Ballingall v. Burnie — 1 N.Y. Super. Ct. 237

Majority

p. 237

Peter Ballingall versus James Burnie.

Oct. Term, 1828.

Headnote

Where a defendant, in an action of assault and battery, has been held to bail without affidavit, and without an order of a judge for that purpose, to an amount exceeding $500, the court upon application will order the bail to be reduced to that sum.

The defendant was arrested and held to bail in the sum of $10,000, in an action of assault and battery, without any order for that purpose, and without any affidavit on the part, of the plaintiff upon which such order could be granted.

Mr. E. Wilkes, on the part of the defendant,

nowmoved, that the bail-bond should be set aside and cancelled, or that the bail should be reduced to $500, the amount fixed by the rules of the court in ordinary arrests of the kind. He said, that in cases where there was no affidavit, or where the affidavit was defective, or not duly filed, or where the sum sworn to is not endorsed on the writ, the court would discharge the defendant on common bail. [ Tidd’s Prac. 165.]

Mr. Hugh Maxwell, contra

insisted, that the affidavit to hold to bail might now be made, and all irregularities of proceeding cured by a subsequent compliance with the rules of the court. He proposed to file such an affidavit, and to show the court that this was a proper case for heavy bail, and for the exercise of its discretion. The ordinary sum of $500 would leave the plaintiff almost without a remedy, and if the irregularities of the first step could not be cured, serious injury would result to the plaintiff.

Mr. Wilkes, in reply,

contended, that the proceedings were oppressive in themselves, and a contempt of court. That the affidavit to hold to bail would now come too late, or at all events, would only justify the holding to bail in the ordinary sum of $500, [Bunting v. Brown, 13 John. R. 425.]

on a subsequent day, ordered the bail to be reduced to $500, and that the bail should be discharged as to the excess beyond that sum.

[H. and E. Wilkes, Att'ys for the deft. W. P. Hawes, Att'y for the plff.]