Blackstone's Commentaries on the Laws of England
Book the Third - Chapter the Nineteenth : Of Process
PRIVATE WRONGS.
BOOK III.
CHAPTER THE NINETEENTH.
OF PROCESS.
THE next ftep for carrying on the fuit, after fuing out the original, is called the procefs; being the means of compelling the defendant to appear in court. This is fometimes called original procefs, being founded upon the original writ; and alfo to diftinguifh it from mefne or intermediate procefs, which iffues, pending the fuit, upon fome collateral interlocutory matter; as to fummon juries, witneffes, and the like
a. Mefne procefs is alfo fometimes put in contradiftinction to final procefs, or procefs of execution; and then it fignifies all fuch procefs as intervenes between the beginning and end of a fuit.
BUT procefs, as we are now to confider it, is the method taken by the law to compel a compliance with the original writ, of which the primary ftep is by giving the party notice to obey it. This notice is given upon all real praecipes, and alfo upon all perfonal writs for injuries in court at the return of the original writ, given to the defendant by two of the fheriff's meffengers called fummoners, either in perfon or left at his houfe or land
b: in like manner as in the civil law the firft procefs is by perfonal citation, in jus vocando
c. This warning on the land is
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a Finch. L. 436.
b Ibid. 344. 352.
c Ff. 2. 4. 1.
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given,
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given, in real actions, by erecting a white ftick or wand on the defendant's grounds
d; (which ftick or wand among the northern nations is called the baculus munciatorius
e) and by ftatute 31 Eliz. c. 3. it muft alfo be proclaimed on fome funday before the door of the parifh church.
IF the defendant difobeys this verbal monition, the next procefs is by writ of attachment, or pone, fo called from the words of the writ
f, “pone per vadium et falvos plegios, put by gage and “fafe pledges A. B. the defendant, &c.” This is a writ, not iffuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the fheriff is commanded to attach him, b taking gage, that is, certain of his goods, which he fhall forfeit if he doth not appear
g; or by making him find fafe pledges or fureties, who fhall be amerced in cafe of his non-appearance
h. This is alfo the firft and immediate procefs, without any previous fummons, upon actions of trefpafs vi et armis, or for other injuries, which though not forcible are yet trefpaffes againft the peace, as deceit and confpiracy
i; where the violence of the wrong requires a more fpeedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning
k.
IF, after attachment, the defendant neglects to appear, he not only forfeits this fecurity, but is moreover to be farther compelled by writ of diftringas
l, or diftrefs, infinite; which is a fubfequent procefs iffuing from the court of common pleas, commanding the fheriff to diftrein the defendant from time to time, and continually afterwards, by taking his goods and the profits of his lands, which he forfeits to the king if he doth not appear
m.
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d Dalt. of fher. c. 31.
e Stiernh. de jure Sueon. l. 1. c. 6.
f Append. No. III. §. 2.
g Finch. L. 345.
h Dalt. fher. c. 32.
I Finch. L. 305. 352.
k Append. No. II. §. 1.
l Append. No. III. §. 2.
m Finch. L. 352.
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IN
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IN like manner as by the civil law, if the defendant abfconds, fo that the citation is of no effect, “
mittitur adverfarius in poffeffionem bonorum ejus.”
AND here by the common, as well as the civil, law the procefs ended in cafe of injuries without force; the defendant, if he had any fubftance, being gradually ftripped of it all by repeated diftreffes, till he rendered obedience to the king's writ; and, if he had no fubftance, the law held him incapable of making fatisfaction, and therefore looked upon all farther procefs as nugatory. And befides, upon feodal principles, the perfon of a feudatory was not liable to be attached for injuries merely civil, left thereby his lord fhould be deprived of his perfonal fervices. But, in cafes of injury accompanied with force, the law, to punifh the breach of the peace and prevent it's difturbance for the future, provided alfo a procefs againft the defendant's perfon, in cafe he neglected to appear upon the former procefs of attachment, or had no fubftance whereby to be attached; fubjecting his body to imprifonment by the writ of capias ad refpondendum
o. But this immunity of the defendant's perfon, in cafe of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was alfo allowed, to arreft the perfon, in actions of account, though no breach of the peace be fuggefted, by the ftatutes of Marlbridge, 52 Hen. III. c. 23. and Weftm. 2. 13 Edw. I. c. 11. in actions of debt and detinue, by ftatute 25 Edw. III. c. 17. and in all actions on the cafe, by ftatute 19 Hen. VII. c. 9. Before which laft ftatute a practice had been introduced of commencing the fuit by bringing an original writ of trefpafs quare claufum fregit, for breaking the plaintiff's clofe, vi et armis; which by the old common law fubjected the defendant's perfon to be arrefted by writ of capias: and then afterwards, by connivance of the court, the plaintiff might proceed to profecute for any other lefs forcible injury. This practice (through cuftom rather than neceffity, and for faving fome trouble and expenfe, in fuing out a fpecial original adapted to the
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n Ff. 2. 4. 19.
o 3 Rep. 12.
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particular injury) ftill continues in almoft all cafes, except in actions of debt; though now, by virtue of the ftatutes above cited and others, a capias might be had upon almoft every fpecies of complaint.
IF therefore the defendant being fummoned or attached makes default, and neglects to appear; or if the fheriff returns a nihil, or that the defendant hath nothing whereby he may be fummoned, attached, or diftreined; the capias now ufually iffues
p, being a writ commanding the fheriff to take the body of the defendant if he may be found in his bailiwick or county, and him fafely to keep, fo that he may have him in court on the day of the return, to anfwer to the plaintiff of a plea of debt, or trefpafs, &c, as the cafe may be. This writ, and all others fubfequent to the original writ, not iffuing out of chancery but from the court into which the original was returnable, and being grounded on what has paffed in that court in confequence of the fheriff's return, are called judicial, not original, writs; they iffue under the private feal of that court, and not under the great feal of England; and are tefte'd, not in the king's name, but in that of the chief juftice only. And thefe feveral writs, being grounded on the fheriff's return, muft refpectively bear date the fame day on which the writ immediately preceding was returnable.
THIS is the regular and orderly method of procefs. But it is now ufual in practice, to fue out the capias in the firft inftance, upon a fuppofed return of the fheriff; efpecially if it be fufpected that the defendant, upon notice of the action, will abfcond: and afterwards a fictitious original is drawn up, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the fheriff, he by his under-fheriff grants a warrant to his inferior officers, or bailiffs, to execute it on the defendant. And, if the fheriff of Oxfordfhire (in which county the injury is fuppofed to be committed and the action is laid) cannot find the defendant in his jurifdiction, he
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p Append. No. III. §. 2.
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returns
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returns that he is not found, noon eft inventus, in his bailiwick: whereupon another writ iffues, called a teftatum capias
q, directed to the fheriff of the county where the defendant is fuppofed to refide, as of Berkfhire, reciting the former writ, and that it is teftified, teftatum eft, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here alfo, when the action is brought in one county and the defendant lives in another, it is ufual, for faving trouble, time, and expenfe, to make out a teftatum capias at the firft; fuppofing not only an original, but alfo a former capias, to have been granted, which in fact never was. And this fiction, being beneficial to all parties, is readily acquiefced in and is now become the fettled practice; being one among may inftances to illuftrate that maxim of law, that in fictione juris confiftit aequitas.
BUT where a defendant abfconds, and the plaintiff would proceed to an outlawry againft him, an original writ muft then be fued out regularly, and after that a capias. And if the fheriff cannot find the defendant upon the firft writ of capias, and returns a non eft inventus, there iffues out an alias writ, and after that a pluries, to the fame effect as the former
r: only after thefe words “we command you,” this claufe is inferted, “as “we have formerly,” or, “as we have often commanded you; “ficut alias,” or, “ficut pluries praecepimus.” And, if a non eft inventus is returned upon all of them, then a writ of exigent or exigi facias may be fued out
s, which requires the fheriff to caufe the defendant to be proclaimed, required, or exacted, in five county courts fucceffively, to render himfelf; and, if he does, then to take him, as in a capias: but if he does not appear, and is returned quinto exactus, he fhall then be outlawed by the coroners of the county. Alfo by ftatutes 6 Hen. VIII. c. 4. and 31 Eliz. c. 3. whether the defendant dwells within the fame or another county than that wherein the exigent is fued out, a writ
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q Append. No. III. §. 2.
r Ibid.
s Ibid.
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M m 2
of
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of proclamation
t fhall iffue out at the fame time with the exigent, commanding the fheriff of the county wherein the defendant dwells to make three proclamations thereof in places the moft notorious, and moft likely to come to his knowlege, a month before the outlawry fhall take place. Such outlawry is putting a man out of the protection of the law, fo that he is incapable to bring any action for redrefs of injuries; and it is alfo attended with a forfeiture of all one's goods and chattels to the king. And therefore, till fome time after the conqueft, no man could be outlawed but for felony; but in Bracton's time, and fomewhat earlier, procefs of outlawry was ordained toile in all actions for trefpaffes vi et armis
u. And fince, by a variety of ftatutes (the fame which allow the writ of capias before-mentioned) procefs of outlawry doth lie in divers actions that are merely civil; provided they be commenced by original and not by bill
w. If after outlawry the defendant appears publicly, he may be arrefted by a writ of capias utlagatum
x, and committed till the outlawry be reverfed. Which reverfal may be had by the defendant's appearing perfonally in court (and in the king's bench without any perfonal appearance, fo that he appears by attorney, according to ftatute 4 & 5 W. & M. c. 18.) and any plaufible caufe, however flight, will in general be fufficient to reverfe it, it being confidered only as a procefs to compel an appearance. But then the defendant muft pay full cofts, and put the plaintiff in the fame condition, as if he had appeared before the writ of exigi facias was awarded.
SUCH is the firft procefs in the court of common pleas. In the king's bench they may alfo (and frequently do) proceed in certain caufes, particularly in actions of ejectment and trefpafs, by original writ, with attachment and capias thereon
y; returnable, not as Weftminfter, where the common pleas are now fixed in confequence of magna carta, but “ubicunque fuerimus in Anglia,”
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t Append. No. III. §. 2.
u Co. Litt. 128.
w 1 Sid. 159.
x Append. No. III. §. 2.
y Ibid. No. II. §. 1.
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where-
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wherefoever the king fhall then be in England; the king's bench being removeable into any part of England at the pleafure and difcretion of the crown. But the more ufual method of proceeding therein is without any original, but by a peculiar fpecies of procefs entitled a bill of Middlefex; and therefore fo entitled, becaufe the court now fits in that county; for if it fate in Kent, it would then be a bill of Kent. For though, as the juftices of this court have, by it's fundamental conftitution, power to determine all offences and trefpaffes, by the common law and cuftom of the realm
z, it needed no original writ from the crown to give it cognizance of any mifdemefnor in the county wherein it refides; yet as, by this court's coming into any county, it immediately fuperfeded the ordinary adminiftration of juftice by the general commiffions of eyre and of oyer and terminer
a, a procefs of it's own became neceffary, within the county where it fate, to bring in fuch perfons as were accufed of committing any forcible injury. The bill of Middlefex
b is a kind of capias, directed to the fheriff of that county, and commanding him to take the defendant, and have him before our lord the king at Weftminfter on a day prefixed, to anfwer to the plaintiff of a plea of trefpafs. For this accufation of trefpafs it is, that gives the court of king's bench jurifdiction in other civil caufes, as was formerly obferved; fince, when once the defendant is taken into cuftody of the marfhall, or prifon-keeper of this court, may here be profecuted for any other fpecies of injury. Yet, in order to found this jurifdiction, it is not neceffary that the defendant be actually the marfhall's prifoner; for, as foon as he appears, or puts in bail, to the procefs, he is deemed by fo doing to be in fuch cuftody of the marfhall, as will give the court a jurifdiction to proceed
c. And, upon thefe accounts, in the bill or procefs a complaint of trefpafs is always fuggefted, whatever elfe may be the real caufe of action. This bill of Middlefex muft be ferved on the defendant by the fheriff, if he finds him in that county: but, if he
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z Bro. Abr. t. cyer & determiner. 8.
a Bro. Abr. t. jurifdiction, 66. 3. Inft. 27.
b Append. No. III. §. 3.
c 4 Inft. 72.
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returns
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returns “non eft inventus,” then there iffues out a writ of latitat
d, to the fheriff of another county, as Berks; which is fimilar to the teftatum capias in the common pleas, and recites the bill of Middlefex and the proceedings thereon, and that it is teftified that the defendant “latitat et difcurrit” lurks and wanders about in Berks; and therefore commands the fheriff to take him, and have his body in court on the day of the return. But, as in the common pleas the teftatum capias may be fued out upon only a fuppofed, and not an actual, preceding capias; fo in the king's bench a latitat is ufually fued out upon only a fuppofed, and not an actual, bill of Middlefex. So that, in fact, a latitat may be called the firft procefs in the court of king's bench, as the teftatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias fuffices; fo in the king's bench likewife, if he lives in Middlefex, the procefs muft ftill be by bill of Middlefex only.
IN the exchequer the firft procefs is by writ of quo minus, in order to give the court a jurifdiction over pleas between party and party. In which writ
e the plaintiff is alleged to be the king's farmer, or debtor, and that the defendant hath done him the injury complained of, quo minus fufficiens exiftit, by which he is the lefs able, to pay the king his rent, or debt. And upon this the defendant may be arrefted as upon a capias from the common pleas.
THUS differently do the three courts fet out at firft, in the commencement of a fuit; for which the reafon is obvious: fince by this means the two courts of king's bench and exchequer entitle themfelves to hold plea in fubjects caufes, which by the original conftitution of Weftminfter-hall they were not empowered to do. Afterwards, when the caufe is once drawn into the refpective courts, the method of purfuing it is pretty much the fame in all of them.
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d Append. No. III. §. 3.
e Ibid. §. 4.
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IF
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IF the fheriff has found the defendant upon any of the former writs, the capias, latitat, &c, he was antiently obliged to take him into cuftody, in order to produce him in court upon the return, however fmall and minute the caufe of action might be. For, not having obeyed the original fummons, he had fhewn a contempt of the court, and was no longer to be trufted at large. But when the fummons fell into difufe, and the capias became in fact the firft procefs, it was thought hard to imprifon a man for a contempt which was only fuppofed: and therefore in common cafes by the gradual indulgence of the courts (at length authorized by ftatute 12 Geo. I. c. 29. which was amended by ftatute 5 Geo. II. c. 27. and made perpetual by ftatute 21 Geo. II. c. 3.) the fheriff or his officer can now only perfonally ferve the defendant with a copy of the writ or procefs, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere fummons. And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in fureties for his future attendance and obedience; which fureties are called common bail, being the fame two imaginary perfons that were pledges for the plaintiff's profecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or, in fome cafes, eight) days after, the plaintiff may enter an appearance for him, as if he had really appeared; and may file common bail in the defendant's name, and proceed thereupon as if the defendant had done it himfelf.
BUT if the plaintiff will make affidavit, or affert upon oath, that the caufe of action amounts to ten pounds or upwards, then in order to arreft the defendant, and make him put in fubftantial fureties for his appearance, called fpecial bail, it is required by ftatute 13 Car. II. ft. 2. c. 2. that the true caufe of action fhould be expreffed in the body of the writ or procefs. This ftatute (without any fuch intention in the makers) had like to have oufted the king's bench of all it's jurifdiction over civil injuries
without
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without force: for, as the bill of Middlefex was framed only for actions of trefpafs, a defendant could not be arrefted and held to bail thereupon for breaches of civil contracts. But to remedy this inconvenience, the officers of the king's bench devifed a method of adding what is called a claufe of ac etiam to the ufual complaint of trefpafs; the bill of Middlefex commanding the defendant to be brought in to anfwer the plaintiff of a plea of trefpafs, and alfo to a bill of debt
f: the complaint of trefpafs giving cognizance to the court, and that of debt authorizing the arreft. In return for which , lord chief juftice North a few years afterwards, in order to fave the fuitors of his court the trouble and expenfe of fuing out fpecial originals, directed that in the common pleas, befides the ufual complaint of breaking the plaintiff's clofe, a claufe of ac etiam might be alfo added to the writ of capias, containing the true caufe of action; as, “that the faid Charles “the defendant may anfwer to the plaintiff of a plea of trefpafs “in breaking his clofe: and alfo, ac etiam, may anfwer him, according to the cuftom of the court, in a certain plea of trefpafs “upon the cafe, upon promifes, to the value of twenty pounds, “&c
g.” The fum fworn to by the plaintiff is marked upon the back of the writ; and the fheriff, or his officer the bailiff, is then obliged actually to arreft or take into cuftody the body of the defendant, and, having fo done, to return the writ with a cepi corpus endorfed thereon.
AN arreft muft be by corporal feifing or touching the defendant's body; after which the bailiff may juftify breaking open the houfe in which he is, to take him: otherwife he has no fuch power; but muft watch his opportunity to arreft him. For every man's houfe is looked upon by the law to be his caftle of defence and afylum, wherein he fhould fuffer no violence. Which principle is carried fo far in the civil law, that for the moft part not fo much as a common citation or fummons, much lefs an arreft, can be executed upon a man within his own walls
h. Peers of
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f Append. No. III. §. 3.
g Lilly pract. Reg. t. ac etiam. North's life of lord Guilford. 99.
h Ff. 2. 4. 18—21.
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the
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the realm, members of parliament, and corporations, are privileged from arrefts; and of courfe from outlawries
i. And againft them the procefs to inforce an appearance muft be by fummons and diftrefs infinite, inftead of a capias. Alfo clerks, attorneys, and all other perfons attending the courts of juftice (for attorneys, being officers of the court, are always fuppofed to be there attending) are not liable to be arrefted by the ordinary procefs of the court, but muft be fued by bill (called ufually a bill of privilege) as being perfonally prefent in court
k. Clergymen performing divine fervice, and not merely ftaying in the church with a fraudulent defign, are for the time privileged from arrefts, by ftatute 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, witneffes, and other perfons, neceffarily attending any courts of record upon bufinefs, are not to be arrefted 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
l) 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
m. And the king alfo by the common law might take his creditor into his protection, fo that no one might fue or arreft him till the king's debt were paid
n: but b the ftatute 25 Edw. III. ft. 5. c. 19. notwithftanding fuch protection, another creditor may proceed t judgment againft him, with a
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I Whitelock of parl. 206, 207.
k Bro. Abr. t. bille. 29. 12 Mod. 163.
l 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 protections: and her “reafon was, that he was no fit fubject to “be employed in her fervice, that was fubject to other mens actins; left fhe might “be thought to delay juftice.” 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 laft that appears upon our books.
m Finch. L. 454. 3 Lev. 332.
n F. N. B. 28. Co. Litt. 131.
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ftay of execution, till the king's debt be paid ; unlefs fuch creditor will undertake for the king's debt, and then he fhall have execution for both. And, laftly, by ftatute 29 Car. II. c. 7. no arreft can be made, nor procefs ferved upon a funday, except for treafon, felony, or breach of the peace.
When the defendant is regularly arrefted, he muft 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 purpofe is equally anfwered, whether the fheriff detains his perfon, or takes fufficient fecurity for his appearance, called bail (from the French word, bailer, to deliver) becaufe the defendant is bailed, or delivered, to his fureties, upon their giving fecurity for his appearance ; and is fuppofed to continue in their friendly cuftody inftead of going to gaol. The method of putting in bail to the fheriff is by entering into a bond or obligation, with one or more fureties (not fictitious perfons, as in the former café 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 bond
o. 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 fheriff is bound to keep him fafely, fo as to be forthcoming in court ; otherwife an action lies againft him for an efcape. But, on the other hand, he is obliged, by ftatute 23 Hen. VI. C. 10. to take (if it be tendered) a fufficient bailbond : and, by ftatute 12 Geo. I. C. 29. the fheriff fhall take bail for no other fum than fuch as is fworn to by the plaintiff, and endorfed on the back of the writ.
Upon the return of the writ, or within four days after, the defendant muft 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 the fheriff
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o Append. N
o. III. §. 5.
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below
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below are refponfible perfons, the plaintiff may take an affignment from the fheriff of the bail-bond (under the ftatute 4 & 5 Ann. c. 16.) and bring an action thereupon againft the fheriff's bail. But if the bail, fo accepted by the fheriff, be infolvent perfons, the plaintiff may proceed againft the fheriff himfelf, by calling upon him, firft, to return the writ (if not already done) and afterwards to bring in the body of the defendant. And, if the fheriff does not then caufe fufficient bail to be put in above, he will himfelf be refponfible to the plaintiff.
The bail above, or bail to the action, muft be put in either in open court, or before one of the judges thereof ; or elfe, in the country, before a commiffioner appointed for that purpofe by virtue of the ftatue 3 W. & M. c. 4. which muft be tranfmitted to the court. Thefe bail, who muft at leaft be two in number, muft enter into a recognizance
p in court or before the judge or commiffioner, whereby they do jointly and feverally undertake, that if the defendant be condemned in the action h e fhall pay the cofts and condemnation, or render himfelf a prifoner, or that they will pay it for him : which recognizance is tranfmitted to the court in a flip of parchment intitled a bail piece
q. And, if required, the bail muft juftify themfelves in court, or before the commiffioner in the country, by fwearing themfelves houfe-keepers, and each of them to be worth double the fum for which they are bail, after payment of all their debts. This anfwers in fome meafure to the ftipulatio or fatifdatio of the Roman laws
r, which is mutually given by each litigant party to the other : by the plaintiff, that he will profecute his fuit, and pay the cofts if he lofes his caufe ; 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 fentence of the judge, much like our fpecial bail ; but with this difference, that the fidejuffores were there abfolutely bound judicatum folvere, to fee the cofts and ocndemna-
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p Append. N
o. III. §. 5.
q Ibid.
r Inft. L. 4. t. 11. Ff. l. 2. t. 8
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Book III.
Ch. 19.
tion paid at all events : whereas our fpecial bail may be difcharged, by furrendering the defendant into cuftody, within the time allowed by law ; for which purpofe they are at all times intitled to a warrant to apprehend him
s.
Special bail is required (as of courfe) only upon actions of debt, or actions on the café 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, unlefs by a judge's order or the particular directions of the court, in fome peculiar fpecies of injuries, as in cafes of mayhem or atrocious battery ; or upon fuch fpecial circumftances, as make it abfolutely neceffary that the defendant fhould be kept within the reach of juftice. Alfo in actions againft heirs, executors, and adminiftrators, for debts of the deceafed, fpecial bail is not demandable : for the action is not fo properly againft them in perfon, as againft the effects of the deceafed in their poffeffion. But fpecial bail is required even of them, in actions for a devaftavit, or wafting the goods of the deceafed ; 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 fhall confider at large in the next chapter.
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g 2 Show. 202. 6 Mod. 231.
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.P 293
