Wheeler v. Wilcox

7 Abb. Pr. 73

• Court: New York Supreme Court
• Decided: June 15, 1857
• Status: Published

Opinion

Clerke, J.

—The Code (§ 194) prescribes expressly the qualifications of bail, without referring to what have been always held by the common law as disqualifications of persons who are proposed for bail. Those disqualifications have been so long and so firmly established, that it cannot be supposed that the legislature intended, by the mere omission in the Code to enumerate disqualifications, to supersede the old practice. On this subject they have left the law as it always had been, and as the courts had after long experience considered expedient. Among the persons disqualified were practisiiig attorneys and their clerks; and at the present day in England, by rule of court, this disqualification is so marked, that putting them in as bail might be treated as a nullity.

On this ground, therefore, I cannot allow the bail offered in the present case; although Mr. Woodhouse states, in an affidavit subsequently handed to me, that he is not in active practice. Still, he do%s practice ; he has an office, and has his-sign up as an attorney and counsellor. If he has his name stricken off of the roll, and ceases altogether to practice, he will be of course qualified. Neither do I think that Miss Woodhouse is, beyond all reasonable doubt, worth the necessary amount. Other bail must be procured.