McLennan

The plaintiff in error was one of several defendants, indicted in four indictments for conspiracy to commit offenses against the United States. In two of the cases he was released upon bail bonds in the penal sum of $5,000 in each ease. On March 10, 1925, when the cases were called for trial, he failed to appear or answer to his name, and an order was entered directing that his bonds be forfeited.

Section 1020, Rev. Stats. (Comp. St. § 1684), provides that on breach of the condition of a bail bond the 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, notwithstand *508 ing, be had in the cause, and that public justice does not- otherwise require the same penalty to be enforced.”

On April 14, 1925, counsel for the plaintiff in error appeared in court and in the presence of the United States attorney asked for an order vacating the order of forfeiture of the bail bonds, stating orally as the ground of the motion that the failure of the plaintiff in error to appear at the trial was not willful, but was caused by his sickness. In support of the motion a…