a

a

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.

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

(A) Ff. 2. 4. 18—21.
(i) Whitelock of Parl. 206, 207.

(1) See page 280.
(£) Bro. Abr. t. bille. 29. 12 Mod. 163.

.

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

peer,
whether

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

31

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

( defendant

go
without

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

:

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.

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).