the defendant, and make him put in substantial sureties for his appearance, called special bail. In order to which, it is required by statute 13 Car. II. st. 2. c. 2. that the true cause of action should be expressed in the body of the writ or process: else no security can be taken in a greater sum than 40%. This statute (without any such intention in the makers) had like to have ousted the king's bench of all its jurisdiction over civil injuries [288] without force; for, as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and held to bail thereupon for breaches of civil contracts. But to remedy this inconvenience, the officers of the king's bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass: the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt: (f) the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest. In imitation of which, lord chief justice North, a few years afterwards, in order to save the suitors of his court the trouble and expense of suing out special originals, directed that in the common pleas, besides the usual complaint of breaking the plaintiff's close, a clause of ac etiam might be also added to the writ of capias, containing the true cause of action; as, "that the said "Charles the defendant may answer to the plaintiff of a plea of trespass in breaking his close and also, ac etiam, may answer him, according to the "custom of the court, in a certain plea of trespass upon the case, upon pro"mises, to the value of twenty pounds, &c." (g) The sum sworn to by the plaintiff is marked upon the back of the writ; and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus endorsed thereon.

An arrest must be by corporal seising or touching the defendant's body; 15

f Trye's Jus Filizar. 102. Append. No. III. § 3.

g Lilly. Pract. Reg. t. ac etiam North's life of Lord Guildford, 99. [This work is strongly recommended to the student's perusal.]

the action is on a bill or note. This act is at present expired, but it is expected it will be reviv ed next session. It does not avoid plaintiff's proceeding to judgment, though he recover less than 151. 7 Taunt. 435. 1 Moore, 151. S. C. By the 43 Geo. III. c. 46. the sum for which the arrest is allowed must be exclusive of the costs incurred.

As to what cause of action will justify an arrest, it is a rule that where a debt is certain, or damages may be reduced to a certainty, as in assumpsit or covenant for the payment of money, Barnes, 79, 80. 108. the defendant may be arrested as a matter of course, on an affidavit stating the cause of action. Tidd, 170. But where damages are altogether uncertain, as in assumpsit, or covenant, to indemnify, &c. or in actions for a tort or trespass, there can be no arrest without a special order of the court, or a judge, on a full affidavit of the circumstances, Id. 171. and by rule of H. T. 48 Geo. III. a person cannot be held to special bail in trover or detinue without an order. And there are other cases where an arrest is not allowed, even though the action be brought for a sum certain. Thus a defendant cannot be arrested on a penal statute, Yelv. 53. though he may on a remedial one, 7. T. R 259.; or where the act expressly authorizes an arrest. The defendant cannot be arrested on a bail bond, R. M 8. Ann. or replevin bond, 1 Salk. 99. 6 T. R. 336. 8 T. R. 450. or on a recognizance of bail, Tidd, 8 ed. 172.: nor for goods bargained and sold, or sold without stating a delivery, 12 East, 398 1 Bingh. 357; nor on a policy of insurance without an adjustment, or an express promise to pay the amount, 5 Taunt, 201. 1 Marsh. 19. S. C.; but he may be on a guarantee. 9 Price, 155. So defendant cannot be arrested for more than is equitably due. Thus he cannot be arrested on the penalty of a bond," 6 T. R. 217. 2 East, 409.; but he may if the sum is agreed to be for liquidated damages. Tidd, 8 ed. 173. He cannot be arrested for more than the balance due, where there is a set-off. 3 B. & C. 139. 5 B. & A. 513. 1 D. & R. 67. S. C. Chilty.

(15) But this does not seem to be absolutely necessary, for if a bailiff come into a room and tell the defendant he arrests him, and lock the door, it is sufficient. C. T. Hardw. 301, 2 New. Rep. 211. Bull. N. P. 82. Bare words, however, will not constitute an arrest. 1 Ry. & M. C. N. P. 26 It is sufficient that the officer have the authority, be near, and acting in the arrest, without being the person who actually arrests. Cowp. 65.

If the defendant be wrongfully taken without process, 2 Anst. 461. 1 N. R. 135. or after it s

after which the bailiff may justify breaking open the house in which he is to take him otherwise he has no such power; but must watch his opportunity to arrest him. For every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence." Which principle is carried so far in the civil law, that for the most part not so much as a common citation of summons, much less an arrest, can be executed upon a man within his own walls. (h) Peers of the realm, [289] members of parliament, and corporations, are privileged from ar

rests; and of course from outlawries. (i) And against them the process to enforce an appearance must be by summons and distress infinite, (j) instead of a copias. Also clerks, attorneys, and all other persons 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 sued by bill (called usually a bill of privilege) as being personally present in court. (k)" Clergymen j See pag. 280.

h Ff. 2, 4. 18-21.

i Whitelock of parl. 206, 207.
k Ero. Abr. t. bille. 29. 12 Mod. 163.

returnable, 2 H. Bla. 29. he cannot be lawfully detained in custody under subsequent process at the suit of the same plaintiff, though he may at the suit of third persons. 2 B. & A. 743. 1 Chit. Rep. 579. S. C. Chitty. (16) A bailiff before he has made the arrest cannot break open an outer door of the house; but if he enter the outer door peaceably, he may then break open the inuer door, though it be the apartment of a lodger, if the owner himself occupies part of the house. Cowp. 1. 2 Moore, 207. 8 Taunt. 250. S. C. But if the whole house be let in lodgings, as each lodging is then considered a dwelling-house, in which burglary may be stated to have been committed, it has been supposed that the door of each apartment would be considered an outer door, which could not be legally broken open to execute an arrest. Cowp. 2. But to justify breaking open an inner door belonging to a lodger, admittance must be first demanded, unless defendant is in the room. S B. & P. 233. 4 Taunt. 619. And the breaking open an inuer door of a stranger cannot be justified on a suspicion that defendant is in the room. 5 Taunt. 765. 6 ed. 246.

(17) Mr. Tidd has the following notes on this privilege of attornies. Tidd, 8 ed. 77.-These privileges are allowed not so much for the benefit of attornies as their clients, 2 Wils. 44. 4 Burr. 211. 3 Doug 381, and are therefore confined to attornies who practise, 2 Wils. 232. 4 Burr. 2113. 2 Bla. Rep 1086 1 Bos & Pul. 4 (2 Lutw. 1667. contra), or at least have pracsised within a year; for it is a rule that such attornies as have not been attending their employment in the king's bench for the space of a year, unless hindered by sickness, be not allowed their privilege of attornies. R. M. 1654. S. 1. K. B. & C. P. 2 M. & S. 605. And an attorney not having practised for some time previous to the issuing of the plaintiff's writ against him, is not privileged from being arrested thereon, and held to bail on the ground of having recommenced his practice and taken out his certificate before he was actually arrested. 7 T. R. 25. But an attorney may sue by attachment of privilege, though his certificate has expired, and has not been renewed, if the writ be sued out within a year from the expiration of his certificate. Where the plaintiff and defendant are attornies of different courts, the plaintiff is allowed his privilege of suing the defendant by attachment. 2 Brownl. 266. 2 Stra. 837. 1 Barnard, K. B. 182. 228. S. C. 1 Bla Rep. 19. Barnes, 44 2 Blac. Rep 1325 And in this case it is commonly said, that there is no privilege against privilege, or in other words, the privilege of the plaintiff takes away that of the defendant, for the attendance of the plaintiff is as necessary in his court, as that of the defendant in his; and therefore the cause is legally attached in the court where the plaintiff is an officer. Bar. Ab Privilege, B. 6. see 9 Price, 16. But where the plaintiff and defendant are attornies of the same court, the defendant is entitled to his privilege of being sued by bill. 2 Stra. 1141. 1 Bla. Rep 19. 2 Blac. Rep. 1085 6 T. R. 524 and if not so gued he may plead his privilege in abatement, or the court on motion will stay the proceedings, but without costs. 6 T. R. 524 8 T. R. 395. Barnes, 53. And where an action is brought by an attorney of the king's bench against an attorney of the common pleas, though the former is entitled to sue in his own court by attachment of privilege, yet he cannot arrest the defendant and hold him to special bail. Beck v. Lewin, T. 55 G. III. K. B.; but see 9 Price, 16. contra, in exchequer.

An attorney may also waive his privilege, either when plaintiff, by suing as a common person, 2 Stra. 837. 1 Barnard, 228. S. C. and see 1 Bos. & Pul. 629 2 Bos. & Pul. 29. or when defendant, by not claiming it in due time or in a proper manner. I Blac. Rep. 1085. And it seems that an attorney waives his privilege by entering into a bail bond, on process issuing out of a different court, as he must be sued in the court out of which the process issued. Barnes, 117. and see 3 Wills. 348. 2 Blac. Rep. 838. S. C. 1. Blac. 631. Where an attorney of the common pleas is in the actual custody of the marshal, he may be sued in the king's bench as a prisoner, by third

performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by stat. 50 Edw. III. c. 5. and I Rich. 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.18 And no arrest can be made in the king's presence, nor within the verge of his royal palace, (1)19 nor in any place

I 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.

persons, 1 Stra. 191. 4 Bar. & Ald. 88. But where an attorney of the common pleas puts in bail to an action depending in the king's bench, he does not thereby lose his privilege, but may plead it in that action, or in any other brought against him by the bye; for it would be absurd, that he who founds his action on that of another, should be in a better condition than the original plaintiff. 27 Hen. VI. 6. a. 31 Hen. VI. 10. Carth 377. 1 Salk 1, 2. 1 Lord Raym. 135. Š. C. 12 Mod. 102. 112. 555. 1 Stra. 191. Yet where an attorney, after having put in bail, waives his privilege by pleading in chief in one action, it is construed to be a waiver of privilege in all other actions brought against him by the bye, during the same term 27 Hen. VI. 6. a. 31 Hen. VI. 10. Carth. 377. 1 Salk. 1, 2 1 Lord Raymond, 135. S. C. 12 Mod. 102. 112. 535. 1 Str. 191. Aud if the defendant plead his privilege, after he has waived it, the plaintiff in his replication must shew the waiver, and rely upon the estoppel. 1 Lord Ray. 136. It is likewise settled, that an attorney shall not be allowed his privilege as against the king, 1 Lord Ray. 27.; or where he sues or is sued en auter droit, as executor or administrator, Hob. 177. 1 Salk. 2. 1 Lord Raym. 533.; or jointly with wife, Bro. Ab. tit. Bill, pl 2. Dyer, $77. (a) 1 Taunt. 254.; or other person who is not privileged, 2 Rol. Ab. 274. 2 Salk. 544 12 Mod. 163, 4. 4 Bac. Ab. 223.; or where there would otherwise be a failure or defect of justice, as where an appeal is brought in the king's bench, a real action in the common pleas, or a foreign attachment in the sheriff's court of London, against an attorney of a different court. 1 Saund. 67. 8 T. R. 417. But an attorney sued by bill, jointly with a person having privilege of parliament, does not lose his privilege. & M. & S.

585

(18) See further as to the privileges from arrest, Tidd, 8 ed. 192 to 214. Lee's Dict. tit. Arrest, 90. 92. In addition to those named in the text are the following, viz. Administrator, as such, Yelv. 53.; but not if he has personally promised to pay. 1 T. R. 716. Aliens for debt beyond seas. 38 Geo. III. c. 50. s. 9. Ambassadors and servants. 7 Ann. c. 12. 1 B. & C. 554. 3 D. & R. 833. 25. Bail, being about to justify, or otherwise attending court as bail. 1 H. Bla. 6.36. 1 M. & S 638. Bankrupt for forty-two days, unless before in prison, and after forty-two days if the time for surrender be enlarged, 8 T. R. 475.; also if summoned before the commissioners relative to his estate, though several years after his last examination. Id. 534. See the 6 Geo IV. c. 16. ss. 117, 118 Barristers attending court or on circuit, 1 H. Bla. 636. Bishops Consul-general. 9 East, 447 sed vid. 1 Taunt. 106. 3 M. & S. 284. Executor, as such. Femecovert, 1 T. R. 486. 2 H. B. 17.; but if she obtain credit, pretending to be single, she may be ar rested, 1 N. R. 54. and see 1 Bing, 344 2 Marsh. 40. 7 Taunt. 55. Tidd, ed. 197.; though if a foreigner, and her husband be abroad, she is liable for her debts, though neither separated by deed nor having a separate maintenance, 2 N R. 580; but if plaintiff knew her to be married, she will be discharged, 6 T. R 451. 1 East. 17. n. 7 East, 582., and in such case, plaintiff will be ruled to pay costs on motion, 3 Taunt. 307.; but if she cobabit with another man, and trade on her own account, she will not be discharged, 1 B & P. 8.; if she by mistake represent her husband to be dead, she will be discharged. 1 East, 16 Heir, sued as such. Hundredors, as such. Insolvent debtor discharged, 3 M. & S. 595. unless on a subsequent express promise. 6 Taunt. 563. sed vide 1 Chit. R 274. n Irish peer, whether a representative or not. 39 & 40 Geo. III. c. 67. art. 4. Marshal of king's bench. Officers, non-commissioned, 4 Taunt. 557.; but volunteer drill sergeants are not exempt. 8 T. R. 105 Plaintiff attending execution of inquiry, &c. 4 Moore, 34. Sailors, under 201 1 Geo. II. st. 2. c. 14. s. 15. 32 Geo. III. c. 33. s. 22. Serjeants at law. 6 T. R. 686 Suitors attending court, 11 East, 439 and insolvent court is such a court. 2 Marsh. 57. 6 Taunt 356. Warden of the Fleet. Witnesses, subpoenaed, or summoned before commissioners under great seal, or attending an arbitrator appointed by the court. 1 Chit. Rep. 679. 3 B. & A 252. Š. C 3 Anst 94. 3 East, 189 A creditor attending commissioners of bankrupt to prove a debt. 7 Ves. 512. 1 Ves & B. 316. 2 Rose, 24. By mutiny act witnesses attending courts-martial are privileged But witnesses are not privileged if they de lay 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.

(19) 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.

VOL. II.

29

where the king's justices are actually sitting.20 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 creditor [290] 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."

21

When the defendant is regularly arrested, he must either go to prison, for safe custody or put in special bail to the sheriff. 23 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 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 1602, granted one to lord Cutts, to protect him from being outlawed by his taylor (3 Lev. 832.) which is the last that appears upon our books.

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

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

(20) Sed vide 1 Lev. 106. Process cannot be executed in Kensington palace, 10 East, 578. 1 Camp. 475.; or within the Tower, without leave from the governor. 2 Chit. Rep. 48. 51. (21) See construction of this act, Tidd, 8 ed. 216. After a negligent escape, the defendant may be taken on a Sunday. 2 Lord Raym 1028.

The arrest must be made in the county into which the process is issued; an arrest on the verge of a county into which the writ is issued, is bad, unless there be a dispute as to boundaries. SB. & A. 408.

(22) As to the mode of confining and treating prisoners arrested on mesne process, see the lord's act. 32 Geo. II. c. 28. Tidd, 8 ed. 228,9 230 By 4 Geo. IV. c. 64. s 5. prisoners for debt are to be confined in a particular part of the gaol, and for the prevention of extortion in mesne process. Tidd, 8 ed. 232. 23 Hen. VI. c. 9. 32 Geo II. c 28. s. 1. 12.

(23) Or by 43 Geo. III. c. 46. deposit in the sheriff's hands the sum indorsed on the writ, with 107. 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.

Chitty. (24) Two sureties, each worth double the amount of the sum for which the arrest is made, are usually taken; but a bond with five sureties, three of whom are respectively worth more than the penalty of the bond, is sufficient, though the other two are worth less than the penalty. 5 M. & S. 223. Though the sheriff may take a bond with one only, 10 Co. 100. b. yet he runs a risk. 2 Bing. 227. The plaintiff cannot sue sheriff if the bail be insufficient. Cro. Eliz. 808. 2 Saund. 59. ; but see 1 Lord Raym. 425.

If the bail bond be substantially good, it cannot be avoided for any trifling informality or va riance of the condition from the writ, in the description of the plea, or of the time, or place of appearance, Tidd, 8 ed. 223 and cases there cited.

If the defendant surrender himself to the sheriff on or before the return day of the writ, the bail bond may be given up to be cancelled, after which the plaintiff cannot take an assignment of it. Tidd, 8 ed. 225. 6 T. R. 753. 10 East, 100. But it is optional on the sheriff to accept the surrender in discharge of the bond, 1 East, 383.; and rendering defendant to king's bench prison before the return of the writ, will not discharge bail to sheriff, I Price, 262. Tidd, 8 ed. 225, and the bail to the sheriff cannot take and surrender the defendant. 5 Burr. 2683.

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 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: 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.

26

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 [291]

29

p Append. No. III § 5.

If the plaintiff is satisfied with the defendant's attorney's undertaking to appear for the defendant, and take such undertaking, instead of defendant giving bail to the sheriff, it will be enforced on the attorney by attachment. 1 T. R. 422. 4 East, 669. Tidd, 242 But a general undertaking by an attorney to appear to process, does not oblige him to put in special bail to bailable process. 2 Chit. Rep. 415.

Chitty. (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 plaintiff in the action, it is valid. 4 East, 568.

(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 justification 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. Chitty (27) If he so refuse, he is liable to a special 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 London and Middlesex, in proceedings by bill or lati at, special bail in the king's bench must be put in within four days, exclusive of the return day of the writ; in any other County within six days: but if the last day falls on a Sunday, it may then be put in on the Monday following, R. M. 8 Ann. K. B.; and if the action be by original, the defendant has, until four days after the quarto die post of the return, to put in bail, and six days if in any county but London or Middlesex. 4 T. R. 377. If either the fourth or sixth day fall on a Sunday, the defendant has all the Monday following to put in bail. R. M. 8 Ann. 1. b. 2 Stra 782. 914. Excepting Sunday, bail above may be put in on a dies non juridicas. 5 T. R. 170. In the common pleas, on process returnable the first return of the term, bail should be put in within four days in London or Middlesex, and in any other county within eight days after the appearance day, or quarto die post of the return of the process, exclusive of the return day 2 Hen Bla. 276.; but on process returnable, the second or subsequent return day, bail must be put in within four days in London or Middlesex, or in any other county in eight days, exclusive of return day. R. T. 30 Geo. III. C. P. In the exchequer, the d. fendant is allowed only three days after the return to put in bail. 1 Price, 104 (a). Time may be obtained for putting in bail. Bail_above may, for the purpose of surrendering the defendant, be put in before the return, 8 R. T. 456. and see 2 Bing. 271.; and after the return of the writ, they may be put in at any time before defendant is charged in execution. 2 Chit. Rep. 72, 73. 2 Marsh. 374.; but see Barnes, 92.

(29) 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, or in proceedings in the common pleas or K. B. by original, a common appearance must be 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, within eight days after appearance day or quarto die post of return of process. 3 B. & C. 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.