In re Bowen

Wisconsin Supreme Court

In re Bowen

20 Wis. 300

DecidedJanuary 15, 1866

StatusPublished

This text of 20 Wis. 300 (In re Bowen) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bowen, 20 Wis. 300 (Wis. 1866).

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Opinion

Downer, J.

The petitioner asks to be discharged from arrest because, after having been once arrested and voluntarily discharged by order of the plaintiff in the action, he was arrested a second time in the same action for the same cause on a second order or warrant of arrest. It is doubtful whether there was any arrest on the first order. But without deciding whether there was or not, we prefer to place our decision upon the ground that, if there was, the second arrest was legal. The petitioner and the other defendants in the action in which -the petitioner was arrested, after consultation, informed the sheriff that they came to the conclusion that the first order of arrest was defective and void on its face. The plaintiff, thinking there was some doubt about its validity, directed the petitioner to be discharged, and then procured a second writ or order based upon the same affidavit, on which the petitioner was again arrested ; and from such arrest he prays to be discharged. We think the authorities are to the effect that a second arrest on mesne process for the same cause of action may be made, when it is not made to vex and annoy the defendant, and the party procuring the arrest acts in good faith. Puckford v. Maxwell, 6 Term, 36; Kearney v. King, 1 Chit. Rep., 273; 18 E. C. L., 77, and authorities cited in note (a); Penford v. Maxwell, 18 E. C. L., 79; Tidd’s Prac., vol. 1, 174 et seq.

By the Court. — The order appealed from is affirmed.

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Downer, J.

The petitioner asks to be discharged from arrest because, after having been once arrested and voluntarily discharged by order of the plaintiff in the action, he was arrested a second time in the same action for the same cause on a second order or warrant of arrest. It is doubtful whether there was any arrest on the first order. But without deciding whether there was or not, we prefer to place our decision upon the ground that, if there was, the second arrest was legal. The petitioner and the other defendants in the action in which -the petitioner was arrested, after consultation, informed the sheriff that they came to the conclusion that the first order of arrest was defective and void on its face. The plaintiff, thinking there was some doubt about its validity, directed the petitioner to be discharged, and then procured a second writ or order based upon the same affidavit, on which the petitioner was again arrested ; and from such arrest he prays to be discharged. We think the authorities are to the effect that a second arrest on mesne process for the same cause of action may be made, when it is not made to vex and annoy the defendant, and the party procuring the arrest acts in good faith. Puckford v. Maxwell, 6 Term, 36; Kearney v. King, 1 Chit. Rep., 273; 18 E. C. L., 77, and authorities cited in note (a); Penford v. Maxwell, 18 E. C. L., 79; Tidd’s Prac., vol. 1, 174 et seq.

By the Court. — The order appealed from is affirmed.

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Bluebook (online)

20 Wis. 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bowen-wis-1866.