from arrest. order it to be on bail not any, as shall have been paid for the king's fine upon an costs, &c. and original writ; and shall thereupon be discharged from be thereupon such arrest as to the action in which the deposit is made; discharged and that the sheriff shall, in every such case at or before The deposit to the return of the said writ, pay into the court, in which be paid insuch writ shall be returnable, the money so deposited; to court, who and in case the defendant shall afterwards duly paut in shall on perand perfect bail in such action, according to the course fecting bail, and practice of such court, the sum of money so deposited repaid; but and paid into court as aforesaid, shall by order of the court, upon motion to be made for thar purpose, be being put in, repaid to defendant; but in case the defendant shall not the money shall be paid duly put in and perfect bail, then the money shall by order of the court, upon a like motion to be made, be paid plaintiff, &c. over to the plaintiff, in such action, who shall be thereupon authorized to enter a common appearance, or file common bail, for such defendant, if the said plaintiff shall so think fit; such payment to be made subject to such deductions, if any, from the sum of 101. deposited and paid to answer the costs as aforesaid, as upon the taxation of the plaintiff's costs, as well of the suit as of his application to the court in that behalf, may be found reasonable. Sect. 2. See sect. 3. of this act, where defen- Where the dant shall be entitled to costs, where plaintiff shall not defendant is recover the amount of the sum for which he was arrested. entitled to over to the costs. In the construction of this act, the court has holden Construction that where money is paid to the sheriff upon an arrest, of the act. it shall be presumed to have been paid as a deposit in lieu of bail, unless a discharge, or some acknowledgment in writing be given to the defendant, for the debt and costs, 1 Smith's Rep. 127. And where the defendant When plaintiff puts in bail above, who on being excepted to render him is not entitled instead of justifying, the plaintiff is not entitled to to the deposit. receive the money out of court; but the defendant, if he made the deposit, may in such case receive it back, Chadwick v. Battye, 3 Maule and Selwyn, 283. If the sheriff do not take the deposit at the time of the The sheriff arrest, he cannot relieve himself from an attachment for must take the deposit at not bringing in the body by taking it afterwards. 9 East. the time of 316. Rex v. Sheriff of London. the arrest. "If a person procure another to be arrested in the The penalty "Marshalsea, or in any court within London, &c. at the for arresting of "suit of any person, where there is no such person any person at "known, or without the plaintiff's consent; every person another, not "who shall procure any arrest, &c. and shall be accused the suit of knowing Executors, &c. Heir, &c. May be held to bail on judgment against him, "by indictment, presentment, or by the testimony of "witnesses, or other due proof, shall suffer six months "imprisonment, without bail or mainprize; and pay to "the party arrested treble costs, and forfeit ten pounds "for every such offence; to be recovered by action of "debt, &c. against such persons, their heirs, executors, or administrators, as should or ought to pay the same, "by virtue or force of this act; in which action no essoign "shall be allowed." 8 Eliz. c. 2. sect. 5. For what a Person may be held to Bail. Where there is a certain demand, which amounts to 151. or upwards, as for money paid, laid out, and expended, money lent and advanced, money had and received, a demand on an account stated and settled, goods sold and delivered, work done, covenant for payment of money, money due on bond, for fees and disbursements as an attorney, or an agreement to pay a certain sum to the plaintiff (not by way of penalty,) the defendant may be held to bail of course, on a concise affidavit, stating the cause of action, so also on a judgment recovered; or on a bill of exchange or promissory note to the amount of 101. or upwards. See unte, page 100. So if there be a general judgment against the executor or administrator, if he has been guilty of a devastavit. 1 Salk. 98. 1 Vent. 355. If an heir, executor or administrator, personally promises and undertakes in writing, to pay any debt, he may be arrested, if for 151. or above. Mackenzie v. Mackenzie, 1 Term Rep. 716. So he may be held to bail on a judgment by default against him after the sheriff has returned a devastavit. Comb. 206. Carth. 264. Dupret v. Tesard. But a mere suggestion is not sufficient. but not on a mere suggestion Cannot be The defendant cannot now be held to bail in trover or held to bail in detinue without a judge's order. R. H. 48 Geo. 3. 9 East. 325. trover without a judge's order. May be held In an action on 26 Geo. 2. c. 21. for having unsealed wrought silks in his custody, special bail is required by the eighth section, and in this case affidavit need not be positive, for the act does not require affidavit at all. 3 Burr. 1569. Rex v. Rebord. In actions on 11 and 12 W. 3. for offences in export- So on 11 and ing wool, defendant may be held to bail, but the cause 12 W. 3. of action must appear in the writ. In scandalum magna- So on scan. tum plaintiff may have special bail on motion and order. mag. Earl of Stamford v. Goodhall, L. Ray. 74. 1 Sid. 183. 2 Mod. 215. So the defendant may be held to bail on a statute So on statutes. which expressly authorizes an arrest, as for insuring lottery tickets. Stat. 27 Geo. 3. c. 1. 1 Term Rep. 705. Davis v. Mazzenghi, as to the form of the affidavit. So for double rent on holding over, on the stat. 4 Geo. 2. c. 28. See 5 Term Rep. 364. Wheeler v. Copeland, as to the affidavit. Also on a contract to transfer stock borrowed. Adams v. Verells, 1 Str. 497. So on the stat. 9 Ann. c. 14. which gives an action of debt against the winner, by gaming, it being at the suit of the party grieved. 2 Str. 1079. Tanner v. Warren. It is laid down, that a defendant cannot be held to bail If founded or for a penalty, but only for the sum secured by the penalty, a penalty. 6 Term Rep. 217. Hatfield v. Linguard. And in one In debt on case, which was debt on bond conditioned for the indem- bond conditioned for an nification of a parish against a bastard child, the penalty indemnificawas 501. the plaintiff swore that he was indebted to him tion defendant in that sum; defendant swore that only 31. and odd shil- ought not to lings were really due. On motion for common bail; the be held to bail for the pecourt said, plaintiff's conduct was altogether unjusti- nalty, but fiable, and that he was liable to an action. That in the only for the case of a bond conditioned for the performance of a amount of the promise of marriage, and in some other instances, the damages inpenalty is the real debt; but in other cases, the bail curred. could only be taken for the sum to which the plaintiff would be entitled in damages for the breach of the condition. Kirk v. Strickland, Doug. 449. M. 21 Geo. 3. But in Willes v. Dent, Hil. 23 Geo. 3. the affidavit was, that defendant was indebted in 10001. under and by virtue of a certain covenant contained in an agreement, the court refused a rule nisi for common bail. Sell. 44. not. Where a bond is given, conditioned for the payment What bonds of money, the plaintiff may hold to bail for the amount defendant may of the real sum due, with interest; but if they be bonds be held to bail of indemnity, or for performance of covenants, then for, and what to the amount of the real damage sustained by the breach of the condition, provided the same be for payment of money, or a sum for every acre of land plowed up. Barn. 108. But if the penalty be the real debt, and in nature of stated damages, as in bond for performance of Debt under 101. and increased by costs. In action on judgment plaintiff is not to have costs, unless other wise ordered. Levy. Balance considered to be the debt in law as well as in equity. marriage, Barn. 86, or to deliver goods, or forfeit 1001. then to the full amount of the penalty. Vide Sid. 63. Salk. 100. In Debt on the Judgment. In debt on the judgment, a defendant may be held to bail, though he might have pleaded bankruptcy to the first action. 1 Str. 477. Combs v. Blackhall. So if no bail be given in the original action, although a writ of error be brought and bail given on the writ of error. Com. Rep. 556. So where the debt was under 101. and increased to more than the sum by costs taxed, the defendant be may held to bail. 4 Term Rep. 570. Lewis v. Pottle. But now see the stat. 43 Geo. 3. c. 46. whereby it is enacted, that in all actions which shall be brought in England or Ireland, upon any judgment recovered, or which shall be recovered, in any court in England or Ireland, the plaintiff or plaintiffs in such action on the judgment shall not recover, or be entitled to any costs of suit, unless the court in which such action on the judgment shall be brought, or some judge of the same court, shall otherwise order. Sect. 4. The next section gives a power to levy under a fi. fa. the poundage, fees, and expences, over and above the sum recovered by the judgment. Where there have been mutual dealings between the parties, the balance is considered as the debt in 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 entitle the defendant to an action upon the case, for a malicious arrest. Dr. Turlington's case, 4 Burr. 1996. In what Cases Defendant may be held to Bail a second The general rule is, when defendant has been once arrested, he cannot be arrested again for the same cause of action. Nemo debet bis vexari pro eádem causa. If a second But where the defendant was arrested on a writ, pendwrit pending ing the first cause, and wherein he had been previously arrested, the court said, the plaintiff had been too quick, the first is for he should have had the costs taxed and paid before taken out, he took out the new writ, and discharged the defendant common bail. on common bail. Belifante v. Levey, 2 Str. 1209. cond action, In a similar case, where it appeared that the bail in the Where a man prior action were forsworn, the court refused to assist the was held to defendant, and said the plaintiff was right in laying hold bail in a seof him as he did, for had he discontinued before, the pending first. defendant would probably have run away, and therefore discharged the rule for common bail. Olmius v. Delany, Str. 1216. An arrest and and dishonor So where A having been arrested at the suit of B, gave him a drait for a part of the demand, and agreed to settle a draft given with him in a few days, after which the draft being dis- ed, a new writ honoured, B sued out a new writ against A on the same may issue on affidavit; this was holden to be regular. 6 Term Rep. 52. saine affidavit. Where the plaintiff is nonprossed for want of declara- After nontion, and he pays the costs, it was holden that he may pros, defenagain arrest the defendant, for he suffers enough by pay- give bail to ing the costs, and therefore ought not to be in a worse second action. condition than before. Turton v. Hayes, Str. 439. Formerly otherwise. 1 Ld. Ray. 679. Com. Rep. 94. S. C. dant shall The defendant being arrested for 251. lay in gaol till he Common bail, was superseded. The plaintiff meeting him afterwards, though on a got a note of him for 201. and brought a fresh action upon note given after a former it, and held him to bail, but the court discharged him action, whereupon common bail, for it is but a farther security, and in defendant does not extinguish the former cause of action, which was supersedmay be declared upon still. Taylor v. Wasteneys, 2 Str. ed. 1218. and see 8 East. 334. Daniel v. Dodd. cond time, if The defendant was arrested on an illegal warrant, and May be held ordered to be discharged. 6 Term Rep. 123. M. T. 35 to bail a seGeo. 3. The plaintiff discontinued the action, and held no fault of defendant to bail a second time. Motion to discharge plaintiff on him-The general rule, that a defendant cannot be held the first. to bail twice for the same cause of action was admitted; but it was said, there was an exception from that rule when he was discharged the first time for some act, over which the plaintiff had no control; and for which he was not answerable, which the court allowed: and discharged the rule. Housin v. Barrow, 6 Term Rep. 218. So where he misconceives his action, and moves to discontinue, and pays the costs, he may take out a new writ, and hold the defendant to bail de novo. 2 Wils. 381. Bates v. Barry. So where ac tion is misconceived. But where the bail had justified for 23341. and the But not when bail justified |