¶1The grounds of vexation in this case do not appear to me to be such as to justify the refusal of bail; and every case of this nature must be decided upon its own circumstances. I shall always, indeed, be a friend to the practice of holding to bail, wherever there is a probable cause of action. Here the cause of action is apparent; and though it may be liable to a reasonable controversy, or may be refuted upon a trial, we ought not to investigate the merits at this stage, further than to ascertain what probability there exists in support of the plaintiff’s claim. The neglect to appeal from the order of the chief justice of Pennsylvania, which eventually occasioned the discontinuance of the first suit, appears, likewise, to be a mere slip of the attorney; and if we can, consistently with the law, prevent the plaintiff’s suffering in consequence of that slip, I think we ought to do it.
¶2 Patterson, Circuit Justice. If you make it a question of fraud in the original contract, or in the assignment, the court cannot enquire into it, upon a question of bail. We cannot travel into the merits of the controversy. It would be, in effect, a pre-adjudication of the cause. The principle that must govern such .preliminary investigations rests here; if a reasonable cause of action is shewn, the defendant ought to be held to bail.
¶3On the hearing before me, I perceived, that there had been a lapse in not bringing the first suit formally before the state court; and I was desirous of putting the question on the same footing here, as if an appeal had been regularly instituted there. I entertain a high *1090respect for the opinions of the chief justice of Pennsylvania; and, 'on this occasion, I am disposed to think, that the plaintiff’s inability to state his case in the absence of his attorney, or the defect of proof at the time, occasioned his issuing the order for discharging the defendant on common bail. But, as the matter appears to this court, I perfectly concur in the sentiments, which have been delivered by Judge PATTERSON.
¶4The order to hold the defendant to bail, was, accordingly, affirmed.