Peck v. Hozier & Mulock — 14 Johns. 346

Majority

p. 348

Peck against Hozier and Mulock.

NEW-YORK,

October, 1817.

Headnote

A person who had been arrested in another state, and discharged from imprisonment, under the yet of the legislature of that state, may be arrested and held to bail here, for the same cause of action, at the suit of the same plaintiff.

THE defendants, at Barbadoes, drew two bills of exchange on England, which were endorsed by the plaintiff, and returned protested for non-payment, to Sherman, Porter, 8r Co. of New* Haven • Mulock, being at Boston, the holders, at the request of the plaintiff, brought a suit against Mulock, as drawer, in which he was arrested and imprisoned. After judgment was recovered against him, execution issued, and he was discharged, in March last, from the execution, pursuant to an act of the legislature of Massachusetts, for the relief of insolvent debtors. That suit, though in the names of Sherman, Porter, & Co. was for the sole benefit, and at the sole expense of the plaintiff, who was liable to' them as endorser, and had engaged to indemnify them for bringing the suit. It appeared, from the plaintiff’s affidavit, that he had since paid the amount of the bill. The defendant, on his arrival in New York, in September last, was arrested and imprisoned at the suit of the plaintiff, for the same bills.—On application to the recorder, his honour ordered the defendant to be discharged, on filing common bail, on the ground, stated in the order, that the defendant had been before arrested and imprisoned for the same cause of action, in the state of Massachusetts, in the name of Sherman, Porter, fy Co. but at the request and for the sole benefit of the plaintiff.

Slosson, for the plaintiff,

now moved for a rule to vacate and set aside the order made by the recorder. He cited Maule v. Murray, 7 Term Rep. 407. Smith v. Spinolla, 2 Johns. Rep. 193 . White v. Caneld, 7 Johns. Rep. 117 . James v. Allen, 1 Dallas, 188. Imlay v. Ellesfen, 2 East, 453. Nash v Tupper, 1 Caines, 402. Ruggles v. Keeler, 3 Johns. Rep. 263 . Sicard v. Whale, 11 Johns. Rep. 194 .

T. A. Emmet, contra, contended,

that this was to be taken as a case between the same parties, and for the same cause of action, for which the defendant had been arrested and imprisoned in Massachusetts. The maxim was, Nemo debet bis vexari pro mdem causa, and the defendant having been once arrested,

p. 349

nught not again to be held to bail for the same cause.^[1] He cited the cases of Millar v. Hall,^[2] and Thompsom v. Young,‡ decided in the supreme court of Penns~j1vania, as in point. In Bates v. Barry,^[3] it is said, that if the second suit was brought with an intent to oppress and harrass the defendant, the court would certainly discharge him on common hail. Now it ap- pears, from the affidavit of Strong, that the plaintiff declared, that whether iPIulock had property or not, he would pursue him as long as the law would permit; and, if for no other reason, in order to punish

The discharge of the defendant in Massachusetts was local, and of his person only; the debt was not discharged. In Sicard v. Whale, which was a similar case, we refused to order an exoneretur on the bail piece. The plaintiff is entitled to the remedy which our laws afford, and the lex loci contractus does not. apply in such case. (Smith v. Spinolla, 1 Johns. Rep. 198 .) The maxim, that no man shall be twice arrested for the same cause, is not universally true, for where the plaintiff is non prossed for want of declaring, or discontinues his suit, on payment of costs, he may arrest the defendant de novo; besides, the rule is applicable only to arrests within the same jurisdiction. We do not, in this respect, take notice of an arrest abroad, or in another state.'&emdash;The expressions used by the plaintiff, in regard to the defendant, were improper, but we do not think that there is' evidence of that oppression and vexation which should require the interposition of the court.

ON a question referred to the court by the clerk, relative to . 3 the assessment ot damages, whether he was authorized to take ° . . proof of the loss of the original paper, and assess the damages thereon, in like manner as on an execution of a writ of inquiry of damages before a sheriff; The Court said, the clerk had power to take such evidence as to a lost pnper, and assess the damages accordingly.

Footnotes

‡ ‡ Da1ta~, 29~ 388.