
    James P. Gage and William Gage v. The State of Ohio.
    In an action upon a recognizance entered into before a justice of the peace, for the appearance of a party in court to answer a criminal charge, it is not a good defense to show or allege that at the time of his arrest, and at the date of the recognizance, an indictment against him for the same offense was pending in said court, without showing or alleging that the party had been arrested upon such indictment.
    Motion for leave to file a petition in error to the District Court of Morrow county.
    This was an action by the state against the plaintiffs in error, upon their recognizance entered into before a justice of the peace, conditioned for the appearance of James Dodge before the court of common pleas to answer to a charge of forgery. The answer set up, as defense to the action, that at the time of James’ arrest and examination, and at the date of the recognizance, there were two indictments pending in the court of common pleas against him for the same offense on which he was so arrested and bound over. The court sustained a demurrer to this answer, and rendered judgment for the state; and the district court, on proceedings in error, affirmed the judgment
    
      Andrews fy Allison, for the motion.
    
      John J. Gurley, contra.
   By the Court.

Leave must be refused. There was but one arrest, and therefore the question whether a second arrest could be made in the same case does not arise. The defendant was not in custody, either of his bail or of the state. He was at large, and the state had a right to arrest him by either of the two processes provided by law, namely, by capias on the indictments, or by complaint before a justice of the peace.

Motion overruled.  