Sivut kuvina

of defence and asylam, wherein he should suffer no violence. (6) Which princi ple is carried so far in the civil law 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. (k) Peers of the realm, members *of parliament, (*289] and 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, (m) 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. (a) (7) Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by statutes 50 Edw. III, c. 5, and 1 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. (8) And no arrest can be made in the king's presence, nor within

(1) Ff. 2, 4. 18-21.

(1) Whitlock of Parl. 206, 207. (n) Bro. Abr. tit. bille, 29. 12 Mod. 163.

(m) See page 230.

(6) [A bailiff before he has made the arrest cannot break open an outer door of a house; but if he enter the outer door peaceably, he may then break open the inner 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. 3 B. and P. 223; 4 Taunt. 619. And the breaking open an inner door of a stranger cannot be justified on a suspicion that defendant is in the room. 5 Taunt. 765, 6th ed. 246.]

(7) [These privileges are allowed not so much for the benefit of attorneys as their clients: 2 Wils. 44; 4 Burr. 211; 3 Doug. 331; and are therefore confined to attorneys who practice: 2 Wils. 232; 4 Burr. 2113; 2 Bla. Rep. 1086; 1 Bos. and Pul. 4; (2 Lutw. 1667, contra); or at least have practiced within a year; for it is a rule that such attorneys 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 attorneys. 2 M. and S. 605.]

(8) The law of arrest has been greatly modified in England by the statutes abolishing arrest and imprisonment for debt except in a few specified cases (the one now in force being 32 and 33 Vic. c. 62), and also in the United States by constitutional and statutory provisions for the same purpose. But as arrests in civil suits are still allowed in some cases, we refer here to a few of the cases in which an exemption from arrest, on general principles, can still be claimed. Thus, ambassadors accredited to a foreign country, and their servants, while passing through the country to enter upon their duties, are privileged: Novello . Toogood, 1 B. and C. 554; Holbrook v. Henderson, 4 Sandf. 619; members of congress and of state legislatures, while in attendance upon the body to which they belong, or upon any of its committees, and for a reasonable time before and after to go and return: Cush. Leg. Assem., part 3, ch. 2; members of state conventions: Bolton v. Martin, 1 Dall. 293; electors, attending an election, or awaiting the counting of the votes: Swift v. Chamberlain, 3 Conn. 537 ; parties and attorneys, while attend ing court during the trial, or hearing of the causes in which they are interested or employed, and while waiting for the same to be reached on the docket: Clark v. Grant, 2 Wend. 257; McNiel's Case, 6 Mass. 245; Vincent v. Watson, 1 Rich. 194; Wilson v. Nettleton, 12 Ill. 61; witnesses, in attendance on court or other judicial or legislative tribunal: Bourse. Tuckerman, 7 Johns. 533; Ex parte Edme, 9 S. and R. 147; Sanford v. Chase, 3 Cow. 381; In re Dickerson, 3 Harr. 517; Norris v. Beach, 2 John. 294; Cush. Leg. Assemb. § 997; jurors, attending court in the performance of their duties: Brooks v. Chesley, 4 H. and McH. 295; bail, attending to justify: Rimmer v. Green, 1 M. and S. 638; bankrupts and insolvents duly dis charged, as to all the demands covered by the discharge: Wilson v. Kemp, 3 M. and S. 595; Chaffee r. Jones, 19 Pick. 260. And in all these cases where the privilege is given by the law for the purpose of attendance at some particular place in a speciai character, it covers the stay and reasonable time for going and returning: Randall v. Gurney, 3 B. and A. 252; Childerston v. Barrett, 11 East, 439; Clark v. Grant, 2 Wend. 257; but if the party goes out of his way on other business he loses his privilege. Chaffeev. Jones, 19 Pick. 260.

The privilege will not prevent the service of process, which only requires common bail: Hunter v. Cleveland, 1 Brev. 167; Hopkins v. Coburn, 1 Wend. 292; Catlett v. Morton, 4


the verge of his royal palace, (o) nor in any place where the king's justices are actually sitting. The king hath moreover a special prerogative (which indeed is very seldom exerted, (p) 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 longer; in respect of his being engaged in his service out of the realm. (2) 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 debts were paid: (r) but by the statute 25 Edw. III, st. 5, c. 19, notwithstanding such protection, another 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 [*290] 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. (9)

When the defendant is regularly arrested, he must either go to prison, for safe custody: or put in special bail to the sheriff. (10) 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. (s) 11) 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 (12) 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: 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. If this be not done, and the bail that were taken by *the sheriff below are responsible persons, the plaintiff may take an assign[*291] ment from the sheriff of the bail-bond (under the statute 4 and 5 Ann. c. 16),

(0) 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.

(p) 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 1692, granted one to Lord Cutts, to protect him from being outlawed by his tailor (3 Lev. 3321: which is the last that appears upon our books. (9) Finch, L. 454. 3 Lev. 332.

(r) F. N. B. 23. Co. Litt. 131. (8) Appendix, No. III, §5.

Litt. 122; Le Grand v. Bedinger, 4 Monr. 540; nor the service of a common summons or declaration, on which no bail is taken. Case v. Rorabacker, 15 Mich. 537.

(9) This statute extends not only to process properly so called, but also to all notices on which rules are made; and hence it has been held that service of notice of plea filed on a Sunday, is void: 8 East, 547; Tidd. Prac. 218; Field v. Park, 20 Johns. 140. But after a negligent escape the defendant may be retaken on Sunday. 2 Ld. Raym. 1028; 2 Salk. 626; Tidd. Prac. 218.

(10) The statute 43 Geo. III, c. 46, allowed a deposit of money instead of bail. See Tidd Prac. 8th ed. 226.

(11) [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.]

(12) [Sheriff cannot sue defendant for money paid, when he has discharged him out of custod 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.]

Vol. II-23


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. and 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 (t) 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. (u) 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. This answers in some measure to the stipulatio or satisdatio of the Roman laws (v) 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 condemation *paid [*292] at all events: whereas our special bail may be discharged, by surrendering the defendant into custody, within the time allowed by law; for which purnose they are at all times entitled to a warrant to apprehend him. (w) (13)

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 a 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

(t) Ibid.

(u) Ibid.

(v) Inst. l. 4, t. 11. Ff. l. 2, t. 8.

(10) Show. 202. 6 Mod. 231.

(13) [And the bail may render the defendant in their discharge, even after judgment; and they may take him on a Sunday: 6 Mod. 231; but see 2 Bla. R. 1273; or during his examination before commissioners of bankrupt; 1 Atk. 238; 5 T. R. 210; or going into a court of justice 1 Sel. Prac. 180; 3 Stark. 132; 1 D. and 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: 1 Sel. Pr. 180; but a third person may assist in taking and detaining defendant, though the bail do not continue present. 3 Taunt. 425.

The bail are the keepers of their principal, and they may arrest him on the bail piece where ever they can find him, even though not within the jurisdiction of the court in which bail was taken. Anon. Show. 214; Parker v. Bidwell, 3 Conn. 84; Harp v. Osgood, 2 Hill, 216. And this right they may exercise by agent as well as in person: Nicolls v. Ingersoll, 7 Johns. 145, Parker v. Bidwell, 3 Conn. 84; and they may break doors, if necessary, to make the arrest Read v. Case, 4 Conn. 166; Nicolls v. Ingersoll, 7 Johns, 145.

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.




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. (1)

(1) [Pleading is the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence; it is the formal mode of alleging 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 first 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 apprising 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: 1. 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 the subject.

1st. THE FACTS NECESSARY TO BE STATED. No more should be stated than is essential to constitute the cause of complaint, or the ground of defence. Cowp. 683; 1 Lord Ray. 171. And the 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 Rayın. 282. 2 Camp. 44. 4 M. and S. 532; but privato orders of council, pardons, and declarations of war, &c, must be stated. 2 Litt. Bac. Reg. 303; 3 M. and 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 Raym. 15: Cowp. 17. Public statutes, and the facts they ascertain: 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; 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 almanac is part of the law of the land, and the courts take notice thereof, and the days of the week, and of the movable feasts, and terins. 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. 557; Marsh. 124), but not so of a less division (id.), nor of Ireland. 1 Chit. Rep. 28, 32; 3 B. and A. 301; S. C., 2 D. and R. 15; 1 B. and 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 wceptation: 1 Rol. Ab. 86, 525; also of the names and quantities of legal weights and nea

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 length, being indeed only an amplification or exposition of the original 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,

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sures: 1 Rol. Ab. 525; also courts will take notice of their 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. and S. 105; 2 Wils. 147; Co. Lit. 78, b.; 1 B. and 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. Cor. Dig. Pleader, c. 81; 1 Leon. 18; 2 Saund. 62, b.; 4 Camp. 20; 11 East, 638; and see case. 1 Cait. on 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, 130; Raym. 8.

And though the general rule is, that facts only are to be stated, yet there are some 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 necessary; 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, 209, 210. Besides this, the pleading must not state two or more facts, either of which would of itself, independently of the other, constitute a sufficient ground of action or defence. Co. Litt. 304, a.; Com. Dig. Pleader, C. 33, E. 2; 1 Chit. on Pl. 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 ineaning, nor argumentative, nor in the alternative, norby way of recital, but positive, and according to their legal effect and operation. Dougl. 666, 667; 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 law 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, 112; Com. Dig. Pleader, C. 26; 8 East, 85. General statements of facts admitting of almost any proof, are objectionable: 1 M. and S. 441; 3 id. 144; 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 favorably to himself as possible: Co. Litt. 20, 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 B. and C. 297.]

In this connection the student would do well to read the admirable introduction to Stephen on Pleading, by Prof. Saml. Tyler.

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