the bail that were taken by 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 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) 30 And, if excepted to, the bail must be perfected, that is, they must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers," and each of them to be worth the full sum for which they are bail, after payment of all their debts.32 This answers in some mea

q Append. No. III. § 5.

r Ibid.

By 5 Geo. II. c. 27., to expedite the plaintiff's proceedings, if the defendant, having been served with process, shall not appear at the return thereof, or within eighty days after such return, the plaintiff, upon affidavit of the service of such process, may enter a common 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 appearance or file common bail till the ninth day. Tidd, 242.

(30) There is a distinction in form between recognizances of bail to an action by bill, and that by original: in the former the bail bind themselves generally, if the defendant be condemned in the action and do not pay, that they will do so, or render the defendant to prison; but in the latter, the bail bind themselves in a sum certain, being double the amount of the sum sworn to upon the like conditions.

(31) Or a freeholder, or copyholder, or a long leascholder. 8 Taunt. 148. 1 Chitty R. 7. 88. 144. 2 Chitty R. 96, 97.

(32) Upon special bail being put in, a notice thereof must be given to the plaintiff's attorney or agent, whereupon the latter may except to the bail within twenty days after notice given, by entering such exception, 4 D. & R. 365; and notice of the exception must be given to the defendant's attorney before the sheriff is ruled, Alexander v. Miller, 24 Nov. 1825, K. B. But where bail is not put in, at the time of ruling the sheriff to return the writ or bring in the body, he must put in and perfect of bail at his peril, or render the defendant within four days in a town cause, or six days in a country cause, without any exception. 2 Bla. R. 1206. 2 Chit. R. 82. 108. Tidd, 3 ed. 256.

Within a particular time (in general four days), after the exception entered and notice given, the bail must justify. See Tidd, 257, 8, 9. If they do not mean to do so, others should be added.

Previous to the bail justifying, there should be a notice setting forth that the bail already put in, will, on a certain day, justify themselves in open court, 2 Chit R. 103. Tidd, 259.; or that one or more persons will be added, and justify themselves as good bail for the defendant. Id.

In the king's bench, bail are added and justified before one of the judges sitting in the bail court, by virtue of the 57 Geo. III. c. 11. The bail must be in Westminster-hall by half past nine in the morning, and if the bail are not ready, and the papers delivered to counsel, before ten o'clock, they cannot be taken after that hour. Rul. H. T 59 Geo. III. K. B. When there are but few bail, it is necessary that they should be very punctual in the time of their attendance, for if they are not ready when the judge takes his seat, he will not wait for them till ten o'clock; but when the bail are numerous, the exact time of their attendance is not so material, and on the last day of term they are still allowed to justify as formerly, in full court at its rising. Tidd,

sure 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 costs and condemnation paid at all events: whereas our special bail may [29] 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)5

s Inst. l. 4. t 11 Ff. 1. 2. t. 8.

33

t Show. 202. 6 Mod. 231.

In the C. P. the bail must justify at the sitting of the court only, except on the last day of term, when bail, who may have been prevented from attending at the sitting of the court, shall be permitted to justify at the rising of the court. R. M. 51 Geo. III. C. P. 3 Taunt. 569 sed vid. 8 Taunt. 56. In the exchequer, the junior baron attends in court alone, a few minutes before ten o'clock every morning during term, and it is expected justifications of bail be then made, and no justification can take place after half past ten o'clock. 8 Price, 612 R. E. 56 Geo. III. 2 Chit. 381. 9 Price, 57. Tidd, 263.

To justify themselves, each must swear that he is worth double the amount of the debt, after payment of his own debts. But if the sum exceed 1000l. each is only required to justify himself in 1000%. more than that sum. M. 51 Geo. III. It is not sufficient for bail to swear they are worth a certain sum exclusive of their debts. 4 Taunt. 704. There must also be an affidavit made of the service of the notice of justification, which must state the mode of service of such notice. Tidd. 264.

The grounds for opposing bail are so various, that it would be impracticable in this place, to consider them in accurate detail; they will, for the most part, be found in Mr. Tidd's Practice, 8 ed. 265 to 273. The general grounds are for defect in the bail piece, or affidavit of caption, or notice of bail, or of justification, or in the affidavit of service of notice of justification; or on the ground of bail being peers, members of the house of commons, attornies, or other clerks, sheriff's officers, &c., being bail in several actions, being indemnified by defendant's attorney, not knowing defendant, living within the verge of the court, not being housekeepers, or freeholders, copyholders, or long leaseholders, or in respect of property, as being bankrupts, insolvent debtors, or before rejected as bail, or having no property in England. As to the mode of examining and opposing bail, see Tidd, 275, 6.

If the bail be guilty of prevarication, or commit perjury, or assume false names, or personate other persons, &c. the court will commit or otherwise punish them, or they may be indicted for perjury. See Tidd, 276.

If the bail do not succeed in justifying, in some cases further time will be allowed, to add and Justify others, as if the bail cannot attend, or there be a defect in the bail piece, or notice of justification, or in the notice of bail, or of justification, or the service of such notice or affidavit thereof, or in the affidavit of justification, &c. See cases in Tidd, 265 269 275

But

The plaintiff may, by his proceeding improperly, waive the bail, as by declaring in chief before they are put in, or may waive his exception to them, if he so declare before justification. R. M. 8 Ann. Reg. 1. (a) K. B. R. E. 5 Geo. II. Reg. 1. (a) K. B. Cas. Pr. C. P. 81. 155 the plaintiff may declare de bene esse or conditionally, provided good bail be put in, or the bail already put in do justify, R. M. 8 Ann. Reg. 1. (c) K. B. Cas Pr C. P. 81. though indeed the demand, or acceptance of a plea will even then be deemed a waiver of bail or justification, Barnes, 92; but see 1 D. & R. 16. 4 D. & R. 854. If the bail to the sheriff become bail above, the plaintiff cannot except to them after he has taken an assignment of the bail bond. I Salk. 97. 11 East, 321. Chitty.

(33) And the bail may render the defendant in their discharge, even after judgment; and they may take him on a Sunday. 6 Mod. 281. but see 2 Bla. R. 1273, or during his examination be fore commissioners of bankrupt, 1 Atk 238. 5T R. 210.; or going into a court of justice, 1 Sel. Prac. 180. 3 Stark 132. 1 D. & R. M. P. C. 20.; and they may justify entering the house of a stranger (the outer door being open) to take the defendant though he be not in the house, 2 Hen. Bla. 120., and if the defendant is in custody, either in a civil action or upon a criminal charge, they may in K. B. have a writ of habeas corpus to bring him up to the court, to be surrendered in their discharge. 7 T. R 226. When the principal is taken, one of the bail, it is said, must always remain with him, I Sel. Pr. 180.; but a third person may assist in the taking and detaining of defendant, though the bail do not continue present 3 Taunt 425.

Besides the mode of discharging the bail, 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 impressed or

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 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 prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.

CHAP. 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.'

discharged on the 48 Geo. II. 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. 358. 6 T. R. 363.; or a variance between the affidavit and judgment in C. P or in declaring 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 principal 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. Chitty.

(1) Pleading is the statement in a logical and legal form of the facts which constitute the Yplaintiff's cause of action, or the defendant's ground of defence; it is the formal mode of alleg ing 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 frst 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 facts, and of apprizing the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it." And see the observations of Lord C. J. De Grey, Cowp. 682. From this it will be seen, that the science of special pleading may be considered under two heads: 1st. The facts necessary to be stated. 2. The mode of stating them. In these considerations, the reader must be contented with a general outline of the law upon this subject.

1st. THE FACTS RECHSSARY TO BE STATED.—No more should be stated than is essential to

1

The first of these is the declaration, narratio, or count, anciently called the tale; (a) in which the plaintiff sets forth his cause of complaint at a Append. No. II. §2. No. III. § 6.

constitute the cause of complaint, or the ground of defence. Cowp 683. 1 Lord Ray. 171. And facts only should be stated, and not arguments or inferences, or matter of law. Cowp. 684. 5 East, 275. The party can only succeed on the facts, as they are alleged and proved

There are various facts which need not be stated, though it may be essential that they should be established in evidence, to entitle the party pleading to succeed.

Thus there are facts of which the court will, from the nature of its office, take notice without their being stated: as when the king came to the throne, (2 Lord Raym. 794.) his privileges, (id. 980.) proclamations, &c. (1 Lord Raym. 282. 2 Camp. 44 4 M. & S. 532.) but private or ders of council, pardons, and declarations of war, &c must be stated. (2 Litt Bac. Reg. 303. 3 M. & S. 67. 11 Ves 292. 3 Camp. 61. 67.) The time and place of holding parliaments, and their course of proceedings, need not be stated, (1 Lord Raym. 343. 210. 1 Saund. 131.); but their journals must. (Lord Ray. 15. Cowp. 17.) Public statutes, and the facts they ascer tain, (1 T. R. 145. Com. Dig. Pleader, c. 76.), the ecclesiastical, civil, and marine laws. (Bro. Quare Impedit, pl. 12. Lord Ray. 338.) need not be stated; but private acts (Lord Ray. 381. g Dougl. 97.) and foreign, (2 Cart. 273. Cowp. 174.) and plantation and forest (2 Leon. 209.) laws, must. Common law rights, duties, and general customs, customs of gavelkind, and borough English, (Dougl. 150. Lord Ray. 175. 1542. Carth. 83 Co. Litt. 175 Lord Raym. 1025. Cro. Car. 561.) need not be stated; but particular local customs must (1 Rol. Rep. 509. 9 East, 185. Stra. 187. 1187. Dougl. 387.) The almanack is part of the law of the land, and the courts take notice thereof, and the days of the week, and of the moveable feasts and terms. (Dougl. 380. Salk. 269. 1 Roll. Ab. 524 c. pl. 4. 6 Mod. 81. Salk 626.) So the division of England into counties will be noticed without pleading, (2 Inst. 567. Marsh. 124.) but not so of a less division (id.) nor of Ireland. (1 Chit. Rep. 28. 32. S B. & A. 301. S. C. 2 D. & R. 15. 1 B. & C. 16. S. C.) The court will take judicial notice of the incorporated towns, of the extent of ports, and the river Thames. (Stra. 469. 1 H. Bla. 356.) So it will take notice of the meaning of English words and terms of art, according to their ordinary acceptation, (1 Rol. Ab 86 585.; also of the names and quantities of legal weights and measures, (1 Rol. Ab 525.); also courts will take notice of its own course of proceedings, (1 T. R. 118. 2 Lev. 176) and of those of the superior courts, (2 Co. Rep. 18. Cro. Jac. 67.) the privileges they confer on their officers, (Lord Ray. 869.898.) of courts of general jurisdiction, and the course of proceedings therein; as the court of exchequer in Wales, and the counties palatine, (1 Lord Raym. 154 1 Saund 73.); but the courts are not bound, ex officio, to take notice who were, or are the judges of another court at Westminster, (2 Andr. 74. Stra. 1226.) nor are the superior courts, ex officio, bound to notice the customs, laws, or proceedings of inferior courts of limited jurisdiction, (1 Roll. Rep. 105. Lord Raym. 1334. Cro. Eliz. 502.) unless indeed in courts of error. (Cro. Car 179.)

Where the law presumes a fact, as that a person is innocent of a fraud or crime, or that a transaction is illegal, it need not be stated. 4 M. & S. 105. 2 Wils. 147. Co. Litt. 78. b. 1 B. & A. 463.

Matter which should come more properly from the other side, as it is presumed to lie more in the knowledge of the other party, or is an answer to the charge of the party pleading, need not be stated, unless in pleas of estoppel and alien enemy; but this rule must be acted upon with caution; for if the fact in any way constitutes a condition precedent, to enable the party to avail himself of the charge stated in his pleading, such fact should be stated. Com. Dig. Pleader. c. 81. 1 Leon. 18. 2 Saund. 62. b. 4 Camp. 20. 11 East, 638. and see cases 1 Chit. ou Pl. 206. Stephen, 354.

Though the facts of a case must be stated in pleading, it is not necessary to state that which is a mere matter of evidence of such fact. 9 Rep. 9. b. 9 Edw. III. 5. b. 6. a. Willes, 180. Raym. 8.

And though the general rule is, that facts only are to be stated, yet there are somne instances in which the statement in the pleading is proper, though it does not accord with the real facts, the law allowing a fiction, as in ejectment, trover, detinue, &c. 2 Burr. 667. 1 N. R. 140.

No fact that is not essential to substantiate the pleading should be stated. The statement of immaterial or irrelevant matter is not only censurable on the ground of expense, but frequently affords an advantage to the opposite party, either as the ground of a variance, or as rendering it incumbent on the party pleading to adduce more evidence than would otherwise have been neces sary; though, indeed, if the matter unnecessarily stated be wholly foreign and impertinent to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage, it being a maxim that utile per inutile non vitiatur. See cases, &c. in Chit. on Pl. 208, 9, 10. Besides this, the pleading must not state two or more facts, either of which would of it. self, independently of the other, constitute a sufficient ground of action or defence. Co. Lit. 304. a. Com. Dig Pleader, C. 33. E. 2. 1 Chit. on P. 208.

2dly. THE MODE of stating FACTS-The facts should be stated logically, in their natural order; as, on the part of the plaintiff, his right, the injury and consequent damage; and these, with certainty, precision, and brevity. The facts, as stated, must not be insensible or repugnant, nor ambiguous or doubtful in meaning, por argumentative, nor in the alternative, nor by way of

length; being indeed only an amplification or exposition of the originał 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, (b) 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 ancient practice, and is therefore still warrantable in the common 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 [294] upon his writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action of covenant, or on the case for breach of contract, or other less forcible transgression: (c) unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly.3

:

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c. affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county

recital, but positive, and according to their general effect and operation. Dougl. 666, 7. 1 Chit. on Pl. 211. Stephen, 378 to 405.

Certainty signifies a clear and distinct statement, so that it may be understood by the opposite party, by the jury, who are to ascertain the truth of such statement, and by the court, who are to give judgment. Cowp. 682. Com Dig. Pleader, C. 17. Less certainty is requisite, when the Jaw presumes that the knowledge of the facts, is peculiarly in the opposite party; and so when it is to be presumed that the party pleading is not acquainted with minute circumstances. 13 East. 113. Com. Dig. Pleader, C. 26. 8 East, 85. General statements of facts admitting of almost any proof, are objectionable, 1 M. &. S. 441. 3 M. & S. 114.; but where a subject comprehends multiplicity of matter, there, in order to avoid prolixity, general pleading is allowed. 2 Saund. 411. n. 4. 8 T. R. 462.

In the construction of facts stated in pleading, it is a general rule, that every thing shall be taken most strongly against the party pleading, 1 Saund. 259. n. 8.; or rather, if the meaning of the words be equivocal, they shall be construed most strongly against the party pleading them. 2 H. Bla. 530. ; for it is to be intended, that every person states his case as favourably to himself as possible, Co. Litt 30 36.; but the language is to have a reasonable intendment and construction, Com. Dig. Pleader, C. 25; and if the sense be clear, mere exceptions ought not to be regarded, 5 East, 529.; and where an expression is capable of different meanings, that shall be taken which will support the averment, and not the other which would defeat it. 4 Taunt, 492. 5 East, 257. After verdict, an expression should be construed in such sense as would sustain the verdict. 1. & C. 297.

(2) We have already cursorily considered the general requisites and modes of framing a de. claration. Its parts, and particular requisites, consist in the title of the court and term, the vcnue, the commencement, the statement of the cause of action, the several counts, the conclusion, and the profert and pledges. As to the manner of stating these requisites, see 1 Chit. on Pl. 4 ed. 234 to 360 The points relating to them are too numerous for any detail, though indeed the requisites relating to the venue, the several counts and pledges, will be here partially considered, the learned commentator having treated of them, though not very methodically.

(3) And even then, the plaintiff will only lose the benefit of the bail, and the court will not set aside the proceedings. 7T R. 80. 8 T. R. 27. 5 Moore, 483. 6 T. R. 363. So in the K. B. where the proceedings are by original, we have seen ante,-the venue must be laid in the county into which the original was issued; or in bailable cases the defendant will be discharged; but would be otherwise in C. P. Imp. C. P. 159.; and this would be the only advantage gained by the defendant.

The declaration should in other respects correspond with the process, as in the names and numbers of the parties, the character or right in which they sue or are sued; but as, according to the present practice of the courts, oyer of the writ cannot be craved, and a variance between the writ and declaration cannot in any case be pleaded in abatement, 1 Saund. 318. 3 B. & P. 395. ; and as there are several instances in which the court will not set aside the proceedings on account of a variance between the writ and declaration. 6 T. R. 364. many of the older decisions are no long. er applicable in practice. But if the defect appear on the face of the declaration, the plaintiff may plead an abatement, or demur accordingly. As to these general requisites, see 1 Chit. on Pl. 222 to 229. Chitty