Agar v. Haines

—At the time of commencing the action the plaintiffs obtained an order to arrest the defendant, in which bail was fixed at $100. The plaintiffs’ claim is $149.37, and the bail ought to have been fixed at about $250. The defendant is defending the action, and the plaintiffs now move to increase the bail so as to cover their claim and the probable costs. There is no warrant for this practice to be found in the law relating to civil arrests. The statute requires that the judge granting the order shall fix the amount of bail (Code, § 561), and while there is express authority given to the defendant to apply to reduce the amount or to increase the security given by the plaintiff (Code, § 567), there is no authority given to a plaintiff to apply to increase the bail given by the defendant pursuant to the command of the order under which he is arrested. The defendant is constructively under arrest now (being on bail), and there cannot be two arrests of the same defendant in the same action for the same cause at the same time. The practice contended for by the plaintiffs would, if adopted, permit cumulative arrests on the instalment plan, a scheme which has not as yet commended itself to legislative or judicial sanction. It follows that the motion to increase the bail or to strike out the defendant’s answer if he does not assent thereto, must be denied, with ten dollars costs to the defendant to abide the event.