or fummons, much less an arreft, can be executed upon a man within his own walls. Peers of the realm, members of parliament, and corporations, are privileged from arrefts; [289] and of course from outlawries. Aud against them the procefs to enforce an appearance must be by fummons and diftrefs. infinite), instead of a capias. Also clerks, attorneys, and all other perfons attending the courts of justice (for attorneys, being officers of the court, are always fuppofed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be fued by bill (called ufually a bill of privilege) as being perfonally present in court *. Clergymen performing divine fervice, and not merely ftaying in the church with a fraudulent design, are for the time privileged from arrefts, by ftat. 50 Edw. III. c. 5. and Ric. II. c. 16. as likewife members of convocation actually attending thereon, by ftatute 8 Hen. VI. c. 1. Suitors, witneffes, and other perfons, neceffarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their neceffary coming and returning. And no arreft can be made in the king's prefence, nor within the verge of his royal palace', nor in any place where the king's justices are actually fitting. The king hath moreover a fpecial prerogative, (which indeed is very feldom exerted") that he may by his writ of protection privilege a defendant from all perfonal, and many real, fuits for one year at a time, and no longer; in refpect of his being engaged in his fervice out of the realm". And the king alfo by the common law Ff. 2. 4. 18-21. i Whitelocke of parl. 206, 207. j See page 280. Bro. Abr. t. bille. 29. 12 Mod. 163. See Vol. IV. 276. The verge of the palace of Westminfter extends, by stat. 28 Hen. VIII. c. 12. from Charing-cross to Weltminster-hall. m Sir Edward Coke informs us, (1 Inft. 131.) that herein "he could "fay nothing of his own experience; "for albeit queen Elizabeth maintained "many wars, yet she granted few or no a Finch. L. 454. 3 Lev. 332. BOOK III. might take his debtor into his protection, fo that no one might fue or arreft him till the king's debt were paid : but by the ftatute 25 Edw. III. ft. 5. c. 19. notwithflanding fuch [290] protection, another creditor may proceed to judgment against him, with a ftay of execution, till the king's debt be paid; unless fuch creditor will undertake for the king's debt, and then he fhall have execution for both. And, laftly, by ftatute 29 Car. II. c. 7. no arreft can be made, nor procefs ferved upon a funday, except for treafon, felony, or breach of the peace. WHEN the defendant is regularly arrested, he must either go to prifon, for safe cuftody: or put in special bail to the fheriff. For, the intent of the arreft being only to compel an appearance in court at the return of the writ, that purpofe is equally answered, whether the fheriff detains his person, or takes fufficient fecurity for his appearance, called bail (from the French word, bailler, to deliver) because the defendant is bailed, or delivered, to his fureties, upon their giving fecurity for his appearance; and is fuppofed to continue in their friendly cuftody inftead 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 fureties, (not fictitious perfons, as in the former cafe of common bail, but real, fubftantial, refponfible bondfmen) to infure the defendant's appearance at the return of the writ; which obligation is called the bail-bond. The fheriff, if he pleafes, may let the defendant go without any fureties; but that is at his own peril: for, after once taking him, the fheriff is bound to keep him fafely, fo as to be forthcoming in court; otherwife an action lies against him for an efcape. But, on the other hand, he is obliged, by ftatute 23 Hen. VI. c. 1o. to take (if it be tendered) a fufficient bail-bond: and, by statute 12 Geo. I. c. 29. the sheriff fhall take bail for no other fum than fuch as is fworn to by the plaintiff, and endorfed on the back of the writ. • F. N. B. 28. Co. Litt. 131. P Append. No III. § 5. UPON 290 UPON the 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 fheriff below are refponfible perfons, the plaintiff may [291] take an assignment from the sheriff of the bail-bond (under the ftatute 4 & 5 Ann. c. 16.) and bring an action thereupon against the fheriff's bail. But if the bail, fo accepted by the fheriff, be infolvent perfons, 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 fheriff does not then caufe fufficient bail to be put in and perfected above, he will himself be refponfible 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 elfe, in the country, before a commissioner appointed for that purpofe by virtue of the ftatute 4 W. & M. c. 4. which must be tranfmitted to the court. Thefe bail, who muft 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 fworn to; whereby they do jointly and feverally undertake, that if the defendant be condemned in the action he fhall pay the cofts 9 Append. No III. § 5. (4) In London and Middlefex fpecial bail in the king's bench. must be put in within four days, exclufive of the return of the writ; in any other county within fix 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 fpecial bail may be put in within eight days. 1 Cromp. Prac. 59. (5) If the defendant is not prefent, and does not enter into the recognizance, then the bail are bound in double the fum fworn to. ■ Cromp. 56. and condemnation, or render himself a prifoner, or that they will pay it for him: which recognizance is tranfmitted to the court in a flip of parchment entitled a bail piece'. And, if excepted to, the bail must be perfected, that is, they must jus tify themselves in court, or before the commiffioner in the country, by fwearing themfelves housekeepers, and each of them to be worth the full fum for which they are bail, after payment of all their debts. This answers in fome 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 profecute his fuit, and pay the costs if he loses his caufe; in like manner as our law ftill requires nominal pledges of prosecution from the plaintiff: by the defendant, that he fhall continue in court, and abide the fentence of the judge, much like our fpecial bail; but with this difference, that the fidejuffores were there absolutely bound, judicatum folvere, to [292] fee the costs and condemnation paid at all events: whereas our fpecial bail may be discharged, by furrendering the defendant into cuftody, within the time allowed by law; for which purpose they are at all times entitled to a warrant to apprehend him '. SPECIAL bail is required (as of course) only upon actions of debt, or actions on the cafe in trover or for money due, where the plaintiff can fwear that the cause of action amounts to ten pounds: but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom poffible for a plaintiff to fwear to the amount of his caufe of action; and therefore no fpecial bail is taken thereon, unless by a judge's order or the particular directions of the court, in some pecu liar fpecies of injuries, as in cases of mayhem or atrocious battery; or upon fuch special circumftances, as make it abfolutely neceffary that the defendant fhould be kept within the reach of justice. Alfo in actions against heirs, executors, and administrators, for debts of the deceased, fpecial bail is Append. No III. § 5. • Inft. I. 4. 1. 11. Ff. l. 2. 1, 8. * 2 Show. 202. 6 Mod. 231. not not demandable; for the action is not fo properly against them in person, as against the effects of the deceased in their poffeffion. But fpecial bail is required even of them, in actions for a devaftavit, or wafting 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 conteft the fuit, and abide the determination of the law. When he appears either in perfon as a prifoner, or out upon bail, then follow the pleadings between the parties, which we fhall confider at large in the next chapter. |