On mutual dealings.

After former arrest.

accrued due before the action brought 2. An arrest may also be made for the penalty of a bond conditioned for the performance of a promise of marriage, &c. where the penalty is the real debt, or rather in nature of stated damages. And where an agreement was made in writing, to deliver a certain quantity of goods, within a certain time, at the price of 3001. or in default thereof, that the defendant would forfeit and pay to the plaintiff 1007.; in an action brought for the penalty, the judges of the Common Pleas were of opinion, that the defendant might be held to bail c.

Where there have been mutual dealings between the parties, the balance is considered as the debt at law, as well as in equity: And therefore, upon an unliquidated account, if the plaintiff were to swear to the sum due to him on the debtor side only, it would be looked upon as a mere evasion; and if not sufficient to support an indictment for perjury, would it seems entitle the defendant to a special action on the case, for a malicious arrest d: And, at any rate, if the balance did not constitute an arrestable debt, the defendant would be entitled to his costs, under the statute 43 Geo. III. c. 46. § 3. as having been arrested and held to bail, without any probable cause e.

The defendant having been once arrested, cannot in general be arrested again, for the same cause of action. Nemo debet bis vexari, pro eádem causa. Thus, where the defendant was arrested on a writ taken out pending a prior action, wherein he had been previously arrested for the same cause, the court discharged him on common bail 8. So the defendant was discharged, where he had been arrested a second time, pending a writ of error, and before judgment was given thereon, or the action discontinued b. And where the plaintiff, not liking the bail in the former action, obtained a side-bar rule for leave to discontinue upon payment of costs, and afterwards proceeded to charge the defendant in custody with a declaration in a new action, the court conceiving this to be a trick, discharged the side-bar rule; so that the bail to the former action still continued liable. But where it appeared that the bail in the prior action were forsworn, the court refused to assist the defendant, though he was arrested before the former action was discontinued; saying, the plaintiff was right in laying hold of him as he did; for had he discontinued, the defendant would probably have run away k. And it has been determined, that the plaintiff, after suing out common process, may sue out a bailable writ for the same cause,

a 7 Taunt. 251.

b 1 Wils. 59. 8 Bur. 1351. 1373. Doug. 449.

e Barnes, 86. but see id. 108.

d Dr. Turlington's case, 4 Bur. 1996. And for the facts of this case, see 1 Ken. 424. See also 5 Barn. & Ald. 513. 1 Dowl. & Ryl. 67. S. C. 2 Barn. & Cres. 693. 4 Dowl. & Ryl. 187. S. C. 3 Barn. & Cres. 139. 4 Dowl. & Ryl. 653. S. C. but see 2 Campb. 594. semb contra.

and arrest the defendant, before he discontinues the first action; for this is not a case within the rule of not permitting the defendant to be twice arrested for the same cause. By rule of Mich. 15 Car. II. it is ordered, that "if a defendant be lawfully delivered from arrest upon any process, he shall not be arrested again at the same time, by virtue of an

process, at the suit of the same plaintiff." But, notwithstanding this rule, the court of King's Bench held, that the plaintiff might lodge a detainer against the defendant, in custody upon mesne process, after his bail had justified, the defendant not having completed his discharge, but being still within the prison; and that he was not entitled to be discharged, upon an affidavit that the sum for which the detainer was lodged, was due at the time of the first arrest c.

The rule for preventing vexatious arrests, was formerly so rigidly ad- Non pros. hered to, that where the plaintiff was nonprossed for want of a declaration, he could not afterwards have arrested the defendant, in a second action for the same caused. And this is still the practice in the Common Please. But, in the King's Bench, it has been determined, that after a nonpros, the defendant shall find bail in the second action; for the plaintiff, it is said, suffers enough by paying costs in the first action, and therefore ought not to be in a worse condition than before. For a similar Discontinuance. reason, where the plaintiff, having misconceived his action, moves to discontinue upon payment of costs, he may, after the costs are taxed and paid 8, take out a new writ for the same cause, and have the defendant arrested de novo. But where the plaintiff held the defendant to bail, before the cause of action accrued, and afterwards discontinued and paid costs, and then arrested him de novo for the same cause, after it accrued ; the court of King's Bench discharged the defendant on common bail '. If the plaintiff be nonsuited, in an action of debt on bond, for not suf- Nonsuit. ficiently proving the execution of it, on non est factum; or on the ground of a variance in a former action, in which the defendant was arrested1;

he may be arrested again, in a second action for the same cause: But

this is not allowed after a nonsuit on the merits m. So, where an action Cassetur billa. was brought against one of two partners for a joint debt, and the defendant having been arrested therein, pleaded the partnership in abatement, it was holden, that the plaintiff might, after entering a cassetur billa, bring a new action against both partners, and arrest the defendant again for the same debt ". And where the plaintiff becomes bankrupt, before inter- Bankruptcy of

plaintiff.

locutory judgment, the defendant may be arrested and held to bail by the assignees, in a second action for the same cause. But where the defendant has been arrested in an action brought in the name of a bankrupt, by the authority of his assignees, he cannot be afterwards arrested, at the suit of the assignees, for the same cause of action, unless the first action has been discontinued, and the costs taxed and paid ".

Wherever the second action appears to be vexatious, or the defendant is arrested or detained in custody therein, after being superseded or supersedeable in a former action, by the laches of the plaintiff, the court will discharge the defendant on common bail; even though he be arrested on a note given subsequent to the supersedeas e, or in a different form of action, so as it be substantially for the same cause f. And where a defendant was arrested in the mayor's court of Hereford, by the practice of which court, a plaintiff is not bound to declare, without a rule for that purpose, and the defendant, without conforming to the practice, superseded the action for want of a declaration, and was again arrested in London for the same cause of action, the court, without entering into the irregularity of the defendant's proceedings, discharged him on filing common bail 8. But where there are no laches in the plaintiff, and à fortiori where the defendant is in fault, the court will not assist the latter: Thus, where A. having been arrested at the suit of B. gaye him a draft for part of the demand, and agreed to settle the remainder in a few days; after which, the draft being dishonoured, B. sued out a new writ against A., and arrested him again on the same affidavit; this was holden to be regular. And if the defendant be discharged out of custody, on account of some act for which the plaintiff is not answerable, such as an alteration in the warrant to arrest by the sheriff's officer, without the plaintiff's knowledge, in such case the defendant may, after the first action is discontinued, be again held to bail for the same cause i. So, where the first action is compromised, and a second brought for the same cause, the court will not set aside the bail bond taken on an arrest, unless the proceedings appear to be vexatious*. The defendant having given a bond, conditioned for the payment of a sum of money, if the sentence of a Vice-Admiralty court should be affirmed on appeal, and the appeal having been dismissed for want of prosecution, the defendant was arrested and holden to bail; after which, the appeal being restored upon petition, the action was suspended, and the bail discharged; but being again dismissed, a new action on the bond was commenced; and the court of Common Pleas held, that the defendant might be again arrested and holden to bail. So, where the defendant has been arrested abroad, he may be again arrested here, for the same cause of action; at

ne excat regno,

least, where it does not appear that the plaintiff may have the same redress and benefit by the proceedings abroad, as in this country. It is no Application for ground for discharging the defendant out of custody, that a previous application had been made to the court of Chancery, for a writ of ne exeat regno, for the same sum ". So, where A. proceeded by foreign attach- Foreign attachment against B. who surrendered, and pleaded to the jurisdiction of the ment. court, upon which A. discontinued the foreign attachment, and arrested B. by process out of the King's Bench, the court of Common Pleas held, that the foreign attachment was not such a proceeding as to entitle B. to be discharged out of custody in the present suit, on entering a common appearance. And where the defendant being in custody within a local Detainer in infejurisdiction, the plaintiff lodged a detainer against him, but discontinued the action from fear of a plea to the jurisdiction, and then arrested the defendant in the King's Bench, without having paid the costs of the first suit; the court held, that the defendant was not entitled to be discharged on filing common bail, the second suit not being vexatious d. Where a de- Remedy, when fendant was twice arrested, and put in bail to two writs in different counties, for the same cause of action, the court of King's Bench refused to make a rule absolute for setting aside one of the two writs; the proper course being, that an exoneretur should be entered on one of the bailpieces e.

rior court.

defendant is twice arrested.

ment.

Upon the same principle, of not permitting the defendant to be twice In debt on judg arrested for the same cause, it is holden, that in an action of debt upon judgment, whether after verdict or by default, the defendant cannot be arrested, if he was previously arrested in the original action; even though the bail in that action have since become insolvent, or the plaintiff has released them, by declaring in a different county, or the defendant has surrendered in their discharge, and obtained a supersedeas. And if a defendant, being arrested upon process of the King's Bench, give a warrant of attorney to confess judgment, and be afterwards holden to bail in the Common Pleas, in an action upon that judgment, the latter court will discharge him upon a common appearance *. But if the defendant were not arrested in the original action, he may be arrested in an action of debt on the judg ment'. And, in the Common Pleas, the defendant may be arrested in such action, notwithstanding a writ of error has been brought, and bail

27 Durnf. & East, 470. 2 East, 453. 8 Taunt. 24.

5 Taunt. 851. 1 Marsh. 395. S. C. and see the case of Bromley v. Peck, 5 Taunt. 852. in notis.

43 Dowl. & Ryl. 33.

* 1 Chit. Rep. 392. And see further, as to the cases in which the defendant may or may not be twice arrested for the same cause, id. 273. (a). 276. (a). Petersd. Part I. Chap. IV.

2 Str. 1218. Say. Rep. 43. Pr. Reg. 54. VOL. I.

Cas. Pr. C. P. 32. S. C. Barnes, 116.

Say. Rep. 160.

h 2 Wils. 93. Barnes, 116. S. C. but see 2 H. Blac. 278.

i 2 Str. 1039. Cowp. 72. R. H. 8 Geo. II. reg. 2. C. P. Cas. Pr. C. P. 34. Pr. Reg. 56. Barnes, 390. 1 Bos. & Pul. 361.

2 Bos. & Pul. 416. but see Barnes, 94. 18 Durnf. & East, 85. Pr. Reg. 55, 6. Cas. Pr. C. P. 32. S. C. Barnes, 116. 1 New Rep. C. P. 133.

N

For costs on nonsuit, or where debt was originally under 10.,

&c.

By stat. 43 Geo.
III. c. 46.

put in thereon. Where a cause, in which the defendant has been arrested, is referred to arbitration, and the arbitrator awards to the plaintiff a sum exceeding twenty pounds, the defendant may be arrested again, in an action upon the award b.

It was formerly holden, that where the judgment was merely for costs upon a nonsuit, or the debt was originally under ten pounds, but raised to a larger sum by the addition of costs; or the action was for general damages, which were reduced by the judgment to a sum certain above ten pounds, the defendant could not be arrested in the King's Bench, either upon the judgment itself, or upon a subsequent promise, in consideration of forbearance, to pay the debt and costs. But it was afterwards determined in both courts, that a defendant might be arrested and held to special bail, in an action on a judgment for ten pounds, for damages and costs; though the original debt alone were under that amount. This determination seems to have occasioned the passing of the statute 43 Geo. III. c. 46. § 1. by which it is enacted, that "no person shall be arrested or held to "special bail, upon any process issuing out of any court in England or "Ireland, for a cause of action not originally amounting to the sum for "which such person is by the laws now in being liable to be arrested " and held to bail, over and above and exclusive of any costs, charges and 66 expenses that may have been incurred, recovered or become chargeable, "in or about the suing for or recovering the same, or any part thereof." By stat. 7 & 8 And, by the statute 7 & 8 Geo. IV. c. 71 h. "no person shall be held to special bail, upon any process issuing out of any court, where the cause "of action shall not have originally amounted to the sum of twenty pounds

Geo. IV. c. 71.

Affidavit of cause of action,

by whom made.

or upwards, over and above and exclusive of such costs charges and ex

penses as aforesaid." This statute, however, does not extend to Scotland or Ireland.

may

The affidavit required by the statutes, of the cause of action, may be made by the plaintiff, his wife, or a third k and it person : be made by one or several persons. The affirmation of a Quaker is sufficient to hold the defendant to special bail. And, in the Common Pleas, an affidavit made by a third person, need not state any connection between the deponent and the plaintiff m. But the affidavit, or affirmation, must be made by some person who is legally competent to be a witness; and therefore it

C. C. P. but see Barnes, 433. Pr. Reg. 61.
S. C. semb. contra.

h § 1. and see stat. 51 Geo. III. c. 124.
§ 1. continued by 57 Geo. III. c. 101.
i § 10.

1 Wils. 339. Say. Rep. 59. S. C. 1 Bos. & Pul. 1. 1 Chit. Rep. 58. 161. 9 Price, 322.

1 Cowp. 382. and see Willes, 292. n. Append. Chap. X. § 5.

m 1 Bos. & Pul. 1. 4 Taunt. 231. 1 Chit. Rep. 58. 161.