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pearance, 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 then 401. This statute (without any such intention in the [*288] makers) had like to have ousted the king's bench of *all its juris
diction over civil injuries 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 me. thod 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. În imitation of which, lord chief justice
In 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 promises, to the value of twenty pounds, fc. (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 (14).
An arrest must be by corporal seizing or touching the defendant's body (15); after which the bailiff may justify breaking open the house in which he is (16) 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 (17). Which principle is carried so far in the civil law, w Trye's Jus Filizar. 102. Appendix, No. III. Lord Guildford, 99. This work is strongly recom3.
mended to the student's perusal. (g) Lilly Pract. Reg. t. ac etiam. North's life of
(14) See 3 R. S. 348, § 6. 11.
may break and enter it to effect his purpose, (15) But this does not seem to be absolute. but he ought to be very certain that the de. ly necessary, for if a bailiff come into a room fendant be, at the time of such forcible
entry, and tell the defendant he arrests him, and lock in the house. See Johnson v. Leigh, 6 Taunt. the door, it is sufficient. C. T. Hardw. 301. 246. 2 New. Rep. 211. Bull. N. P. 82. Bare (17) A bailiff before he has made the arrest words, however, will not constitute an arrest. cannot break open an outer door of a house ; 1 Ry. & M. C. N. P. 26. It is sufficient that but if he enter the outer door peaceably, he the officer have the authority, be near, and may then break open the inner door, though it acting in the arrest, without being the person be the apartment of a lodger, if the owner who actually arrests. Cowp. 65.
himself occupies part of the house. Cowp. 1. If the defendant be wrongfully taken with- 2 Moore, 207. 8 Taunt. 250. S.C. But if the out process, 2 Anst. 461. 1 N. R. 135. or after whole house be let in lodgings, as each lodge it is returnable, 2 H. Bla. 29. he cannot be ing is then considered a dwelling house, in lawfully detained in custody under subsequent which burglary may be stated to have been process at the suit of the same plaintiff, though committed, it has been supposed that the door he may at the suit of third persons. 2 B. & of each apartment would be considered an A. 743. 1 Chit. Rep. 579. S. C.
outer door, which could not be legally broken (16) This appears to be stated too exten- open to execute an arrest. Cowp. 2. But to sively; it is the defendant's own dwelling justify breaking open an inner door belonging which by law is said to be his castle ; for if he io a lodger, admittance must be first demandbe in the house of another, the bailiff or sheriff ed, unless defendant is in the room. 3 B. &
that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls (h). Peers of the realm, members *of parliament, and [*289) corporations, are privileged from arrests ; and of course from outlawries (1). And against them the process to enforce an appearance must be by summons and distress infinite (j), instead of a capias. 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) (18), (19). Clergymen 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 Ric. II. c. 16. as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning (20). And no arrest can be made in the king's presence, nor within
(A) Ff. 2. 4. 18—21.
(1) See page 280.
P. 223. 4 Taunt. 619. And the breaking upon Consul-general. 9 East, 447. sed vid. 1 Taunt. an inner door of a stranger cannot be justified 106.3 M. & 8. 284. Erecutor, as such. on a suspicion that defendant is in the room. Feme-covert, 1 T. R. 486. 2 H. B. 17; but if 5 Taunt. 765. 6 ed. 246.
she obtain credit, pretending to be single, she (18) These privileges are allowed not so may be arrested, N. R. 54. and see 1 Bing. much for the benefit of attornies as their clients, 344. 2 Marsh. 40. 7 Taunt. 55. Tidd, 8 2 Wils. 44. 4 Burr. 211. 3 Doug. 381. and are ed. 197 ; though if a foreigner, and her hus. therefore confined to attornies who practise, 2 band be abroad, she is liable for her debts, Wils. 232. 4 Burr. 2113. 2 Bla. Rep. 1086. I though neither separated by deed nor having Bos. & Pul. 4. (2 Lutw. 1667. contra), or at a separate maintenance, 2 N. R. 380; but if least have practised within a year; for it is a plaintiff knew her to be married, she will be rule that such attornies as have not been at- discharged, 6 T. R. 451. | East, 17. n. 7 tending their employment in the king's bench East, 582 ; and in such case, plaintiff will be for the space of a year, unless hindered by ruled to pay costs of motion, 3 Taunt. 307; sickness, be not allowed their privilege of at. but if she cohabit with another man, and trade tornies. R. M. 1654. S. 1. K. B. & C. P.2 on her own account, she will not be discharge M. & S. 605.
ed, 1 B. & P. 8; if she by mistake represent (19) In New York, attornies, counsellors, her husband to be dead, she will be discharge and solicitors are exempted from arrest only ed. | East, 16. Heir, sued as such. Hunwhen employed in a cause pending in a court dredors, as such. Insolvent debtor discharged, and to be then heard. (2 R. S. 290, 0 86). 3 M. & S. 595. unless on a subsequent exOthet officers of the court may be arrested at press promise. 6 Taunt. 563. sed vide 1 Chit. any time, except during the sitting of the R. 274. n. Irish
a representacourt. (Id.) Clergymen have no exemption. tive or not. 39 & 40 Geo. III. c. 67. art. 4.
(20) See further as to the privileges from Marshal of king's bench. Officers, non-comarrest, Tidd, 8 ed. 192 to 214. Lee's Dict. missioned. 4 Taunt. 557 ; büt volunteer drill tit. Arrest, 90. 92. In addition to those named sergeants are not exempt. 8 T. R. 105. in the text are the following, viz. Administra- Plaintiff attending execution of inquiry, &c. 1oT, as such, Yelv. 53 ; but not if he has per- 4 Moore, 34. Sailors, under 201. I Geo. II. sonally promised to pay. I T. R. 716. Aliens st. 2. c. 14. s. 15. 32 Geo III. c. 33. s. 22. for debt beyond seas. 38 Geo. III. c. 50. s. 9. Serjeants at law. 6 T. R. 686. Suitors atAmbassadors and servants. 7 Ann. c. 12. 1 tending court, 11 East, 439. and insolvent B. & C. 554. 3 D. & R. 833. 25, Bail, bem court is such a court. 2 Marsh. 57. 6 Taunt. ing about to justify, or otherwise attending 356. Warden of the Fleet. Witnesses subcourt as bail. 1 H. Bla. 636. 1. M. & S. 638. pænaed, or summoned before commissioners Bankrupt for forty-two days, unless before in under great seal, or attending an arbitrator prison, and after forty-two days if the tine for appointed by the court. i Chit. Rep. 679. 3 surrender be enlarged, 8 T. R. 475; also if B. & A. 252. S. C. 3 Anst. 941. 3 East, summoned before the commissioners relative 189. A creditor attending commissioners of to his estate, though several years after his bankrupt to prove a debt. 7 Ves. 312. 1 Ves. last examination. Id. 534. See the 6 Geo. & B. 316. 2 Rose, 24. By mutiny act wit. IV. c. 16. ss. 117, 118. Barristers attending nesses attending court-martial are privileged. court or on circuit. iH. Bla. 636. Bishops But witnesses are not privileged if they delay VOL. II
the verge of his royal palace (1) (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).
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
any sureties; but that is at his own peril : for, after (1) See Book IV. 276. The verge of the palace other men's actions ; lest she might be thought to of Westminster extends by stat. 28 Hen. VIII. C. delay justice." But king Williamn, in 1692, grant 12. from Charing-cross to Westminster-hall. ed one to lord Cutts, to protect him from being
(m) Sir Edward Coke informs us, (1 Inst. 131.) outlawed by his taylor (3'Lev. 882) : which is the that herein " he could say nothing of his own ex- last that appears upon our books. perience ; 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 (p) Append. No. III. 9 5. be employed in her service, that was subject to
(n) Finch. L. 454. 3 Lev. 332.
by the way.
I Chit. Rep. 679. 3 B. & A. verge of a county into which the writ is is. 252. S. C. sed vid. 7 Price, 699. A reasona- sued, is bad, unless there be a dispute as to ble time is allowed for going and returning. boundaries. 3 B. & A. 408. 2 Bla. Rep. 1113. 2 Marsh. 57.
(24) Or by 43 Geo. III. c. 46. deposit in the (21) Escept by an order of the board of sheriff's hands the sum indorsed on the writ, green cloth, or unless the process issue out of with 101. in addition to answer costs, &c. and the palace court. 3 T. R. 735. But an arrest the fine paid, if proceeding by original; and within the verge of the palace has been holden this deposit is paid into court, and repaid to in the common pleas to be no ground for dis- the defendant on his perfecting bail, or ren. charging the defendant out of custody. 7 dering himself to prison, 4 Taunt. 669. 1 Taunt. 311. and see 1 Chit. Rep. 375. 3 B. & Bing. 103. Chitty R. 145. 3 M. & S. 283; A. 502,
but if neither of these measures be taken, it (22) Sed vide 1 Lev. 106. Process cannot is to be paid over to the plaintiff by order of be executed in Kensington palace, 10 East. the court. See cases on construction of this 578. | Camp. 475; or within the Tower, act, Tidd, Bøed. 226, 7. quære if depositing without leave from the governor. 2 Chit. Rep. goods instead of money will do. 7 Moore, 432. 48. 51.
(25) An agreement by a third person with a (23) See construction of this act, Tidd, 8 sheriff's officer 10 put in good bail, &c. I T. ed. 216. Aster a negligent escape, the de. R. 418, or an attorney's undertaking to the fendant may be taken on a Sunday. 2 Lord office for defendant's appearance, 7 T. R. 109. Raym. 1028.'
or to give bail bond in due time, are void, and The arrest must be made in the county into no action lies on it ; but if given to the plainwhich the process is issued; an arrest on the tiff in the action, it is valid. 4 East, 568.
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 (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 (9) 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 (9) Appendix, No. III. 95.
(26) But the action may be defeated by entered. In the king's bench, where defendputting in bail in the original action, of the ant has been served with a copy of a bill of term in which the writ is returnable, though Middlesex, or other process therein, common after the expiration of the time allowed for bail should be filed at the return, or in eight putting it in, and even after the action for the days, exclusive (not including Sunday if the escape is brought. 1 Esp. Rep. 87. 2 B. & last) after it. 5 Geo. II. c. 27. s. d. 1 Bur. P. 35. 246. I Taunt. 25. i Chit. Rep. 575. 56. Tidd, 8 ed. 240. a. sed vid. 7 T. R. 109. 4 East, 568. To In proceedings by original in the K. B., the prevent this plaintiff should oppose justifica. appearance must be entered with the filacer tion of bail, Tidd, 8 ed. 235. or render. 7 T. R. of the county in which the action is laid, 109. 2 Marsh. 261. 1 Price, 103. 4 M. & S.397. within eight days after appearance day or. Sheriff
cannot sue defendant for money paid, quarto die post of return of process. 3 B. & when he has discharged him out of custody on Č. 110. 4 D. & R. 713. S. C. In C. P. the mesne process, without a bail bond, and has, in eight days are reckoned from the return day, consequence of his non-appearance, been oblig- and not from the quarto die post of the return ed to pay debt and costs. 8 East, 171. of the writ. Id. Ibid. Impey C. P.216, 17.
(27) If he so refuse, he is liable to a spe- By 5 Geo. II. c. 27, to expedite the plaincial action on the case, Gilb. C. P. 20. Cro. tiff's proceedings, if the defendant, having Car. 196. 6 T. R. 355; but to maintain such been served with process, shall not appear at action, the parties offered as bail must have the return thereof, or within eight days after had sufficient property in the county where such return, the plaintiff, upon affidavit of the. the arrest was made. 15 East, 320.
service of such process, may enter a common (28) In proceedings in the king's bench by appearance or file coinmon buil for the deserd. bill, whenever, special bail is not necessary, or ant, and proceed therein as if such defendant has been dispensed with by the court, common had entered his appearance or filed common bail (which are merely nominal) must be filed, bail. The plaintiff cannot enter such appearor in proceedings in the common pleas of K. ance or file cominon bail till the ninth day. B. by original, a common appearance must be Tidd, 242.
must be perfected, 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 is 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).
(s) Inst. I. 4, t. 11. Ff. 1. 2, t. 8.
(1) Show. 202. 6 Mod. 231.
(29) Or a freeholder, or copyholder, or a In the C. P. the bail must justify at the sitlong leaseholder. 8 Taunt 148. | Chitty R. ting of the court only, except on the last day 7. 88. 144. 2 Chitty R. 96, 97.
of term, when bail, who may have been pre(30) Upon special bail being put in, a notice vented from attending at the sitting of the thereof must be given to the plaintiff's attor. court, shall be permitted to justify at the risney or agent, whereupon the latter may ex- ing of the court. R. M. 51 Geo. III. C. P. - cepl to the bail within iwenty days after notice 3 Taunt. 569. sed vid. 8 Taunt. 56. In the given, by entering such exception, 4 D. & R. exchequer, the junior baron attends in court 365; and notice of the exception must be given alone, a few minutes before len o'clock every to the defendant's attorney before the sheriff morning during term, and it is expected justiis ruled, Alexander v. Miller, 24 Nov. 1825, fications of bail be then made, and no justi. K. B. But where bail is not put in, at the fication can take place after half past ten time of ruling the sheriff to return the writ or o'clock. 8 Price, 612. R. E. 56 Geo. UI. bring in the body, he must put in and perfect 2 Chit. 381. 9 Price, 57. Tidd, 263. of bail at his peril, or render the defendant To justify themselves, each must swear within four days in a town cause, or six days that he is worth double the amount of the in a country cause, without any exception.2 debt, after payment of his own debts. But if Bla. R. 1206. 2 Chit. R. 82. 108. "Tidd, 8 the sum exceed 10001. each is only required ed. 256.
to justify himself in 10001. more than that Within a particular time (in general four sum. M. 51 Geo. III. It is not sufficient for days), after the exception entered and notice bail to swear they are worth a certain sum given, the bail must justify. See Tidd, 257, exclusive of their debts. 4 Taunt. 704. There 8, 9. If they do not mean to do so, others must also be an affidavit made of the service should be added.
of the notice of justification, which must Previous to the bail justifying, there should state the mode of servi of such notice. be a notice setting forth that the bail already Tidd, 264. put in, will, on a certain day, justify them- (31) And the bail may render the defendant selves in open court, 2 Chit. R. 103. Tidd, in their discharge, even after judgment; and 259 ; or that one or more persons will be add. they may take him on a Sunday, 6 Mod. 231. ed, and justify themselves as good bail for but see 2 Bla. R. 1273. or during his examinathe defendant. Id.
tion before commissioners of bankrupt, 1 Atk. In the king's bench, bail are added and 238. 5 T. R. 210; or going into a court of justified before one of the judges sitting in the justice, 1 Sel. Prac. 180. 3 Stark. 132. 1 D. bail court, by virtue of the 57 Geo. III. c. 11. & R. M. P. C. 20; and they may justify en. The bail must be in Westminster-hall by half tering the house of a stranger (the outer door past nine in the morning, and if the bail are being open) to take the defendant though he not ready, and the papers delivered to coun. he not in the house, 2 Hen. Bla. 120: and if the sel, before ten o'clock, they cannot be taken defendant is in custody, either in a civil action after that hour. Rul. H. T. 59 Geo. III. K. or upon a criminal charge, they may in K. B. B. When there are but few bail, it is neces. have a writ of habeas corpus to bring him up to sary that they should be very punctual in the the court, to be surrendered in their discharge. time of their attendance, for if they are not 7 T. R. 226. When the principal is taken, ready when the judge takes his seat, he will one of the bail, it is said, must always remain not wait for them till ien o'clock ; but when with him, 1 Sel. Pr. 180 ; but a third person the bail are numerous, the exact time of their may assist in the taking and detaining defend. attendance is not so material, and on the last ant, though the bail do not continue present. day of term they are still allowed to justify as 3 Taunt. 425. formerly, in full court at its rising. Tida, 262. Besides the mode of discharging the bail,