Wells, Administrator, against Gurney
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1828 |
| Date | 01 January 1828 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 1229
IN THE COURT OF KING'S BENCH.
re-[769]-specting the operation of docketed judgments, that in actions by originaLthe judgment refers to the essoign-day. Rule discharged. wells, Administrator, against gukney. 1828. Where, by the contrivance of plaintiffs attorney, a party had been arrested on a Sunday on criminal process, for the purpose of effecting his arrest on civil process, and he was detained in custody till Monday, and then arrested on the civil process, the Court ordered him to be discharged out of custody. Quaere, whether a party can be arrested a third time for the same cause of action. A rule nisi had been obtained for discharging the defendant out of custody, he having been arrested a third time for the same cause of action. Upon cause being shewn, the Court referred it to the Master to report on the facts. He made the following report:-The action was brought on a bond; and on the 7th July, the defendant was arrested the first time, and discharged from custody on the ground that there was no ac etiam to the writ. He was immediately arrested a second time, and discharged by Bayley J. on the ground that the first action had not been discontinued. On Sunday, the 16th November, he was apprehended upon a warrant for an alleged assault upon one Parlett, and on the following day taken to Bow Street, where he was bailed for the assault, and arrested there again the third time. The defendant in his affidavits suggested, that the charge of assault was fictitious, and a contrivance of Bozon, the plaintiff's attorney, to get the defendant to Bow Street for the purpose of arresting him. He, however, failed in establishing that the charge was fictitious altogether, but proved that there was a hostile feeling towards him on the part of Bozon the attorney, and that the latter and Parlett were acting in concert, and that the carrying [770] of the defendant to Bow Street was made use of to effect the arrest. Crowder and Kelly now shewed cause. The defendant was properly arrested. The charge of assault was not fabricated. An actual assault was proved before the magistrate, and the defendant was ordered to find bail. The warrant was taken out by Parlett before he had any communication with Bozon, and not for the purpose of this cause. It might lawfully be made available afterwards for the purpose of executing civil process. This case is distinguishable from Birch v. Prodger (1 N. Eep...
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