cafes (6) double) to that which the plaintiff has fworn 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 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 juftify themselves in court, or before the commiffioner in the country, by fwearing themselves 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 flipulatio or fatifdatio of the Roman laws', which is mutually given by each litigant party to the other: by the plaintiff, that he will profecute his fuit, and pay the cofts if he loses his caufe; in like manner as our law ftill requires nominal pledges of profecution from the plaintiff: by the defendant, that he fhall continue in court, and abide the fentence of the judge, much like our special bail; but with this difference, that the [ 292 ] fidejuffores were there abfolutely bound, judicatum folvere, to fee the cofts and condemnation paid at all events: whereas our special 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 (7).

S

Append. N° III. § 5.

Inf. 1. 4. t. 11. Ff. l. 2. 1.8.

t Show. 202. 6 Mod. 231.

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 com mon pleas fpecial bail may be put in within eight days. 1 Cromp. Prac. 59.

(6) If the defendant is not prefent, and does not enter into the recognizance, then the bail are bound in double the fum fworn to. 1 Cromp. 56.

(7) The bail to the sheriff cannot take and furrender the defendant; for it is held, that nothing can be a performance of the condition of the bail-bond, but putting in bail above, 5 Burr. 2683 ; except the defendant voluntarily furrenders himself to the sheriff before the return of the writ. 6 T. R. 753. But bail above may

be

SPECIAL bail is required (as of courfe) only upon actions of debt, or actions on the cafe in trover or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds: but in actions where the damages are precarious, being to be affeffed ad libitum by a jury, as in actions for words, ejectment, or trefpafs, it is very feldom poffible for a plaintiff to fwear to the amount of his caufe of action; and therefore no special bail is taken thereon, unless by a judge's order or the particular directions of the court, in fome peculiar fpecies of injuries, as in cafes of mayhem or atrocious battery; or upon fuch special circumstances, as make it abfolutely neceffary that the defendant fhould be kept within the reach of justice. Alfo in actions against heirs, executors, and adminiftrators, for debts of the deceafed, fpecial bail is not demandable; for the action is not fo properly against them in perfon, as against the effects of the deceased in their poffeffion. But fpecial bail is required even of them, in actions for a devastavit, or wafting the goods of the deceafed, that wrong being of their own committing.

THUS much for procefs 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 shall confider at large in the next chapter.

be

put in without the defendant's confent, who may the next day take up the defendant and furrender him in discharge of themfelves. The defendant is confidered in the cuftody of his bail, who may therefore apprehend him without any warrant, even if he is attending a court of juftice, or is a bankrupt who has not paffed his laft examination. 5 T. R. 210. And if the defendant is in cuftody, either in a civil action or upon a criminal charge, they may have a writ of habeas corpus to bring him up to the court to be furrendered in discharge of the bail. 7 T. R. 226. In what cafes an exoneretur, may be entered upon the bail-piece, and for the proceedings upon the bail-bond, &c. fee the various books of practice with which it is neceffaty that every ftudent, who intends to practice the law, fhould make himself familiar.

CHAPTER THE TWENTIETH.

OF

PLEADING.

LEADINGS are the mutual altercations between

PLE

the plaintiff and defendant; which at prefent are fet down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol.

THE first of thefe is the declaration, narratio or count, antiently called the tale; in which the plaintiff sets forth his cause of complaint at length: being indeed only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember, that, in the king's bench, when the defendant is brought into court by bill of Middlesex, upon a fuppofed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And fo alfo, in order to have the benefit of a capias to fecure the defendant's perfon, it was the antient practice and is therefore ftill warrantable in the common pleas, to fue out a writ of trespass quare claufum fregit, for breaking the plaintiff's close: and when the defendant is once See pag. 285. 288. 1

• Append. No II. § 2. N° III. § 6.

brought

brought in upon this writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action of covenant, or on the cafe for breach of contract, or other lefs forcible tranfgreffion : unlefs, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly.

"

IN local actions, where poffeffion of land is to be recovered, or damages for an actual trespass, or for waste, &c, affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in tranfitory actions, for injuries that might have happened any where, as debt, detinue, flander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though if the defendant will make affidavit, that the caufe of action, if any, arose not in that but in another county, the court will direct a change of the venue or vifne, (that is, the vicinia or neighbourhood in which the injury is declared to be done,) and will oblige the plaintiff to declare in the other county; unless he will undertake to give material evidence in the first (1). For the ftatute 6 Rich. II. c. 2. and 4 Hen. IV. c. 18. having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not to infift rigidly on abating the writ: which practice began in the reign of James the firft. And this power is discretionally exercised, so as to prevent and not to cause a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit; Filiz. 231. Styl. pract. Reg. (edit. 1657.) 331.

2 Ventr. 259Raftellt. Dette. 184. b. Fitz. Abr. t, Briefe. 18. Salk. 670. Trye's Jus

(1) But if he fails to produce at the trial material evidence of the cause of action in the county, in which he has laid it, he muft be nonfuited, though he might have recovered a verdict in another county. 2 Bl. Rep. 1031.

Y 2

because

because there the affiles are holden only once a year, at the time of the summer circuit. And it will fometimes remove the venue from the proper jurifdiction, (efpecially of a narrow and limited kind,) upon a fuggeftion, duly fupported, that a fair and impartial trial cannot be had therein (2).

3

1

[295] IT is generally ufual in actions upon the cafe to set forth feveral cafes, by different counts in the fame declaration; fo that if the plaintiff fails in the proof of one, he may fucceed in another. As, in an action on the case upon an affumpfit for goods fold and delivered, the plaintiff ufually counts or de-i clares, firft, upon a fettled and agreed price between him and the defendant; as that they bargained for twenty pounds: and left he should fail in the proof of this, he counts likewife upon a quantum valebant; that the defendant bought other goods, and agreed to pay him fo much as they were reasonably worth; and then avers that they were worth other twenty pounds." and fo on in three or four different fhapes; and at laft concludes with declaring, that the defendant had refufed to fulfil any of thefe agreements, whereby he is endamaged to fuch a value. And if he proves the cafe laid in any one of his counts, though he fails in the reft, he fhall recover propor tionable damages. This declaration always concludes with' thefe words," and thereupon he brings fuit," &c." inde pro-! "ducit fectam," &c. By which words, fuit or fetta (a fequendo) were antiently understood the witneffes or followers of the plaintiff. For in former times the law would not put the dee Stra. 874. Mylock v. Saladine, Trin. 4 Geo. ÌII. B. R. f Seld. on Fortefc. c. 21.

(2) The court will not change the venue in an action brought upon a specialty, a promiffory note, or a bill of exchange; yet in one cafe where the action was upon a bond, and the witnesses of both parties lived in the county to, which the defendant prayed the venue might be changed, the court ordered it to be changed upon condition that the defendant should bring no writ of error, and fhould give judgment of the term preceding the trial. 1 T. R. 781.