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or summons, much less an arrest, can be executed upon a man within his own walls D. Peers of the realm, members of parliament, and corporations, are privileged from arrests; r 2? and of course from outlawriesi. And against them the process to enforce an appearance must be by summons and distress infinitej, 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 . Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by stat. 50 Edw. III. c. 5. and i Ric. II. c. 16. as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witneffes, 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. And no arrest can be made in the king's presence, nor within the verge of his royal palace', 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 m) that he may by his writ of prote&tion 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”. And the king also by the common law
A Ff. 2. 4. 18-21.
i Whitelocke of parl, 206, 207. · j See page 280. k Bro. Abo, s. bille. 29. 12 Mod. 163.
See Vol. IV. 276. The verge of the palace of Westminster extends, by stat. 28 Hen. VIII.C.12. from Charing-cross to Westminster-hall.
· m Sir Edward Coke informs us, (a Inft. 131.) that herein "he could " say nothing of his own experience; " for albeis queen Elisabeth maigrained
“ many wars, yet she granted few or no
protections: and her reason was, that
might take his debtor into his protection, so that no one inight sue or arrest him till the king's debt were paid o: but
by the ftatute 25 Edu. III. st. 5. c. 19. notwithstanding such 5 290 7 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 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.
When the defendant is regularly arrested, he must either go to prison, for safe custody: or put in special bail to the sheriff. For, the intent of the arrest being only to compel an appearance in court at the return of the writ, that purpofe 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, (ivot 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'. The sheriff, if he pleases, may let the defendant go without any fureties; 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. 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 Itatute 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.
OF. N. B. 28. Co. Litt. 131.
p Apfendor No III. 5. .
Upon tlre return of the writ, or within four days after (4), 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 ( 291 ) take an alignment from the sheriff of the bail-bond (under the statute 4 & 5 Ann. c. 16.) and bring an action thereupon against the sheriff's bail. But if the bail, so accepted by the sheriff, be insolvent persons, the plaintiff may proceed against the sheriff himself, by calling upon him, first, to return the writ (if not already done) and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff.
The bail above, or bail to the action, must be put in either in open court, or before one of the judges thercof; or else, in the country, before a commislioner appointed for that purpose by virtue of the statute 4 W. & M. c. 4. which must be transmitted to the court. These bail, who must at least be two in number, must enter into a recognizance ? in court or before the judge or commissioner, in a fum equal (or in some cafes double)(5) to that which the plaintiff has sworn to; whereby they do jointly and severally undertake, that if the defendant be condemned in the action he shall pay the costs
9 Append. No III. $5.
(4) In London and Middlesex special bail in the king's bench must be put in within four days, exclusive of the return of the writ; in any other county within six days : but if the last day falls on a funday, it may then be put in on the monday following. In any other county where the action is brought in the common pleas special bail may be put in within eight days. i Cromp. Prac. 59.
(5) If the defendant is not present, and does not enter into the rccognizance, then the bail are bound in double the sum sworn 10. i Cromp. 56.
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'. And, if excepted to, the bail must be perfeEted, that is, they must juf. tify 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 ftipulatio or fatifdatio of the Roman laws', which is mutu. ally given by each litigant party to the other: by the plaintiff, that he will prosecute his fuit, 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
fidejusores were there absolutely bound, judicatum folvere, to [ 292 ) see the costs and condemnation paid at all events : whereas our
special bail may be discharged, by surrendering the defendant into custody, within the time allowed by law; for which purpose they are at all times entitled to a warrant to appre. hend him'.
· 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 preca. rious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very feldom possible for a plaintiff to swear to the amount of his cause of action; and therefore vo 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 • Append. NO IJI. $ 5.
12 Show. 202. 6 Mod. 231. • Inft, l. 4. 6. 11. Ff. I. 2. 6. 8.
not demandable; for the action is not so properly against them in perfon, as against the effects of the deceased in their pofsession. But special bail is required even of them, in actions for a devasiavit, 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 lhall congder at large in the next chapter.