SECTION IV. CONSEQUENCES OF HOLDING TO BAIL PRIVILEGED PERSONS. ALTHOUGH in enumerating the different classes of individuals protected from being holden to bail, and the various circumstances which conduced to create such an immunity, the mode of taking advantage of the privilege was pointed out under its appropriate division; it may, nevertheless, be expedient, in this place, concisely to recapitulate the general principles applicable to the consequences of infringing any of the ordinary exemptions from arrest. The party arrested, in some cases, has a choice of reme- Party's remedy by dies; a right to be discharged on motion; to punish the motion. party for a contempt; or bring an action for false imprisonment. When the privilege is apparent, manifest, and acknowledged, and the arrest consequently irregular, the court will, in general, discharge the party out of custody, on motion, whether the exemption be of a personal, temporary, or local nature. (o) But when the right to protection from arrest is involved in doubt, the court will not, upon a summary application, discharge the party, but leave him to his remedy by action, or to plead his privilege. The exceptions which occur to this general rule have been noticed in the preceding section, whilst specifying the nature, duration, and effect of each particular ground of exemption. a contempt, c There are, however, some cases where the privileged By incurring parties, when arrested, would not only be relieved upon motion, but the person executing the process, as in proceeding against a branch of the Royal Family, a (0) Bartlett v. Hebbes, 5 T. R. 686. K Consequences of holding to bail privileged per sons. By incurring a contempt, &c. peer, or member of the House of Commons,-would incur the liability of being committed for a breach of privilege, by the House of Lords, or House of Commons, according to the source from whence the protection was derived. It has been seen, that if the sheriff were to arrest an ambassador or his servant, not only the sheriff and his officer, but also the plaintiff at whose suit the process issued, and his attorney, would be subject to fine, imprisonment, and corporal punishment; (p) and it would seem, that a contempt would be incurred by arresting a person to whom the King had extended his prerogative of protection. In every other case of personal, temporary, or local privilege, the sheriff may execute the writ, without any regard to the privilege of the defendant; and no action for false imprisonment can be maintained against him or his officer, for executing the process. (q) General rule. CHAPTER IV. OF HOLDING TO BAIL, IN A SECOND SUIT, FOR THE SAME To secure and protect a defendant from being capriciously arrested and vexatiously holden to bail a second time for the same cause of action; and in accordance with the humane maxim, nemo debet bis vexari pro eadem causa, it See ante, p. 63. 7 Ann. c. 12. Cameron v. Lightfoot, 2 Bl. Rep. 1190. Tarlton v. Fisher, 2 Doug. 671. Anon. Loft. 433. Sed vide ante, Section 3. arrest. rule. is ordered by a rule of court (a) made at an early period of Second our judicial practice, " that if a defendant shall be lawfully delivered from an arrest upon any process, he shall General not be again arrested at the same time, by virtue of any process at the suit of the same plaintiff; and if any attorney or plaintiff shall offend in the premises, the name of such attorney, shall be struck off the roll; and further, as well the said attorney as the plaintiff in the said process named, shall be respectively punished as to the court shall seem just." first action was not But this rule is only intended to afford relief, where the Where the party has sustained some personal inconvenience in consequence of bail having been required; hence, where the bailable. defendant has not been arrested in the first instance, but merely served with common process, the plaintiff is entitled to hold him to bail in a second action for the same cause.(b) And this mode of procedure may even be adopted before the first action, when commenced by a serviceable writ, has been discontinued ; (c) subject, however, to a plea of auter action pendant in abatement. (d) defendant is dis Where the defendant's discharge from custody is occa- Where the sioned by a circumstance over which the plaintiff could have had no possible control, such as an alteration in the charged in warrant by the sheriff's officer, under which the arrest was made, without the knowledge or concurrence of the plain- which the tiff, the party may be again holden to bail. (e) So, where a bond had been given, conditioned for the payment of a sum of money, if a sentence in the Admiralty Court of Antigua should be affirmed on appeal: (a) R. M. 15 Car. 2. s. 2. K. B. (6) Bishop v. Powell, 6 T. R. 616. Davison v. Cleworth, 1 Chit. Rep. 275.n. Lee v. Long, Wightw. 72. (c) Ibid. (d)Per Lord Ellenborough, C. J., 1 Chit. Rep. 275. n. (e) Housin v. Barrow, 6 T. R. 218. conse quence of an act over plaintiff has no control. Second arrest. Where the defendant is discharged in conse quence of an act over which the plaintiff has no control. After arrest in a foreign country. After an arrest on a ne exeat regno. the appeal was dismissed for want of prosecution, in consequence of which the defendant was arrested, and bail put in and perfected; but the appeal being restored upon petition, the proceedings in the former action, were suspended, and the bail discharged; owing, however, to its being again dismissed, and the party's consequent liability on the bond being revived, the defendant was a second time arrested. The court rejected an application to discharge the defendant out of custody under such circumstances, conceiving that the plaintiff was entitled to bring his action, with all the advantages which he formerly possessed, one of which was the power of holding him to bail.(f) Although a defendant may have been previously arrested in a foreign country for the same cause, he is still liable to bailable process in England; at least this practice may be adopted where it does not distinctly appear that the plaintiff might have obtained equal benefit and advantage by proceeding abroad as in this kingdom. (g) Upon a similar principle, a defendant may be a second time holden to bail, where the prior arrest has been effected by process issuing from a court where the method of redress is different from that in which the original suit was instituted. As where a writ of ne exeat regno had issued against a party who was afterwards arrested for the same debt, on a capias out of the Court of Common Pleas, an application to discharge the defendant was refused, and the court said. "that a motion to set aside proceedings in a court of law, on account of a suit pending in equity, was never granted." (h) (f) Woodmeston v. Scott, 1 N. R. 13. Maule v. Murray, 7 T. R. 470. Imlay v. Ellefsen, 2 East, 453. Potter v. Brown, 5 East, 124. 1 Smith, 351. s. c. See ante, p. 27. (4) Musgrave v. Medex, 8 Taunt. 24. arrest. Arrest after foreign at So where B. had been proceeded against by fo- Second reign attachment, at the suit of A., and had surrendered, and pleaded in abatement, that the debt was not incurred within the jurisdiction of the mayor's tachment. court; and upon the foreign attachment being discontinued, B. was arrested by A., upon process out of the Court of Common Pleas; it was determined that the foreign attachment could not be deemed equivalent to an arrest, so as to entitle B. to be discharged out of custody on entering a common appearance. (i) two writs in different Where the defendant had been arrested and had given Arrest on two bail-bonds on two separate writs, which had been sued out into different counties, but was almost immediately counties. apprized by the plaintiff, that it originated in a mistake, and that no further proceedings would be taken on the second writ; the court refused to set aside the assignment of the first bail-bond, but ordered that the second writ should be set aside, and that the plaintiff should pay the costs incurred up to the time when he gave the defendant notice that he should abandon his proceedings in the second cause. (k) In a subsequent case, (1) however, on a similar application being made, arising out of analogous facts, the rule was discharged, as not being adapted to the circumstances of the case. The proper course of procedure would have been a motion to enter an exoneretur on one of the bail pieces, and not a rule to set aside one of the two writs for irregularity. The circumstance of a former action having been compromised, will not authorize the court to interfere in setting aside the proceedings in an action instituted for (1) Wood v. Thomson, 1 Marsh, 395. 5 Taunt. 851. s. c. Bromley v. Peck, 5 Taunt. 852. n. (k) Bullock v. Morris, 2 Taunt. 67. (Powell v. Henderson, 1 Chit. Rep. 392. promise of former action. |