SMITH V. LEE.
It further appears that the defendant has made a general assign. ment for the benefit of creditors, without preferences. In the sched· ules filed by his assignee the property is estimated at $35,000. The affidavit also states that, with the ex.ooption of the property so as.signed, he has nothing whatever with which to pay any judgment that maybe awarded against him; that from the day the bank suspended-April 14, 1882-until May 18th, the date of the arrest. in this action, he was, with the exception of one day, afIarge in the city of Buffalo, making no attempt to depart; that he has now no prop:erty to offer as security, and it will be absolutely impossible for him to procure bail unless the same be mitigated; that if reduced to a nominal sum in this action, it may be possible, through his friends, to secure bail in the criminal actions to the amount of $15,000. This affidavit, in so far as it relates to the general assignment, the value of the defendant's property, and his fruitless efforts to obtain affidavit of Mr. Inglehart, the bail, is fortified by an attorney who drew the assignment. Neither affidavit, in its essential particulars, is disputed. But time has given the defendant another cogent argument. He has been indicted for embezzlement, abstrac· tion, and willful misapplication of the funds of the bank, and tried, at his own request, at the same term at which the indictment was found. The trial occupied four days, and involved an investigation of the identical transactions referred to in the complaint and affidavits. No evidence offered to establish guilt was excluded; the prosecution was conducted with much ability and zeal; and yet the trial resulted in a disagreement of the jury-a jury composed of men of standing and discernment. A large majority of the jury is understood to have favored acquittal. Thes,e are facts which the court has no right to ignore. To assert that they do not greatly lessen the chances that the defendant will abscond would not be warrantable. Had the verdict been one of acquittal, the reaSon for the modification of the order of May 16th would have been obvious to the most unobserving. In a less degree, the disagreement of a jury, impaneled to pass upon the guilt or innocence of an accused person, has from time immemorial been recognized as a sufficient and an imperative reason for the reduction of bail. So familiar and universal is this rule that hardly an instance can be cited in whioh the court has disregarded it. This defendant is entitled to the same consideration that other parties charged with crime receive; no more and no less. It would be an abuse of power for the court, after such a result,-whatever its own views of the mer.
its may be,--to treat the defendant like a proven criminal, and, by allowing the bail to remain at a sum which it is conceded he can· not give, compel him to continue in hopeless imprisonment. In civil actions the sole object of arrest and bail is to secure the presence of the defendant where final process issues. The abolition of statutes which tolerated imprisonment for debt has given a direc· tion to jurisprl1dence, in all kindred regards, opposed to oppressive measures and enactments. It is now well settled that the court has no right to fix bail at a sum so large as intentionally to oppress the defendant and prevent his release. In view of the result of the recent trial, and in view of the further facts that the defendant is now under bonds on pending indictments in the sum of $10,000; that he has e;ecuted a general assignment; that a great part of his property consists of real estate situated in Buffalo; and that the papers contain no averment that he intends to abscond,-it is thought that to require the additional sum of $100,000 is unreasonable. It would seem to be directly within the prohibition of the constitution of the United States that "excessive bail shall not be required." Few men, even in official or business transactions, , where no crime is alleged, or accusation made, can command friends wealthy enough, or numerous enough, to justify in such an amount. When crime is charged suspicion is aroused, and the difficulty proportionately increased. A reasonable opportunity to secure his liberty, pending trial, should be afforded the defendant, if it can be given without endangering the rights of the plaintiff. The papers submitted on this motion have beencarefully examined; and after consideration of all the facts presented, and consultation with the circuit judge who signed the original order, it is thought that the order should be modified by reducing the bail to the sum of $25,000.
Bankrupts.June 27, 1882,)
(Di8trict Gourt, E. D. Penn8ylfJania.
BANKRUFTCy-DISCHARGE-FAILURE TO KEEP PROPER BOOKS.
A firm, during less than three years prior to their bankruptcy. had received from an individual notes and drafts to the amount of $42,881.79, which they had procured to be discounted. Neither their ledger nor cash-book contained any entries of these transactions, nor did the name of the party il'om whom
.:Reported by Frank P. Prichard, Esq., of the Philadelphia bar.