Majority
p. 626Gilchrist against Van Wagenen and Moore. Lawrence against Van Wagenen.
Headnote
Where an attorney has been, from peculiar circumstances, induced to authorize the sheriff to discharge a prisoner, on a single bail, who afterwards turns out insolvent, the court will, if no opposition be made, and the attorney’s conduct appear Iona fide, allow 1dm, after filing common bail under the statute, to put in special bail, for the purpose of obtaining a surrender of the defendant’s body, to save himself from liability.This was an application by the attorney of the plaintiffs, for liberty to file special bail in both suits, to enable him to surrender the defendant.[1]
The circumstances, as disclosed on affidavit, were these: the defendant, Van Wagenen, had been arrested in both actions, one of which was for 4,000 dollars, and the other for 400 dollars, at a very late hour of the night, and was by the officer who took hjm, carried to the house of the plaintiff's attorney, who was then in bed. Being called up, the defendant requested him to take as bail one John S. Moore,
p. 627made the application above mentioned, which, not being opposed, was granted.
who was at first refused. But on the defendant’s represent ing the distressed state his family would be in, and the shock it would be to his credit should he go''to jail, the attorney, on receiving faithful assurances that sufficient bail should be put in by nine 9 o’clock the next morning, agreed to accept *John S. Moore as bail for [*500] that night, and the defendant was, accordingly suffered to go at large. The defendant, however, instead of putting in satisfactory bail, as he had promised, went immediately on board a vessel that he owned, which was bound for the West Indies, though he knew at the time that Moore, who has since been declared a bankrupt, was then insolvent. On this the plaintiff’s attorney filed common bail in each of the suits, according to the provisions of the statute; but having been threatened by the plaintiffs with being called on for the amount of their debts,
Boyd
Motion granted.