debt. De la Vega v. Vienna, 1 B. & Ad. 284. But where a foreigner was arrested in this country, upon a deed executed in France, which, by the laws of France, would have bound his property only, and not his person, the court of Common Pleas held that it could have no greater effect here, and discharged the defendant. Melo v. Duc de Fitzjames, 1 B. & P. 138.

Where a defendant had been arrested in an action on the Prothonotary's allocatur for costs, the court of Common Pleas, upon application, discharged him; and they expressed great doubt whether such an action would lie. Fry v. Malcolm, 4 Taunt. 705.

Debt.] In debt on judgment, the defendant may be holden to bail, if he could have been arrested in the original action, and was not. Even where the defendant was arrested in the original action, but was discharged on a common appearance, on the ground of a variance between the declaration and affidavit to hold to bail, the court held that he might again be holden to bail in an action on the judgment. De la Cour v. Read, 2 H. Bl. 278. It would have been otherwise, however, if he had been a prisoner in the first action, and were superseded for want of prosecution. R. H. 8 G. 2, C. P. 2 Str. 782, 1039. But he cannot be holden to bail in debt on a judgment in trespass, even although the damages exceed the sum for which a party may in ordinary cases be arrested. Cressey v. Kell, 1 Wils. 120. Formerly a defendant might be holden to bail on a judgment for debt and costs, although the debt of itself was not of the required amount to warrant an arrest; Lewis v. Pottle, 4 T. R. 570. See Anon. Couper, 128 cont.; and in the court of Common Pleas, he might have been holden to bail in debt on judgment for the costs of a nonsuit, Nightingale v. Nightingale, 2 W. Bl. 1274, although in the court of King's Bench it was otherwise. Bush v. Bates, 5 Burr. 2660. But this is now regulated by stat. 7 & 8 G. 4, c. 71, s. 1, by which it is enacted that no person shall be holden to special bail, "where the cause of action shall not have originally amounted to the sum of 201. or upwards, over and above and exclusive of any costs, charges and expenses that may have been incurred, recovered, or become chargeable in or about the suing for and recovering the same, or any part thereof." It seems that the circumstance of a part of the amount of the judgment being levied under a fi. fa., will not prevent the plaintiff from holding the defendant to bail for the residue, if it be sufficient in amount to warrant an arrest. Hesse v. Stevenson, 1 New. Rep. 133. Debt on judgment, however, is now very seldom brought, as by stat. 43 G. 3, c. 46, s. 4, the plaintiff is not entitled to costs in it, unless the court or a judge shall otherwise order.

In debt on bond, conditioned for the payment of money, the defendant may be holden to bail, as of course, for the sum actually due upon it, but not for the penalty. Kirk v. Strickland, Doug. 432. Chambers v. Ward, 1 Dowl. 139. And where a bond is conditioned for the payment of a sum by instalments, the obligee, on failure of payment of any of the instalments, may hold the obligor to bail for the whole amount. Talbot v. Hodson, 7 Taunt. 251. Where a surety, to whom the defendant had given a bond of indemnity, paid several sums on his account, amounting to more than 201., it was holden that he might hold the defendant to bail for the amount. Anderson v. Rell, 2 Tyr. 732. Also a party, having a mortgage and also a bond for the same debt, may hold to bail upon the bond, for the sum due and interest, although a suit be pending in equity for a foreclosure. Burnell v. Martin, 2 Doug. 417. But the parties to a bailbond, cannot be holden to bail in an action upon it. Brander v. Robson, 6 T. R. 336. Mellish v. Pitherick, 8 T. R. 450.

If money be payable by any other species of deed, such as a lease, mortgage, annuity deed, &c. the party indebted may be holden to bail upon it. So in debt on award, for the payment of 201. or upwards, the defendant may be holden to bail, Collins, v. Powell, 2 T. R. 756, the affidavit stating the money to have been payable "at a certain day now past," Anon. 1 Dowl. 5, or shewing otherwise that the time for payment of the money has elapsed. In debt on charter party, also, the party may be holden to bail; and an affidavit in such a case has been holden good, without stating a breach of the charter party. Skeen v. Mc. Gregor, 1 Bing. 242.

Covenant.] In covenant for the payment of a sum certain, the covenantor may be holden to bail; See Lambert v. Wray, 3 Dowl. 169; but not so in any other case.

Detinue, Trespass, Case, Trover.] Formerly, no person could be holden to bail in trover or detinue, without an order made for that purpose by the chief justice or other judge of the court; R. H. 48, G. 3, K. B.; R. H. 48, G. 3, C. P.; and the same in the Exchequer. Dax. Pr. 50. In trespass, also, a judge at chambers might make such an order upon an affidavit of the facts; and it frequently occurred, in cases of very aggravated assaults, of very aggravated trespasses to property, real or personal, particularly where the defendant was about to leave the country. So, in trespass for mesne profits, if a proper case were made out for a judge's interference in this respect, he would grant an order. So, in actions on the case in tort, a judge, upon application, in very gross or serious cases, would make an order. But where a tenant fraudulently removed his goods,

So,

to prevent a distress, Taunton, J., refused an order to hold him to bail in an action for double value of the goods, saying there was no instance of an order being granted in such a case. Sutton v. Oswald, 1 Dowl. 348. The application for such an order, was, of course, ex parte; and as the judge, on that account, expected to be fully satisfied that the plaintiff had a good cause of action, the affidavit must have shewn all the facts necessary to support it. Driver v. Hood, 7 B. & C. 494. Great care was required to be taken in this respect; for even if the judge made the order, the affidavit might afterwards be brought under the consideration of the court, upon a motion to discharge the defendant out of custody. Where the affidavit was, that the defendant was indebted to the plaintiff in a certain sum" in trover," without stating more, the court ordered the bail bond to be cancelled. Hubbard v. Pacehco, 1 H. Bl. 219. So, in trover for a bill of exchange, the affidavit was holden bad, because it did not allege that the bill remained unpaid, for without this it did not appear that the bill was of any value. Clarke v. Cawthorne, 7 T. R. 321. where the affidavit stated, that the plaintiff's cause of action against the defendant was, for converting and disposing of divers goods and chattels, of the value of 2501., which he refused to deliver up, though the plaintiff demanded the same: this was holden bad, as not stating positively any cause of action; the defendant was stated to have refused to deliver up the goods, but it was not stated that he had ever taken them. Woolley v. Thomas, 7 T. R. 550. In another case, however, which was an action of trover against a custom house officer, an affidavit, stating the defendant to be indebted to the plaintiff in 1037., for goods of the plaintiff which the defendant had converted to his own use, was holden sufficient. Emmerson v. Hawkins, 1 Wils. 335. So, an affidavit in trover, that the deponents had possessed themselves of certain goods of plaintiff, and refused to deliver them up, and that they or some of them had converted them, was holden good; because the possession and refusal by all, was a conversion by all, and the latter words were surplusage. Charter v. Jacques, Cowp. 529. So, an affidavit stating circumstances, shewing that the plaintiff was damnified to a certain amount, was holden sufficient, although it improperly stated the defendant to be indebted to that amount. Imlay v. Ellefsen, 2 East, 453. Swearing as to belief, has in some cases of this kind been permitted, Allen v. Barry, 1 Chit. 168, particularly with respect to the amount of damage alleged to have been done. Hodgson v. Dowell, 3 M. & W. 284. But where in trover by assignees of a bankrupt, the conversion was sworn to merely" as appears by the books of the bankrupt, and by the letters of S. (the agent), and letters of the plaintiffs, as this deponent believes :" the court held that the affidavit in this respect was not suffi

ciently certain to shew a conversion; and they discharged the defendant on common bail. Molling v. Buckholtz, 2 M. & S. 563.

And in all actions on the case, trover, detinue or trespass, where the defendant might have been holden to bail, by order of a judge, as above mentioned, a judge will make a like order still, if the necessary affidavit can be made, shewing his intention to quit England.

Actions by persons in autre droit.] Executors and administrators, assignees of bankrupt, and others suing in autre droit, may hold to bail, in precisely the same cases as the persons, whom they represent, might have done. The only distinction is, in the form of the affidavit, which shall be noticed hereafter.

For what amount of debt.

By stat. 7 & 8 G. 4, c. 71, s. 1, no person shall be holden to special bail, "where the cause of action shall not have originally amounted to the sum of £20 or upwards, over and above and exclusive of any costs, charges and expenses, that may have been incurred, recovered or become chargeable in or about the suing for or recovering the same or any part thereof."

As to defendants residing in Wales, and the counties palatine, formerly they could not be arrested upon any mesne process issuing out of any of the courts at Westminster, unless the process were duly marked and indorsed for bail in a sum not less than £50. 7 & 8 G. 4, c. 71, s. 7. But this section is holden to have been virtually repealed by stat. 1 & 2 Vict., c. 110; and a judge may now order a defendant to be holden to bail in the counties palatine, in a sum under £50, in precisely the same manner as in other counties. Brown v. Mc. Millan, 7 Mees. & W. 196, 10 Law J. 147 ex.

Where the parties have cross demands upon each other, the plaintiff should arrest for the balance only; and if that be not of a sufficient amount, he should not apply for a capias. Where a plaintiff in such a case, instead of giving credit for the amount he owed his debtor, held him to bail for the full amount of the debtor side of the account, and recovered the balance only: the court, upon application by the defendant, deprived the plaintiff of his costs, under stat. 43 G. 3. c. 46, s. 3. Dronefield v. Archer, 5 B. & A. 537. And in another case, where the plaintiff arrested the defendant for £23, when he knew that upon the balance of accounts only £5 was due to him, and the defendant brought an action against him for it; the court held that the arrest was mali. cious and without probable cause, and that the party was en

titled to recover. Austin v. Debnam, 3 B. & C. 139. But where two tradesmen agreed to deal with each other by way of barter, and afterwards one of them, when applied to, refused to give any statement of his account, it was holden that the other was warranted in arresting him for the whole value of the goods he had furnished. Germain v. Burrows, 5 Taunt. 259. Where the acceptor of a bill of exchange for £25, finding that the holder was about to proceed against him upon it, offered by letter to pay him £10 on account, and afterwards paid that sum to his wife; notwithstanding this, however, the acceptor was afterwards arrested for the £25: upon application to discharge him out of custody, it was argued for the plaintiff, that having another demand against the acceptor, and there being no specific appropriation of the £10 to the bill, at the time it was paid, he had appropriated it to the other demand, so that the £25 was still due upon the bill; but the court held that the previous letter was an appropriation, and that as £15 only remained due, the plaintiff had no right to have the defendant arrested; he was therefore ordered to be discharged. Short v. Cunningham, 1 Dowl. 662. But where an attorney arrested his client for the amount of his bill, and afterwards the bill was reduced upon taxation below the amount for which the client could have been holden to bail the court refused to order the bail bond to be cancelled. Thwaithes v. Piper, 4 D. & R. 194. Where the defendant was indebted to the plaintiff in a sum for which he could not be arrested, and the plaintiff procured the holder of a promissory note of the defendant to indorse it to him, and then held the defendant to bail for both debts jointly: the court, deeming this an artifice for the purpose of evading the statute, discharged the defendant upon common bail. Wigglesworth v. Isherwood, 1 Ld. Ken. 371.

Where the payment of money is secured by a penalty, the party shall not be holden to bail for the penalty, but merely for the amount of the sum secured by it. Hatfield v. Linguard, 6 T. R. 217. Kirk v. Strickland, 2 Doug. 449. So, if a tenant be bound in a penalty of £100, to do certain repairs within a limited time: the court will not allow him to be holden to bail for the £100, upon an affidavit which does not shew in what respect and to what amount he has violated his contract. Edwards v. Williams, 5 Taunt. 247. If, indeed, the amount sought to be recovered be liquidated damages for the breach of a contract, &c. the defendant may be holden to bail for it. Per Ld. Ellenborough, C. J., Wildey v. Thornton, 2 East, 400. But the affidavit in such a case, must shew very fully that they are liquidated damages, and not a mere penalty, Id., and must also shew a breach of the contract. Stinton v. Hughes, 6 T. R. 13. And the merely calling them liquidated damages in the contract, will not make them so. Therefore