So be held to bail again in an action upon the same bond. 43 47 cond action Whenever the second action appears to be vexatious,44 or Where se the defendant is held to bail or detained in custody therein, is vexatious after being superseded or superseadeable in a former action by the laches of the plaintiff, the court will discharge the defendant on common bail;45 even though he be arrested on a note given subsequent to the supersedeas,46 or in a different form of action, so as it be substantially for the same cause. But where there are no laches in the plaintiff, and a 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, gave him a draft for part of the demand, and agreed to settle the remainder; after which the draft being dishonoured, B sued out a new writ against A, and held him to bail a second time; this was holden to be regular.48 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.19 And if the defendant be discharged out of custody, on account of some act for which the plaintiff is not answerable, as an irregularity on the part of the officer, in such case the defendant may, after the first action is discontinued, be again held to bail for the same cause.50 Rule con fined to cases risdiction. Another limitation of the general rule is, to cases arising within the same jurisdiction. A defendant who has been arin same ju rested and held to bail in another state, or in a foreign country, may be again arrested and held to bail here for the same cause; and this though he had been discharged from imprisonment, under an insolvent law of that state or country, of which the plaintiff likewise was a citizen, and though by the laws of such country the estate only and not the person of the debtor was liable. The plaintiff is entitled to the remedy which our laws afford, and the lex loci contractus does not apply to such a case.51 Penal action. Recognizance of bail, &c. 54 It has been held that the defendant could not be held to bail in an action upon a penal statute;52 but no such exception is contained in the revised law. It is settled that he cannot be held to bail in an action on a recognizance of bail, or bail or replevin bond, whether the action be brought in the name of the sheriff or assignee. It has however been decided that after judgment has been obtained against the bail in such action, the defendant may be held to bail in an action on the judgment.55 Many of the cases which have been cited may appear inapplicable under the revised statute. The terms of the act are general, that the defendant may be held to bail"in all actions of debt," "in all actions upon contracts," &c.; and there is no exception in the case of the pendency of another action for the same cause, nor any other recognition of the rule, "Nemo pro eadem causa bis vexari debet," than in the provision that in actions of debt upon a judgment the defendant shall not be held to bail, if he were held to bail in the original suit. It seems very questionable, however, whether it was the intention of the statute to allow a plaintiff to hold a man to bail a second 51 14 Johns. Rep. 346. 12 Johns. 53 1 Bac. Abr. 330. 2 Saund. 61. b. 6 Term Rep. 336. 54 Salk. 99. pl. 8. time during the pendency of the former action; and for this reason, and because the former rules are still applicable to those actions in which the defendant cannot be held to bail of course, without a judge's order, it has been thought proper to notice the decisions on this subject. against su others. It is provided by statute, that in actions against "the super- Actions visors of a county; the loan officers and commissioners of pervisors and loans of a county; county superintendents of the poor; supervisors of towns; overseers of the poor of the several towns; commissioners of common schools, and commissioners of highways of the several towns; trustees of school districts; and trustees of gospel and school lots ;" "the defendants shall not be held to bail in any case, unless upon the order of a judge of the court in which the action is commenced, founded upon proof by affidavit, that the same is brought for some personal misconduct in office, or upon some personal liability assumed or incurred by such defendants in their official character."56 ecutors and tors. Executors and administrators cannot be held to bail in any Against exaction against them in their representative character, unless administrasuch action be brought to charge them with waste ;57 nor then unless upon an order of the judge of the court in which the action is brought, founded upon an affidavit of the facts and circumstances to support such charge.53 trespass and In actions of trespass, except "trespass upon land" and Actions of trespass for taking personal property," and in actions on on the case. the case, the practice is not changed by the statute. To hold Judge's or the defendant in such cases to bail, it is necessary to obtain der. a special order of a judge for that purpose; and it seems by the statute, such order can only be granted by " a judge of the Granted on court in which the writ is issued." 1959 A full affidavit must be affidavit. granted. 60 made of the circumstances; and it is a matter of discretion When order with the judge to grant the order or not. If there has been a violent or cruel assault or outrageous mayhem, or the defendant is about to leave the kingdom, and in general if the case be attended with aggravated circumstances, it is usual to grant the order. But some special cause must be shown in the affidavit, especially in a suit for a libel.61 And the court discharged a defendant who had been held to bail on a judge's order, for a libel in styling the plaintiff " a late German convict," where the affidavit only stated the charge and declared the same to be false and malicious. 101 But an affidavit, stating that the defendant was a transient person and resided out of the state was held sufficient; the words being prima facie libellous.62 The damages which the plaintiff is likely to recover should be a guide to the judge in holding the defendant to bail.63 In slander of title it is said that special cause need not be shown in the affidavit.64 And in actions for criminal conversation the order is usually granted.65 Affidavit, how authen If the defendant conceive himself aggrieved by the judge's order, he may apply to the court to discharge him on filing common bail, or to reduce the amount for which he has been held to bail ; and on such application the plaintiff cannot offer a supplemental affidavit for the purpose of curing a defect in the original affidavit." .66 63 The affidavit to hold to bail may be made out of the state, ticated when but must in such case be properly verified. For this purpose abroad. it is requisite that the affidavit should be certified by some taken 60 1 Archbold's Pract. 57. 1 Sellon's Pract. 42. Sid. 307. 183. Lev. 39. Brownl. 91. 61 2 Caines' Rep. 47. 2 Johns. Rep. 293. 20 Jonns. Rep. 337. 101 2 Caines' Rep. 47. 62 2 Johns. Rep. 293. 63 1 Sellon's Pract. 42. Rep. 369. 1 Lev. 39. 1 Dunlap's 65 Barnes. 61. Sellon's Pract. 43. Archbold. 58. 662 Caines' Rep. 47. 2 Johns. Rep. 293. 67 20 Johns. Rep. 337. 68 Barnes. 466. Str. 1209. 7 64 2 Caines' Rep. 47. 8 East. Term Rep. 247. judge of a court having a seal, to have been subscribed and taken before him, specifying the time and place where taken; and that the genuineness of such signature, the existence of the court, and the fact that such judge is a member thereof, should be certified by the clerk of the court under the seal thereof.69 made pre rest. An affidavit made abroad must contain all the requisites of an affidavit made to hold to bail in this country. 70 The Must be affidavit must be made previous to the arrest; if made after- vious to arwards, it will not support the holding to bail." And it is not good if sworn to a long time before the process is issued. Where the process did not issue for three years after the making How long in of the affidavit, the court discharged the defendant on common bail.72 And it seems that in England a year is the extent of time during which an affidavit to hold to bail is considered in force.73 force. SECTION III. OF BAIL TO THE SHERIFF, OR BAIL BELOW. We have already seen, that if the process be not bailable, the defendant cannot be imprisoned, but is entitled immediately to his discharge; but that if it is required by the writ, that he be held to bail, it is the duty of the officer, after the arrest, "to keep him in custody until discharged according to law."74 The statute then provides, that "every defendant so arrested, discharged shall be entitled to be discharged therefrom, upon executing cess bailable. How defendant may be where pro |