the verge of his royal palace (2) (21), nor in any place where the king's justices are actually sitting (22). 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 (n). And the king also by the common law might take his debtor into his protection, so that no one might sue or arrest him till the king's debt were paid (o): but by the statute 25 Edw. III. st. 5. c. 19. notwithstanding such protection, another [*290] creditor may proceed to judgment against 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 (23). peace(23). When the defendant is regularly arrested, he must either go to prison, for safe custody or put in special bail to the sheriff (24). For, the intent of the arrest 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 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 p) (25). The sheriff, if he pleases, may let the defendant go without any sureties; but that is at his own peril: for, after

(1) See Book IV. 276. The verge of the palace of Westminster extends by stat. 28 Hen. VIII. c. 12. from Charing-cross to Westminster-hall.

(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

by the way. 1 Chit. Rep. 679. 3 B. & A. 252. S. C. sed vid. 7 Price, 699. A reasonable time is allowed for going and returning. 2 Bla. Rep. 1113. 2 Marsh. 57.

(21) Except by an order of the board of green cloth, or unless the process issue out of the palace court. 3 T. R. 735. But an arrest within the verge of the palace has been holden in the common pleas to be no ground for discharging the defendant out of custody. 7 Taunt. 311. and see 1 Chit. Rep. 375. 3 B. & A. 502.

(22) Sed vide 1 Lev. 106. Process cannot be executed in Kensington palace, 10 East. 378. 1 Camp. 475; or within the Tower, without leave from the governor. 2 Chit. Rep. 48.51.

(23) See construction of this act, Tidd, 8 ed. 216. After a negligent escape, the defendant may be taken on a Sunday. 2 Lord Ravm. 1028.

The arrest must be made in the county into which the process is issued; an arrest on the

other men's actions; lest she might be thought to
delay justice." But king William, in 1692, grant-
ed one to lord Cutts, to protect him from being
outlawed by his taylor (3 Lev. 882): which is the
last that appears upon our books

(n) Finch. L. 454. 3 Lev. 332.
(0) F. N. B. 28. Co. Litt. 131.
(p) Append. No. III. 9 5.

verge of a county into which the writ is issued, is bad, unless there be a dispute as to boundaries. 3 B. & A. 408.

(24) Or by 43 Geo. III. c. 46. deposit in the sheriff's hands the sum indorsed on the writ, with 102. in addition to answer costs, &c. and the fine paid, if proceeding by original; and this deposit is paid into court, and repaid to the defendant on his perfecting bail, or rendering himself to prison, 4 Taunt. 669. 1 Bing. 103. Chitty R. 145. 3 M. & S. 283; but if neither of these measures be taken, it is to be paid over to the plaintiff by order of the court. See cases on construction of this act, Tidd, 8 ed. 226, 7. quære if depositing goods instead of money will do. 7 Moore, 432.

(25) An agreement by a third person with a sheriff's officer to put in good bail, &c. 1 T. R. 418, or an attorney's undertaking to the office for defendant's appearance, 7 T. R. 109 or to give bail bond in due time, are void, and no action lies on it; but if given to the plain tiff in the action, it is valid. ♦ East. 568

...ce taking him, the sheriff is bound to keep him safely, so as to be fortn coming in court; otherwise an action lies against him for an escape (26). 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 (27): 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 (28). If this be not done, and the bail that were taken by the sheriff below are responsible persons, [291] the plaintiff may take an assignment from the sheriff of the bailbond (under the statute 4 & 5 Ann. c. 16.), and bring an action thereupon against the sheriff's bail. But if the bail, so accepted 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 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 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 (q) in court or before the judge or commissioner, in a sum equal (or in some cases double) to that which the plaintiff hath sworn to; whereby they do jointly and severally undertake, that if the defendant be condemned 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 (r). And, if excepted to, the bail (q) Appendix, No. III 5.

(26) But the action may be defeated by putting in bail in the original action, of the term in which the writ is returnable, though after the expiration of the time allowed for putting it in, and even after the action for the escape is brought. 1 Esp. Rep. 87. 2 B. & P. 35. 246. 1 Taunt. 25. 1 Chit. Rep. 575. a. sed vid. 7 T. R. 109. 4 East 568. To prevent this plaintiff should oppose justifioa tion of bail, Tidd, 8 ed. 235. or render. 7 T. R 109. 2 Marsh. 261. 1 Price, 103. 4 M. & S. 397. Sheriff cannot sue defendant for money paid, when he has discharged him out of custody on mesne process, without a bail bond, and has, in consequence of his non-appearance, been obliged to pay debt and costs. 8 East, 171.

(27) If he so refuse, he is liable to a speeial action on the case, Gilb. C. P. 20. Cro. Car. 196. 6 T. R. 355; but to maintain such action, the parties offered as bail must have had sufficient property in the county where the arrest was made. 15 East, 320.

(28) In proceedings in the king's bench by bill, whenever special bail is not necessary, or has been dispensed with by the court, common bail (which are merely nominal) must be filed, orn proceedings in the common pleas of K. R. by original, a common appearance must be

(r) Ibid.

entered. In the king's bench, where defendant has been served with a copy of a bill of Middlesex, or other process therein, common bail should be filed at the return, or in eight days, exclusive (not including Sunday if the last) after it. 5 Geo. II. c. 27. s. 1. 1 Bur. 56. Tidd, 8 ed. 240.

In proceedings by original in the K. B., the appearance must be entered with the filacer of the county in which the action is laid, withir eight days after appearance day or quarto die post of return of process. 3 B. & Č. 110. 4 D. & R. 713. S. C. In C. P. the eight days are reckoned from the return day and not from the quarto die post of the return of the writ. Id. Ibid. Impey C. P. 216, 17.

By 5 Geo. II. c. 27, to expedite the plair tiff's proceedings, if the defendant, having been served with process, shall not appear at the return thereof, or within eight days after such return, the plaintiff, upon affidavit of the service of such process, may enter a commen appearance or file common bail for the defendant, and proceed therein as if such defendant: had entered his appearance or filed common bail. The plaintiff cannot enter such appea: ance or file common bail till the nintli day. Tidd, 242

must be verfected, that is, they must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers (29), and each of them to be worth the full sum for which they are bail, after payment of all their debts (30). This answers in some measure to the stipulatio or satisdatio of the Roman laws (s), 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 fide

jussores were there absolutely bound judicatum solvere, to see the [*292] costs and condemnation *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 (1) (31).

Special bail is required (as of course) only upon actions of debt, or ac. tions on the case in trover or for money due, where the plaintiff can sweat that the cause of action amounts to ten pounds (32): 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 di rections 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 prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.

CHAPTER XX.

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 (1).

by rendering their principal, there are various other causes for discharging them, such as the death of the defendant, Tidd, 293. 1183; his bankruptcy and certificate, 1 Burr 244. Cowp. 824; his being made a peer, or member of parliament, Dougl. 45. Tidd, 293; or being sent abroad under the alien act, 6 T. R. 50. 52. 7 T. R. 517; or under sentence of transportation, 6 T. R. 247; or his being impress ed or discharged on the 48 Geo. III. c. 123; or by the act of the plaintiff in not declaring in due time; by making a material variance in the declaration from the process or affidavit in the cause of action, 2 East, 305. 2 B. & P. 458. 6 T. R. 363; or a variance between the affidavit and judgment in C. P; or in declar g in a different county by original in K. B.; or recovering under a bailable amount; or in giving time to the defendant on a cognovit, &c.; or removing the cause from an inferior court, or referring to arbitration, or taking onncipal in execution, Cro. Jac. 320; or any

other irregularity in proceeding against the principal. Tidd, 1182. See the various cases on these points and other qualifications in Tidd's Prac. 8 ed. 290 to 295. 403. 1147. 1182. 1187.

(32) Several extensions of the sum have taken place: and now, by the last statute, viz. 7 & 8 Geo. IV. c. 71, the cause of action must amount to 201.

(1) Pleading is the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence; it is the formal mode of alleging on the record that which would be the support, or the defence, of the party in evidence, per Buller, J. 3 T. R. 159. Dougl. 278. "It is (as also observed by the same learned judge, in Dougl Rep. 159.) one of the first principles of pleading, that there is only occasion to state facts, which must be done for the purpose of informing the court, whose duty it is to declare the law arising upon those

The firs. of these is the declaration, narratio, or count, anciently called the tale (a) in which the plaintiff sets forth his cause of complaint at length (2)·

(a) Appendix, No. II. 2. No. III. 6.