Mr. Carter for Griswold.

denin, 5 Gill & J. 463; Hamilton v. Watson, 12 Cl. & Fin. 109, 119; Franklin Bank v. Cooper, 36 Maine, 179, 197; Williams v. Bayley, L. R. 1 H. L. 200; Davies v. Lond. Prov. Mar. Ins. Co., 8 Ch. D. 469; Wythes v. Labouchere, 3 De G. & J. 593; Phillips v. Foxall, L. R. 7 Q. B. 666; Meadows v. Meadows, 16 Beav. 401; Millar v. Craig, 6 Beav. 433; Cocking v. Pratt, 1 Ves. Sen. 400; Brown v. Lamphear, 35 Vermont, 252; Paget v: Marshall, 28 Ch. Div. 255; Garrard v. Frankel, 30 Beav. 445; Small v. Currie, 2 Drewry, 102, 114; Wauters v. Van Vorst, 28 N. J. Eq. 103; Slocomb v. Robert, 16 La. 173; Lloyd v. McTeer, 33 Georgia, 37.

In No. 53 Mr. Carter's specification of errors relied on was as follows:

First. That the court below erred in sustaining the demurrer to the second original plea.

Second. That the court below erred in sustaining the demurrer to the third original plea.

Third. That the court erred in striking out the third plea as amended.

Fourth. That the court erred in sustaining the demurrer to the fourth original plea.

Fifth. That the court erred in striking out the fourth plea as amended.

Sixth. That the court erred in sustaining the demurrer to the fifth original plea.

Seventh. That the court erred in striking out the fifth plea as amended.

Eighth. That the court below erred in not granting at the trial the motion of the plaintiff in error for judgment on his eighth plea.

Ninth. That the court below erred in not granting at the trial the motion of the plaintiff in error for judgment on his ninth plea.

He cited: Railton v. Mathews, 10 Cl. & Fin. 935; Williams v. Bayley, L. R. 1 H. L. 200, 219; Brandt on Suretyship, $$ 365, 366; Baylies on Sureties, p. 293; Lee v. Jones, 17 C. B.

Citations for Hazard.

(N. S.) 482; Franklin Bank v. Cooper, 36 Maine, 179; Pid cock v. Bishop, 3 B. & C. 605; The Cumberland Coal Co. v. The Hoffman Steam Coal Co., 30 Barb. 159, 171; Howell v. Chicago & Northwestern Railroad, 51 Barb. 378; Strong v. Grannis, 26 Barb. 122; Osborn v. Robbins, 36 N. Y. 365; Ingersoll v. Roe, 65 Barb. 346; State v. Brantley, 27 Alabama, 44; Griffith v. Sitgreaves, 90 Penn. St. 161.

Mr. Elias Merwin and Mr. Samuel Maddox submitted all the cases on their briefs.

In No. 50 they cited: Wallingford v. Mutual Society, 5 App. Cas. 685; Griswold, Petitioner, 13 R. I. 125; Hazard v. Durant, 9 R. I. 602, 606, Potter, J.; Dick v. Swinton, 1 Ves, & Bea. 371; Stewart v. Graham, 19 Ves. 312; Hearn v. Insurance Co., 20 Wail. 490; Snell v. Insurance Co., 98 U. S. 85; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; S. C. 107 Mass. 290, 316; Harrison v. Hartford Insurance Co., 30 Fed. Rep. 862; Hunt v. Rousmaniere, 1 Pet. 1, 15; Upton Assignee v. Tribilcock, 91 U. S. 45; United States v. Ames, 99 U. S. 35, 46; Railroad Company v. Souther, 13 Wall. 517, 524; Hart v. Hart, 18 Ch. D. 670; Irnham v. Child, 1 Brown Ch. 92; Allen v. Galloway, 30 Fed. Rep. 466; Rashdall v. Ford, L. R. 2 Eq. 750, 754; Blackburn's Case, 8 De G. McN. & G.: 177, 180; Germ. Am. Ins. Co. v. Davis, 131 Mass. 316; Oliver v. Insurance Co., 2 Curtis, 277, 296.

In No. 53 they cited: Slack v. McLagan, 15 Illinois, 242; Capuro v. Builders' Ins. Co., 39 California, 123; Murphy v. Byrd, Hemp. 221; Cole v. Joliet Opera Co., 79 Illinois, 96; Service v. Heermance, 2 Johns. 96; Hale v. W. Va. Oil &c. Co., 11 W. Va. 229, 235; Jones v. Albee, 70 Illinois, 34; Sterling v. Mercantile Ins. Co., 32 Penn. St. 75; S. C. 72 Am. Dec. 773; Darnell v. Rowland, 30 Indiana, 342; J'Anson v. Stuart, 1 T. R. 748; Hynson v. Dunn, 5 Arkansas, 395; Hopkins v. Woodward, 75 Illinois, 62, 65; Abraham v. Gray, 14 Arkansas, 301; Thoroughgood's Case, 2 Rep. 9; Hawkins v. Hawkins, 50 California, 558; Rogers v. Place, 29 Indiana, 577; Seeright v. Fletcher, 6 Blackford, 380; Insurance Co. v. Hodgkins, 66 Maine, 109; Miller v. Elliott, 1 Indiana, 267; S. C. 50 Am.

VOL. CXLI-18

Opinion of the Court.

Dec. 475; Starr v. Bennett, 5 Hill, 303; Clem v. Newcastle & Danville Railroad, 9 Indiana, 488; S. C. 68 Am. Dec. 653; Blackburn's Case, 8 DeG. M. & G. 176; Rashdall v. Ford, L. R. 2 Eq. 750; McDonald v. Trafton, 15 Maine, 225; Zehner v. Kepler, 16 Indiana, 290; Moss v. Riddle, 5 Cranch, 351, 357; Hazard v. Durant, 11 R. I. 195; Harvey v. Taylor, 2 Wall. 328; Cooper v. Reynolds, 10 Wall. 308; Cornett v. Williams, 20 Wall. 226; Jesup v. Hill, 7 Paige, 95; Hazard v. Durant, 9 R. I. 602, 606; People v. Norton, 5 Selden, 176; Bassett v. Crafts, 129 Mass. 513; Huscombe v. Standing, Cro. Jac. 187; Mantell v. Gibbs, Brownl. & Gold. 64; Plummer v. The People, 16 Illinois, 358; Robinson v. Gould, 11 Cush. 55; Fay v. Oatley, 6 Wisconsin, 42; McClintick v. Cummins, 3 McLean, 158; Thompson v. Lockwood, 15 Johns. 256; Fisher v. Shattuck, 17 Pick. 252; Bowman v. Heller, 130 Mass. 153; Harris v. Carmody, 131 Mass. 51; Griffith v. Sitgreaves, 90 Penn. St. 161; Peck v. Jenness, 7 How. 612; Hutchinson v. Green, 2 McCrary, 471; Atwood v. Merryweather, L. R. 5 Eq. 464; Tracy v. First Nat. Bk., 37 N. Y. 523; Booth v. Clark, 17 How. 322; United States v. Buford, 3 Pet. 12, 31, 32; Ex parte Bradstreet, 7 Pet. 634, 647; Chirac v. Reinicker, 11 Wheat. 280, 302.

In No. 51 they cited: Insurance Co. v. Bailey, 13 Wall. 616, 621; Balance v. Forsyth, 24 How. 183; Lee v. Lancashire &c. Railway, 6 Ch. Ap. 527; Fuller v. Cadwell, 6 Allen, 503; Anthony v. Valentine, 130 Mass. 119; McElmoyle v. Cohen, 13 Pet. 326; Mills v. Duryea, 7 Cranch, 481; United States v. Throckmorton, 98 U. S. 61, 65, 66; White v. Crow, 110 U. S. 183, 189; Cooper v. Reynolds, 10 Wall. 308, 316, 317; Cornett v. Williams, 20 Wall. 308, 316, 317; Bateman v. Willoe, 1 Sch. & Lef. 201, 204, 205, 206; Castrique v. Imrie, L. R. 4 H. L. 414; Godard v. Gray, L. R. 6 Q. B. 139.

In No. 52 they cited: Peck v. Jenness, 7 How. 612, 625; Cooper v. Reynolds, 10 Wall. 316; Jesup v. Hill, 7 Paige, 95; Griswold, Petitioner, 13 R. I. 125.

MR. JUSTICE HARLAN, after making the above statement, delivered the opinion of the court.

Opinion of the Court.

These four cases are so closely connected in their facts, as well as in the questions of law presented for determination, that it is convenient to dispose of them by one opinion.

Our attention will be directed first to case No. 50, in which a decree is sought to cancel, or in the alternative, to reform the bond of August 24, 1868, executed by Durant as principal, and by Griswold and Bradford as sureties, and to restrain the defendants from suing upon it in its present form. The granting or refusing of such a decree depends,, of course, upon the inquiry whether the plaintiff Griswold has, by evidence suffieiently clear and convincing, manifested his right to the relief asked.

While in respect to some matters there is a conflict among the witnesses, certain facts and circumstances are clearly established, and may be summarized as follows: Durant, in August, 1868, was a citizen and resident of New York. He went to Newport for a brief stay, and was there on the morning of Saturday, August 22. About noon of that day the suit, in which the writ of ne exeat issued, was commenced against him. He was then sailing, with several friends, in his yacht on the high seas. The yacht landed at the Newport wharf shortly before eleven o'clock at night. Upon his stepping ashore he was notified by two officers, who had kept continuous watch for him at the wharf during the afternoon, that they had a writ for his arrest — meaning the above writ of ne exeat — and that he must go to jail. He accompanied them to that place, one of the counsel of Hazard, Mr. Peckham, following on foot to the sheriff's office. Information of the arrest having been communicated to Mr. H. W. Gray, also a citizen of New York, temporarily at Newport, that gentleman went to Griswold, who was his uncle, and begged the latter to go to the jail and become bail for Durant's appearance. Griswold had only a slight acquaintance with Durant, never having met him until the spring of 1868, and held no personal or business relations of any kind with him. To oblige his nephew, who was Durant's friend, and merely as an act of kindness and courtesy to a stranger (Griswold then resided in Newport), he acceded to the request to become bail for Durant's appearance in court,

Opinion of the Court.

and for that purpose only went to the jail. Hazard learned, a little before eleven o'clock, that Durant had been arrested as he landed from his yacht, and that owing to the lateness of the hour the sheriff had taken him directly to the jail instead of his own office, "as had been previously arranged." He went immediately to the lodgings of one of his attorneys, Mr. Bradley, and caused him to "go and see what could be done to prevent Durant from remaining in jail over Sunday;" authorizing his attorney to use his name "for the purpose of releasing said Durant from jail until Monday, it being regarded as very doubtful whether Durant in the short time then remaining before Sunday would be able to provide the necessary bonds,"

Shortly after Griswold, accompanied by Gray, reached the jail, the two counsel of Hazard, namely, Bradley and Peckham, arrived there, and a few moments later Governor Van Zandt came in obedience to a message from Durant, conveyed by Bradford, to act as his counsel. Hazard, it seems, did not accompany his counsel to the jail. It was now nearly twelve o'clock. All who were at the jail agree that they were there only because of the arrest of Durant under a writ commanding the sheriff to take bail from him, in the sum of $52,735, that he would not go or attempt to go into parts beyond the State without the leave of the court, and, if such bail were not given, to commit him to and keep him in jail until he gave bail of his own accord; and, such security being taken, the officer was required by the writ to return a certificate thereof to the court. There is no claim that any one present was ignorant of the terms of the writ, or of the extent of the authority of the officer charged with its execution. It is further agreed by all the witnesses that there was a conversation at the jail between the lawyers and Durant as to what could be done in order to effect the latter's release. But in this discussion or conversation Griswold took no part whatever. That much is distinctly stated by Peckham, one of Hazard's attorneys who drew the bond, and supervised the execution of the writ of ne exeat, although he says that the sureties could not "help hearing, if they paid any attention." It is equally beyond dispute that