Smith Thompson

“ Lilly, 4 Johns. 408, Chief Justice Kent says, there is no case in which the death of the principal, after the return and filing of the capias ad satisfaciendum, has been allowed as ground for the relief of the bail. All the cases agree that after the bail are fixed, de jure, they take the risk of the death of the principal. The attempt for relief has frequently been made, and as often denied. That the time which is allowed the bail ex gratia, is at their peril, and they must surrender. That there are many cases where the bail have been relieved on motion. ”

“ And it does appear to me almost incontrovertible, that the states cannot proceed one step farther, without exercising a power incompatible with the acknowledged powers of other states, or of the United States, and with the rights of the citizens of other states. Every bankrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are to be affected are entitled to a hearing. ”

“ He must either show a legal impossibility to perform the condition of the recognizance, or state something that will discharge him; and he has done neither. These cases are abundantly sufficient to show that it is a well settled rule of law, that the bail cannot set up by plea in bar, the matter contained in the plea now in question. But if available at all, it must be by motion. It is true, as is said in Mannin v. Partridge, 14 East 599, the bail are not completely and definitively fixed, by the return of the capias ad satisfaciendum. ”

“ The constitution has constituted courts professedly independent of state power in their judicial course; and yet the judgments of those courts are to be vacated, and their prisoners set at large under the power of the state courts, or of the state laws, without the possibility of protecting themselves from its exercise. ”

“ Lord Eldon, however, observed that they did not mean to preclude any application for summary relief on the part of the bail. The same case came again before the court, after leave to amend the plea had been obtained, 2 Bos. and Pul. 45, and was very analogous in its circumstances to the one now before this court. It was an action of debt on recognizance of bail; and the defendant pleaded the bankruptcy of the principal, very circumstantially. ”

“ As between the citizens of Ohio, and in their own courts, they have full power to adopt such course in this respect as the wisdom of their legislature may dictate. But the present is a question between the citizens of that state, and the citizens of another state. And that made the great and leading distinction adopted by this court in the case of Saunders v. ”