ROBINETT v. POLLARD, 2 Miles 99

Per Curiam. The general rule undoubtedly is that the defendant shall not be held twice to bail for the same cause of action, unless under very special circumstances. 4 Yeates 206. The cases exhibit this rule, as, where the plaintiff is non-prossed for want of declaring, or regularly discontinues his suit on payment of costs, he may hold the defendant to hail de novo. 2 T. R. 756. So, if the plaintiff be nonsuited in an action of debt on bond, for not sufficiently proving the execution of it, on non esi factum, the defendant may be held to bail again, in an action upon the same bond. 14 Johns. 347.

And if the defendant were discharged from the first arrest for some act for which the plaintiff is not answerable, as, an irregularity on the part of the officer, he may be held to bail on a second writ. 6 T. R. 218. These cases show that the allowing of a second capias and arrest, is within the discretion of the court, where special circumstances, for the purposes of justice, require them. And in Pennsylvania, it has been held that where a former suit had been brought against the defendant, for the same cause of action in which no bail had been required, special bail is clemandable.

Now, in this case a summons had been served, and the plaintiff illegally issued a special capias, afterwards quashed, and for which the defendant had his redress. At the time, however, of its issuing, it was a moot question as to whether the act of 13th June, 1836, extended to a case in point of date like this. We think that the special circumstances within the spirit of the decided cases exist here, and that on the affidavits on the merits presented by the plaintiff, it is our duty to exercise a discretion in refusing the application to discharge the defendant on common bail. Rule discharged.