, 1862-05-31

AFcUunnts on the Motion to D!H.
charge Bail,


The Circuit Court was upted yesterda;' !
in hearing the arguments upon tbs motion to
discharge bail In the Li1l-H!debrand case, o..
ferod by the plaintiff
Nr. Martin for the plaintiff at nine o'clock
resumed his argument. He insisted that the
clause in the Constitution relative to impris-
onment for debt must be looked upon as
basis Of future legislation rather than direct
legislative enactment It merely announced
general principle to be carried out BY leg1s-
latige enactment, and It cannot be caniedfnto
practical operation without the aid OF some
statute. It stands as an abstract declaration |
Of right, and unless there Is an express statu-
ary provision the plaintiff cannot be held to
bail There Was no such statute except the |
bail act. Counsel further proceeded, showing |
that that act does not authorize the |
arrest Of defendant upon the particular ]
ground Of fraud in the contract, nor authorize |
the clerk to issue capids In an action of |
fraud In the inception Of 8 contract, but only !
where there was fraud In avoiding the execu- |
tion. It Is only where the nature of the cause
OF action is set forth In the affidavit with the !
surrounding facts and circumstances, that |
they are entitled to their eapias; and the
trouble with the clause In the statute is, that
it does not give the clerk the function Of de-
Gliding whether it is fraud under the Consti-
tntiop
The counsel insisted that the seduction, as
laid down in the plain1iff' s affidavit, Was only
q subsequent in order Of time, not a conse-
| quent Of breach Of promise Of marriage. The
| plaintiff says the seduction was the resu1tof
O diabolcal plot aside from the breach Of
promise, but this plot is not explained. The
! ground OF arrest is not laid down in the afd-
davit up to the spirit Of the Constitution.
In regard to the point that the bail was fixed
by Deputy Clerk Of the Court, the counsel
read the affidavit Of Fred. Waite, Deputy
Clerk, certifying that he took the affidavit OF
plaintiff and fixed the bail. Mr. Waite had
assured him there was mistake Of $40 600 in
the bail bond. He had determined to fix It at
s20,00e, but undoubtedly he WAS so ttuttered
and confused in the presence Of the fair Philo-
mena, that he doubled it, and now it appears
somebody else got fnttered and confused, and
the bail Is again doubled, reaching s8o,oo0:
Counsel urged that deputy Was not invested
with judicial functions, and that the case in
| question WAS one Of that character. In sup
port of this position cited Hobart's Eng. Rep.
Is, third OF Burrows 1859, first Of Humphrey
: 312, and first Of Spencer 476, fourth Dow &
. Ri. GIG, 7th Ton. 50s and 9Th Cal. 81.
, After briefly touching upon the points that
the original canse Of arrest must be
| carried all through the declaration and
, affidavit, and that the facts were
l untrue, Mr. Kaiser for the plaintit
: made brief argument, Of which the follow
ing are the principal points: Affidavit
complied with the regulation Of the clause il
The constitution proving strong presump
ton Of fraud. list Hill pp. POP, 373.] In re
= : gard to the fixing Of bail BY deputy, ths
= chief clerk vas responsible for all deputy
:. acts. That seduction was not the immediate
- consequence Of breach Of promise was i'm
y material; that both affidavit and declamatio,
. set forth clearly case Of breach Of promise
that the counter Affidavit should be strlckel
: from the file, as it was not matter Of proc
}. or evidence.
!. Mr.. Dow, for plaintiff, argued that this ac
7e ton was net properly q debt, but an actio
D. rounding in damages; that the Massachusett
Sc courts had decided that in cases Of this kin
N no garniEhee process or attachment could Il
| euo. +b{z hind ~ eoca IL ona IF tbo no+n+
- of ~ d.7;.,,,. +bat Tho c,,cnn.+an,ee ond 4.
ee vices used constituted frauds (21st Ill. 316l
in relation to fixing Of bail by deputy, cou'
sci took the same grounds as his associat
Il and cited 18th Ill 254. As to the cross HI
.. tion counsel defined the terms fmpertlne1
a1 and Ecandalous upon which the motion
- grounded, citing 9Th BouV. lnsts, P, 368,
- 4,l67.
~ Mr. Van Arman, Tor the defendant, IN rel
= ton to the liking OF bail By deputy, said
81 must be simply ascertalned whether the du
III was judicious one, That 1t was such n
~ manifest without citing authorities.
Fraud must consist In the intention of mi
ed representing existing facts, not IN fal
B. promise In this breach Of promise case t
er- plaintiff must have made misstatement
nm some existing fact connected with the Ct
r. r. tract. The utmost the affidavit tends
-, Drove Is that LII made this contract #itbo
The the intent OF performing It, Taat Is I
ue, fraud. alter arguing somewhat az lene
dc. upon the relation between the Dali act
80 the clause OF the Constatuton and "het'
m order OF balt could Issue IN an act'
q eo'I'7"esa' tne argument was c1osea ana
W court announced ae snoulo reserve n1s
~ clslon for the present.
.on Arrival of prt.oner. fron, nraaf.o
See- Abont one thonsand sacesh nr;soners
ions fiSeo III tne els5 last n1gnt' over tne MOI
aers western ha11roao' ron hao1son' "'scon'
two aeauneo lo1 camp Oongias' Lucy coup
do al 1ne well prisoners leit at camp hsnoa'
the 1ne Twelve nunurea sent 1nefe snore
,ney f1nce-one hundred and twenty Of whom
nttal at Madison. They came in two tra
amp nnr,ha,3nr IN al, +,rentv.f,ve cora onarded
1elY, .-,,,..,. 4 a ~ ~, mi 1u;.,o,
oaed eoiu pAa.ee a @Ao o4 sne Ae'n ".'eo
,rar feg1ment' uuoe1 coAnauu VI eap1' o'lou
cart. eoniPan5 a. Ae0s"5 ta">1'ou a. "oou'
the past eeesen eioch ses.saoss nofnns'
the afi1seu a' tto u'po' IL 'A1s ei'y ~ Aoous
IN the evening, whence, after lew mint
Eagea | defention IN CONNECT the tvn frains
vide. WV s4,
t