50 Edw. III. c. 5. and1 Ric. II. c. 16. as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the king's presence, nor within the verge of his royal palace, nor in any place where the king's justices are actually sitting. The king hath moreover a special prerogative (which indeed is very seldom exerted m), that he may by his writ of protection privilege a defendant from all personal, and many real, suits for one year at a time, and no longer; in respect of his being engaged in his service out of the realm." And the king also by the common law might take his creditor into his protection, so that no one might sue or arrest him till the king's debt were paid: but by the statute 25 Edw. III. st. 5. c. 19. notwithstanding such protection, another creditor may proceed to judgment against [290 him, with a stay of execution, till the king's debt be paid; unless such 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 served upon a Sunday, except for treason, felony, or breach of the peace.

*When the defendant is regularly arrested, he must either go to prison, for safe custody: or put in special bail to the sheriff. For, the intent of the arrest being

m Sir Edward Coke informs us (1 Inst. 131.), that herein "he could say nothing of his own experience; for albeit queen Elizabeth maintained many wars, yet she granted few or no protections: and her reason was, that he was no fit subject to be employed in her service, that was subject to other men's actions; lest she might be thought to delay justice.' But king William, in 1692, granted one to lord Cutts, to protect him from being outlawed by his taylor (3 Lev. 332.); which is the last that appears upon our books.

n Finch. L. 454. 3 Lev. 332.

o F. N. B. 28. Co. Litt. 131.

**Quoted, Harp. 453. Cited, 2 Hawks, 171.

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 sufficient security for his appearance, called bail (from the French word, bailler, to deliver) because the defendant is bailed, or delivered, to his sureties, upon their giving security for his appearance: and is supposed to continue in their friendly custody 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 sureties (not fictitious persons, as in the former case of common bail, but real, substantial, responsible bondsmen) to insure the defendant's appearance at the return of the writ; which obligation is called the bail bond. The sheriff, if he pleases, may let the defendant go without any sureties; but that is at his own peril: for, after once taking him, the sheriff is bound to keep him safely, so 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 sufficient bail-bond: and, by statute 12 Geo. I. c. 29. the sheriff shall take bail for no other sum than such as is sworn 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 justifying bail to the action; which is commonly called putting in bail above. If this be not done, and the bail that were taken by [291] the sheriff below are responsible persons, the plaintiff may take an assignment from the sheriff of the bail-bond (under the statute 4 & 5 Ann. c. 16.) and bring an action thereBut if the bail, so ac

upon against the sheriff's bail.

*Cited, 2 Mart. (La.) 58; 5 Am. Dec. 726; 16 Wall. 371; 1 Ark. 158; 3 Conn. 421; 3 Ga. 130; Smith (N. H.) 361; 7 Johns. 155; 10 Gratt. 643.

+ Cited, 2 Mass. 194, 199.

cepted by the sheriff be insolvent persons, the plaintiff may proceed against the sheriff 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 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 commissioner appointed for that purpose by virtue of the statute 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, whereby they do jointly and severally undertake, that if the defendant be condenined in the action he shall pay the costs and condemnation, or render himself a prisoner, or that they will pay it for him:† which recognizance is transmitted to the court in a slip of parchment entitled a bail piece. And, if required, the bail must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers, and each of them to be worth double the sum for which they are bail, after payinent of all their debts. This answers in some measure to the stipulatio or satisdatio 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 still requires nominal pledges of prosecution from the plaintiff: by the defendant, that he shall continue in court, and abide the sentence of the judge, much like our special bail; but with this difference, that the s Inst. l. 4. t. 11. Ff. l. 2. t. 8.

*Cited, 1 N. H. 86.

† Cited, 2 Hawks. 171; 10 Ired. 550.

+ Cited, 3 Hen. & M. 42; 3 Am. Dec. 656.

fidejussores were there absolutely bound judicatum solvere, to see the costs and condemnation [292] paid at all events: whereas our special bail may be discharged, by surrendering the defendant into custody, within the time allowed by law; for which purpose they are at all times entitled to a warrant to apprehend him.t

Special bail is required (as of course) only upon actions of debt, or actions on the case in trover or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds; but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon, unless by a judge's order or the particular directions of the court, in some peculiar species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances, as make it absolutely necessary that the defendant should be kept within the reach of justice. Also 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 them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased; that wrong being of their own committing.

Thus much for process; which is only meant to bring the defendant into court,* in order to contest the suit, and abide the determination of the law. When he appears either in person as a a prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter. *Cited, 10 Minn. 384.

t 2 Show. 202. 6 Mod. 231.

CHAPTER THE TWENTIETH.

OF PLEADING.

*Pleadings are the mutual altercations between the plaintiff and defendant; * which at present are set down and delivered into the proper office in writing, though formerly they were usually 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. [See note 51, page 414.]

The first of these is the declaration, narratio or count, antiently called the tale; in which the plaintiff sets forth his cause of complaint at length: being indeed only †an amplification or exposition 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 Middlesex, upon a supposed trespass, 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 so also, in order to have the benefit of a capias to secure the defendant's person, it was the antient practice and is therefore still warrantable in the common [294] pleas, to sue out a writ of trespass quare clausum fregit, for breaking the plaintiff's close and when the defendant is once brought in upon this writ, the plaintiff declares in whatever action the nature of b See pag. 285. 288.

*-* Quoted, 55 Ga. 61; 58 Iowa, 466.

+-+ Quoted, 1 McCord, 212.

+ Cited, 23 N. J. L. 279.