Officer need not be actu of him.17 Where a bailiff having a warrant against a man, went to him in his yard, and being at some distance, told him he had a warrant, and said he arrested him, but the man having a fork, kept the bailiff off and retreated to the house; it was held that this was no arrest; that bare words could not make an arrest; for if it were otherwise, if a bailiff should see a man looking out of his window, and tell that "he had a writ and arrested him," he would be his prisoner and the bailiff might break open the house.18 If the bailiff, who has a process against one, says to him when he is on horseback or in a coach, you are my prisoner, I have a writ against you," upon which he submits, turns back or goes with him, though the bailiff never touched him, yet it is an arrest, because he submits to process; but if instead of going with the bailiff he go or flee from him, it is not an arrest unless the bailiff lay hold of him.19 Where an officer came into a room and told the defendant that he arrested him, and locked the door, it was held to be an arrest.20 It is not necessary that the officer who has the authority ally present. should be the hand that arrests, nor in the presence of the person arrested, nor actually in sight, nor is any exact distance prescribed; it is sufficient if he be bona fide and strictly engaged in the business of the arrest; and he will, for the purpose of authorising it, be deemed constructively present.a1 Writ need not be shown unless re quested. Duty of sheriff on arrest.] If a bailiff puts his hands upon the party, saying that he arrests him, it is a sufficient arrest without showing him the writ and without saying at whose suit he is arrested, if he does not ask it. But it has been held, that if the party require it, he ought to show the warrant, tell at whose suit, for what cause, by what process and in what 17 Salk. 79. pl. 2. Horner vs. 19 Bull. N. 3. 62. 20 Hardw. 304. 1 Archbold. 79. and see 2 New. Rep. 211. 212. 21 Salk. 79. pl. 2. Com. Dig. Execution C. 12. 10 Johns. Rep. 85. Cowp. 63. And it is now provided court returnable the arrest is made.2 appearance. cess. It is further provided in a previous chapter, "that upon Endorsing the service of a capias ad respondendum upon any person which does not require the defendant to be held to bail, he may endorse his appearance on such writ, or if he refuse to do so, the sheriff may return the writ personally served."24 But if Bailable pro the writ require the defendant to be held to bail, it must be executed, "by arresting the body of the defendant and keeping him in his custody until discharged according to law."25 How and on what terms, the prisoner may in such case obtain his discharge we shall see hereafter.26 No female can be imprisoned on any process in any civil action founded upon contract.27 excused. Rescue.] If the sheriff arrests the party by virtue of mesne when sheriff process, and he is rescued as he carries him to jail, it is a good excuse for the sheriff, and he may return the rescue. 28 On the other hand, if the party be once within the walls of the prison, a rescue from thence, will be no defence in an action for an escape, unless it were the act of public enemies: if a company of rebels break the prison and let out the prisoner, yet the sheriff is answerable; because the law supposes the sheriff and his posse are sufficient to resist such a force.29 23 R. 2 Cro. 485. 6 Co. 54. 9 27 R. St. P. 3. Ch. 7. T. 6. s. 28 Cro. Eliz. 868. Cro. Jac. 419. Co. 69. a. Com. Dig. Execution 9. Vol. 2. p. 428. C. 12. 23 R. St. P. 3. Ch. 7. T. 6. s. 3 Lev. 46. Str. 435. Gilb. C. P. 76. Vol. 2. p. 440. 24 R. St. P. 3. Ch. 6. T. 1. s. 4. Vol. 2. p. 347. 25 Ib. s. 10. 28 Vide post Sect. 4. 23. 29 1 Roll Abr. 811. 4 Co. 84. Str. 435. Burr. Rep. 2812. 7 Johns. Rep. 512. SECTION II. Actions of debt, upon contracts. Actions ex delicto. Rule in other cases. WHEN THE DEFENDANT MAY BE HELD TO BAIL. In some cases the defendant may be held to bail of course; in others it is necessary to procure in the first instance a judge's order for that purpose. The revised statutes contain the following provisions, defining the cases in which the defendant may be held to bail of course : "In the following cases the defendant may be held to bail of course, and without any special order for that purpose: 1. "In all actions of debt, except such as shall be brought upon a judgment rendered in a suit wherein the defendant was held to bail; and except such as shall be brought upon any bond or recognizance of bail or upon any replevin or other bond in which any surety shall have joined, taken in the course of judicial proceedings, or by virtue of any statute: 2. "In all actions upon contracts for the payment of any money, the performance of any service, or the delivery of any property, where the demand or damages shall be certain, or can be reduced to certainty ; 3. "In actions of trover and in actions of trespass for taking personal property, and in actions of replevin in the cases provided by law: 4. "In actions for trespass upon land.50 "In all cases other than such as are herein provided for holding a defendant to bail, an order requiring such bail may be granted by a judge of the court in which the writ is issued, in the cases and according to the practice established in the supreme court.si "Persons prosecuted in their representative character as heirs, executors, administrators, assignees or trustees, under the provisions of any statute or otherwise, cannot be held to bail unless they shall have incurred a personal obligation to the debt or demand claimed."32 pay the statute. It will be observed that the provisions of the statute (with Operation of the exception of "persons prosecuted in their representative character as heirs, executors," &c.) are confined to those cases in which the defendant "may be held to bail of course without any special order for that purpose." In all other cases "the practice established in the supreme court" is still to prevail. Whether, therefore, in the cases excepted in the statute, (" of a judgment rendered in a suit wherein the defendant was held to bail," &c.) a person may be held to bail upon a judge's order, or is exempt from giving bail altogether, depends upon the practice as established, before the statute. It is a general rule that the defendant, having been once General rule. held to bail, cannot be held to bail a second time for the same cause of action, "Nemo debet bis vexari pro eadem causa." Upon this principle it has been held that in an action of debt upon judgment, (one of the cases excepted in the statute,) whether, after verdict or by default, the defendant cannot be compelled to give bail if there were bail in the original action :35 and this though the bail in that action has since become insolvent or the defendant has surrendered in their discharge and obtained a supersedeas. But it has been held that where the Exceptions. bail in the original action were discharged, by the plaintiff's declaring in a different form of action from that mentioned in the writ, the defendant might be held to bail in an action on the judgment.35 It has also been decided that where a cause of Arbitration. action in which the defendant has been holden to bail is referred Practice where plain nonprossed or discon tinues, &c. to arbitration, the defendant may be holden to bail again in an action upon the award, on the ground that the reference put an end to the first action, and that a new cause of action arose by the arbitration.3 36 The same rule is applicable to cases where process is taken out during the pendency of an action in which the defendant has been held to bail for the same cause.$7 But where the tiff has been plaintiff has been nonprossed in the first action, or discontinues his suit, or the judgment in the first action has been reversed for error, it has been held that he may, after payment of costs, hold the defendant to bail in a new action for the same cause.58 And it seems that the plaintiff, after suing out process without an ac etiam, may sue out a bailable writ for the same cause and hold the defendant to bail before he discontinues the first action.39 Where it clearly appeared that the bail in the first action had forsworn themselves, and were in fact worth nothing, the court held that the plaintif was justified in holding the defendant to bail in a second action for the same cause, even before he had discontinued the first; for had he first discontinued, it was very probable the defendant would have absconded.40 But where a plaintiff, merely because he did not like the bail, discontinued and held the defendant to bail in a second action, the court held this conduct unwarrantable and discharged the rule giving the plaintiff leave to discontinue; so that the bail to the former action, who had justified, still remained liable on their recognizance. If the plaintiff has been nonsuited in an action of debt on bond, for not sufficiently 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 arrested, the defendant may 41 |