It should, however, be observed, that it is purely a matter of discretion with the Court to allow actions to be consolidated; they will, in general, consolidate them, if they can be joined, and if it appear that they were brought separately for the purpose of vexation or oppression (y). for same The rule that nemo debet bis vexari pro eâdem causâ was Second arrest also frequently applied in practice prior to the recent act cause. abolishing arrest on mesne process; thus, if a defendant had been once arrested, he could not, in general, be arrested again at the suit of the same plaintiff for the same cause of action, unless, perhaps, where the whole proceedings had been set aside for irregularity, or unless by a rule of Court or a judge's order, which was, in some instances, allowed upon the terms of the plaintiff's discontinuing and paying the defendant his costs; and it would seem that a defendant, if about to quit England, may now be arrested a second time on obtaining an order under 1 & 2 Vict. c. 110, s. 3, in all cases in which he might have been arrested before that act, "whether upon the order of a judge, or without such order (z).” in criminal The most important application, however, of the maxim Application now under consideration occurs in criminal law, the rule law. being well established, that when a man is indicted for an offence, and acquitted, he cannot afterwards be indicted for the same offence, provided the first indictment were such that he could have been lawfully convicted upon it by proof of the facts contained in the second indictment; and if he be thus indicted a second time he may plead autrefois acquit, and it will be a good bar to the indictment (a); and (y) 2 Chit. Arch. Pr., 7th ed., 966. (z) 1 Chit. Arch. Pr., 7th ed., 476. See Hamilton v. Pitt, 7 Bing. 230; Wedlake v. Hurley, 1 Cr. & J. (a) Arch. Cr. Plead., 9th ed., 88; General judg ment. this plea is clearly founded on the principle, that no man shall be placed in peril of legal penalties more than once upon the same accusation-nemo debet bis puniri pro uno delicto (b). Thus, an acquittal upon an indictment for murder may be pleaded in bar of another indictment for manslaughter; and an acquittal upon an indictment for burglary and larceny may be pleaded to an indictment for the larceny of the same goods; because, in either of these cases, the prisoner might, on the former trial, have been convicted of the offence charged against him in the second indictment (c). On the other hand, an acquittal upon an indictment for a felony is no bar to an indictment for a misdemeanour, and this holds è converso. Nor is an acquittal on an indictment for larceny any bar to an indictment for the same offence charged as a false pretence; though, on account of the proviso in stat. 7 & 8 Geo. 4, c. 29, s. 53, an acquittal for the latter offence is a bar to an indictment for the same act charged as a larceny. An acquittal on an indictment for having been present aiding and abetting in a felony, is no bar to an indictment charging the party as an accessory before the fact, because the offences described in the two indictments are distinct in their nature (d). The true test by which to decide whether a plea of autrefois acquit is a sufficient bar in any particular case is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first (e). Another case may be supposed in further illustration of Rex v. Vandercomb, 2 East, P. C., (b) 4 Rep. 40; 4 Bla. Com. 335; (c) 2 Hale, P. C. 246. (d) 2 Phil. Ev., 9th ed., 26; Rex v. Birchenough, 1 Moo. Cr. Cas. 477. (e) See further as to this, Arch. Cr. Plead., 9th ed., 88, 89. the principal rule, viz. if there be a general judgment on an indictment containing several counts, and this judgment is subsequently reversed in error, on the ground that one of the counts is bad (f), the party convicted might be again indicted for the offence insufficiently alleged in such bad count, provided it was a different offence from those charged against him in the good counts; the reason being, that in contemplation of law he had never been indicted, and therefore never tried nor acquitted for that specific offence. In concluding these remarks, we may mention one ex- Appeal. ception which formerly existed to the principle above stated and illustrated. This occurred in the proceedings in case of appeal of death, which might be instituted against a supposed offender after trial and acquittal, and by which punishment for some heinous crime was demanded, on account of the particular injury suffered by an individual, rather than for the offence against the public (g); but this method of prosecution, having attracted the attention of the Legislature in the case of Ashford v. Thornton (h), was abolished by stat. 59 Geo. 3, c. 46. ACTA EXTERIORA INDICANT INTERIORA SECRETA. (8 Rep. 291).—The law in some cases judges of a man's previous intentions by his subsequent acts (i). penters' case. In the case peculiarly illustrative of this maxim, it was The Six Cardecided, that, if a man abuse an authority given him by the (f) See Lord Denman's judgment, O'Connell v. Reg., by Mr. Leahy, pp. 19 et seq., and p. 44. (g) 4 Bla. Com. 314; 1 Chit. Crim. Law, 452. (h) 1 B. & Ald. 405. (i) Several maxims, expressing the same principle, are collected in the Chapter on Contracts. law he becomes a trespasser ab initio; but that, where he abuses an authority given him by the party, he shall not be a trespasser ab initio. And the reason assigned for this distinction is, that, where a general authority or license is given by the law, the law judges by the subsequent act, quo animo, or to what intent the original act was done; but, when the party himself gives an authority or license to do any thing, as to enter upon land, he cannot for any subsequent cause convert that which was originally done under the sanction of his own authority or license into a trespass, ab initio; and in this latter case, therefore, the subsequent acts only will amount to trespasses (k). For instance, the law gives authority to enter into a common inn or tavern, in like manner to the owner of the ground to distrain damage feasant, and to the commoner to enter upon the land to see his cattle. But, if he who enters into the inn or tavern commits a trespass, or if the owner who distrains a beast damage feasant works or kills the distress, or if the commoner cuts down a tree, in these and similar cases the law adjudges that the party entered for the specific purpose of committing the particular injury, and, because the act which demonstrates the intention is a trespass, he shall be adjudged a trespasser ab initio (1); or, in other words, the subsequent illegality shews the party to have contemplated an illegality all along, so that the whole becomes a trespass (m). For the same reason, if a sheriff continues in possession after the return day of the writ, this irregularity makes him a trespasser ab initio, though it (k) The Six Carpenters' case, 8 Rep. 290; Wing. Max., p. 108. (1) 8 Rep. 291; Wing. Max., p. 109; Oxley v. Watts, 1 T. R. 12; Bagshaw v. Goward, Cro. Jac. 147. Aitkenhead v. Blades, 5 Taunt. 198. (m) Per Littledale, J., Smith v. Egginton, 7 A. & E. 176, which was trespass against a sheriff for assault and false imprisonment. will not support the allegation of a new trespass committed by him after the acts which he justifies under the execution (n). c. 19, s. 19. One consequence of the above doctrine was, that, if a 11 Geo. 2, party entering lawfully to make a distress committed any subsequent abuse, he became a trespasser ab initio; and as this was found to bear extremely hard on landlords (o), it was enacted by stat. 11 Geo. 2, c. 19, s. 19, that, where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not be deemed unlawful, nor the distrainer a trespasser ab initio, but the party grieved may recover satisfaction for the damage in a special action of trespass, or on the case (p), at the election of the plaintiff, and if he recover he shall have full costs. Where, in a very recent case, a landlord distrained for rent, amongst other things, goods which were not distrainable in law, he was held to be a trespasser ab initio as to those particular goods only (q). c. 38, s. 8. Also, by stat. 17 Geo. 2, c. 38, s. 8, where any distress 17 Geo. 2, shall be made for money justly due for the relief of the poor, the party distraining shall not be deemed a trespasser ab initio, on account of any act subsequently done by him; but the party grieved may recover satisfaction for the special damage in an action of trespass, or on the case, with full costs, unless tender of amends is made before action. brought (r). (n) Aitkenhead v. Blades, 5 Taunt. 198; 2 Selw., N. P., 10th ed., 1321. As to the liability of a sheriff by relation, ante, p. 55. (0) 1 Smith, L. C. 65. (p) That is to say, the nature of the irregularity, and the peculiar circumstances of the case, must determine whether the proper form of ac tion be trespass or case. Winter- (g) Harvey v. Pocock, 11 M. & (r) See the cases on this statute, 1 Selw., N. P., 10th ed., 680. |