No. X. c. 9. None of the sheriffs' officers shall be returned upon TEM, the King considering the great perjury, extortion, and oppression which be and have been in this realm by his sheriffs, 23 Henry VI. ander-sheriffs, and their clerks, coroners, stewards of franchises, bailiffs, and keepers of prisons, and other officers in divers counties of 'this realm, hath ordained by authority aforesaid, in eschewing of all such extortion, perjury, and oppression, that no sheriff shall let to ferm, in any manner, his county, nor any of his bailiwicks, hundreds, nor wapentakes; nor that the said sheriffs, under-sheriffs, bailiffs of franchises, nor any other bailiff, shall return, upon any writ or precept inquests. 'to them directed to be returned, any inquests in any panel thereupon to 'be made, any bailiffs, officers, or servants to any of the officers aforesaid, in any panel by them so to be made; nor that any of the said officers and ministers, by occasion, or under colour of their office, 'shall take any other thing by them, nor by any other person to their use, profit, or avail, of any person by them, or any of them, to be ' arrested or attached, nor of any other for them, for the omitting of any arrest or attachment to be made by their body, or of any person by them or any of them, by force or colour of their office, arrested or attached, for fine, fee, suit of prison, mainprise, letting to bail, or shewing any ease or favour to any such person so arrested, or to be arrested, for their reward or profit, but such as follow; (1) that is to say, For the sheriff xxd. ; the bailiff which maketh the arrest or attachment, fourpence, and the gaoler, if the prisoner be committed to his ward, fourpence; And that the sheriff, under-sheriff, sheriff's clerk, 'steward or bailiff of franchise, servant of bailiff or coroner, shall not · take any thing by colour of his office, by him nor by any other person to his use, of any person for the making of any return or panel, and for < the copy of any panel, but ivd. And that the said sheriffs, and all other officers and ministers aforesaid, shall let out of prison (2) all manner of persons by them or any of them arrested, or being in their custody, by force of any writ, bill, or warrant in any action personal, (3) or by cause to-day; but if themselves, or any other court of concurrent authority, had been guilty of that wrong to-day, it would become right to follow the example to-morrow. Would it not place the administration of justice upon a more respectable basis, if it were to be held that reason and justice should be regarded as its first, and precedent as only its secondary principle, than to reverse the disposition, and to sacrifice the former at the shrine of the latter? Admitting most willingly the beneficial effects of precedents, in fixing and ascertaining principles; assenting to the impropriety of lightly renewing discussions upon topics, with respect to which reason may fairly hesitate in its decision, and certainty of determination is more beneficial than a particular conclusion on either side; objecting to the subversion of confess edly erroneous opinions, when they have so incorporated themselves with the juridical system, as not to admit of separation without inducing injurious consequences; the only proposition which I endeavour to establish, or rather to enforce, is, that the acknowledged conclusions of reason and justice shall be admitted to prevail over the accidental sanction of error by precedent, when no important reason of public utility requires an opposite determination." See the reference to cases, as to the statute being public or private, in Williams's Notes to 2d Saunders, 155 a. (1) In Martin v. Slade, 2 N. R. 60, the court Fees for arrests and attachments. Fees for the copy of a panel. What persons may be bailed, what not. (2) If the defendant tender a bail-bond, with suficient sureties, and the sheriff refuse to accept it, he is liable to a special action in the case: but not to an action of trespass, for the refusal does not make him a trespasser ab initio. See authorities cited Williams's Note, 2 Saund. 61. c. (5.); and the action does not lie against the bailiff who refuses, but it must be against the sheriff, 2 Mod. 32, Smith v. Hall. (3) In Rex &. Daws, 2 Salk. 608; Lord Raym. 722, it was held, that the sheriff might take a bail-bond in an attachment for a contempt, but that the prosecutor might refuse to accept it: but the right to take such bail-bond has been since overruled. The following note was added by the editor to the case of Rex v. Daws, in the sixth edition of Salkeld: "In Field v. Workhouse, Com. 264, the defendant pleaded that the bond was taken by the sheriff in an attachment for contempt of C. B., and void by statute 23 Hen. VI., and had judgment. King, Ch. J. said, that upon an attachment of privilege, attachment upon a prohibition, or attachments in process upon a penal statute, the sheriff might take bail, but not upon an attachment for a contempt. In Say v. Ellis, 2 Bl. Rep. 955, it appearing on oyer of a bond, that the condition was to answer a contempt in the No. X. c. 9. The conditions of the bailbond, ' of indictment of trespass, (1) upon reasonable sureties of sufficient 23 Henry VI. persons, (2) having sufficient within the counties where such persons be so let to bail or mainprise, to keep their days in such place as the said writs, bills, or warrants shall require. Such person or persons which be or shall be in their ward by condemnation, execution, capias utlagat' or excommunication, surety of the peace, and all such persons which be or shall be committed to ward by special commandment of any 'justice, and vagabonds refusing to serve according to the form of the 'statute of labourers only except. And that no sheriff, nor any of the officers or ministers aforesaid, shall take or cause to be taken, or make, any obligation for any cause aforesaid, or by colour of their office, but 'not only to themselves, (3) of any person, nor by any person which shall be in their ward by the course of the law, but by the name of their office, (4) and upon condition written, that the said prisoners shall appear at the day contained in the said writ, bill or warrant, and in 'such places as the said writs, bills or warrants shall require. (5) And if 6 6 Court of Chancery, the defendant demurred. The court thought if there was any ground of exception, he should have pleaded facts sufficient to bring the question before the court, and gave him leave to plead, and judgment was afterwards signed for want of a plea. In Studd v. Acton, 1 H. B. 468, it was ruled on demurrer, that an action cannot be maintained against a sheriff for refusing to take bail upon an attachment out of Chancery for a contempt. The court did not give an opinion whether the sheriff had a right to take bail; vide Danby v. Lawson, Pre. Ch. 110; Eq. Ab. 350; Bland v. Riccard, 3 Leon. 208; Anon. 1 Str. 479; 1 Ventr. 231; 2 Ventr. 238." (1) It was ruled in Bengough v. Rosseter, 4 T. R. 505, and on error, 2 H. Bl. 418, that a sheriff cannot take a bail-bond upon an indictment at the Quarter Sessions, and that this provision related only to indictments at the torn, and is in effect repealed by 1 Ed. IV. c.2, by which it is enacted, that the sheriff shall not proceed in any such indictment at the torn, but shall remove it to the next Sessions of the Peace. A very strong and elaborate opinion was expressed to the contrary in the Exchequer Chamber by Eyre, C. J. In the King's Bench, it was said by the court that it was the sheriff's duty to have taken a recogni zance. (2) This clause was made for the benefit of the sheriff; and therefore, though he may insist upon two sureties, yet he may take a bond with one surety only. Sir William Drury's Cases cited, 10 Rep. 100 b., and other cases referred to in Williams's Note to 2 Saund. 61. (3) An undertaking to the bailiff of the sheriff is void; Rogers v. Reeves, 1 T. R. 418. (4) In error in debt on bail-bond, it was excepted that it was not shewn that the bond was to the sheriff by the name of his office. The court were of opinion that it should so appear: but they thought that it did sufficiently appear on the whole declaration, it being solvend eidem vicecomiti et assignatis. (5) The decisions respecting bail-bonds upon this statute are stated in Serjeant Williams's Note to 2 Saunders 60, from which the following is an extract, with the exception of the passages in brackets. The nature and form of the security required by the second branch of the statute is bond. [The constant usage since the passing of the Act has been to take security by bond: but this is only a simple contract, and not of so high a nature as the security which was intended by the statute; per Ashurst J., Rogers v. Reeves, 1 T. R. 418, cited in another point, supra.] The condition of the bond must be for the appearance of the party at the return of the writ, and for no other purpose; so that if there be any other condition expressed in the bond, or the bond be single without any condition at all, or be with an impossible one, [as when it was given on the fourth of November, with conditions to appear on the the third, as in Samuel v. Evans,] the bond is void by the statute; 1 T. R. 418; Rogers v. Reeves, Cro. Eliz. 862; Cotton v. Wale, ibid. 672; Scryvin v. Dyther, Dyer 119, 120; 10 Rep. 100 n. b. 101 a.; Beawsages's Case, 3 Lev. 74, 75; Graham v. Crawshaw, 1 Str. 399; Mills v. Bond, S. C. Fortesc. 363; 2 T. R. 569; Samuel v. Evans. But the statute is confined to obligations given to the sheriff, and does not extend to such as are given to or for the benefit of the plaintiff: therefore, when an attorney undertakes to appear for the defendant, he is bound to do so, and the court will enforce a performance of such his contract with the plaintiff by attachment, though his undertaking be not in the form prescribed by the statute; Cro. Eliz. 190; Milward v. Clarke, 1 Sid. 132; Benshin v. French, S. C. 1 Lev. 98; 1 T. R. 418; Rogers v. Reeves. So a bond given to the plaintiff in another form than that which the statute prescribes is valid; 2 Mod. 304, 305. If it appears on the face of the declaration, or upon oyer, that the bond is void by the provisions of the statute, the defendant may demur: but if it do not, he must plead the objection appears in any part of the rethe statute; or if by pleading, or otherwise, cord, he may move in arrest of judgment. [See more as to pleading upon this subject in the note from which these extracts are made, and also Williams's Note, 2 Saunders, 155 a.] The bond must be taken before the return of the writ, otherwise it is void; 1 Ld. Rayın. 352; Pullen v. Benson. But it is not required any No. X. of the said sheriffs, or other officers or ministers aforesaid, take any obligation in other form by colour of their offices, that it shall be void; 23 Henry VI. ' and that he shall take no more for the making of any such obligation, 'warrant or precept by them to be made, but fourpence. And also that c. 9. every of the said sheriffs shall make yearly a deputy in the King's The sheriff * courts of his Chancery, the King's Bench, the Common Pleas, and in shall make de the Exchequer, of record, before that they shall return any writs, to ' receive all manner of writs and warrants to be delivered to them: And [No. XI.] 19 Henry VII. c. 9.-Process in Actions upon the Case sued in the King's Bench and Common Pleas. FORASMUCH as before this time there hath been great delays in actions of the case, that hath been sued as well before the King in his Bench, as in his Court of his Common Bench, because of which 'delays many persons have been put from their remedy:' Be it therefore ordained, enacted, and established by the King our Sovereign Lord, by the advice and assent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by authority of the same, That like process be had hereafter in actions upon the case, as well sued and hanging, as to be sued, in any of the said courts, as in actions of trespass or debt. [No. XII.] 43 Elizabeth, c. 6.-An Act to avoid trifling and frivolous Suits in Law in her Majesty's Courts in Westminster. [This Act given at length in Vol. III.] [See post, Title Costs.---By Section 1, a penalty is imposed upon Sheriffs, making a Warrant for Arrest or Summons until they have received the Writ.] by the statute to insert the nature of the action in the conditions of the bond; if it sets forth the parties, and the time and place of appearance substantially, it is sufficient; therefore a mere informality or variance between the condition and process in the description of the action, or of the time and place of appearance, does not vitiate the bond. [See the several cases in support of this position mentioned in the note, to which add Jones v. Stordy, 9 E. 55.] [For the assignment of the bail-bond, see statute 4 Anne, c. 16, ante Part II. Class I. puties in the King's courts. The forfeitures of the offenders, and who shall have them. The sheriff returning cepi corpus, or red didit se. The warden of the Fleet and of the palace of Westminster exempted. No. 23; and see further as to proceedings on the bail-bond and the assignment thereof, and the summary jurisdiction exercised by the court upon the subject, Williams's Notes, 2 Saund. 61.] (1) The sheriff is not liable to an action for taking insufficient bail, but is liable to be amerced if he have not the body at the return of the writ; Posterne v. Hanson, 2 Saund. 51, (a.); and see Williams's Notes, ibid. in which the duty and liability of the sheriff are fully explained, No. XIII. 13Charles II. st. 2. c. 2. The ancient fundamental upon suits, to express the true cause of ac cess. [No. XIII.] 13 Charles II. stat. 2. c. 2.-An Act for Prevention of Vexations and Oppressions by Arrests, and of Delays in Suits of Law *. 6 WHEREAS by the ancient and fundamental laws of this realm, in case where any person is sued, impleaded or arrested by any law in proceed-writ, bill or process issuing out of any of his Majesty's Courts of ing to arrests 'Record at Westminster, in any common plea, at the suit of any common person, the true cause of action ought to be set forth and particularly . expressed in such writ, bill or process, whereby the defendant may have 'certain knowledge of the cause of the suit, and the officer who shall tion in the pro-execute such writ, bill or process, may know how to take security for 'the appearance of the defendant to the same, and the sureties for such appearances may rightly understand for what cause they become engaged; and whereas there is a great complaint of the people of this 'realm, that for divers years now last past very many of his Majesty's good subjects have been arrested upon general writs of trespass, Quare clausum fregit, Bills of Middlesex, Latitats, and other like writs issued out of the courts of the King's Bench and Common Pleas, not expressing any particular or certain cause of action, and thereupon kept prisoners for a long time for want of bail, bonds with sureties for appearances having been demanded in so great sums that few or none have dared to be security for the appearances of such persons so arrested and imprisoned, although in truth there hath been little or no cause of 'action; and oftentimes there are no such persons who are named plaintiffs, but those arrests have been many times procured by malicious persons to vex and oppress the defendants, or to force from them un'reasonable and unjust compositions for obtaining their liberty; and by such evil practices many men have been, and are daily undone, and destroyed in their estates, without possibility of having reparation, the actors employed in such practices having been (for the most part) poor ' and lurking persons, and their actings so secret, that it hath been found very difficult to make true discoveries or proof thereof :' Persons arrested by process out of the King's Bench or Common Pleas, not expressing the cause of action, how to be bail II. For remedy and prevention of which so great growing evils and mischiefs, and also for discouraging all frivolous and unjust suits, and causeless arrests for the future; be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the twelfth day of February, in the year of our Lord One thousand six hundred sixty and one, no person or persons who shall happen to be arrested by any sheriff, ed and set at under-sheriff, coroner, steward, or bailiff of any franchise or liberty, or liberty, upon by any other officer, minister, under-bailiff, or other person or persons their own bonds whatsoever, within this realm, having or pretending to have authority for appearance. or warrant in that behalf, by force or colour of any writ, bill, or process 23 H. 6. c. 9. issuing or to be issuing out of His Majesty's said courts of the King's Bench and Common Pleas, or either of them, in which said writ, bill or process, the certainty and true cause of action is not expressed particularly, (1) and for which the defendant or defendants in such writ, bill or process named, is and are bailable by the statute in that behalf made in the three and twentieth year of the reign of the late King Henry the Sixth, shall be forced or compelled to give security, or to enter into bond with sureties, for the appearances of such person or persons so arrested, at the day and place in the said writ, bill or process specified or contained, in any penalty or sum or sums of money, exceeding the sum * See Williams's Note, 2 Saund. 52. (1) This statute (without any such intention in the makers) had liked to have ousted the King's Bench of all 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; 3 Bl. Comm. 287. of forty pounds of lawful money of England, to be conditioned for such appearances; and that all sheriffs and other officers and ministers aforesaid shall let to bail and deliver out of prison, and from their and every of their custodies respectively, all and every person and persons whatsoever, by them or any of them arrested upon any such writ, bill or process, wherein the certainty and true cause of action is not particularly expressed, upon security in the sum of forty pounds and no more, given for appearance of such person or persons so arrested unto the said sheriff or officer aforesaid, according to the said statute in the said three and twentieth year of the reign of the said late King Henry the Sixth in that behalf made and provided. No. XIII. 13Charles II. st. 2. c. 2. III. And be it further enacted by the authority aforesaid, That upon appearance to be entered in the term wherein such writ, bill or process is returnable, with the respective officer in that behalf, for the said person or persons, by attorney or attornies in the said respective courts from whence the said writ, bill or process issued, unto such writ, bill or process, the bond or bonds so given for appearance thereunto, be and are Bonds (given hereby satisfied and discharged; and that after such appearance so for) discharged entered, no amerciaments be set or estreated upon or against any sheriff upon appearor other officer aforesaid, or any other person whatsoever, concerning ance. the want of such appearance; and unless the plaintiff or plaintiffs in any such writ, bill or process named, shall put into the court from whence Nonsuit for such writ, bill or process did issue, his or their bill or declaration against want of a dethe person or persons so arrested, in some personal action, or ejectione clarationbefore firma of lands or tenements, before the end of the term next following the end of the after appearance, that then a nonsuit for want of a declaration may be entered against the said plaintiff or plaintiffs in the said courts respect ively; and that every defendant in every such writ, bill or process named, shall or may have judgment to recover costs against every such plaintiff or plaintiffs, to be assessed, taxed and levied in such manner, and according as it is provided by the statute for costs, made in the three and twentieth year of the reign of the late King Henry the Eighth; any former or other act, statute, ordinance, law, custom, order, course or usage of either of the said courts, to the contrary thereof heretofore had, made, admitted or used, in any wise notwithstanding. next term after appearance, and judgment and costs against the plaintiff. 23 H. 8. c. 15. capias utlagatum, attachments upon rescous, con tempts, and of privileges, excepted. IV. Provided always, That this Act, nor any clause or thing herein- Arrests upon before specified or contained, shall not extend, nor be construed or taken to extend, unto any arrests hereafter to be made upon or by virtue of any writ of capias utlagatum, attachment upon rescous, or attachment upon any contempt, or of any attachment of privilege at the suit of any privileged person, or of any other attachment for contempt whatsoever, issuing or to be issuing out of either of the said courts, although there be no particular certainty of the cause of action expressed or contained in the said writs; but that nevertheless no sheriff nor under-sheriff, nor any of the officers or ministers aforesaid, shall discharge any person or persons taken upon any writ of capias utlagatum out of custody, without a lawful supersedeas first had and received for the same: And that upon the said writs of attachment, such lawful course be taken for security for appearance therein as hath been heretofore used; any thing hereinbefore expressed to the contrary thereof in wise notwithstanding. any V. And whereas many persons, out of ill intent to delay their credi'tors from recovering their just debts, continue prisoners in the Fleet, 'who cannot be proceeded against in such manner as they might be, if they were at large:' Now for the better enabling all persons to recover their just debts and demands against such prisoners, be it further enacted by the authority aforesaid, That every person or persons whatsoever, who now hath or have, or which at any time hereafter shall have, cause of any personal action against any person being a prisoner in the prison of the Fleet, may sue forth an original writ upon his or their cause of action; and that a writ of habeas corpus be granted to every such person or persons, being plaintiff or plaintiffs, desiring the same, to be directed to the warden of the same prison to have the body of such prisoner before the justices of the Common Pleas, at some certain day in any How persons having cause of action may proceed against prisoners in the Fleet. |