(2d) 565, at page 568; United States v. Costello, supra; Southern Surety Co. v. United States (C.C.A.) 23 F.(2d) 55; United States v. Dunbar (C.C.A.) 83 F. 151; Hardy v. United States (C.C.A.) 71 F. 158. The respondents do not appeal for grace, if it be assumed that grace has any place in the enforcement of such a liability as theirs. They defend upon the ground that the obligation is extinguished.

The point is faintly made that the government was at fault in failing to bring suit more promptly after the breach of the condition. The complaint was filed in July, 1933, while the Prohibition Act (27 USCA 1 et seq.) was still in force. Laches within the term of the statute of limitations is no defense at law. Cross v. Allen, 141 U.S. 528, 537, 12 S. Ct. 67; Sprigg v. Bank of Mt. Pleasant, 14 Pet. 201, 207. Least of all is it a defense to an action by the sovereign. United States v. Kirkpatrick, 9 Wheat. 720, 735, 736; Dox v. Postmaster General, 1 Pet. 318, 325.

The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed. Footnotes

Footnote 1 'Know all men by these presents, that I, James A. Mack, of No. 4 Hickory Street, Wantagh, Long Islang, N.Y., principal and Concord Casualty and Surety Company, of No. 60 John Street, New York City, a corporation, organized and existing under laws of New York State, surety, are held and firmly bound unto the United States of America in the penal sum of two thousand two hundred and 00/100 ($2,200.00) dollars (double the value of the vehicle or conveyance), money of the United States, for the payment of which well and truly to be made we bind ourselves jointly and severally, our heirs, executors, administrators, successors, and assigns firmly by these presents.'Whereas, the following described vehicle or conveyance has been seized pursuant to section 26 of title II of the National Prohibition Act, to wit: The American motor boat 'Wanda.''And, whereas, the aforesaid principal has made application for the return of said vehicle or conveyance, claiming to be the owner thereof:'Now, therefore, the condition of this obligation or bond is such, that if the said principal shall return the aforesaid conveyance or vehicle to the custody of the officer approving this bond on the day of the criminal trial to abide the judgment of the court; and, in case the said property shall be forfeited to the United States, or the court shall order a sale of said conveyance or vehicle, that if the said principal shall pay the difference between the value of said vehicle or conveyance at the time of the execution, hereof, which is hereby stipulated to be one- half of the penal sum of this bond, and its value on the date of its return as aforesaid, less depreciation due to reasonable wear and tear of ordinary use, and the said principal shall pay off any liens or encumbrances thereon except the following liens heretofore existing, namely: then this obligation to be void, otherwise to remain the full force and effect.'Witness our hands and seals this 31st day of October 1930;'By James A. Mack, Principal'Concord Casualty and Surety

Company'By John A. Manning,'Attest:'Resident Vice President

Fred M. Nielsen,'Attorney in fact.'Approved this 1st day of November 1930.'H. C. Stuart, Assistant Collector.'

Footnote 2 '... The reason of it is, that I am not bound to render the principal till I know what execution the plaintiff will chuse; whether he will chuse to have his body, which he makes appear by suing a capias; for he might have sued an elegit or fi'. fa'.' Holt, C.J., in Cholmley v. Veal, supra, 6 Mod. 304, at page 305.

Footnote 3 'When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.'

Cf. New York Code of Criminal Procedure, 595, 597.