Peerless Casualty Company, Surety for Delores Nelson v. United States

WASHINGTON, Circuit Judge.

I concur in the court’s opinion. I would add only that although Rule 46 does use the word “forfeiture” in characterizing a bail bond recovery proceeding, such a proceeding has long been recognized not to be a suit upon a “penalty” but upon a “promise to pay a penalty.” See, e. g., United States v. Luther, 13 F.Supp. 126 (E.D.N.Y.1935), and cases cited; cf. United States v. Springer & Lotz, 69 F.2d 819 (2d Cir. 1934); Dudley v. United States, 242 F.2d 656, 658 (5th Cir. 1957). And see also Meeker v. Lehigh Valley R.R. Co., cited by the court in footnote 5.