Front Page Titles (by Subject) CHAPTER XIX.: OF PROCESS. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XIX.: OF PROCESS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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**279]The next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like.(a)Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.
But process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real prœcipes, and also upon all personal writs for injuries not against the peace, by summons, which is a warning to appear in court at the return of the original writ, given to the defendant by two of the sheriff’s messengers, called summoners, either in person or left at his house or land;(b) in like manner as in the civil law the first process is by personal citation, in jus vocando.(c) This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant’s grounds,(d) (which stick or wand among the northern nations is called the baculus **280]nunciatorius;)(e) and by statute 31 Eliz. c. 3., the notice must also be proclaimed on some Sunday before the door of the parish church.
If the defendant disobeys this verbal monition, the next process is by writ of attachment or pone, so called from the words of the writ,(f) “pone per vadium et salvos plegios, put by gage and safe pledges A. B. the defendant, &c.” This is a writ not issuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he doth not appear;(g) or by making him find safe pledges or sureties who shall be amerced in case of his non-appearance.(h) This is also the first and immediate process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which, though not forcible, are yet trespasses against the peace, as deceit and conspiracy;(i) where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning.(j)1
If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be further compelled by writ of distringas(k) or distress infinite; which is a subsequent process issuing from the court of common pleas, commanding the sheriff to distrain the defendant from time to time, and continually afterwards by taking his goods and the profits of his lands, which are called issues, and which by the common law he forfeits to the king if he doth not appear.(l) But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiff.(m)2 In like *[*281manner, by the civil law, if the defendant absconds, so that the citation is of no effect, “mittitur adversarius in possessionem bonorum ejus.”(n)
And here, by the common as well as the civil law, the process ended in case of injuries without force; the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king’s writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all further process as nugatory. And besides, upon feodal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal services. But, in case of injury accompanied with force, the law, to punish the breach of the peace, and prevent its disturbance for the future, provided also a process against the defendant’s person in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; subjecting his body to imprisonment by the writ of capias ad respondendum.(o) But this immunity of the defendant’s person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrong-doers, a capias was also allowed to arrest the person, in actions of account, though no breach of the peace be suggested, by the statutes of Marlberge, 52 Hen. III. c. 23, and Westm. 2, 13 Edw. I. c. 11, in actions of debt and detinue, by statute 25 Edw. III. c. 17, and in all actions on the case, by statute 19 Hen. VII. c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausum fregit, for breaking the plaintiff’s close vi et armis; which by the old common law subjected the defendant’s person to be arrested by writ of capias: and then, afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (through custom rather than necessity, and for saving some trouble and expense, in suing out a special original **282]adapted to the particular injury) still continues in almost all cases, except in actions of debt; though now, by virtue of the statutes above cited and others, a capias might be had upon almost every species of complaint.
If therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff returns a nihil, or that the defendant hath nothing whereby he may be summoned, attached, or distrained; the capias now usually issues:(p) being a writ commanding the sheriff to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt or trespass, &c., as the case may be. This writ, and all others subsequent to the original writ, not issuing out of chancery, but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff’s return, are called judicial, not original writs; they issue under the private seal of that court, and not under the great seal of England; and are teste’d, not in the king’s name, but in that of the chief (or, if there be no chief, of the senior) justice only. And these several writs, being grounded on the sheriff’s return, must respectively bear date the same day on which the writ immediately preceding was returnable.3
This is the regular and ordinary method of process. But it is now usual in practice to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond; and afterwards a fictitious original is drawn up, if the party is called upon so to do, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a warrant to his inferior officers or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed to be committed and the action is laid) cannot find the defendant in his jurisdiction, **283]he returns that he is not found, non est inventus, in his bailiwick; whereupon another writ issues, called a testatum capias,(q) directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here also, when the action is brought in one county and the defendant lives in another, it is usual, for saving trouble, time, and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was. And this fiction, being beneficial to all parties, is readily acquiesced in and is now become the settled practice; being one among many instances to illustrate that maxim of law, that in fictione juris consistit æquitas.4
But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias.5 And if the sheriff cannot find the defendant upon the first writ of capias, and return a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former;(r) only after these words, “we command you,” this clause is inserted, “as we have formerly,” or, “as we have often commanded you:”—“sicut alias,” or “sicut pluries, præcepimus.” And, if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias may be sued out,(s) which requires the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he does, then to take him as in a capias; but if he does not appear, and is returned quinto exactus, he shall then be outlawed by the coroners of the county. Also by statutes 6 Hen. VIII. c. 4, and 31 Eliz. c. 3, whether the defendant dwells within the same or another county than that wherein the exigent is sued out, *[*284a writ of proclamation(t) shall issue out at the same time with the exigent, commanding the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place. Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one’s goods and chattels to the king. And therefore, till some time after the conquest, no man could be outlawed but for felony; but in Bracton’s time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis.(u) And since his days, by a variety of statutes, (the same which allow the writ of capias before mentioned,) process of outlawry doth lie in divers actions that are merely civil; provided they be commenced by original and not by bill.(v) If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum,(w)6 and committed till the outlawry be reversed. Which reversal may be had by the defendant’s appearing personally in court or by attorney,(x) (though in the king’s bench he could not appear by attorney,(y) till permitted by statute 4 & 5 W. and M. c. 18;) and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance. But then the defendant must pay full costs, and put the plaintiff in the same condition as if he had appeared before the writ of exigi facias was awarded.7
Such is the first process in the court of common pleas. In the king’s bench they may also (and frequently do) proceed in certain causes, particularly in actions of ejectment and trespass, by original writ, with attachment and capias thereon;(y) returnable, not at Westminster, where the common pleas are now fixed in consequence of magna carta, but “ubicunque fuerimus in Anglia,” wheresoever the king shall then be in **285]England; the king’s bench being removable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex: and therefore so entitled, because the court now sits in that county; for if it sat in Kent, it would then be a bill of Kent.(z) For though, as the justices of this court have, by its fundamental constitution, power to determine all offences and trespasses, by the common law and custom of the realm,(a) it needed no original writ from the crown to give it cognizance of any misdemeanour in the county wherein it resides; yet, as by this court’s coming into any county it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer,(b) a process of its own became necessary within the county where it sat, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex(c) (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court)(d) is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king’s bench jurisdiction in other civil causes, as was formerly observed; since when once the defendant is taken into custody of the marshal, or prison-keeper of this court, for the supposed trespass, he being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant be actually the marshal’s prisoner; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal as will give the court a jurisdiction to proceed.(e) And, upon these accounts, **286]in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action. This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county; but, if he returns “non est inventus,” then there issues out a writ of latitat(f) to the sheriff of another county, as Berks; which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant “latitat et discurrit,” lurks and wanders about in Berks; and therefore commands the sheriff to take him, and have his body in court on the day of the return.8 But, as in the common pleas the testatum capias may be sued out upon only a supposed, and not an actual, preceding capias; so in the king’s bench a latitat is usually sued out upon only a supposed, and not an actual, bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king’s bench, as the testatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias suffices; so in the king’s bench, likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only.9
In the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ(g) the plaintiff is alleged to be the king’s farmer or debtor, and that the defendant hath done him the injury complained of, quo minus sufficiens existit, by which he is the less able to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.10
Thus differently do the three courts set out at first, in the commencement of a suit, in order to entitle the two courts of king’s bench and exchequer to hold plea in causes between subject and subject, which by the original constitution of Westminster hall they were not empowered to do. Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them.
*[*287If the sheriff has found the defendant upon any of the former writs, the capias, latitat, &c., he was antiently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having obeyed the original summons, he had shown a contempt of the court, and was no longer to be trusted at large. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed: and therefore in common cases, by the gradual indulgence of the courts, (at length authorized by statute 12 Geo. I. c. 29, which was amended by 5 Geo. II. c. 27, made perpetual by 21 Geo. II. c. 3, and extended to all inferior courts by 19 Geo. III. c. 70,) the sheriff or proper officer can now only personally serve the defendant with the copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons.11 And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff’s prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or, in some cases, eight) days after,12 the plaintiff may enter an appearance for him, as if he had really appeared; and may file common bail in the defendant’s name, and proceed thereupon as if the defendant had done it himself.
But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards,13 then he may arrest 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 40l. This statute (without any such intention in the makers) had like to have ousted the king’s bench of *[*288all its jurisdiction 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 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 promises, 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 seizing or touching the defendant’s body,14 after which the bailiff may justify breaking open the house in which he is15 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:16 which principle 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.(h) Peers of the realm, members **289]of parliament, and corporations, are privileged from arrests; 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 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)17 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 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 on 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,(l)19 nor in any place 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 be paid;(o) but by the statute 25 Edw. III. st. 5, c. 19, notwithstanding such protection, another creditor may proceed to judgment against *[*290him, 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.22 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)23 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.24 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;25 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 **291]to the action; which is commonly called putting in bail above.26 If this be not done, and 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 Anne, 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. 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(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) 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,27 and each of them to be worth the full sum for which they are bail, after payment of all their debts.28 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 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 fidejussores were there absolutely bound judicatum solvere, to see the costs and condemnation *[*292paid 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.(t)29
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:30 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 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.
[(a) ] Finch, L. 436.
[(b) ] Ibid. 344, 352.
[(c) ]Ff. 2, 4, 1.
[(d) ] Dalt. of Sher. c. 31.
[(e) ] Stiernh. de jure Sueon. l. 1, c. 6.
[(f) ] Appendix, No. III. 2.
[(g) ] Finch, L. 345. Lord Raym. 278.
[(h) ] Dalt. of Sher. c. 32.
[(i) ] Finch, L. 305, 352.
[(j) ] Appendix, No. II. 1.
[1 ] Upon this writ the sheriff cannot justify entering the defendant’s house and continuing there till the defendant pay him a sum of money for surety for his appearance. 6 T. R. 137.—Chitty.
A considerable change was made by stat. 2 W. IV. c. 39 in the mode of commencing personal actions. In these the use of the original writ was abolished, and the process in all such actions, in cases where it was not intended to hold the defendant to bail or to proceed against a member of parliament, according to the provisions of the bankruptlaws, it was enacted, should be according to the form contained in a schedule to the act, and which process was thenceforth to issue from either of the superior courts, and to be called a writ of summons. In every such writ and copy thereof the place and county of the residence or supposed residence of the party defendant was to be mentioned, and every such writ was to be served in the manner heretofore and in the county therein mentioned; and the person serving the same was required to endorse on the writ the day of the month and week of the service thereof. The provisions as to writs of summons of the statute 2 W. IV. c. 39 were extended, by stat. 1 & 2 Vict. c. 110, to all personal actions in her majesty’s superior courts of law at Westminster; but the process or writ of summons in personal actions is now regulated by “The Common-Law Procedure Act, 1852,” which provides a form of writ similar to that given by the statute 2 W. IV. c. 49, except that no county need be mentioned therein, while it is specially provided that the defendant may be served in any county. The writ is directed to the defendant, whom it commands that within eight days after the service of the writ on him, inclusive of the day of such service, he do cause an appearance to be entered for him in the court in which the action is brought, in an action at the suit of the plaintiff, and requires the defendant to take notice that in default of his so doing the plaintiff may proceed to judgment and execution. The writ is teste’d,—i.e., witnessed in the name of the chief-justice or chief-baron, or, in case of vacancy, of a senior puisne judge of the court out of which it issues, and dated on the day on which it issued. A memorandum is subscribed to it, directing its execution within six months from the day of its date, after which period it ceases to be of force unless renewed. The defendant may apply to set it aside if served after the six months; if it cannot be served within that period, the plaintiff may have it renewed from time to time, until service be effected.—Stewart.
[(k) ] Append. No. III. 2.
[(l) ] Finch, L. 325.
[(m) ] Stat. 10 Geo. III. c. 50.
[2 ] Now, by 51 Geo. III. c. 124, s. 2, continued by 57 Geo. III. c. 101, a distringas cannot be issued; but at the foot of the summons or attachment notice as therein directed is to be given to defendant to appear, or, in default of an appearance, that plaintiff will enter one for him, and proceed thereon as if he had appeared. If, however, the summons or attachment cannot be personally served on defendant, and it be left for him at his house or place of abode, the court or a judge in vacation may grant leave to sue out a distringas, with a notice thereon as pointed out in the act, and plaintiff may levy 40s.; and if defendant still make default in appearing, an appearance may be entered for him, and plaintiff may proceed as usual. These acts have expired.
These provisions seem to extend to the process by distringas in the exchequer. 5 Taunt. 71, a.; but see 3 Price, 263, 266. 5 Price, 522, 639. They do not extend to persons having privilege of parliament, nor to the process by attachment on a justicies in a county palatine. 5 Taunt. 69.—Chitty.
The proceeding by distringas and outlawry is abolished by the “Common-Law Procedure Act, 1852;” and now, if the defendant keeps out of the way, or personal service of the writ cannot be effected, the plaintiff must still use reasonable efforts to serve the defendant; and upon an affidavit showing such efforts to have been made, and either that the writ has come to the defendant’s knowledge, or that he wilfully evades service of it, and that he has not appeared to the writ, the plaintiff may obtain an order from the court or a judge authorizing him to proceed as if personal service had been effected.—Stewart.
[(n) ]Ff. 2, 4, 19.
[(o) ] 3 Rep. 12.
[(p) ] Append. No. III. 2.
[3 ] Or rather on the quarto die post, and then only where the plaintiff means to proceed to outlawry; in which case there must be fifteen days at least between the teste and the return of each writ, (Trye, 60. 2 Wils. 117;) but the cursitor will expedite the process. Dyer, 175. Tidd, 8th ed. 103. Unless the plaintiff mean to proceed to outlawry, the capias may be teste’d before the original, and even before the cause of action accrued, provided to be actually taken out afterwards. See Tidd 8th ed. 125. 3 Wils. 454.—Chitty.
[(q) ] Ibid.
[4 ] By stat. 1 & 2 Vict. c. 110, arrest on mesne process in civil actions is almost entirely abolished. Where it can be shown to the satisfaction of a judge of one of the superior courts that a plaintiff has a cause of action against a defendant to the amount of 20l. or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant is about to quit England unless he shall be apprehended, the judge may direct that such defendant may be held to bail, and that a writ or writs of capias may be sued out.—Stewart.
[5 ] And if in a joint action against several defendants one of them keep out of the way, the plaintiff may have a writ of exigi facias against that defendant, (Trye, 155,) and must proceed to outlawry against him before he can go on against the others. 1 Stra. 473. 1 Wils. 78. 1 Bla. Rep. 20. Tidd, 8th ed. 126.
If the defendant be a woman, the proceeding is called a waiver. Litt. 186. Co. Litt. 122, b. An infant under twelve years cannot be outlawed. Co. Litt. 128, a.—Chitty.
[(r) ] Append. No. III. 2.
[(s) ] Ibid.
[(t) ] Ibid.
[(u) ] Co. Litt. 128.
[(v) ] 1 Sid. 159.
[(w) ] Append. No. III. 2.
[6 ] Upon a special capias utlagatum, the sheriff is commanded to summon a jury to appraise the chattels and value the lands, &c. of the outlaw. The sheriff then takes possession of the chattels and of the profits of the land, &c., and returns the writ. Upon a transcript of the proceedings being returned to the exchequer, there issues to the sheriff a venditioni exponas to all the goods, a scire facias to recover the debts, and a levari facias to levy the issues and profits of the lands extended. The money raised under these writs belongs to the crown; but the plaintiff, either by application to the court of exchequer or by petition to the lords of the treasury, according to circumstances, may have it paid to him, and may obtain a grant of the king’s right to levy the profits of the land extended. See Tidd’s Practice, 137, 138. Should the outlawry, however, be reversed, the property of the outlaw, if in the king’s hands, shall be restored to him by writ of amovear manus. &c.—Archbold.
[(x) ] 2 Roll. Rep. 490. Regul. C. B. ad 1654, c. 13.
[(y) ] Cro. Jac. 616. Salk. 496.
[7 ] Unless where the outlawry was obtained for the purpose of oppression, as where defendant was already in prison at plaintiff’s suit, &c. 2 Ventr. 46. 2 Salk. 495. The absence of the defendant beyond sea at the time the exigent is promulgated is, at common law, ground for a writ of error to reverse the outlawry; but if defendant went abroad purposely for delay, that fact may effectually be replied. 2 Roll. R. 11. 12 East, 625.—Chitty.
[(y) ] Append. No. II. 1.
[(z) ] Thus, when the court sat at Oxford by reason of the plague, Mich. 1665 the process was by bill of Oxfordshire. Trye’s Jus Filizar. 101.
[(a) ] Bro. Abr. tit. Oyer and Terminer, 8.
[(b) ] Bro. Abr. tit. Jurisdiction, 66. 3 Inst. 27.
[(c) ] Append. No. III. 3.
[(d) ] Trye’s Jus Filizar. 98.
[(e) ] 4 Inst. 72.
[(f) ] Append. No. III. 3.
[8 ] If the latitat prove ineffectual, an alias, and after that a pluries latitat, or, more properly speaking, an alias or pluries capias, may be sued out. Tidd, 8th ed. 145. When it is doubtful in what county the defendant is to be found, there may be several writs at the same time into different counties. Id. 1 Chitt. Rep. 544. In any of these writs there may be a clause of non omittas, commanding the sheriff that he do not omit on account of any liberty in his county, but that he enter the same, &c., and take the defendant, &c., which non omittas writ may be issued in the first instance. Tidd, 8th ed. 145, 146.—Chitty.
[9 ] And a latitat cannot be served out of the proper county, though when a person has been served on the confines of a county, though out of it, the court will not in general set aside the service. 4 M. & S. 412. 1 Chitty’s R. 15; and see id. 233.—Chitty.
[(g) ] Append. No. III 4.
[10 ] In the Exchequer an action may also be commenced by a venire facias ad respondendum, which is in the nature of an original writ, and is the process used in this court against peers and members of the house of commons. On this writ the defendant is summoned; and if he do not appear, a distringas issues, and after that, if necessary, an alias, pluries, or testatum distringas. Tidd’s Practice, 67. An action by an attorney or officer of this court is commenced by a capias of privilege, and against attorneys, officers, or prisoners by bill. Ibid. 68.—Archbold.
But in this court the defendant cannot be outlawed, as the plaintiff cannot proceed therein by original writ. 1 Price, 309. Besides, the writ of quo minus is a venire facias and subpœna ad respondendum. For the process in this court, see Tidd, 8th ed. 154 to 157.—Chitty.
[11 ] As to the form of the notice, see Tidd, 8th ed. 166. If there be no notice to appear, when necessary, or the notice be not properly directed, &c., the defendant may move the court to set aside the proceedings; but any trifling informality in the notice, as setting down the day of the month on which the defendant is to appear, without saying instant, next, or specifying the year, or mentioning an impossible day, will not invalidate it. Tidd, 8th ed. 167. As to the service of the process, see id. 167 to 169.
If there be no process, or if it be defective in point of form, or in its direction, teste, or return, or the attorney’s name be not endorsed upon it, the defendant may move the court to set aside the proceedings for irregularity; and a writ having a wrong return will not be aided by a correct day being mentioned in the notice to appear. But he cannot take advantage of any error or defect in the process after he has appeared to it or taken the declaration out of the office; for it is the universal practice of the courts that the application to set aside proceedings for irregularity should be made as early as possible, or, as it is commonly said, in the first instance; and where there has been an irregularity, if the party overlook it and take subsequent steps in the cause, he cannot afterwards revert back and object to it. In the Common Pleas the court will not quash a writ on the ground of its having been served in a wrong county. And it is said that a mistake in the process is cured by the plaintiff’s entering an appearance for the defendant, which has been always looked upon as effectual for that purpose as if he had done it himself; but it is otherwise where the defendant has not been served with a copy of the process, or the notice subscribed thereto is defective. It is also said that no advantage can be taken of the irregularity of process without having it returned, and before the court; and where the irregularity complained of is not in the process, but in the notice to appear thereto, or in the service of it, the rule should be to set aside such service, and not the process itself. See Tidd, 8th ed. 159, and the various cases there collected.
The process may in general be amended where there is any thing to amend by; and it has been amended in the name of the defendant where he was a prisoner in custody under it. But the court of King’s Bench would not grant a rule for amending the writ, under which the defendant had been arrested by a wrong name, after actions of false imprisonment had been brought for such arrest; so an amendment cannot be made of mesne process by adding the name of another person as plaintiff. A writ returnable on a dies non is altogether void, and cannot be amended by the court; and the courts, we have seen, will not in general allow a writ to be amended to the prejudice of the bail. Tidd, 8th ed. 160, and cases there collected.—Chitty.
[12 ] In all cases where the defendant is served with a copy of the process, he has eight days to file common bail in the King’s Bench, or to enter a common appearance in the Common Pleas, exclusive of the return-day; and if the last of the eight days be a Sunday, he has all the next day. 1 Cromp. Prac. 48. 1 Burr. 56.
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 Anne,) or replevin-bond, (1 Salk. 99. 6 T. R. 336. 8 T. R. 450,) or on a recognizance of bail, (Tidd, 8th ed. 172;) not 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, 8th 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.—Chitty.
[13 ] Now, by stat. 7 & 8 Geo. IV. c. 71, the debt must amount to 20l., and in Wales and the counties palatine to 50l. Intermediate statutes—viz., 51 Geo. III. c. 124, and 27 Geo. III. c. 101—extended the sum from 10l. to 15l., except upon bills of exchange and promissory-notes. The statute of the present king contains no such exemption.—Chitty.
This affidavit must be certain and positive; for an affidavit made upon belief, or with a reference to something else,—as where the plaintiff swears the defendant is indebted to him in ten pounds or upwards, as appears by his books or by a bill delivered,—will not be sufficient unless the plaintiff is an executor, administrator, or assignee; for then, from the nature of his situation, he cannot swear more positively than from belief or from a reference to the accounts of others. 1 Sellon’s Practice, 112.—Christian.
[(f) ] Trye’s Jus Filizar. 102. Append. No. III. 3.
[(g) ] Lilly’s Pract. Reg. tit ac etiam. North’s Life of Lord Guildford, 99. This work is strongly recommended to the student’s perusal.
[14 ] 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 is 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.
It is not necessary that the arrest should be made by the hand of the bailiff, nor that he should be actually in sight; yet when an arrest is made by his assistant or follower, the bailiff ought to be so near as to be considered as acting in it. Cowp. 65.—Christian.
[15 ] This appears to be stated too extensively: it is the defendant’s own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose, but he ought to be very certain that the defendant be, at the time of such forcible entry, in the house. See Johnson vs. Leigh, 6 Taunt. 246.—Chitty.
[16 ] 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.
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. & 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.—Chitty.
[(h) ]Ff. 2, 4, 18-21.
[(i) ] Whitelock of Parl. 206, 207.
[(j) ] See page 280.
[(k) ] Bro. Abr. tit. bille, 29. 12 Mod. 163.
[17 ] These privileges are allowed not so much for the benefit of attorneys as their clients, (2 Wils. 44. 4 Burr. 211. 3 Doug. 381,) and are therefore confined to attorneys who practise, (2 Wils. 232. 4 Burr. 2113. 2 Bla. Rep. 1086. 1 Bos. & Pul. 4. 2 Lutw. 1667, contra,) or at least have practised 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. R. M. 1654, S. 1. K. B. & C. P. 2 M. & S. 605.—Chitty.
[18 ] See, further as to the privileges from arrest, Tidd, 8th ed. 193 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 Anne, 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. 636. 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. Feme-covert, (1 T. R. 486. 2 H. B. 17;) but if she obtain credit, pretending to be single, she may be arrested, (1 N. R. 54; and see 1 Bing. 344. 2 Marsh. 40. 7 Taunt. 55. Tidd. 8th 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. 380:) 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 of motion, (3 Taunt. 307;) but if she cohabit with another man, and trade on her own account, she will not be discharged, (1 B. & P. 8;) if she, by mistake, misrepresent 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 vid. 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 20l. 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. 336. Warden of the Fleet. Witnesses subpœnaed, or summoned before commissioners under great seal, or attending an arbitrator appointed by the court. 1 Chit. Rep. 679. 3 B. & A. 252, S. C. 3 Anst. 941. 3 East, 189. A creditor attending commissioners of bankrupt to prove a debt. 7 Ves. 312. 1 Ves. & B. 316. 2 Rose, 24. By mutiny act, witnesses attending court-martial are privileged. But witnesses are not privileged if they delay 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.—Chitty.
[(l) ] 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.
[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.—Chitty.
[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.—Chitty.
[(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 1692, granted one to lord Cutts, to protect him from being outlawed by his tailor, (3 Lev. 882;) which is the last that appears upon our books.
[(n) ] Finch, L. 454. 3 Lev. 332.
[(o) ] F. N. B. 28. Co. Litt. 131.
[21 ] See construction of this act, Tidd, 8th 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. 3 B. & A. 408.—Chitty.
[22 ] Or, by 43 Geo. III. c. 46, deposit in the sheriff’s hands the sum endorsed on the writ, with 10l. 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, 8th ed. 226, 227. Quære if depositing goods instead of money will do. 7 Moore, 432.—Chitty.
[(p) ] Append. No. III. 5.
[23 ] 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.—Chitty.
[24 ] 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 vide 7 T. R. 109. 4 East, 568. To prevent this, plaintiff should oppose justification of bail, (Tidd, 8th 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.
[25 ] 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.—Chitty.
[26 ] 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 of King’s Bench 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 Burr. 56. Tidd, 8th ed. 240.
In proceedings by original in the King’s Bench, 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 the Common Pleas 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, 217.
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 eight 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.—Chitty.
[(q) ] Append. No. III. 5.
[(r) ] Ibid.
[27 ] Or a freeholder, or copyholder, or a long leaseholder. 8 Taunt. 148. 1 Chitty R. 7, 88, 144. 2 Chitty R. 96, 97.—Chitty.
[28 ] 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 vs. 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 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, 8th ed. 256.
Within a particular time (in general, four days) after the exception entered and notice given, the bail must justify. See Tidd, 257, 258, 259. 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, 262.
In the Common Pleas 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 vide 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 1000l. 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.—Chitty.
[(s) ] Inst. l. 4, t. 11. Ff. l. 2, t. 8.
[(t) ] Show. 202. 6 Mod. 231.
[29 ] 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 Selw. 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 King’s Bench 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 Selw. Pr. 180;) but a third person may assist in the taking and detaining 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 discharged on the 48 Geo. III. 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 Common Pleas; or in declaring in a different county by original in King’s Bench; 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. 8th ed. 290 to 295, 403, 1147, 1182, 1187.—Chitty.
[30 ] Several extensions of the sum have taken place; and now, by the last statute, viz., 7 & 8 Geo. IV. c. 71, the cause of action must amount to 20l.—Chitty.