V smru v. mum. 29
It further appears that the defendant has made a general assign-
ment for the benent of creditors, without preferences. In the sched-
ules filed by his assignee the property is estimated at $35,000.
The aihdavit also states that, with the exception of the property so
assigned, he has nothing whatever with which to pay any judgment ‘
that may be awarded against him; that from the day the bank sus-
pended—Apri1 14, 1882—until May 18th, the date of the arrest in `
this action, he was, with the exception of one day, atilarge in the city _
of Buffalo, making no attempt to depart; that he has now no prop-
erty to offer as security, and it will be absolutely impossible for him
to procure bail unless the same be mitigated; that if reduced to a
nominal sum in this action, it may be possible, through his friends,
to secure bail in the criminal actions to the amount of $15,000. p
This afiidavit, in sotfar as it relates to the general assignment, the r
value of the defendant’s property, and his fruitless efforts to obtain
bail, is fortified by an accompanying affidavit of Mr. Inglehart, the
attorney who drew the assignment. Neither affidavit, in its essential
particulars, is disputed. But time has given the defendant another
cogent argument. He has been indicted for embezzlement, abstrac-
· tion, and willful misapplication of the funds of the bank, and tried,
at his own request, at the same term at which the indictment was
found. The trial occupied four days, and involved an investigation
of the identical transactions referred to in the complaint and affi-
davits. No evidence offered to establish guilt was excluded; the pro-
secution was conducted with much ability and zeal; and yet the trial
resulted in a disagreement of the jury—a jury composed of men of ·
standing and discernment. A large majority of the jury is under-
stood to have favored acquittal.
These are facts which the court has no right to ignore. To assert
that they do not greatly lessen the chances that the defendant will
abscond would not be warrantable. Had the verdict been one of t
acquittal, the reason for the modincation of the order of May 16th V
would have been obvious to the most unobserving. In a less degree,
the disagreement of a jury, impaneled to pass upon the guilt or
innocence of an accused person, has from time immemorial been rec-
ognized as a sufficient and an imperative reason for the reduction of
bail. So familiar and universal is this rule that hardly an instance
can be cited in which the court has disregarded it. This defendant
is entitled to the same consideration that other parties charged with
crime receive; no more and no less. It would be an abuse of power
for the court, after such a resu1t,——whatever its own views of the mer-