The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-08-01
The New Suit Against the
EX-Boss.
Denial OF Motion to Vacate
the Order Of Arrest.
Refusal Of the Application to Re-
duce Bail.
THE OPINION OF JUDGE BARRETT.


lently obtained by him from the city and county
treasury having already been published in full
IN the HERALD IL Is unnecessary to recapitulate
them. The last step In the case was a motion &c
Vacate the order OF arrest against him and also
20 reduce the bail from $4,000, 0Oo the amount
axed py Judge Brady. Judge Barrett, before
whom the motion was argued. In supreme Court,
Chambers, gave his decision yesterday, embody.
ing the same in the following opinion, winch we
give In full
First-The point with respect 10 the tendency
OF the prior action Is not ell taken. IL is OF no
consequence when the order OF arrest was made.
What Is material TO the defendant Is the CONDITION
oil Things when II was executed. At that time the
previous suit had been discontinued by an order
VI the Court unconditional In us terms, out
which directed payment by the plalntin or the
deendanrs Costs This order was regular, put II
otherwlse-ii the payment OF the costs should
remedy was by motion 60 yacate or modify, This
the defendant has not resorted TO, and, although
the order was served upon the stn OF last April
ne has permitted II TO remain unquestloned until
the Nearing Of the present motion. But even II 1t
were not now too late the order cannot be at
tackeo collaterally, and IL lonOWs that the prior
action was not pending when sae defendant was
arrested In tuis.
Second-Tne defendant next invokes the old
axiom. Memo de5et ols vezart pro una et eGden1
cduSQ.n 10 this general rule however, there are
rcnar e&GepSons oae so1 "a
ant cannot be rearrested AFTER discontlnuance,
nonsult or non pros, unless the former action
was founded on mistake, which mistake would
tend 10 show that the second arrest was not vex-
ahous Here IL appears the former action was
determined because OF a judgment OF the Court OF
Appeals TO the effect that sucn action could not
be maintained by the state. IL was therefore an
Action founded upon mistake. The present &C
tlOn Is BASED upon direct legislative authority,
subsequently CONFERRED, and SO cannot, therefore,
be SAD to he VeXatlous.
Tnird-An attachment was issued on this action
PRIOR TO the DEFENDANTS arrest but it appears that
httle or no pro- erty has been attached thereun-
der. Notices Of lis pendens have been 1ed against
real estate formerly vested IN the defendant, out
IN every but one triv al instance the property ap
pears TO nave been conveyed to persons claiming
upon the recora 10 be innocent purchasers for
vaue. No personal property OF any KIND has been
discovered or attached. There IL no legal obJec-
tion 10 the plaintiffs procedure In this respect;
none italnly In 80 far as the order OF arrest Is
concerned. Until their demand Is secured they
are entitled to as many provisional remedies as
they can make out case lor Their demand
being iuly secured by any one the others lall,
that -, they can successfully use but one pro-
vislonal remedy. This Is all tnat Is meant by the
rule az llnst the cumuiailon OF remedies, and all
Daniels IN the Rock lord, Rock Island and ST
Louis Railroad Company vs.. Body.
Fourth-Ihe next point made by the learned
counsel for the defendant Is that the affidaylLs
upou which the order OF arrest was granted are
insufficient. These al1ldavits are substantially the
same as those wnich were passed upon by Mr..
Justice Learned on the former action That
learned Judge held, upon careful ana critical ex-
amlnaton, That they were amply sufficient. Ihaye
gone over the present aiidavits carefully, and,
excluding tnat oil Governor Tiden (Which. not
being verified In this action, cannot be used), am
cannot assent TO the proposition that the
testimony OF Garvsy, DAVIDSON and Keyser ia en-
seeina to me to De corroborated IN several im-
porrant particulars oy other anianis. But even II
uncOrroDOrated such testimony, white II Is I'M
douDtedly 10 De received win caution, Ia not to
be dlsi egarded, and Jury may ind for the plain
TN thereon.
FITth-Lastly. . point is made against the con-
stltuuoDality OF the act OF 1875, under which this
action Is brought. This Is a question which ought
not 10 DE determined adversely 10 the law upon
. mere motion In the cause. the proper course,
ii the point be deeT2ed OF surcl i'm portance
TO BRING II Directly beere the Court either by
murrer or motion TO dismiss at CIrcuiL have
NO DOUBT, however, that the rlgnts In question
are public and may De eniorced In sucn manner
and form as 10 the Legislature may seem appro-
Slrtia-The motion to vacate the order OF arrest
mains to be considered whether the BAH should be
reuuced. The general rule Is TO require the
10 furnish bail in sum suric,enT to
cover the planti17s claim, with the probable
interest and costs. More tnan that is excesslvei
less, generally insufficient. The RUE Is not
varied solely by tne incident OF the extent
OF the claim, otherwise the wrongdoer would be
favored In proportion to the greatness of his mis-
dee IS. IL ID, however, subject to the SOUND DIS
cretion OF the Court, discretion which 10 not abb
solute but Judicial, and Is to be exercised upon
the iacts and circums .ances OF each case. These,
too are, WITH some variations, less favorable to
the delendanps position substantially than the
rules which governed before the code. They were
rcasserleu by Mr. Justice Learned In his opinion
IN the former case, TO which allusion has been
General Term on the appeal FROM his order. And
in the late case oil Belionl Jr., VS.. Nathan (Mss.)
the rule was again referred TO, ana with approval,
by ar. Ju stlce Davis, who remarked that 1t was
general rule, not departed from without 20 d
reason. that tao bail required on sucn an order
snail be the amount whc the plaintiff by his All
davis, &C., shows himself entued to recover,
with AN additional sum 10 cover interest and costs
likely 70 accrue.n
The learned counsel for the defendant do not
question the correctness OF these rules In ordinary
cases but they insist tnat there Is line beyond
mn fer hn q n N al nQx ~ lad
OF mlsapprVpriAted, The Court ought not 10 pass
IN 1xlng the amount OF bail. Where that line Is
SAID mat "as to the 5000 0O exacted neing ex-
cesslye that Is laci, ana does not require argu-
justify the holding TO bail OF any human being In
tue sum oil $3,000,00 | am unable TO assent to
these broad propositions. ON tue contrary, can
wei Imagine case where 10 would be q RfosS
abuse OF judicial discretion TO refuse 20 nolu a
"numan being' TO Oal IN $3O00,COe. II, Tor IN
stance a BANK cashier were able 10 emDeZzle 80
large sum from the funds oil MS bank and with
that amount proved to be In his possession aud
refuse TO hold MIN to vail in greater sum than
$4,000, 900, what would that be but TO furnish the
w. lOn m Inc means OF escaping VITA
whether tue amount OF bail IN tne present case Is
excessive or ought 10 be reduced under the rea-
Indicated. The bail is clearly not excessive for
the reason That IL is considerably less IMAM the
amount OF the palntin's demand, for altnougn
but 1892 $50 are actually traced into the defend
aDps hanCs yet upon the undisputed proofs
which have been Iurnlsned, prlma facle case Is
mace out OF liability for 50, 19s, 957, with interest
IRON September l, 1870. whether or not the DaiI
ought to 90 reduced, must, as we have seen, de-
pend upon the facts and circumstances OF the
case. In the present there arr lew ntrolllng
1ac;s which lead me irresistlbly TO the conclusion
that the bail should not be reuuced. In the nrst
place the defendant does not express bis lnaollliy
70 procure the ball required OF nim or to deposit
the amount His learned counsel asks the question,
WHAT'S excessive 0dii" and answers, ''tnat whlch
is beyond the power or the party TO give" Yet
the defendant thus advised, tails to assert, under
oath, tnat the bail II beJ ond MS power 10 give.
Now, while cannot assent TO the proposition or
counsel ior II IL were correct the quzntum oil pail
would depend upon the extent and wealth OF a
mans friends, yet the TACT OF abIiIy or lnabnty,
axe That oil poverty or means, Is Undoubtedly to
be considered IN connection with all the 0ther
circumstances OF the case. Then the defendant
has oneied no a1idayit or other proof or denial
or explanation oil the charges made against MIN.
IL IS true that the Court will not try the merits or
the case upon afldavils; but where defendant
comes forward and denies his guilt and expla ms
away what seems to be strong cIrcumstances
against MIN. sucn denial proof aud explanations
Will nave great weight with the Court upon tie
question Oh REDUCTION OF bail. Here the defend