of parliament, and corporations, are privileged from arrefts; and of course from outlawries. And against them the process to enforce an appearance must be by fummons and distress infinitej, instead of a capias. Alfo clerks, attorneys, and all other perfons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be fued by bill (called ufually a bill of privilege) as being perfonally prefent in court *. Clergymen performing divine fervice, and not merely ftaying in the church with a fraudulent defign, are for the time privileged from arrefts, by ftat. 50 Edw. III. c. 5. and 1 Ric. II. c. 16. as likewife members of convocation actually attending thereon, by ftatute 8 Hen. VI. c. 1. Suitors, witnesses, and other perfons, neceffarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their neceffary coming and returning. And no arreft can be made in the king's prefence, nor within the verge of his royal palace', nor in any place where the king's juftices are actually fitting. The king hath moreover a fpecial prerogative, (which indeed is very feldom exerted TM) that he may by his writ of protection privilege a defendant from all perfonal, and many real, fuits for one year at a time, and no longer; in refpect of his being engaged in his fervice out of the realm ". And the king alfo by the common law might take his debtor into his protection, fo that no one might fue or arreft him till the king's debt were paid : but by the ftatute 25 Edw. III. ft. 5. c. 19. notwithstanding fuch i Whitelock of parl. 206, 207. Bro. Abr. t. bille. 29. 12 Mod.163. See Vol. IV. 276. The verge of the palace of Westminster extends, by ftat. 28 Hen. VIII. c.12. from Charing-crofs to Westminster-hall. m Sir Edward Coke informs us, (1 Inft. 131.) that herein he could fay nothing of his own experience; for albeit queen Elizabeth maintained many wars, yet fhe granted few or no о T 3 protection, another creditor may proceed to judgment against him, with a stay of execution, till the king's debt be paid; unless fuch creditor will undertake for the king's debt, and then he shall have execution for both. And, lastly, by statute 29 Car. II. c. 7. no arrest can be made, nor process ferved upon a funday, except for treason, felony, or breach of the peace. WHEN the defendant is regularly arrested, he must either go to prifon, for fafe cuftody: or put in fpecial bail to the fheriff. For, the intent of the arreft being only to compel an appearance in court at the return of the writ, that purpose is equally answered, whether the sheriff detains his person, or takes fufficient fecurity for his appearance, called bail (from the French word, bailler, to deliver) because the defendant is bailed, or delivered, to his fureties, upon their giving fecurity for his appearance; and is supposed to continue in their friendly cuftody instead of going to gaol. The method of putting in bail to the sheriff is by entering into a bond or obligation, with one or more fureties, (not fictitious perfons, as in the former cafe of common bail, but real, fubftantial, refponfible bondfmen) to infure the defendant's appearance at the return of the writ; which obligation is called the bail-band. The fheriff, if he pleafes, may let the defendant go without any fureties; but that is at his own peril: for, after once taking him, the sheriff is bound to keep him fafely, fo as to be forthcoming in court; otherwise an action lies against him for an escape, But, on the other hand, he is obliged, by statute 23 Hen, VI. c. 10. to take (if it be tendered) a fufficient bail-bond; and, by statute 12 Geo. I, c. 29. the sheriff shall take bail for no other sum than such as is fworn to by the plaintiff, and endorsed on the back of the writ, UPON the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and juftifying bail to the action, which is commonly called putting in bail above. If this be not done, and the bail that were taken by P Append. No, III. §. 5« the the sheriff below are refponfible perfons, the plaintiff may take an affignment from the sheriff of the bail-bond (under the ftatute 4 & 5 Ann. c. 16.) and bring an action thereupon against the sheriff's bail. But if the bail, fo accepted by the fheriff, be infolvent perfons, the plaintiff may proceed against the fheriff himself, by calling upon him, first, to return the writ (if not already done) and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff. THE bail above, or bail to the action, must be put in either in open court, or before one of the judges thereof; or else, in the country, before a commiffioner appointed for that purpofe by virtue of the ftatute 4 W. & M. c. 4. which must be transmitted to the court. These bail, who must at least be two in number, must enter into a recognizance in court or before the judge or commissioner, in a fum equal (or in some cafes double) to that which the plaintiff has fworn to; whereby they do jointly and severally undertake, that if the defendant be condemned in the action he fhall pay the eosts and condemnation, or render himself a prifoner, or that they will pay it for him which recognizance is tranfmitted to the court in a flip of parchment entitled a bail piece'. And, if excepted to, the bail must be perfected, that is, they must juify themfelves in court, or before the commiffioner in the country, by fwearing themselves housekeepers, and each of them to be worth the full fum for which they are bail, after payment of all their debts. This anfwers in fome measure to the ftipulatio or fatifdatio of the Roman laws, which is mutually given by each litigant party to the other: by the plaintiff, that he will prosecute his suit, and pay the costs if he loses his cause; in like manner as our law ftill requires nominal pledges of profecution from the plaintiff: by the defendant, that he fhall continue in court, and abide the sentence of the judge, much like our special bail; but with this difference, that the fidejuffores were there absolutely bound judicatum folvere, to fee 1 Append. No. III. §. 5. s Infi. 1. 4. t. 11. Ff. l. 2. 1. 8. • Ibid. the T 4 the costs and condemnation paid at all events: whereas our special bail may be discharged, by furrendering the defendant into cuftody, within the time allowed by law; for which purpose they are at all times entitled to a warrant to appre hend him. SPECIAL bail is required (as of courfe) only upon actions. of debt, or actions on the cafe in trover or for money due, where the plaintiff can fwear that the caufe of action amounts to ten pounds: but in actions where the damages are precarious, being to be affeffed ad libitum by a jury, as in actions for words, ejectment, or trefpafs, it is very feldom poffible for a plaintiff to fwear to the amount of his caufe of action; and therefore no fpecial bail is taken thereon, unless by a judge's order or the particular directions of the court, in fome peculiar species of injuries, as in cafes of mayhem or atrocious battery; or upon fuch special circumstances, as make it abfolutely neceffary that the defendant should be kept within the reach of juftice. Alfo in actions against heirs, executors, and administrators, for debts of the deceased, special bail is not demandable; for the action is not so properly against ther in perfon, as against the effects of the deceased in their poffeflion. But special bail is required even of them, in actions for a devastavit, or waiting the goods of the deceased; that wrong being of their own committing. THUS much for procefs; which is only meant to bring the defendant into court, in order to conteft the fuit, and abide the determination of the law. When he appears either in perfon as a prifoner, or out upon bail, then follow the pleadings between the parties, which we shall confider at large in the next chapter. CHAPTER THE TWENTIETH, OF PLEADING. LEADINGS are the mutual altercations between Pe at are fet the plaintiff and defendant; which at prefent are fet down and delivered into the proper office in writing, though formerly they were ufually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol. THE firft of thefe is the declaration, narratio or count, antiently called the tale; in which the plaintiff sets forth his caufe of complaint at length: being indeed only an amplification or expofition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember'", that, in the king's bench, when the defendant is brought into court by bill of Middlefex, upon a fuppofed trefpafs, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And fo alfo, in order to have the benefit of a capias to fecure the defendant's perfon, it was the antient practice and is therefore ftill warrantable in the common pleas, to fue out a writ of trefpafs quare claufum fregit, for breaking the plaintiff's close: and when the defendant is once a Append. No. II. §.2. No. III. §.6. b See pag. 285. 288. brought |