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 THE ^^f^ 
 
 PRACTICE 
 
 COURTS OF KING'S BENCH, 
 
 AND 
 
 C M M iN PLEAS, 
 
 IN PERSONAL ACTIONS, AND EJECTiMENT. 
 
 TO WniCn ARE ADDED, 
 
 THE LAW AND PRACTICE OF EXTENTS, 
 
 RULES OF COURT, AND MODERN DECISIONS, 
 
 IX THE 
 
 BY WILLIAM TIDD, ESQ. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 THIRD AMERICAS, FROM THE ^•1XTH LONDON EDITION, 
 
 WITH NOTES or RECENT ENGLISH STATUTES AND DECISIONS, 
 
 BY FEANCIS J. TllOUBAT. 
 
 FOCRTH AMERICAN EDITION, WITH ADDITIONAL NOTEg, 
 
 BY ASA I. FISir. 
 
 4^5^: 
 
 PHILADELPHIA: 
 
 ROBERT IL SMALL, LAW BOOKSELLER, 
 
 NO. 21 SOUTU SIXTH STREET. 
 
 1856.
 
 T 
 T43&7P 
 
 vol' I 
 
 Entei-eil according to act of Congivss. in the year 1856, by 
 
 ROBERT H. SMALL, 
 
 In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. 
 
 
 '^^'*rG 
 
 Robb, PUe Sc M'EIroy . Prs- 
 Lodge Street.
 
 
 ADVERTISEMENT 
 
 TO THE 
 
 THIRD AMERICAN EDITION. 
 
 Since the publication of the ninth Edition of Mr. Tidd's Practice. 
 in Trinity Term 1828, many important alterations have been made 
 in the Practice of the Superior Courts of Law at Wedminder, by 
 various Statutes, Rules of Court, and Judicial decisions. The prin- 
 cipal Statutes, by which these alterations were effected, are the 
 Administration of Justice act, (11 Geo. IV. & 1 W. IV. c. 70;) 
 the Speedy Judgment and Execution act, (1 W. IV. c. 7 ;) the 
 Examination of Witnesses act, (1 W. IV. c. 22 ;) the Interpleader 
 act, (1 & 2 W. IV. c. 58;) the Uniformity of Process act, (2 W. 
 IV. c. 39 ;) and the Law Amendment act, (3 & 4 W. IV. c. 42.) 
 
 In pursuance of the power given by the Administration of 
 Justice act, general rules were made by all the Judges, in Trinity 
 term, 1831, and Hilary term, 1832. The rules of Trinity term 
 chiefly relate to the putting in and justifying of special bail ; the 
 shortening of declarations in actions of assumpsit, or debt, on bills 
 of exchange, or promissory notes, and the common counts ; the 
 dehvery ofpccrticidars of the plaintiff's demand, under those counts; 
 the time for delivering declarations de bene esse; the service of 
 declarations in ejectment; the time for pleading; rules to plead 
 several matters ; and judgment of non ptvs, &c. The object and 
 intent of the rules of Hilary Term appear to have been, to assi- 
 milate the practice of the different courts, and to render the pro- 
 ceedings therein more expeditious, and less expensive to the 
 suitors.
 
 j^ ADVERTISEMENT. 
 
 Under the Lcaw Amendment act, general rules were made by 
 all the judges of the superior courts of common law at Westminster, 
 in Hilary term 1834; which having been laid the requisite time 
 before both houses of parUament, came into operation on the first 
 day of Easter term following. These rules, which may be con- 
 sidered as the commencement of a new era in pleading, in England, 
 are of two kmds : 1st, general rules, relating to all pleadings ; and, 
 2ndly, rules relating to pleadings in the particular actions of assumpsit, 
 covenant, debt, detinue, case and tresjmss. 
 
 Some additional rules were also made by the judges in pur- 
 suance of the law amendment act, and of the powers given them 
 by the administration of justice act, relating to i\iQ practice of the 
 courts, in Hilar?/ term, 1834, which took effect on the first day of 
 Easter term following. These rules chiefly relate to demurrers, 
 and proceedings in error ; and contain provisions respecting the 
 admission of written documents. 
 
 The present edition of this work consists of the ninth of the 
 author, with so much of the new practice incorporated in notes, 
 as was thought to be of interest or utility in this country. For 
 this part of the pubhcation, the editor is chiefly indebted to the 
 author's most recent work pubHshed in 1837, entitled, The New 
 Practice of the Courts of King's Bench, Common Pleas and Ex- 
 chequer of Pleas, in Personal Actions and Ejectment. The judi- 
 cial decisions of the courts referred to in that work, are, for the 
 most part, founded on the new statutes and rules of court, and as 
 a w^hole, the system thus worked up, independently of its philoso- 
 phical merits, has but little in it useful to the American lawyer. 
 
 Philadelphia, May, 1840.
 
 PUBLISIIEK^S PREFACE 
 
 FOURTH AMERICAN EDITION. 
 
 In this new impression of Tidd's Practice, the reader will find all that the 
 third edition embraced, with the addition of copious and extended notes by the 
 present editor. The object of these notes has been chiefly to illustrate the text, 
 and adapt it to the practical wants of the profession in this country. As the 
 editor's labours were intended to be useful in all the States where the common 
 law prevails, statutory changes, and special State legislation, have not been largely 
 introduced. 
 
 An efibrt has been made, to confine the notes within a moderate compass, in 
 order that neither the bulk nor expense of the volumes would be much increased ; 
 and the publisher has every reason to believe, that he now presents to the prac- 
 tising attorney this valuable manual in a more satisfactory manner than at any 
 time heretofore. 
 
 PniLADELPniA, September. 1856.
 
 PllEFACE. 
 
 Since the publication of the ciyhth edition of the following Work, several 
 acts of parliament have expired, or been rej)ea/ed, and others passed, which have 
 occasioned considerable alterations in the practice of the different courts. Some 
 new rules of court have also been made, during that period, and upwards of eif^ht 
 Uundred cases published, on practical subjects. 
 
 The restrictions on cash payments under the Bank acts having finally ceased, 
 it is no longer necessary to negative a tender of the debt in bank notes, in an 
 affidavit to hold to bail. The alien acts having expired, aliens are now no longer 
 privileged fi'om arrest. The statute 51 Geo. III. c. 124, having also been 
 suffered to expire, an act was made in the last session of parliament,((^) to pre- 
 vent arrests upon mesne process, where the debt or cause of action is under 
 twenty pounds ; and to regulate the practice of arrests. By this act, no person 
 can, in general, be arrested or held to special bail, where the cause of action is 
 less than twenty pounds ; nor, in Wales or the counties palatine, unless the pro- 
 cess be duly marked and indorsed for bail in a sum not less than fiftt/ pounds. 
 And where the writ or process is issued by a plaintiff in his own person, the 
 sheriff shall not execute the same, unless it be delivered to him by some attorney 
 of one of the courts of record at Westminster, &c., and indorsed with the name 
 and place of abode of such attorney. The defendant is allowed, by this statute, 
 to deposit and pay into court the sum indorsed upon the writ, together with an 
 additional sum for costs, to abide the event of the suit, in lieu of putting in 
 and perfecting sjyecial hail. And where the plaintiff does not proceed by capias 
 against the person, but by original or other writ, and smnmons or attachment, or 
 by suhjiaiua and attachment thereupon, against any person not having privilege 
 of parliament, the same mode of proceeding is given by this statute, as was before 
 provided by the 51 Geo. III. c. 124. 
 
 The stamp) duties on law proceedings were rejyeahd, by the statute 5 Geo. IV. 
 c- 41. And the statutes relating to banknqyts and insolvent ddtors having been 
 repealed, except in certain cases, the laws respecting the former, and for the relief 
 of the latter, were amended or consolidated, by the statutes 6 Geo. IV. c. 16 and 
 7 Geo. IV. c. 57. The laws relating to the customs having also been repealed, 
 by the statute 6 Geo. IV. c. 105, an act was made for the prevention of smug- 
 gling;(cm) in which there are clauses relative to the limitation of actions against 
 officers of the army, nary, or marines, customs or excise, or any person acting 
 under the directions of the comiiiissioncrs of the customs, for any thing done in 
 the execution or by reason of their offices ; and requiring notice in writing to be 
 given to such officers, one calendar month before the writ sued out, and enabling 
 
 {a) 7 & 8 Goo. IV. c. 71. {aa) G Geo. IV. c. 108.
 
 viii PREFACE. 
 
 them to tender amends, plead the general issue, and bring money into court, &c. 
 The statutes of hue and cry, &c., having also been repealed, by the statute 7 & 8 
 Geo. IV. c. 27, an act was made,(?') for consolidating and amending the laws in 
 England, relative to remedies against the hundred, for the damage done by per- 
 sons riotously and tumultuously assembled, (for which alone the hundred is now 
 liable :) and a summary mode of proceeding is provided by that act, before two 
 justices of the peace, in cases where the damage does not exceed thirty pounds. 
 
 Other acts have been made, affecting the jurisdiction and practice of the courts, 
 of which the following are instances : First, the act to enlarge and extend the 
 power of the judges of the several courts of Great Sessions in Wales, and to 
 amend the laws relating to the same :(«) Secondly, 3Ir. PeeVs act, for consolidat- 
 ing and amending the laws relative to jurors, and juries :{ljh') Thirdly, the acts 
 to abolish the sale of offices, in the courts of King's Bench and Common Pleas, 
 and to make provision for the chief justices ;(c) for augmenting the salaries of 
 the Master of the Kolls, and Vice Chancellor, the Chief Baron of the court of 
 Exchequer, and the puisne judges and barons of the courts in Westminster 
 H(dl,{d^ &c. ; and to authorize the purchase of the office of receiver and comp- 
 troller of the seal of the courts of King's Bench and Common Pleas, and of cus- 
 tos hrevium of the latter court :(() Fourthly, the act for preventing frivolous icrits 
 of error ;{^f^ by requiring that upon any judgment to be given in any of the 
 courts at Westminster, or in the counties palatine and great sessions in Wales, in 
 any personal action, execution shall not be stayed or delayed by writ of error or 
 supersedeas thereupon, without the special order of the court, or some judge 
 thereof, unless a recognizance, with condition according to the statute 3 Jac. I. 
 c. 8, be first acknowledged in the same court : And lastly. Lord Tenterden^ s 
 acts, for rendering a written memorandum necessary to the validity of certain 
 promises and engagements ;(<7) and to prevent a failure of justice by reason 
 of variances between records, and writings produced in evidence in support 
 thereof. (7A 
 
 In preparing ih.Q present edition, it has been the Author's endeavour to render 
 his wox'k less unworthy of the very favourable reception it has met with from the 
 profession. The whole has been carefully revised, and such corrections made as 
 appeared to be necessary, as well in the text, as in the notes and references. The 
 several acts of parliament and rules of court, which have been made since the 
 publication of the last edition, are introduced in the present ; together with such 
 of the practical decisions of the courts, as were published before the work went 
 to press, or could be inserted while it was printing off : The rest are given at the 
 end, by way of Addenda, together with some other matters which were inad- 
 vertently omitted, with directions for incorporating them ; and are for the most 
 part referred to in the Index. These decisions are brought down to the end of 
 Michaelmas term last, in the King's Bench, afid Exchequer ; and to the end of 
 Hilary term, in the Common Pleas. References are also made to the second 
 volume of the reports of the late Lord Kenyon; and the references to text writers, 
 and books of practice, &c., have been altered throughout to the latest editions. 
 
 The general arrangement of the work is pretty much the same in this edition 
 as the last, except that the twentieth chapter of the last edition, which treated of 
 motions and rules peculiar to the action of ejectment, and affidavits in support of 
 
 (b) 7 & 8 Geo. IV. c. 31. (a) 5 Geo. IV. c. 106. 
 
 {bb) 6 Geo. IV. c. 50. (c) 6 Geo. IV. c. 82, 3. 
 
 [d) 6 Geo. IV. c. 84. (e) 6 Geo. IV. c. 89. 
 
 (/) 6 Geo. IV. c. 96. («) 9 Geo. IV. c. 14. 
 \h) 9 Geo. IV. c. 15.
 
 PREFACE. ix 
 
 t-licm, and of such motions and rules as were not necessarily connected with any 
 suit, has been divided ; and its contents transferred to the twentieth and last 
 chapters in the present edition. The tli!rtt/-fiftk and thirti/sixth chapters also, 
 of the last edition, have been divided, and now coustitute three chapters, being 
 the thirty-fourth, tIiirtj/-JJ/tJi, ani shirfy-si.rfh, m the present edition; one of 
 which treats of the record of nisi j/rius, jury pmcess, common and special juries, 
 and views ; another, of the brief, evidence, and witnesses ; and the third, of 
 entering the cause for trial, and references to arbitration. 
 
 \ The insertion of the new statutes, rules of court and cases, has necessarily 
 O()casioned considerable alterations throughout the work ; and particularly in the 
 jfinl, second, sixth, tenth, twelfth, fftcenth, twentieth, twentj-thirxl, and thirti/- 
 fointh chapters. In the frst chapter, several new statutes have been referred 
 to, respecting the mode of bringing actions hy jxtrish officers, and by or again.st 
 trustees, and public comj)anies, &c., the limitation of actions for wrongs, and 
 notices of action, &c. ; and the cases decided on the statutes of limitations have 
 been newly arrangevl. In the second chapter, a full account is given of the offices 
 and officers of the courts of King's Bench and Common Pleas, with theii- appoint- 
 ment and duties, as regulated by the statutes 6 Geo. IV. c. 82, 3, and 80. And, 
 in the sixth chapter, the mode of proccciling against traders liaving privilege of 
 parliament, by the statute G Geo. IV. c. IG, is pointed out ; and also the remedy 
 by action against hundredvrs, on the statute 7 & 8 Geo. IV. c. 31, for damages 
 occasioned by persons riotously and tumultuously assembled, with the summary 
 mode of proceeding on that statute, before two justices, where the damage does 
 not exceed thirty pounds. 
 
 The law of arrest is fully treated of in the truth chapter, as depending on the 
 statute 7 & 8 Geo. IV. c. 71 ; and in this chapter the several cases are consi- 
 dered, in which hankrnjits and insolvent debtors are privileged from arrest, by 
 the statutes 6 Geo. IV. e. 16, and 7 Geo. IV. e. 57. With regard to the former, 
 their privilege from arrest is considered in a threefold point of view; First, in 
 coming to surrender, and during the time allowed for finishing their examiiialiun; 
 secondly, after the time allowed them for these purposes is expired, and before 
 they have obtained their certificates : and thirdly, after their certificates have 
 been signed and allowed by the Lord Chancellor : And the banknipt being dis- 
 charged from all debts proveable under the commission, it was thought that 
 It might not be deemed an improper digrcs'sion, to consider what debts may or 
 may not be 2^^'OPed under it. Tlie privilege of insolvent debtors from arrest is 
 also considered iu this chapter, first, under wcns/ofUfHnsolveut acts; secondly, 
 under the earlier jyermanent acts; and thirdly, under the last general iu.solvent 
 act, 7 Geo. IV. e. 57. 
 
 The ticelfth chapter, on the subject of bail, has been carefully revised and 
 corrected ; and a new arrangement is made therein, of the cases relative to the 
 means of discharging them from liability on their recognizance. In tlxejifteenth 
 chapter, a view is taken of the several acts of parliament for the relief of insolvent 
 debtors ; and particularly of that to which they arc entitled under the last general 
 insolvent act, with the mode of proceeding thereon : Iu the twentieth chapter, 
 the annuity acts and the decisions thereon arc introduced, under the head of 
 staying procoedings; and, in the twenty-third chapter, some material alterations 
 have been made in the arrangement of the cases respecting the insjiection and 
 coj>ies of written instruments, books, court rolls, &c. 
 
 In the thirfy-fourfJi chapter, the qualifications, disriualifications, and exemptions 
 of Jurors are considered; with the mode of returning and impanelling common 
 juries, and of striking sj:jecta? juries, as it existed before, and is now regulated by
 
 J PREFACE. 
 
 the statute 6 Geo. IV. c. 50, and also tlic time and mode oi summoning jurors in 
 general, and obtaining a view ; and, in the thirti/scventh chapter, the method of 
 hallotiag for and swearing common jurors, at the trial, is pointed out, and the 
 adding of talesmen, &c. 
 
 Besides the additions and alterations that have been noticed, and which were 
 occasioned by the new statutes, rules and cases, there are others, in the tliirty- 
 scventlt, fortieth, and last chapters, which depend on former statutes and decisions. 
 In the thirty-seventh chapter, the author has carefully collected and arranged aU 
 the cases which have been determined on the measure of damages, in actions 
 upon contracts, and for icrongs, immediate and consequential ; and, as incideat 
 to the consideration of damages, in actions upon contracts for the non-payment of 
 money, there is a collection of the cases in which interest is or is not recoverable. 
 In the fortieth chapter, the principal court of requests acts have been referred to, 
 and the acts by which their jurisdiction is extended to sums not exceeding ^j^t'e 
 pounds, or to sums of larger amount, with the decisions thereon : and, in a pre- 
 vious chapter, (a) there are references to the acts by which the decree or judg- 
 ments may be removed from courts of reqtiests, to obtain execution thereon, in 
 the si(j>erior courts. 
 
 In the last chapter, a practical view is taken of the action af ejectment, which 
 is treated of under the following heads : First, the general nature and object of 
 the action : Secondly, by and against whom it may be brought : Thirdly for 
 what things an ejectment will lie, and how they should be described : Fourthly, 
 the title necessary to support it, and herein of the legal estate, and right of entry : 
 Fifthly, within what time an ejectment must be brought : Sixthly, the remedy by 
 entry, without suit; and in what cases an actual entry, and demand of rent, were 
 foraierly necessary, and must now be made : Seventhly, the ancient mode of pro- 
 ceeding in ejectment, and in what cases it is still necessary : with the method of 
 proceeding in the case of a vacant possession ; Eighthly, the present mode of 
 proceeding against the casual ejector, to judgment by default and execution, 
 when the tenant or his landlord, does not appear : Ninthly, the appearance of 
 the tenant, or his landlord; and the subsequent proceedings thereon to trial, final 
 judgment, and execution : And lastly, the mode of reviving the judgment by 
 scire facias, or of reversing it by writ of error. 
 
 But that which chiefly distinguishes the present from ail former editions, is 
 the marginal notes, or abstracts of the contents of the work. The making of 
 these notes has been attended with considerable trouble; but it is hoped they will 
 be found useful in facilitating research. 
 
 Amid such a variety of new and important matter, making altogether more 
 than a tenth part of the whole work, some errors must necessarily have occurred : 
 These the author trusts will be viewed by a liberal profession with their accus- 
 tomed candor; especially when the difficulty is considered, of altering the text 
 of a work already composed, and that a great part of his time has been necessarily 
 occupied with the business of his clients. 
 
 The whole work has been re-paged, and references made throughout to the 
 proposed new edition of the Prxictical Forms, which is in a state of considerable 
 forwardness, so as to make them correspond with the present edition of the Prac- 
 tice, to which they are intended as an Ap>])endix. The tables of statutes, and 
 general rides of court, orders and notices, prefixed to the work, have been care- 
 fully revised, corrected, and re-paged ; with the tables of the principal reports of 
 printed cases referred to therein. By these tables it will appear, that there are 
 
 (a) Chap. XYI. pp. 402, 3.
 
 PREFACE. 
 
 XI 
 
 nearly ^I'c hundred statutes TQioncd to in the following work, and uioro than that 
 number of general rules of court, orders and notices. The whole number of 
 printed cases amounts to upwards of ten thousand, besides those which have 
 been published since the last edition ; and the original, or MSS. cases are nearly 
 Jive hundred. The Indi x also, in which the new matter has been introduced, 
 has been carefully revised, altered, and repaged ; and some of the principal titles 
 have been new modelled and enlarged, particularly those relating to Affidavits of 
 the cause of Action, Bail, Bankrupt, Court of Requests, Acts, Damages, Eject- 
 ment, Evidence, Great Sessions, Hundredors, Insolvent Debtors, Interest, Jury, 
 Limitation of Actions, Officers, Offices, and Slayinfj Proceedings, &c. 
 
 Upon the whole, no pains have been spared, to improve the present edition ; 
 and it is now submitted to the profession, as exhibiting in a conuoctcd point of 
 view, the Practice of the courts of King's Bench and Common Pleas, in j^ersonal 
 actions, and ejectment ; with the rules, and modern decisions, on the plea side of 
 the court of Exchequer ; particularly noticing the changes it has undergone during 
 the reigns of his late and present Majesty : of which it may with truth be affirmed, 
 that in no period of our history has the law been better administered, or the 
 courts of justices filled with more able and upright judges. 
 
 Temple, 
 
 QthJanc, 1828.
 
 CONTENTS. 
 
 VOL I. 
 
 Advertisement. Page iii 
 
 Publisher's Preface. v 
 
 Preface. vii 
 Chronological Table of Statutes, referred to in the folloiving 
 
 work. 17 
 
 Tlie like, 0/ General Rules, Orders, and Notices. 38 
 
 The like, of the PRINCIPAL Reports of printed Cases. 53 
 
 Alphabetical Table of original Cases. 55 
 
 Introduction. 71 
 
 CHAPTER I. 
 
 0/" Actions, and the Time limited for their Commencement; and of 
 Notices of Action, ^c 1 
 
 CHAPTER II. 
 
 Of the Jurisdiction of the Courts of King's Bench, Common Pleas, 
 and Exchequer of Pleas, in Personal Actions ; and of the 
 Judges, Advocates, and Officers of the Courts. 37 
 
 CHAPTER III. 
 
 Of the Admission, Enrolment, Certificates, and Re-admission 
 0/ Attorneys ; their Privileges, Disabilities, rt«t? Duties ; tvith 
 the Consequences of their Misbehaviour. {]<^) 
 
 CHAPTER lY. 
 
 Of the Means 0/ commencing ji^ersMiaZ Actions in the King's Bench, 
 Common Pleas, and Exchequer ; and the Prosecution and De- 
 fence of them in Person, or by Attorney ; and of Paupers, and 
 Infants. 91 
 
 CHAPTER V. 
 
 Of the Original Writ, and Process thereon, previous to the Capias, 
 in the King's Bench, and Common Pleas. 102 
 
 CHAPTER VI. 
 
 Of the Proceedings in Actions against Peers of the Realm, and 
 Members of the House 0/ Commons; and against Corporations 
 and Hundredors. 116 
 
 CHAPTER VII. 
 
 Of the Capias bg Original, and Process 0/ Outlawry, in the King's 
 Bench, and Common Pleas. 128
 
 jjjy CONTENTS. 
 
 CHAPTER VIII. 
 
 Of the Bill of Middlesex, and Latitat, and subsequent Process 
 '^ thereon, in the King's Bench; of the Capias quare clausum 
 FREGiT, c^^c. in the COMMON Pleas ; and of Process in the Exche- 
 quer of Pleas. Page 145 
 
 CHAPTER IX. 
 
 Of the Proceedings on Mesne Process, against the Person of the 
 Defendant ; and of the Service of a Copy of Process, not baila- 
 ble ; and the Notice to appear thereto. 164 
 
 CHAPTER X. 
 
 Of the Arrest upon bailable Process. 171 
 
 CHAPTER XL 
 
 Of the Bail-bond ; and Duty of Sheriffs, ^g. on the Arrest. 221 
 
 CHAPTER XIL 
 
 Of Appearance, and Bail to the Action. 238 
 
 CHAPTER XIII. 
 
 Of the Proceedings against Bail to the Sheriff, upon the Bail- 
 bond ; and against the Sheriff, to compel him to return the Writ, 
 and bring in the Body. 297 
 
 CHAPTER XIV. 
 
 Of the Proceedings in Actions hy and against Attorneys and 
 Officers, in the Courts of King's Bench, Common Pleas, and 
 Exchequer ; and of the Recovery and Taxation of their Costs. 319 
 
 CHAPTER XV. 
 
 Of the Proceedings in Actions against Prisoners, in Custody of 
 the Sheriff, ^c. ; and of the Marshal of the King's Bench, or 
 Warden of the Fleet Prison : ivith the Relief they are entitled 
 to under the Lords' Act, ^c. 341 
 
 CHAPTER XVI. 
 
 Of the Removal o/ Causes /rom Inferior Courts. 397 
 
 CHAPTER XVII. 
 
 Of the Declaration. 419 
 
 CHAPTER XVIII. 
 
 Of Imparlance, and Time for Pleading ; and of the Notice and 
 Rule to plead, and Demand of Plea, ^c. 462 
 
 CHAPTER XIX. 
 
 Of Motions, and Rules in general, and Affidavits in support 
 of them ; and the Practice of the Courts thereon, and hy Sum- 
 mons and Order at a Judge's Chambers. 478
 
 CONTENTS. Xy 
 
 CIIArTER XX. 
 
 Of SETTING ASIDE, and statjimj the Proceedings. Page 512 
 
 CHAPTER XXL 
 
 (?/ COMPROMISING, and compounding the Action. 540 
 
 CHAPTER XXII. 
 
 Of Judgments hj confession, and Default ; the Assessment of 
 Damages, hjj Reference to the Master or Prothonotaries, or 
 hy Writ of Inquiry ; and Proceedings on the Statute 8 & W. 
 III. c. 11, §8. .559 
 
 CHAPTER XXIII. 
 
 Of Oyer and Copy Deeds, <^c. ; Inspection and Copies of written 
 Instruments, Books, Court Rolls, ^c; and Particulars of 
 Demand, or Set of. 586 
 
 CHAPTER XXIV. 
 
 Of CHANGING the Venue ; consolidating Actions, and striking 
 out Counts. 601 
 
 CHAPTER XXV. 
 
 Of bringing Money into Court. 619 
 
 CHAPTER XXVI. 
 
 Of Pleas to the jurisdiction ; claiming conusance ; and Pleas 
 IN Abatement. 630 
 
 CHAPTER XXVII. 
 
 0/ Pleas in Bar; and herein, of the General Issue, and lohat may 
 he given in Evidence under it; o/ Special Pleas, and when 
 necessary to he pleaded; o/ pleading several Matters, and th' 
 Costs thereon; and of the Plea and Notice o/Set Off, ^c. 6-43 
 
 CHAPTER XXVIII. 
 Of Replications, and subsequent Pleadings. 676 
 
 CHAPTER XXIX, 
 Of Demurrers, and Amendment. 694 
 
 VOL. 11. 
 CHAPTER XXX. 
 
 Of making up, and entering the Issue: and of the Rolls of the 
 Courts ; loith the Manner of bringing in and docketing them. 717 
 
 CHAPTER XXXI. 
 Of arguing Demurrers. 736
 
 XYl 
 
 CONTENTS. 
 
 CHAPTER XXXII. 
 
 Of the Issue, and Trial by the IIecord. Page 742 
 
 CHAPTER XXXIIL 
 
 Of Trials hy the Country, at Bar csr Nisi Prius ; and of the Steps 
 ' Preparatory to the latter, and Consequences of not Proceeding 
 to Trial, cfc. 747 
 
 CHAPTER XXXIV. 
 
 Of the Record of Nisi Prius ; Jury Process ; common and special 
 
 Juries ; and Views. 775 
 
 CHAPTER XXXV. 
 
 Of the Brief, Evidence, and Witnesses. 79& 
 
 CHAPTER XXXVI. 
 
 Of enteeing the Cause for Trial ; and References to Arbi- 
 tration. 81ff 
 
 CHAPTER XXXVn. 
 
 Of Trials at Nisi Prius, and their Incidents. 847 
 
 CHAPTER XXXVIII. 
 
 0/ i/ie Rule /or Judgment ; and moving for a New Trial, ^e. oi' in 
 Arrest of Judgment; or for Judgment non obstante veredicto^ a 
 Repleader, or Venire Facias de novo. , 903 
 
 CHAPTER XXXIX. 
 Of Judgments. 930 
 
 CHAPTER XL. 
 Of Costs. 945 
 
 CHAPTER XLI. 
 
 Of Execution by Fieri facias, Capias ad satisfaciendum, and 
 Elegit ; a^id in the Action (f Replevin. 993 
 
 CHAPTER XLII. 
 
 Of Execution by Levari facias, and Extent ; and the Proceed- 
 ings thereon, 1042 
 
 CHAPTER XLIIL 
 
 Of Writs of Scire facias ; and the Proceedings thereon. 1090 
 
 CHAPTER XLIV. 
 
 Of Writs of Error, mid False Judgment ; a)id the Proceedings 
 thereon. 1134 
 
 CHAPTER XLV. 
 Of the Action of Ejectment. 1189 
 
 Index. 1253
 
 CHRONOLOGICAL 
 
 TABLE OF STATUTES, 
 
 REFERRED TO IN THE FOLLOWINa WORK. 
 
 Magna Charta, (9 Hon. III.) c. 8. Debt to King, Execution, 1044. 
 
 c. 18. Diem clausit extrcmum, 10o7. 
 Merton, (20 Hen. III.) c. 1. Damages, Dower, 870. 
 Marleberge, (52 Hen. III.) e. 6. Costs, 976. 
 
 c. 13. Essoin, 778. 
 c. 16. Damages, 870, (fj.) 
 c. 23. Capias, 128. 
 Westminster, I. (3 Edw. I.) c. 24. Damages, 870, {h.) 
 Gloucester, (6 EcIav. I.) c. 1. Damages, Costs, 870, 945, &c. ; 1241. 
 
 c. 5. Damages, 870, 946. 
 Rutland, (10 Edw. I.) § 8. Debt to King, Commission for finding, 1047 
 Acton Burnel, (11 Edw. I.) De Mcrcatoribus, 121, 1084. 
 Westminster, II. (13 Edw. I.) stat. 1. 
 
 c. 2. Replevin, Return, Second Deliverance, 1038. 
 c. 5. § 3. Damages, 878, 946. 
 c. 10. Appearance, 60, 92. 
 c. 11. Capias, 128. 
 
 c. 18. Elegit, 935, 994, 1033, 1086, 1120. 
 c. 24. Original Writ, 103. 
 c. 25. Damages, 870. 
 c. 26. Damages, id. 
 c. 27. Essoin, 778. 
 
 c. 30. Nisi Prius, 41, 747, 778, 896, 7. 
 c. 31. Bill of Exceptions, 862, 3. 
 c. 39. Non omittas, 309. 
 
 c. 45. Scire Facias, 870, 946, 1096, 1102, 3; 1348. 
 Winton, (13 Edw. I.) Stat. 2, c. 1, 2. Hue and Cry, 122, (a.) 
 Edward I. 13 stat. 3, c. 1. De Mcrcatoribus, 1084, 1085. 
 Edward III. 
 
 4, c. 7. Trespass by Executors, 9. 
 14 stat. 1, c. 5. Error, 1178, (/.) 
 c. 6. Amendment, 712. 
 Vol. I. — B
 
 ^y^^ TABLE OF STATUTES. 
 
 Edward III. continued. 
 
 25, Stat. 4, c. 3. Forestalling, 518. 
 5, c. 17. Capias, 128. 
 
 c. 19. King's Debtors, 191. 
 
 27, Stat. 2, c. 9. Statute Staple, 1084. 
 
 28, c. 11. Hue and Cry, 122. (a.) 
 
 31, Stat. 1, c. 12. Error, Exchequer, 1140, 1184. 
 34, c. 14. Traverse of Inquisition, 1075. 
 36, c. 13. Same title, id. 
 42, c. 11. Jury, 778, 787, (a.) 
 50, c. 5. Clergymen, Arrest, 219, (Z.) 
 Richard II. 
 
 1, c. 9. Damages, 870. 
 
 c. 15. Clergymen, Arrest, 219, (l.) 
 
 5, stat. 1. c. 8. Forcible entry, 977. 
 
 6, c. 2. Venue, 601. 
 Henry IV. 
 
 1, c. 8. Damages, 870, (A.) 
 
 2, c. 11. Damages, 893, 945, 987. 
 4, c. 8. Damages, 870. 
 
 c. 18. Attorneys, Venue, 60, 95, 601. 
 Henry V. 
 
 1, c. 4. Attorneys, Under-sheriffs, 84. 
 c. 5. Additions, 636. 
 
 2, Stat. 1, c. 2. Certiorari, Bail, 400, (i.) 
 9, stat. 1, c. 4. Amendment, 712. 
 
 Henry VI. 
 
 4, c. 3. Amendment, id. 
 
 8, c. 1. Members of Convocation, 193. 
 
 c. 9. § 6. Damages, Costs, 893, 987. 
 
 c. 12. Amendment, 96, 109, 699, 712. 
 
 c. 15. Amendment, 712. 
 
 18, c. 9. Warrant of Attorney, 95. 
 
 23, c. 9. Bail, Sheriffs, Fees, Extortion, 58, 135, 221, 224, 226, 
 
 227, 233, 698, 712. 
 33. c. 7. Attorneys, 60. 
 Henry VII. 
 
 3, c. 10. Damages, Costs, Error, 881, 976, 1180. 
 
 4, c. 20. Penal Actions, Covin, 556. 
 11, c. 12. Costs, Paupers, 98. 
 
 19, c. 9. Capias, 104, 128. 
 
 c. 20. Costs, Error, 976, 1180. 
 Henry VIII. 
 
 1, c. 8. Offices, Escheators, 1050, (/.) 
 3, c. 2. Same titles, id. 
 
 6, c. 4. Writ of Proclamation, 132. 
 
 c. 6. Certiorari, Remanding Record, 411. 
 
 7, c. 3. Limitation of Actions, 15. 
 
 c. 4. Damages, Costs, 887, 931, 976. 
 21, c. 13, § 26. Non-residence, 518. 
 
 c. 19, § 3. Damages, Costs, ^31, 976.
 
 TABLE OF STATUTES. xix 
 
 Henry III. continued. 
 
 23, c. 5, § 11, 12. TreLle Damages, Commissioners of Sewers, 
 
 888, 894 
 c. G, § 1, 2, 3, 4, 5. Recognizances, Statute Staple. 1084, 5, 
 
 G ; 1088, 10i.)G. 
 § 8. Poundage, 1088. 
 c. 15, § 1, 2. Costs, 98, 458, 979, 80, 81, 2 ; 1180. 
 
 24, e. 8. Costs, 985, {d.) 
 
 27, c. 21. Tithes, Ejectment, 1192, (/.) 
 
 c. 24. Bailiff of "Liberty, Return, 309,1025. 
 
 28, c. 12. King's Palace, Arrest, 219. 
 
 32, c. 5. Execution, 1037, 1087. 
 
 c. 7. Tithes, Ejectment, 1192, id. {I.) 
 
 c. 9, § 2. Buying of Titles, 1194, 5. 
 
 c. 21. Trinity Term, Dies Juridicus, 57, 106, 152, 3. 
 
 c. 30. Jeofails, 95, 6 ; 679, 712, 921, 923, 4 ; 927, 8. 
 
 c. 34. Actions by or against Assignees, 6, 429. 
 
 33, c. 39, § 50, 51. Obligations to King, 1044, 5, 6 ; 1051. 
 ' ■ 53. Debts to King, Suits, Process, 1045, 6. 
 
 54. Debts to King, Costs, 1082. 
 
 55. Debts to King, Suits, Process, 1044. 
 
 56. 7. Exchequer, Jurisdiction, 38, (/.) 
 
 74. Debts to King, Precedency of Execution, 1051, 2 ; 
 
 1055. 
 
 75, 6, 7. Debts to King, Heir, Executor, &c. 1057, {Jc.) 
 79. Debts to King, Pleading, Equity, 1077. 
 
 34 & 35, c. 26, § 113. Wales, Error, 1138. 
 
 35 c. G, § 6, 7, 8. Tales, 751, {c.) 857, 8. 
 Edward VI. 
 
 2 & 3, c. 1. Ilolydays, 55. 
 
 c. 8. Traverse of Inquisition, 1075. 
 
 c. 13, § 1. Tithes, Treble Value, Costs, Error, 573, 625, 894. 
 902, 910, 920, 946, 1152, 1192, {I) 
 14. Prohibition, Damages, Costs, 948. 
 19. Ilolydays, 55. 
 
 3 & 4, c. 3, § 4. Damages, 870. 
 
 5 & 6, c. 3, § 1. Ilolydays, 55, 56. 
 14. Forestalling, 517. 
 Mary : 
 
 1 sess. 2, c. 3. Clergymen, Arrest, 219, (?.) 
 Philip & Mary : 
 
 1 & 2, c. 12. Distress, Venue, Costs, 430, 946. 
 
 4 & 5, c. 7. Tales, 751, (c.) 857, {e.) 857, 8. 
 Elizabeth : 
 
 5, c. 4, § 31. Costs, 946. 
 
 c. 9, § 12. Witnesses, 807. 
 
 c. 25. Tales, 751, {c.) 810, ( f.) 
 8, c. 2. Declaration, Costs, 420, 460, 681, 981, 2. 
 
 13, c. 4, § 1. King's Debtors, Officers, Accountants, 1051. 
 c. 5. Fraudulent Preference, 1006. 
 
 c. 29. Conusance, 633, 4. 
 
 14, c. 5, § 37. Prisoners, Allowaiicc, 372.
 
 ^jj TABLE OF STATUTES. 
 
 Elizabeth, continued. 
 
 14, c. 9. Tales, 571, {c) 857, [e.) 
 18, c. 3, § 2. Notice of Action, Justices, 29. 
 5, § 1. Information, Penal Statute, 99. 
 
 3. Compounding Penal Actions, Infants, Costs, 99, 556, 
 
 985. 
 C. 12. Trials at Nisi Prius, 751, 2. 
 
 c. 14. Warrant of Attorney, Original Writ, Jeofails, 95, 108, 
 
 923, 926, 7 ; 1171. 
 23, c. 3, § 10. Amendment of Fines, &c. 706. 
 27, c. 4, § 7, 8. Statutes Merchant, and Staple, 1084. 
 c. 5. Demurrer, 695. 
 c. 8. Error, 1138, 1143. 
 c. 10. Costs, 556. 
 c. 13. Hue and Cry, 15, 122. {a.) 
 29, c. 4. Extortion, Poundage, 893, 897, 1040, id. {n.) 
 31, c. 1. Error, Exchequer, 1140. {d.) 
 
 3, § 1. Writ of Proclamation, 133. 
 
 3. Bail on Outlawry, 140, 41, 2. 
 c. 5, § 2. Penal Actions, Informations, Venue, 429, 30. 
 5. Limitation of Actions, 14, 15. 
 43, c. 2, § 14, 15, Prisoners, Allowance, 372. 
 
 19. Damages, Costs, Poors' Rate, 575, 653, (5.) 888, 
 
 894, 987. 
 c. 5. Habeas Corpus, 405. 
 c. 6. Costs, 659, 952, 3. 
 James I. ^ ^ 
 
 1, c. 15, § 13. Action by Assignees of Bankrupt, 7. 
 
 1, c. 15, § 16. Action against Commissioners of Bankrupt, &c. 
 
 Pleading, 653. (6.) 
 
 2. c. 13, § 2. Privilege of Parliament, 1030, 31. 
 
 3. c. 1. Holidays, 56. 
 
 c. 7, § 1. Costs, 325. 
 
 2. Attorneys, 60, 74. {a.) 
 c. 8. Bail in Error, 1101, {e.) 1149, 1153, 1155, 1156. 
 c. 15, § 7, 4, 6, Costs, Court of Requests, London, 954, 958. 
 
 4, c. 3. Costs, 460, {c.) 888, 949, 980, 81. 
 
 7, c. 5. General Issue, Costs, 653, {h.) 988, 9. 
 c. 15. Debt to King, Assignment, 1067. 
 21, c. 4. Penal Actions, Informations, Venue, 430, 517, 18. 
 c. 12, § 2. General Issue, Costs, 988. 
 
 5. Venue, General Issue, Justices, &c. 431, 653. (5.) 
 c. 13. Jeofails, 923,4; 925, 6. 
 c. 16, § 1. Entry, Ejectment, 1194, (w.) 1195. 
 2. Limitation of Actions, 15, 16. 
 
 5. Tender of Amends, Trespass, 36, 646. {a.) 
 
 6. Costs, 962, 966, 7. 
 c. 19, § 9. Bankrupts, 936. 
 
 11. Bankrupts, 1006. 
 c. 23. Habeas Corpus, 405, 6; 412. 
 c. 24. Execution, 1031. 
 c. 26, § 2. Personating Bail, 275.
 
 TABLE OF STATUTES. XXi 
 
 Charles I. 
 
 3, c. 4, § 4. Bail in Error, 1149. 
 16, c. G. Michaelmas Term, Teste and Return, lOG, 107, (j.) 119, 
 
 (/.) 129, (/..) 
 Charles II. 
 
 12 c. 14. Ilolydays, 56. 
 c. 30. Holydays, id. 
 13, Stat. 1, c. 11. Iloldidays, id. 
 
 2, c. 2, § 2. Ac ctiam, 149. 
 
 3. Non pros. Costs, 420, 422, 458, 460, 982. 
 
 4. Outlawry, 135, 144. (a.) 
 
 5. Prisoners, 358. 
 
 6. 7. Teste and Return of Writs, 102, {d.) 781, 
 
 1027, 1098. 
 9. Bail in Error, 1101, 1152, 1153. 
 10. Costs, 1181. 
 16 c. 2. Error, Exchequer, 1140. {d.) 
 
 16 k 17 c. 8, § 1, 2. Jeofails, 923, 925, 927, 8; 943. 
 
 3. Bail in Error, 1101, 1152, 1251, 1252, 3. 
 
 17 c. 7. Replevin, Costs, Execution, 418, 574, 577, 888, 931, 977. 
 
 993, 1038. 
 c. 8, § 1. Judgments, 933, 1116, 1118. 
 
 2. Administrator de bonis non, 1119. 
 17 & 18, c. 12. Bail in Error, Ejectment, Ireland, 1253. 
 20, c. 4, Error, Exchequer, 1140, {d.) 
 22, & 23, c. 4. Bail in Error, 1152, 1251. 
 
 c. 9. Judge's Certificate, Costs, 831, 953, 963, &c. 965. 
 
 6,7. 
 29, c. 3, § 4. Undertaking in writing. Contracts, 227, (e.) 433, 
 
 4, (k.) 
 10. Judgments, Cestui que trust, 935, 1035, 6. 
 14, 15. Judgments, 938. 
 16. Execution, 935, 1000, 1053. 
 18. Recognizances, 1086. 
 c. 5. Affidavits, Commissioners, 179, 491, 496, 7. 
 c. 7, § 6. Sunday, 218. 
 31, c. 2. Habeas Corpus, 347. 
 William & Mary: 
 
 1, sess. 1, c. xviii. Court of Requests, Bristol, Gloucester, Costs, 
 
 957. 
 c. 27. Wales, Error, 1138. 
 2 & 3, sess. 1, c. 5. Damages, Costs, 893, 4. 
 3, c. 14. Heir and Ancestor, 936, 7, 8. 
 4 & 5 c. 4, § 1, 2, 3, 4. Bail, 249, 50 ; 263, 275. 
 
 c. 18, § 2. Information, Quo Warranto, Costs, 951. 
 3, 4, 5. Outhawry, 135, 6 ; 140, 41. 
 c. 20, § 2, 3. Docketing Judgments, 51, 2 ; 731, 2 ; 939, 40. 
 c. 21. Prisoners, 341, 2; 343, 4; 348. 
 c. 23, § 10. Costs, 967. 
 c. 24, § 15. Jury, 778, 853. {b.) 
 18. Tales, 858. {a.) 
 5, c. 12. Capias pro fine, 943. [c.)
 
 XXll 
 
 TABLE OF STATUTES. 
 
 William & INIaiiy, continued. 
 
 c. 21, § 3. Common Bail, 240. {c). 
 5 & 6, c. 21, § 4. Date of Process, 158. 
 William III. 
 
 7 & 8, c. 24. Oaths, 70. 
 
 c. 32, § 1. Jury Process, 780, 85G, («.) 922. 
 
 3. Talcs, 751, 857, {e.) 858. 
 c. 36, § 3. Docketing Judgments, 940. 
 
 8 & 9, c. 11, § 1. Costs on Acquittal, 98G, 1241. 
 
 2. Costs on Demurrer, 972, {/), 982, 1181. 
 
 3. Costs in Waste, Scire Facias, and Prohibition, 870, 
 
 946, 7, 8 ; 1095, 6 ; 1100, 1132. 
 
 4. Costs for wilful Trespass, 965, 968. 
 
 5. Executors and Administrators, Costs, 947, 949. 
 
 6. Scire Facias, Judgments, 410, 11 ; 934, 947, 1117. 
 
 7. Abatement, 934, 1119, 1163, 4. 
 
 8. Damages, Suggestion of Breaches, Scire Facias, 
 
 559, 583, b^b, 686, 687, (f.) 721, 2; 781, 879, 
 881, 947, 1108, 1152, 1183. 
 c. 26. Escape, 235. {d.) 
 c. 27, § 3. Error, 1181. 
 
 6. Escape, Fresh Pursuit, 649. 
 
 8. Escape, Prisoner, 366. 
 
 9. Prisoner, Marshal, &c. Evidence, id. 367. 
 
 12. Rule to plead, 324, 5. 
 
 13. Prisoners, 355, 359. 
 
 9 & 10, c. 15, § 1, 2. Arbitration, 820, 823, 826, 840, 845. 
 33. Common Bail, 240. 
 c. 25, § 42. Date of Process, 158. 
 
 10 & 11, c. 10, § 20. Arrest for exporting Wool, 172. 
 
 c. 14. Limitation, Error, 1141, 1174. 
 
 11 & 12, c. 9, § 1. Costs, 952, 963. 
 
 2. Arrest in Wales, and Counties palatine, 171. 
 
 12 & 13, c. 2. Judges, 39. 
 
 c. 3. Peers, and Members of the House of Commons, 27, 
 
 37, 116. 
 13, c. 6, § 3. Oaths, 71. 
 Anne : 
 
 1 Stat. 2, c. 6, § 1. Escape Warrant, 233, 4 ; 1031. 
 
 3 & 4, c. 9. Arrest, Promissory Notes, 6. 
 
 4 & 5, c. 16, § 1. Demurrer, 446, (/.) 695. 
 
 2. Jeofails, 108, 439, (/.) 927, 943. 
 
 3. Warrant of Attorney, 95. 
 
 4. 5, 7. Double Pleas, Costs, 654, 5 ; 660, 741, 
 
 971, 1078. 
 6. Venire Facias, 777, 8. 
 8. View, 495, 6, 795, 6. 
 
 11. Dilatory Pleas, 640, 1121. 
 
 12. Payment, 920, 1130. 
 
 13. Bringing Money into Court, 163, 542, 584. 
 
 16. Fine, Entry, Limitation of Actions, 1199. 
 
 17, 19. Limitation of Actions, 16.
 
 ;table of statutes. xxiii 
 
 Anne, continued. 
 
 4 & 5, c. 16, §20. BaiUBoml, 7, 297, 8; 300, 411. 
 24. Extent, Pleadings, 927. 
 2"). Costs, 11();3. 
 27. Account, 1. 
 
 5, c. 8, Art. 23. Scotch IVers, Privilege from Arrest, 192. 
 c. 18, § 4, 6. Registering, Judgments, &c. 941, 108G. 
 
 6, c. 26, § 12. Scotland, Error, 1140. 
 
 0. 35, § 19. Registering Judgments, &c. 941, 1086. 
 
 7, c. 12. Ambassadors, 191. 
 
 c. 20, § 18. Registering Judgments, &c. 941, 1086. 
 
 8, c. 9, § 32, 37. Stamp Duty, 65, (c.) 
 
 c. 14, § 1. Execution, 4, 435, 6, (/.) 1013, &c. 1016, kc. 
 
 4. Debt for Rent, Annuity, 4. • 
 
 8. Recovery of Fines, &c. Extents, 1014, 1054. 
 
 9, c. 14. Gaming, 15, '597, 616, 17; 636. 
 c. 20, § 2. Mandamus, Costs, 949, 50. 
 
 5. Quo Warranto, Costs, 656, 7, 951. 
 
 7. Mandamus, Quo Warranto, Jeofails, 927. 
 12, Stat. 2, c. 16. Costs, 946. 
 
 George I. 
 
 1, Stat. 2, c. 5. Riot Act, 15, 122. {a.) 
 
 c. 48. Action against Township, Trees, &c. 122. (rl) 
 3, c. 15, § 1. Sheriff's Officer, Extortion, 1071, 2. 
 
 3. Poundage, Extents, Recognizances, 1040, 1070, 71, 
 
 2. 
 
 8. Death of Sheriff, Undershcriff, 313, 14. 
 
 9. Poundage, Sheriff's, xVpportionment, 1072. ((/.) 
 13. Poundage, 232, (c.) 1040. 
 
 16. Poundage, Elegit, Habere facias, 1039, 1088, 9. 
 
 17. Poundage, Capias ad satisfaciendum, 1039. 
 
 5, c. 13. Jeofails, 108, (c.) 923, 1161. 
 
 6, c. 16, § 1. Action against Township, Trees, &c. 122. [d.) 
 c. 18. Joint Stock Companies, Nuisance, 547. 
 
 c. 21, § 53. Stealing blank Writs, 54. (d.) 
 54. Date of Warrant, 158. 
 
 7, c. 13, § 1, 2. Bankrupt, Certificate, 205. {a.) 
 
 8, c. 25, § 1, 2. Recognizances, 1085. {c.) 
 
 3. Poimda;[;c, Statute Staple, Lc. 1088, 9. 
 
 4. Recognizances, 10i^8. 
 
 6. Judgments, 938, (/.) 1086. (c.) 
 
 9, c. 22. Black act, 122, (e.) 
 
 12, c. 29, § 1, 2. Process, Arrest, Bail, 112, 154, (/.) 159, 1()4, 5; 
 167, 171, 179, 224, 239, 241, 407, 8; 419, 491. 
 
 3. Habeas Corpus, 406. 
 
 4. Attorneys, 89. 
 
 c. 31. Trials at Nisi Prius, 752. 
 George II. 
 
 1, Stat. 2, c. 14, § 15. Arrest of Seamen, 198, 9. 200. 
 
 2, c. 22, § 13. Set off, 663, 66(5. 
 
 c. 23, § 1, 3, 5, 6, 10, 12, 13, 15, 17, 18, 20, 21. Attorneys, 
 
 61, 2, 3, 67, (/.) 71, &c. 159, 319.
 
 xxiv TABLE OF STATUTES. 
 
 CIeokge II. continued. 
 
 2, c. 23, § 28. Costs, 28, 325, G ; 330, 31, 2, 3; 336. 
 
 24. Attorneys practising, without being admitted, 61, 2, 
 
 71, kc. 
 
 26, 7. Attorneys, Coroner's Clerks, &c. 62, 3. 
 c. 24. Bribery, 518. 
 c. 36, § 8. Ships' Articles, Seamen's Wages, 592. 
 
 3, c. 25, § 8, 11, 18, 19. Jury, 778, 785, 855. [a.) 
 
 14. View, 856. (/.) 
 
 15. Special Jury, 789. (/.) 
 c. 26. Penal Actions, Venue, 430. 
 
 4, c. 7, § 2, 3. Qualification of Jurors, 857. {b.) 
 c. 26. Jeofails, 928. 
 
 c. 28, § 1. Tenant holding over. Double Value, 172, 3. 
 
 2. Ejectment, Service of Declaration, 1197. Demand of 
 Kent, 1200. Actual Entry, 1201, 1204. Affidavit of 
 service, 1217. 
 
 Motion and rule for judgment, 1218, 19, 
 
 4. Ejectment, Staying Proceedings, 490, 1231, 1134, 5. 
 
 5, c. 18, § 2. Attorneys, Justices, 84. 
 
 c. 27, § 1, 2, 3, 4, 5. Process, Arrest, Bail, 93, 103, 112, 164, 
 
 240, 241, 2 ; 359, 419. 
 c. 30, § 3. Bankrupts, Enlarging time for surrender, 200. 
 
 5. Bankrupts, Privilege from Arrest, 200, 201, 1049. 
 
 6. Bankrupts, Bringing up, or attending, in custody, 
 
 202. {b.) 
 
 7. Bankrupts, Discharge, Pleading, 204, (e.) 212, id. 
 
 {b.) 292, {d.) 648. {e.) 
 9. Bankrupts, Pleading, Future Effects, 204, 648, 1010, 
 
 1109, 1111. {b.) 
 13, Bankrupts, Certificate, Discharge, 212, id. (6.) 292. 
 
 {d. e.) 
 18. Bankrupts, Habeas Corpus, Commitment, 287. (c.) 
 23. Bankrupts, Bond to Chancellor, 585, 
 25. Bankrupts, Petitioning Creditor, Assignees, Costs, 
 
 330, (A.) 331. 
 28. Bankrupts, Set off, 666, id. (k.) 
 46. Bankrupts, Petitioning Creditor, Assignees, Costs, 
 
 330, (A.) 331, 
 
 6, c. 27, § 2. Attorneys, 72. {g.) 
 
 7, c. 8. Stock Jobbing, 698, 767. 
 
 c. 20, § 1. Ejectment by Mortgagee, 490, 1231, 1235, 6. 
 
 8, c. 6, § 1. 18. Registering Judgments, &c., 941, (e.) 1086. 
 c. 16, § 4. Hundredors, 122, (a.) 126. 
 
 c. 20, § 6. Destroying Turnpikes, &:c., 122, {d.) 
 c. 24, § 4, 5. Set off, 663, 667. (/.) 
 
 10, c. 32, § 4. Cutting Hop binds, 122. {d.) 
 
 11, c, 19, § 1, & 3, Fraudulent Removal of Goods, 645, 910. 
 
 12. Notice of Declaration, Ejectment, Landlords, 987, 
 
 1227, 8; 1229, 
 
 13. Ejectment, Landlords, 1227, &c. 
 
 14. Action for Use and Occupation, 668. (e.)
 
 TABLE OF STATUTES. XXV 
 
 George II. continued. 
 
 11, c. 19, § 18. Double Rent, G45. 
 
 19. Costs, Certificate, 953. 
 
 21, 22. General Issue, Costs, G53, {h.) 888, 977, 988. 
 
 28. Replevin JJon.l, 7, 1038, 9. 
 
 c. 22, § 5. llundredors, 122. {d.) 
 
 12, c. lo, § 3, 4, 5, G, 7, 8, 9, 12. Attorneys, Prisoners, Gl, 71, 84, 
 
 5; 159,327, 8. 
 
 c. 26, § 9. Goldsmith's Company, Penalties, Execution, 1244. 
 
 c. 28, § 1. Gaming House, 519. («.) 
 
 c. 29. County Rate, 127. 
 
 13, c. 19, § G. Horse racinr^, Compoundinf]; penal Actions, G04. 
 c. 21. Destroying Collieries, cS:c., 122. ((/.) 
 
 14, c. 6. Stealing and destroying Sheep, &,c. 122. [d.) 
 c. 10. Costs, 954, 9G0. (c.) 
 
 c. 17, § 1, 2, 3. Judgment as in case of Nonsuit, 491, 758, 7G2, 
 770, 4, 5. Notice of Trial, Countermand, 57G, 755, ka. 
 
 18, c. 20. Notice of Action, Justices, 29. 
 c. 34, § 1. Gaming House, 518, 19. 
 
 19, c. 34, § G. Officers of Customs, Execution against llundredors, 
 
 126. 
 16. Customs and Excise, Costs, 969. (a.) 
 c. 37, § 6. Policies of Assurance, 591. 
 
 7. Bringing Money into Court, 620. 
 
 20, c. 19, § 1. Wages of Labourers, 528. (/.) 
 c. 24, § 6. Prize Money, 529. 
 
 c. 37, § 2. Rule to Return Writs, 30G. 
 
 21, c. 3. Process, Affidavit, Arrest, Bail, 164. 
 
 22, c. 24. Hundredors, 122. (a.) 
 
 c. 46, § 2, to § 15. Attorneys, Sessions, Clerk of the Peace, 61, 
 
 65, 67, 8; 74, 5; 84. 
 
 34. Execution against llundredors, 122. ((/.) 
 
 35. Bail Bonds, Assignment, Counties palatine, 298. [d.) 
 c. 47. Suggestions, Costs, 957, 958, {a.) id. (/.) 959. 
 
 23, c. 26, § 15. Attorneys, Solicitors, 72, 3. 
 
 c. 27. Court of Requests, Costs, 516, 957, 958, {g.) 960. {i.) 
 c. 30. The like, 992, 3 ; 957, 958, (A.) 960. (w.) 
 c. 33. The like, 957, 988. 
 
 24, c. 16. The like, 957. 
 
 c. 18, § 1, 2, 3. Jury, 778, {a.) 792. 
 
 5. Trials at Nisi Prius, 752. 
 c. 42. Attorneys, Costs, 80, 957. 
 
 c. 44, § 1. Notice of Action, 28, 9 ; 35. 
 
 2. Justices, Tender of Amends, 646. (a.) 
 4. Bringing Money into Court, 621. 
 
 6. Demand of Copy of Warrant, 33, 4, 5. 
 
 8. Limitation of Actions, Justices, Constables, &c., 19. 
 c. 48. Michaelmas Term, Teste and Return, 106, 7 ; 119, (l.\ 
 
 129, {k.) 346. {€.) 
 
 25, c. 34. Court of Requests, Birmingham, Costa, 957, 8. 
 c. 36. Disorderly Houses, 557, 597. 
 
 c. 43. Court of Re({uests, Liverpool, Costs, 992, 957.
 
 XXVI 
 
 TABLE OF STATUTES. 
 
 George II. continued. 
 
 26, c. 21, § 8. Arrest on remedial Statute, 172. 
 
 27, c. 17. Marshal, 52, 3. 
 
 c. 20, § 2. Overseers, Poors' Rate, Distress, 28. 
 
 29, c. 4, § 14. Arrest of Soldiers, 200. 
 
 c. 36. Action against Township, Trees, &c., 122. {<!.) 
 
 39, c. 3, § 87. Attorney, Commissioner of Land Tax, 84. 
 
 c. 8, § 20. Arrest of Soldiers, 200. 
 
 c. 19, § 75. Attorneys, Costs, 61, 
 
 325. 
 
 31, c. 24. Court of Requests, Yarmouth, 957. 
 
 32, c. 0. Costs, 957. 
 
 c. 28, § 1, 2, 4, 11, 12. Sheriff's Officers, Extortion, 229, 30; 
 
 231, 2 ; 372, 528, 698, 712. 
 13, 14, 15, 16, 17, 20. Execution, Prisoners, 374, &c. 
 
 379, 382, &c, 1112. 
 24. Insolvent Debtors, Lords' Act. 376. 
 George III. 
 
 1, c. 23. Judges, 39. 
 
 2, c. 19, § 5. Costs, 987. 
 
 c. 38. Court of Requests, Kingston upon Hull, 957. 
 
 4, c. 33. Bankrupts, Privilege of Parliament, 116, (5.) 117, 205. 
 
 5, c. 105. Turnpike Act, Limitation of Actions, 21. 
 
 6, c. 50, § 2. Isle of Man, Affidavits, 179. (o.) 
 9, c. 29, Demolishing Mills, &c. 122. [d.) 
 
 10, c. 50, Distringas, Issues, Appearance, 111, 119, 192, 313. 
 
 12, c. 21. Mandamus, Costs, 950, 51. 
 
 13, c. 51, § 1, 2. Wales, 151, 320, 969. {i.) 
 
 c. 63, § 44. East Indies, Mandamus, 486, 813. 
 
 13, c. 78, § 47. Highway Act, Setting aside Proceedings, 528. 
 
 79. Highway Act, Bringing Money into Court, 621. (7i.) 
 82. Limitation of Actions, 21. 
 c. 84, § 19. Turnpike Act, Staying Proceedings, 528. 
 
 81. Turnpike Act, Bringing Money into Court, 621. [h.) 
 85. Turnpike Act, Limitation of Actions, 21. 
 
 14, c. 78, § 100. Building Act, Limitation of Actions, Notice of 
 
 Action, Costs, 21, 32, 988. 
 
 16, c. 34. Insuring Lottery Tickets, 528. 
 
 17, c. 26. Annuities, 520," 21. 
 
 18, c. 36, § 24. Court of Requests, General Issue, Costs, 960. (w.) 
 
 19, c. 68, § 24. Attorneys, Court of Requests, Tower Hamlets, 
 
 Costs, 76, (a.) 992, (3.) 957, 958. {h.) 
 c. 70, § 1, 2. Inferior Courts, Arrest, Bail, 164, 239, (i.) 407, 8. 
 
 4. Inferior Courts, Execution, 401, 995, 1106. {g.) 
 
 5. Inferior Courts, Error, 1101, 1149, 50; 1188. (a.) 
 
 6. Inferior Courts, Habeas Corpus, 407, 408. 
 23, c. 28, § 2. Ireland, Error, 1140. 
 
 c. 70, § 29. Excise Officers, Damages, Costs, 892, {h.) 969. {a.) 
 30, 31, 32. Excise Officers, Notice of Action, Tender of 
 
 Amends, 30, (A.) 646. (a.) 
 
 33. Excise Officers, Bringing Money into Court, 621. id.) 
 
 34. Excise Officers, Limitation of Actions, 20. id.) 
 
 Venue, 431, {b.) General Issue, 653, ih.) Costs, 988.
 
 TABLE OF STATUTES. XXVU 
 
 George III. continued. 
 
 24, c. 25. East IndicR, Mandamus, Witnesses, 813. [g.) 
 
 sess. 2, c. 47, § 35, 39. Custoin-huusc Ofiicers, Jjimitation of 
 
 Actions, 20. (</.) Notice of Action, 30. [h.) 
 
 Venue, 431. (<•.) Brin;j;in^ Money into Court, 
 
 621. (e.) Tender of Amends, 040. (a.) 
 
 25, c. 35, § 1. Extent, Sale of Lands, Costs, 1045, 1008, 9 ; 1070, 
 
 1082. 
 c. 80, § 1, 5, 7, 8, 0. Certificates of Attorneys, 75, 6 ; 77, 8, 
 
 9; 96. 
 13. Memorandum of Warrant, 90, 149. 
 29. Tcnaltics, 78. 
 
 26, c. 40, § 31. Customs, Damages, Costs, 892. [h.) 
 c. 44. Execution, Prisoners, 374, 382, 3. 
 
 c. 63, § 1, 2. Letter of Attorney, Wages, Prize Money, 529. (?'.) 
 c. 77, § 13. Customs and Excise, 519. 
 
 27, c. 1. Lottery Act, Arrest, 173. 
 
 28, c. 37, § 23. Customs and Excise, Limitation of Actions, Venue, 
 
 General Issue, Costs, 20, 431, {c.) 653, 988. 
 
 24. Customs and Excise, Damages, Costs, 892, 908. 
 
 25, 20, 27. Customs and Excise, Notice of Action, 
 
 Tender of Amends, 30, 040. {a.) 
 28. Customs and Excise, Bringing Money into Court, 
 
 021, (..) 
 
 31, c. 32, § 22. Roman Catholics, 71. 
 
 32, c. 33, § 22. Arrest of Seamen, 198, {e.) 199, 200. 
 
 c. 34, § 1, 2. Letter of Attorney, Wages, Prize Money, 529. (^.) 
 
 8. Petty Officers in Navy, 198. (/. ) 
 
 c. 58. Quo Warranto, Pleading double. Costs, 655, 952. 
 
 33, c. 4, Aliens, 292. {k.) 
 
 c. 5, § 3, 4, 5. Insolvent Debtors, 375, 0, 7; 379, 382, &c. 
 c. 54, § 11. Friendly Societies, Actions, 8. 
 c. 08. Execution, Wales, Counties Palatine, Recognizances, 
 Damages, Costs, 401, (h.) 995, 1100, {g.) 1188. 
 
 34, c. 14, § 1 to § 8. Stamp Duty, 02, 70, 72. (/. ) 
 
 c. 58. Recognizance, County Palatine, Execution, 400, 7; 1188. 
 
 c. 09. Insolvent Debtors, 388, 544, 1112. 
 
 35, c. 55, § 10, Stamp Duties, Receipts, 520. {a.) 
 30, c. 9. iluiidredors, 122. {d.) 
 
 c. 104, § 38. Lotteries, 519, 20. 
 
 37, c. 33, § 03. Arrest of Soldiers, 199. {a.) 
 
 c. 45, § 2. Bank Act, Staying Proceedings, 187, 520. 
 
 9. Bank Act, Affidavit to hold to Bail, 187. 
 c. 00. Articles of Clerkship, stamps, 04. (//.) 
 
 c. 80, § 3, 4. Prisoners, Allowance, 380, 81. 
 
 c. 90, § 26, &c. Attorneys' Certificates, 75, &c. 90. 
 
 c. 91, § 1. Bank Act, Staying Proceedings, 520. 
 
 8. Bank Act, Affidavit to hold to Bail, Deposit of Bank 
 
 Notes, 187. 
 c. 93. Attorneys' Certificates, Indemnity, 64. (//.) 
 c. 112. Insolvent Debtors, 212. (/r.) 
 
 38, c. 1, § 1. Bank Act, Staying Proceedings, 520.
 
 XXVIU 
 
 TABLE OF STATUTES. 
 
 George III. continued. 
 
 38, c. 1, § 8. Bank Act, Affidavit to hold to Bail, Deposit of Bank 
 
 Notes, 187. 
 c. 50, § 0. Aliens, Privilege from Arrest, 215. 
 c. 52, § 1. County Palatine, Trial, 723, 4. 
 
 12. Indictment, Recognizance, 724. (a.) 
 
 39, c. 50. Lords' Act, 374, 383. 
 
 c. Ixix. § 184, 5. Limitation and notice of Action, West India 
 
 Dock Company, 8, 9, 31, 2. 
 39 k 40, c. xlvii. § 150, 51. Limitation and Notice of Action, Lon- 
 don Dock Company, 8, 9, 20, 31, 2. 
 c. 67. art. 4. Peers, Privilege from Arrest, 192. 
 c. 72. Attorneys' Certificates, Indemnity, 64. {h.) 
 c. civ. § 10, 11, 13. Court of Requests, Attorneys, 80, 954, 5 ; 
 
 957, 958. {e.) 
 c. 105. Original "Writ, County Palatine, 107. 
 
 41, c. 24. Demolishing Mills, &c., 122. {d.) 
 
 c. 64. Execution, Judgments, Prisoners, 1030. (a.) 
 
 c. 70. Insolvent Debtors, 212. {k.) 
 
 c. 106. Aliens, Privilege from Arrest, 215, 16. 
 
 42, c. 40. Bank Act, Affidavit to hold to Bail, 187. 
 c. 85, § 1, 2, 3. Mandamus, Witnesses, 813. [g.) 
 
 6. Persons exercising public Employments, Venue, 431, 
 
 653, (6.) 988. 
 92, § 23. Aliens, Privilege from Arrest, 215. (c.) 
 c. C. Turnpike Act, Limitation of Actions, 21. 
 
 43, c. 18, § 2. Bank Act, Affidavit to hold to Bail, Staying Proceed- 
 
 ings, 187, 188, 520. 
 c. 46, § 1. Arrest, Costs, 178. 
 
 2. Arrest, Bail, Costs, Deposit, Motions, Sheriff, 227, 
 
 &c., 244, {c.) 308, 315, 487, 8; 1040. 
 
 3. Arrest, Costs, Execution, Motions, 174, 489, 982, 3. 
 
 4. Costs, Motions, 969. 
 
 5. Execution, Poundage, 997, 1040. 
 
 6. Bail, Supersedeas, 279. 
 
 c. 84, § 12. Non-residence, Penalties, 519. 
 c. 99, § 37. Execution, King's Taxes, 1016, 17. 
 41. Collectors of Taxes, Costs, 1082. 
 70. Limitation of Actions, Notice of Action, Venue, 
 
 Tender of Amends, Pleading, 
 Treble Costs, 20, 21, 32, 
 3 ; 646, (a.) 653, 
 (6.) 988. 
 Habeas Corpus, Courts Martial, 809. 
 Port of Bristol, Interest, Damages, 873. 
 Justices, Damages, Costs, 30, 892, 3. 
 § 1, 28. Aliens, Privilege from Arrest, 215, {c.) 293. 
 
 44, c. 13. Seamen, Penal Action, Sheriffs, 198. (e.) 
 § 21. Arrest, Volunteer Drill Serjeants, &c., 199. 
 Attorneys' Certificates, Indemnity, 64. (li.) 
 § 10. Statnp Duties, Staying Proceedings, 78, 520. 
 
 14. Stamp Duties, Certificates, Penalties, 77. 
 
 c. 
 
 140. 
 
 c. 
 
 cxl. 
 
 c. 
 
 141. 
 
 c. 
 
 155, 
 
 c. 
 
 13. 
 
 c. 
 
 54, 
 
 c. 
 
 59. 
 
 c. 
 
 98,
 
 TABLE OF STATUTES. Xxix 
 
 George III. continued. 
 
 44, c. 08. SchcJ. (A.) Stamp Duties, Attorneys' Certificates, 65, 
 
 08, (6.) 71, 7-2, (/.) 70, [b.) 
 90, (e.) 540. {I.) 
 c. 102. ITa])eas Corpus ad testificanduiri, 800, 10. 
 c. 108. Insolvent Debtors, 212, {k.) 1112. (/>.) 
 
 45, c. 3. Insovent Debtors, 212. (/r.) 
 
 c. Ixvii. Court of Requests, Removal, City of Bath, &c. 402, 057. 
 c. 92, § 3, 4. Witnesses, 810. {a.) 
 c. 124, § 1. Bankrupts, Privilege of Parliament, 117. 
 3. Appearance, 110, 120, 21 ; 245, 410. 
 
 46, c. 37. Witnesses refusing to answer, 700, (e.) 1050. (e.) 
 
 c. xxxvii. § 22. Court of Requests, Removal, Grimsby, &c. 402. 
 c. Ixvi. § 22. Court of Requests, Removal, Isle of Wight, id. 057. 
 
 050, 00. 
 c. Ixxxvii. Court of Requests, Southwark, &c. 002, 3, 4 ; 057, 
 
 058, (a.) 050. 
 c. Ixxxviii. Court of Requests, Brixton, Costs, 057. 
 c. 108. Insolvent Debtors, 212. {k.) 
 
 c. cxiv. § 26. Court of Requests, Removal, Stockport, 402. 
 c. cxxxv. § 24. Court of Requests, Removal, Beverly, id. 
 c. 135. § 1, 2. Bankrupts, Arrest, 204, (e.) id. (g.) 067. 
 
 47, sess. 1, c. 4. Court of Requests, Blackheath, Brondey, BecTien- 
 
 ham, &c. 057. 
 c. xiv. Court of Requests, Birmingham, Costs, id. 058. 
 c. XXXV. Court of Requests, Removal, Costs, Sandwich, Rams- 
 
 . gate, &c. 402, 057. 
 c. xxxvi. § 26. Court of Requests, Removal, Ilales Owen &c., 
 
 402, 3. 
 c. xxxvii. § 23. Court of Requests, Removal, Lincoln, id. 
 sess. 2, c. i. § 24. The like, id. 
 
 c. vii. § 24. Court of Requests, Removal, Costs, Isle of 
 
 Thanet, id. 957. 
 c. 40. Members of Parliament, Suits in Equity, 117. {c.) 
 c. xl. Court of Requests, Removal, Costs, Gravesend, kc. 
 
 403, 957. 
 c. 74. Traders, Real Estates, Assets, 937, 1031. (b.) 
 c. Ixxviii. § 31. Court of Re(piests, Removal, Lincoln, 402. 
 c. Ixxix. § 26. Court of Requests, Removal, Ipswich, &c. 
 
 403. 
 
 48, c. xi. Port of Bristol, Interest, Damages, 873. 
 
 c. xliii. § 23. Court of Requests, Removal, Manchester, 403, [h.) 
 
 057. 
 c. 1. § 30. Court of Requests, Removal, Codsheath, 403. 
 c. li. Court of Requests, Costs, Rochester, &c. 957. 
 c. xcviii. § 31. Court of Requests, Execution, Ashton-under-Lyne, 
 
 ^ &c. 005. {g.) 
 c. ciii. Court of Requests, Costs, Sheffield, &c. 057. 
 C. cix. Court of Roijuests, Costs, Kingston-upon-IIull, id. 
 c. ex. Court of Requests, Removal, Wolverhampton, 403. 
 c. 123. Insolvent Debtors, Small Debts, 380, &c., 480, 1112.
 
 XXX 
 
 TABLE OF STATUTES. 
 
 c. 
 
 151. 
 
 c. 
 
 6. 
 
 c. 
 
 27, 
 
 c. 
 
 28. 
 
 c. 
 
 115. 
 
 c. 
 
 121, 
 
 George III. continued. 
 
 48, c. 141. ^0. V. Rule 2. Sheriff, Notice of Action, Property-tax, 
 
 32. 
 c. 149. Sched. Part. I. Stamp Duties, 65, {c.) G8, (a.) 71, (e.) 72, 
 
 (/•) 76. 
 11. § III. Stamp Duties, 96, (e.) 452, 496, 
 ic.) 546, 828, 1206. 
 Appeals, Scotland, 1140. {g.) 
 
 49, c. 6. Prisoners, Lords' Act, Costs in Equity, 375. 
 § 8. Insolvent's Certificate, Newfoundland, 211, 648. 
 Coroner's Clerks, Attorneys, 62, 8. 
 Insolvent Debtors, 212. {k.) 
 § 2. Execution, Bankrupt, 208, 1009. {g.) 
 
 6. Bankrupt, Assignee, 1111. [d.) 
 
 8. Bankrupt, Sureties, Pleading, 209, (a.) 291, 648. 
 
 9. Bankrupt, Certificate, Arrest, 205. (a.) 
 10. Bankrupt, Notice, Evidence, Costs, 613, 668, 9. 
 
 13. Bankrupt, Examination, 202. (h.) 
 
 14. Bankrupt, Arrest, Bail, 203, 4; 291, 1030. 
 c. 121, § 17. Bankrupt, Annuity, 209. {b.) 
 
 50, c. 4. Attorney's Certificates, Indemnity, 64. (/i.) 
 c. xlvii. Treble Costs, Distress, Replevin, 977, 988. 
 
 51, c. 124, § 1. Original Writs, Process, Arrest, Bail, Costs, 103, 
 
 {h.) 165, {c.) 178, {h.) 239. {h.) 
 
 2. Distringas, Proceedings by Original, 113, &c. 155, 
 
 245, 419. (a.) 454. 
 
 3. Inferior Courts, Arrest, Bail, 406, 7, 8 ; 1149, 50. 
 c. 125. Insolvent Debtors, 208, 9 ; 212, [k.) 359, 401. 
 c. 127. Bank Notes, 187. (/.) 
 
 52, c. 13. Insolvent Debtors, 375. {d.) 
 c. 26. Articles of Clerkship, Indemnity, 64. (A.) 
 c. 34. Insolvent Debtors, Lords' Act, 376, 379. 
 c. 50. Bank Notes, 187. (/.) 
 
 c. 113. Treble Costs, Birmingham paving Act, 988. 
 c. 130. Demolishing Manufactories, &c. 122, {d.) 
 c. 160. Prisoners, Allowance, 372. 
 c. 165. Insolvent Debtors, 212. {k.) 
 
 53, c. 5. Bank Notes, 187. (/. ) 
 c. 6. Insolvent Debtors, 212. {k.) 
 c. 21. Prisoners, Allowance, 372. 
 c. 102. Insolvent Debtors, 213, [h.) id. (w.) 247, {t.) 375. {d.) 
 
 c. 108. Extent in Aid, Costs, Stamp Duties, 1082. 
 
 c. 113. Prisoners, Allowance, 372. 
 
 c. 127, § 1. Excommunication, 373, (c.) 
 
 7. Church Rate, 19. 
 c. 141. Annuities, 490, 522, 3, 591. 
 c. ccxvi. Insra-ance Companies, Action, 8, 9. 
 54, c. 5. Articles of Clerkship, Indemnity, 64. (A.) 
 c. 6. Non-residence Penalties, 519. 
 c. 23. Insolvent Debtors, 388, 396. {a.) 
 c. 28. Insolvent Debtors, 7, 212, {k.) 1112. {h.) 
 
 388, 9.
 
 TABLE OF STATUTES. XXxi 
 
 George III. continued. 
 
 54, c. 44. Non-residence, Penalties, 519. (</.) 
 c. 52. Bank Notes, 187. (/.) 
 
 c. 54. Non-residence, I'enaltiep, 519. {d.) 
 
 c. 137. Scotch Bankrupt Act, 7. 
 
 c. 144, § 13, 14. Attorneys, Certificates, 75. 
 
 c. 155, § 1. Aliens, Privilege from Arrest, 215. (c.) 
 
 c. 170, § 8. Actions on Bastardy Bonds, 7, 8. 
 
 55, c. 17. Articles of Clerkship, Indemnity, 04. (//.) 
 c. 42. Bill of Excei)tions, 803. {b.) 
 
 c. 50. Gaol Fees, 372. 
 
 c. 00. Letter of Attorney, Wages, Prize Money, 529. {{) 
 c. 104, § 1, Aliens, Privilege from Arrest, 215. (c.) 
 c. 157. Affidavits, Witnesses, 179, {o.) 810. {a.) 
 c. 184. Sched. Part. I. Stamp Duties, 08, {a.) 71, 72, (/.) 70, 
 
 490, (c.) 593, 1085, 1206. 
 II. § III. Stamp duties, see Index, tit. 
 
 Stamps, 96. (e.) 
 
 56, c. 33. Articles of Clerkship, Indemnity, 64. (7i.) 
 c. 50. Execution, Farming Stock, 1002. 
 
 c. 51. Turnpike Act, Limitation of Actions, 21. 
 
 c. 68. Gold Coin, Tender, 187. 
 
 c. 76. Court of Requests, Bristol, Costs, 957. 
 
 c. 86, § 19. Aliens, Privilege from Arrest, 215. {c.) 
 
 c. 100. Habeas Corpus, 347. 
 
 c. 102. Insolvent Debtors, 213, (w.) 388. 
 
 c. 110. Gaol Fees, 372. 
 
 c. 125. Destroying Fire Engines, &c. 122. (d.) 
 
 c. 138. Pillory, Perjury, 275. {h.) 
 
 57, c. 11. Adding and justifying special Bail, Bail Court, 262. 
 
 Insolvent Debtors, 378. 
 c. 14. Articles of Clerkship, Indemnity, 04. (//.) 
 c. 19, § 38. Destroying Fixtures, &c. 122. {d.) 
 c. 99, § 5, &c. Non-residence, 519. [d.) 
 40. Notice of Action, 32, 3. 
 43. Bringing Money into Court, 020. 
 45. Security for Costs, 535. Double Costs, 988. 
 47. Execution, 1020. 
 c. 101. Continuation of 51 Geo. IIL c. 124, pp. 103, {h) 113, {b.) 
 
 105, (f.) 178, (//) 239. {k.) 
 c. 117, § 1, 2, 3. Extent in Aid, Fiat, Levy, 1059, 1003, 1004, 
 
 &c. 
 4, 5. Extent in Aid, Simple Contract Debts, &c. 1060, 
 
 61. 
 6. Extent in Aid, Relief on, 375, (a.) 1065, 6. 
 c. 130, § 8. Savings Banks, Actions, 8. {b.) 
 
 58, c. 5. Articles of Clerkship, Indemnity, 04, (//.) 65. {a.) 
 
 c. 30. Costs, Inferior Courts, Assault and Battery, Slanderous 
 
 Words, 902, 967. 
 c. 96. Aliens, Privilege from Arrest, 215. {c.) 
 
 59, c. 11. Articles of Cleikship, Indemnity, 64. (/*.) 
 
 c. 12, § 17. Churchwardens and Ovcrbcers, Actions, &c. 7.
 
 jjXjjj- TABLE OF STATUTES. 
 
 George III. continued. 
 
 59, c. 23. Cash payments, 187, 520. {h.) 
 c. 49. The like, 187, 8 ; 520. {b.) 
 c. 64. Warden of Fleet, Escape, 324. 
 c. 128, § 7. Friendly Societies, Actions, 8. 
 c. 129, § 1. Insolvent Debtors, 388. 
 60 & 1 Geo. IV. c. 10. Articles of Clerkship, Indemnity, 64. {h.) 
 George IV. 
 
 1, c. 21. Trials at Nisi Prius, Middlesex, 752. (5.) 
 c. 55, § 1. The like, 752. 
 
 2. Trials at Nisi Prius, London and Middlesex, id. 753. 
 
 3. Insolvent Debtors, 378. 
 
 1, c. 55, § 4. Oaths, Advocates, Attorneys, 42, 70, 71. 
 
 5, 6. Summonses and Orders, Counties Palatine, 510, 
 
 697. 
 c. 87, § 1. Ejectment, Bail, &c., 489, 1207, 1209, 1217, 1221, 
 
 &c. 1230. 
 
 2. Ejectment, Evidence, Damages, Mesne Profits, 1238, 
 
 1239. 
 
 3. Ejectment, Error, Execution, Recognizance, 1244,5; 
 
 .1253. 
 
 4. Action, Ejectment, Recognizance, 1222, 3. 
 
 5. Ejectment, Great Sessions, Wales, 399. 
 
 6. Ejectment, Double Costs, 988. 
 
 7. Ejectment, Saving Clause, 1222. 
 
 c. 105. Aliens, Privilege from Arrest, 215. {c.) 
 
 c. 119. (Insolvent Debtors' Act,) 247, {t.) 388, 9 ; 1112.— § 4, 
 
 pp. 375, {d.) 390. (rt, 6.)— § 5, p. 372. (^.)— § 6, p. 
 
 391. («.)—§ 7, p. 390. {h.)— § 10, p. 393. («.)— § 
 
 14, p. 390. (5..)-§ 16, pp. 375, {d.) 392. {dj, g.)- 
 
 § 19, p. 373. («..)-§ 22, p. 392. {c.)—% 25, pp. 395, 
 
 {d.) 396. (a.)— § 26, pp. 213, (m.) 214. (c.)— § 28, 
 
 pp. 393, {d.) 396. («.)—§ 29, pp. 395, {d.) 396, (a.) 
 
 1112. (6.)— § 30, pp. 395, ((7.) 1112. (6.)— § 38, p. 
 
 1024.— § 40, pp. 395, {h.) 1066. (^.)— § 41, p. 1066. 
 
 (c.)— § 42, 3, p. 395. («.)-§ 44, p. 394. [h.) 
 
 1 & 2, c. 5. Articles of Clerkship, Indemnity, 64. iji.) 
 
 c. 16. Court of King's Bench, Sittings out of Term, 39, 40. 
 c. 26. Bank Act, Resumption of Cash Payments, 187. (/.) 
 c. 46. Assizes, Jury, 787. (c, c7, e.) 
 
 c. 48. Attorneys and Solicitors, Members of Universities, 63, 
 
 69. 
 3, c. 10. Opening Commissions upon Circuits, 65, id. {a.) 41. 
 c. 12. Articles of Clerkship, Indemnity, Certificates, 64, 5. (Ji.) 
 c. 13, § 149. Mutiny Act, Treble Costs, 988. [l) 
 c. 16. Attorneys and Solicitors, Members of Universities, 63. 
 c. 33. Proceedings against Hundredors, &c., 122. {d.) 
 c. 39. Warrant of Attorney, Cognovit Actionem, Bankruptcy, 
 
 Satisfaction, 555, 561, 1041. {d.) 
 c. 69. Fees, Officers of Courts, &c. 88. [c.) 
 c. 81, § 2. Bankruptcy, Witnesses, Costs, 807. {d.) 
 
 11. Actions by Assignees of Bankrupts, Partners, 7. (i?.)
 
 TABLE OF STATUTES. XXxiii 
 
 George IV. continued. 
 
 3, c. 87. Court of Exchequer, Trial of Issues, 752. (6.) 
 c. 92. Annuities, Memorials, 490, 526, id. {d.) 
 
 c. 97. Aliens, Privilege from Arrest, 215. (c.) 
 
 c. 102. Court of King's Bench, Sittings out of Term, 40. 
 
 c. 123. Insolvent Debtors, 213, (m.) 214, 388. 
 
 § 8. The like. Prisoners within the Walls, 389. {g.) 
 
 11. The like, Prisoners, Supersedeas, 7, {c.) 213, {m.) 
 
 371. {g.) 
 
 12. The like. Married Women, 394. {a.) 
 C. 126. (General Turnpike Act:) 519. (6.) 
 
 § 74. Actions, 8, 9. 
 144, Bringing Money into Court, G21. (/*,) 
 147. Limitation of Actions, 21. 
 
 4, c. 1. Articles of Clerkship, Indemnity, G4, 5, [h.) G5. (a.) 
 c. 95. General Turnpike Act, 519. (6.) 
 
 c. cxxiii. § 12, &c. Court of Requests, Southwark, Costs, 958, [a.) 
 
 id. (/.) 959, (/<:.) 9G0. (/.) 
 
 5, c. 6. Articles of Clerkship, Indemnity, Certificates, 64, 5. (/t.) 
 c. 18, § 6. Constables, Warrants, Jurisdiction, 34. {e.) 
 
 c. 37. Aliens, Privilege from Arrest, 215. (c.) 
 
 c. 41. Stamp Duties, 96, 322, (m.) 452, 454, (e.) 496. 
 
 c. 61. Insolvent Debtors, 388. 
 
 § 12. Prisoners within the Walls, 389. [g.) 
 16. Insolvent Debtors, Warrant of Attorney, Cognovit 
 
 555, 561. 
 c. 73. Copartnership, Bankers, Ireland, Actions, 9. 
 c. 106. § 1. Wales, Great Sessions, Witnesses, 806. (/.) 
 2, 3, 4, 5. New Trial, 905, 6. 
 
 6. Returns of Writs of Execution, 998. {I.) 
 
 7. Rules to return Writs, 307. 
 
 8. Rules grantable in Vacation, 486, 7 ; (w.) 598. {l.\ 
 
 9. 10. Commissions for taking Affidavits, &c. 491, 2. {l.) 
 
 11. Rules and Orders, 510. 
 
 12. Motions and Petitions, &c. id. 
 
 13. Writs, 129. 
 
 14. Testatum Executions, 1022. 
 
 15. Enforcing Rules, Orders and Decrees, 401, {b.) 995. 
 
 16. Removing officers of Great Sessions, 232, 3. (c.) 
 19, 20, 21, 2. Trifling Actions, Writs, Nonsuit, Costs, 
 
 151, 320, 969, 70 
 23. Certiorari, Notice, 399. 
 
 28. Taking Affidavits by Commissioners, 491, 2. (?.) 
 
 29. Qualification of Jurymen, 782. 
 
 6, c. 16. (Bankrupt Act:) 
 
 § 9. Traders, Privilege of Parliament, 116, 17. 
 
 10. Appearance, id. 
 
 11. Act of Bankruptcy, 117. 
 
 14. Petitioning Creditor, Costs, 330, 31. 
 
 31. Actions, Demand of Copy of Warrant, 35, 6. 
 
 35. Witnesses, Expenses, 807. 
 Vol. I. — c
 
 ji^XXiw TABLE OF STATUTES. 
 
 George IV. continued. 
 
 Q, c. 16, § 39. Habeas Corpus, 287. (c.) 
 
 41. Notice of Action, 33. 
 
 42. Notice of Action, Evidence, 33. 
 
 43. Tender of Amends, 621. 
 Bringing money into Court, 646. [a.) 
 
 44. Limitation of Actions, General Issue, Double Costs, 
 
 21, 33, (a.) 653, (6.) 988. 
 47. Proof of Debts, 204. 
 
 50. Set off, 666. {L) 
 
 51. Proof of Debts, 204, 5. 
 
 52. Sureties for payment of Annuities, 209, 291. 
 
 53. Bottomry or Respondentia Bonds, and Policies of 
 
 Assurance, 205. (7t.) 
 
 54. Annuity Creditors, 209. 
 
 55. The like, Sureties, id. 
 
 56. Contingent Debts, 205. 
 
 57. Interest on Promissory Notes, &c. 209, 10 ; 873. 
 
 58. Costs on Judgments, &c. 210. 
 
 59. Proving Debts, Election, 202, 3; 291. {e.) 
 63. Actions by Assignees, 7. 
 
 67. Abatement, Death or Removal of Assignees, 934. 
 
 74. Distress for Rent, 1015. 
 
 81. Executions, &c. 1009, 10. 
 
 89. Actions by Assignees, 7. (c.) 
 
 90. Notice of disputing Petitioning Creditor's Debt, 
 
 Evidence, 668, 9. 
 92. Depositions, Evidence, 669. 
 105. Assignee, Bankrupt, Liability of future Effects, 1111, 
 
 12. 
 108. Execution on Judgment by Default, &c. 570, 936, 
 
 (e.) 1009. (7i.) 
 
 112. Time allowed for surrendering, 201. 
 
 113. Enlarging Time for Surrender, 200. (A.) 
 
 117. Privilege from Arrest, 201, 2. 
 
 118. Adjournment of last Examination, 202. 
 
 119. Bringing up, or attending Bankrupt in Custody, id. 
 121. Discharge by Certificate, 204. 
 
 126. Privilege from Arrest, id. 212, id. (/.) 292. 
 
 127. Liability of future Effects, 648, (/.) 1111. 
 
 131. Liability of Bankrupt, on subsequent Promise, 211. 
 135. Rights and Remedies, under subsisting Commission. 
 
 nil! 
 
 c. 22. Jurors, Scotland, 782, {b.) 
 c. 42. Bankers, Partnership, Ireland, Actions, 9. 
 c. 45. Articles of Clerkship, Indemnity, 64, 5. (7t.) 
 c. 46. Articles of Clerkship, Certificates, 65. (a.) 
 c. 50. (Jury Act:) 
 
 § 1. Qualification of Jurors, Wales, &c. 782, 3, 4. 
 
 2. Exemptions from serving on Jm-ies, 784, 5. 
 
 3. Disqualifications of Aliens, &c. 783. 
 12. Jurors' Book, 785.
 
 TABLE OF STATUTES. 
 
 XXXV 
 
 George IV. continued. 
 
 6, c. 50, § 13. Form of Venire Facias, 778. 
 
 14. licturn of Juries, 785. 
 
 15. l*anel to be annexed to Return, id. 
 
 16. Venire de Novo, 780. 
 
 17. Return of Jurors, in Counties Palatine, 78G. 
 
 18. The like, in AVales, id. 
 
 19. Copy of Panel, to be kept in Sheriff's Office, id. 787. 
 
 22. Two sets of Jurors, at Assizes, id. 850. 
 
 23. Jury process, VicAv, 795, 790, 7. 
 
 24. Jury, Views, 856. 
 
 25. Summoning Jurors, 793, 4. 
 
 26. Balloting for, and swearing Common Juries, 854, 5. 
 
 27. 8, 9. Challenge of jury, 852, 3, 4. 
 
 30. Striking special Juries, 789. 
 
 31. Qualification of special Jurors, &c. 790. 
 
 32. 3. Mode of nominating them, id. 791, 856. 
 
 34. Costs of special Jury, 792. 
 
 35. Fees to special Juries, id. 
 
 36. Mode of striking them, in Countj- of City or ToAvn, 
 
 except London, 792. 
 
 37. Talesmen, 751, {c.) 857, 8. 
 
 38. Fining Jurors for Non-attendance, 856. 
 40. Register, Certificate, id. 857. 
 
 42. Re-service of Jurors, 857. 
 
 43. Misconduct of Officer, in summoning Jury, 794. 
 47. Juries do medietatc linguce, 783. 
 
 50. Qualification of Jurors, in Liberties, &c. 783. 
 
 51. Fining Jurors, for Non-attendance, 856. 
 
 52. Qualification of Jurors, on Inquest, &c. 582, (cZ.) 
 
 783, 4. 
 
 53. Fining Jurors for Non-attendance, id. 
 58. Double Costs, 988. 
 
 60. Writ of Attaint, 574, (/.) 896, 7, (o.) 905. 
 c. 82. Sale of Offices, in K. B. Salaries of Judges, &c. 39, (g.) 
 
 43, 4, 5, 6. 
 c. 83. Sale of Offices, in C. P. Salaries of Judges, &c. 39, (g.) 
 
 45, 6; 48, 9. 
 c. 84. Salaries of Master of Rolls, Vice Chancellor, and Barons 
 
 of Exchequer, &c. 39. (g.) 
 c. 85. Salaries of Judges, in India, &c. id. 
 c. 89. Purchase of Offices, Sealer of Writs, Gustos Brevium 
 
 53,4. 
 
 c. 95. Serjeants, 42. 
 c. 96. Bail in Error, 1153, 4. 
 
 c. 105. Repeal of Acts relating to Customs, &c. 20, [d.) 30, (h ) 
 
 431, {c.) 621, (c.) 646, {a.) 892, (6.) 969. (a.) 
 
 c. 108. Customs, Smuggling, Proceedings against Officers of 
 
 Army, Na^•y, or Marines. <S:c. 
 • § 89. Claiming goods seized, 1076. 
 
 92. Damages, Costs, 892, {h.) 969. [a.) 
 
 93. Notice of Action, 30.
 
 xxxvi TABLE OF STATUTES. 
 
 George IV. continued. 
 
 c. 108, § 95. Tender of Amends. 646. {a.) 
 
 96. Bringing Money into Court, 621. (e.) 
 
 97. Limitation of Actions, 20. Notice of Action, 33. 
 
 Venue, 431. [e.) General Issue, 653. (5.) Treble 
 
 Costs, 988. 
 99. Assignment of Bail Bond to King, 298. 
 
 100. Proceedings for Penalties, 519. {g.) 
 
 101. Nolle Prosequi, id. 
 
 102. Onus probandi of payment of Duties, &c.'on Claimer, 
 
 1076. 
 c. 121. Insolvent Debtors, 389. {g.) 
 c. 123. Costs of Private Bills, Taxation, 330. 
 c. 131. Joint Stock Societies, Scotland, Actions, 9. 
 7, c. 8. Jurors, Scotland, 782. (h.) 
 c. 17. Sheriff, Durham, 314. 
 c. 37. Juries, East Indies, 782. (5.) 
 
 c. 44. Articles of Clerkship, &c., 57, 64, 5, (A.) 65, {d.) 78. {e.) 
 c. 57. Insolvent Debtors, 246, [t.) 388, 9, &c. 
 
 § 10. Petition for Discharge, 213, (w.) 375. {d.) 
 
 11. Assignment to provisional Assignee, 390, 395. 
 
 12. Prisoners within the Walls, 389, 90. 
 
 15. Prisoners, Discharge, Supersedeas, &c., 371. 
 17. Allowance to Prisoners, 372, 3. 
 
 19. Assignment by provisional Assignee, 389. 
 
 20. Sale of Property, &c., 390. {b.) 
 24. Actions by Assignees, 7. 
 
 26. Abatement of Suit, 934, 5. 
 
 28. Clergymen, Sequestration, Addend, to p. 1024. [g.) 
 31. Distress not available for more than a Year's Rent, 
 
 1015. 
 33, 4. Warrant of Attorney, Cognovit, 555, 561. 
 38. Removal of Assignees, and Appointment of new 
 
 ones, 390. (6.) 
 40. Schedule of Debts, &c., 390, 91. 
 41 to 45. Proceedings on Petition, &c., 391, 2. 
 46. Adjudication of Discharge, 213, 14 ; 392. 
 50, 51. To what Debts it extends, 213, (w.) 375, {d.) 
 
 392, 3. 
 52. Prisoners within the Walls, 389, 90. 
 
 55. Arrest, 214. 
 
 56. Allowance to Prisoners, 373. 
 
 57. Warrant of Attorney by Prisoners, 395, 6. 
 
 58. 9. Proceedings thereon, 395, 6 ; 112. (6.) 
 
 60. Effect of Discharge, Arrest, 214, 215, 1112. {c.) 
 
 61. Effect of Discharge, Pleading, 393, &c., 1112. {c.) 
 
 62. Warrant of Attorney, Satisfaction, 396. 
 
 63. Error in Schedule, 395. 
 
 64. When not entitled to Relief, id. 
 
 66. Prisoners removed by Habeas Corpus, 394. 
 
 72. Married Women, id. 
 
 73. Persons of unsound Mind, id.
 
 TABLE OF STATUTES. XXXvii 
 
 George IV. continued. 
 
 1, c. 57, § 74, 5. Crown Debtors, &c., 395, lOGG, 7. ' 
 
 c. 75. Annuities, Memorials, 526. 
 7 & 8, c. 4. Mutiny Act, 198, 9 ; 243, (/.) 653, (h.) 807, 988. {I.) 
 c. 5. Marino Act, 198, 199, [a] 243. (/.) Addend, to p. 
 
 807. (^^) 
 c. 27. Repeal of Statutes of Hue and Cry, &c., 122, 126. 
 c. 29. § 75. Limitation of Actions, Notice of Action, Avenue, 
 General Issue, Larceny, 21, 33, 431, 021, {h.) 
 
 646, (a.) 970. 
 c. 30, § 41. The like, id. 
 
 c. 31. Proceedings against Hundredors, 21, 27, 37, 102, 112, 
 
 122, &c., 145, 193. 
 c. 45. Articles of Clerkship, Indemnity, 64, 5, (/t.) 
 c. 64. Costs of Private Bills, Taxation, 330. 
 c. 71, § 1. Original Writs, Process, Arrest, Bail, Costs, 103, 
 
 165, 178, 239, 359, 419. («.) 
 2, 3, 4. Bail, Deposit, Costs, Motions, 243, 4, 5 ; 
 
 419. (a.) 
 
 5. Distringas, Proceedings by Original, 113, 155, 6, 
 
 7 ; 243, 245, 454, {i.) 486. 
 
 6. Inferior Courts, Arrest, Bail, 401, 406, 7 ; 1149, 
 
 50. 
 
 7. Arrest, Wales, Counties Palatine, 171. 
 
 8, 9. Process, Arrest, Indorsement, 160. 
 10. Scotland, Ireland, 178. 
 
 9, c. 3. (Marine Act.) 
 
 § 16. Witnesses on Courts Martial, Privilege from Arrest, 
 Attachment. Addend, to pp. 198, 807. {I'.) 
 
 70. Volunteer Marines, Privilege from Arrest. Addend. 
 
 to p. 199. {a.) 
 
 71. Appearance. Addend, to p. 243. (/.) 
 c. 4. (Mutiny Act.) 
 
 § 28. Witnesses on Courts Martial, Privilege from Arrest, 
 Attachment. Addend, to pp. 198, 807. 
 
 129. Volunteer Soldiers, Privilege from Arrest, Addend. 
 
 to p. 199. 
 
 130. Appearance, Addend, to p. 243. (/.) 
 
 155. General Issue, Treble Costs, Addend, to pp. 653, {h.) 
 
 908. {I.) 
 c. 14, § 1. Statutes of Limitations, Acknowledgment, Joint Con- 
 tractors, Addend, to p. 27.' 
 
 2. Pleas in Abatement, Addend, to p. 636. 
 
 3. Indorsements of Payment, Addend, to p. 19. 
 
 6. Confirmation of Promise by Infants, Addend, to p. 
 
 650. 
 c. 15. Variance, Amendment, Postea, Addend, to pp. 434, 697, 
 
 712, 900.
 
 CHRONOLOGICAL TABLE OF 
 
 GENERAL RULES, ORDERS AND NOTICES, 
 
 REFERRED TO IN THE FOLLOWING WORK. 
 
 In King's Bench ; 
 of James I. 
 
 2, T. 1604, reg. 1. Filing Pleas, 566, (L) 672. {g.) 
 
 2. Marking Postea, 900. 
 
 3, H. 1605. Motions, Kules, 506. 
 
 5, H. 1607. Bringing Money into Court, 619, {a.) 622. 
 
 6, E. 1608. Return of Latitat, &c., 161. 
 
 7, M. 1609. Notice of Bail, 253. 
 
 13, E. 1615. Record of Nisi Prius, Marshal's fees, 818. (5.) 
 17, E. 1619. Docketing Judgments, 939. 
 
 19, H. 1621. Wales, Judicial Writs, 1022. (d.) 
 Charles I. 
 
 8, H. 1632. Declaration, Variance, 450. (p.) 
 11, E. 1635. Certiorari, Error, 1172. (/.) 
 
 14, H. 1638. Habeas Corpus, JPrisoners, 351. (a.) 
 
 15, M. 1639. Filacers, Signing Writs, 43. (/. ) 
 
 17, M. 1641. Demurrer Books, &c., 738, 739, 1176. 
 
 20, T. 1644. Clerk of the Errors, 1144. (e.) 
 
 21, T. 1645. Sheriff of Chester, Return of Writs, 151. {p.) 
 M. Notice of Bail, 253. 
 
 H. Sheriffs, and their Deputies, 58. 
 
 23, E. 1647. Under-sheriffs, id. (A.) 736. 
 
 H. Filing Bail-piece, 255. (e.) 
 
 Commonwealth. 
 
 1649, H. reg. 2. Entering issue, 777. 
 
 1650, H. reg. 3. Filing Bail-piece, 277. (/.) 
 
 1651, M. Bail, Habeas Corpus, Notice of Trial, 408, (e.) 761. 
 
 (w.) 
 
 1654, M. § 1. Attorneys, Bail, Under-sheriffs, &c.. Sheriff's 
 
 Deputies, 58, {h.) 60, (/.) 74, (a.) 82, 84, 
 
 (/.) 86, {i.) 247, (/.) Ejectment, 1201. 
 
 2. Sheriffs, Bailiffs, Warrant to Arrest, 58, 217.
 
 TABLE OF RULES AND ORDERS. XXxix 
 
 In King's Bench, continued. 
 
 of Commonwealth, continued. 
 
 1654, M. § 4. Attorneys, GO. 
 
 5. Venue, 408, (/.) 001, (7^) 003, {h.) 008. {rj.) 
 
 6. Outlawry, Bail, Undertaking to appear, 133, 
 
 (a.) 227. 
 
 • 7, 8. Bail, Habeas Corpus, Procedendo, 253, 
 
 350, (a.) 404, {g.\ 407, 8, 9, 10. 
 
 9. Bail, Habeas Corpus, Venue, Attorneys, 172, 
 
 239, 320, (/c.) 413, (/.) 606. {g.) 
 
 10. Appearance, Attorneys, Undertaking to ap- 
 
 pear, 80, {d.) 94, 241. (6.) 
 
 11. Habeas Corpus, Prisoners, 342, (a.) 348, 354. 
 
 12. Declaration by Original, 433. (/.) 
 
 13. Amendment, 707. (i.) 
 
 14. Rolls, 730. 
 
 15. Declaration, Imparlance, 422. 
 
 17. Demurrers, Amendment, 094, 696. 
 
 18. Notice of Trial, Costs, 758. 
 
 20. Special Verdicts, 897. 
 
 21. Venire de novo, 894, 922, {h.) 
 
 22. Habeas Corpus, Costs, 414. 
 
 1656, E. Attorneys, 86. 
 
 T. reg. 1. Sealing and Signing Writs, 54, 149. 
 2. Clerk of the Treasury, 43, 4. 
 
 1657, E. reg. 1. Docketing Judgments, 939, 40. 
 
 2. Common Bail, 243. 
 
 3. Entering Issue, 777. {h.) 
 H. Entry of Pleadings, &;c., 730. 
 
 1658, E. Special Causes, 504. (/.) 
 
 1659, E. Scaling and Signing Writs, 54, 999. 
 Charles II. 
 
 13 T. 1661. Special Bail, 255. 
 
 M. Scaling Writs, 54. (c.) 
 
 14 E. 1002. Attorneys, Attending Court on Motions, 86. 
 
 T. rcfT. 1. Ejectment, Process, Common Bail, 239, 
 
 1224. 
 reg. 2. Appearance of Attorneys, 80. Attend- 
 ance at Judge's Chambers, 509. (?i.) 
 
 14 & 15 II. reg. 1. Attorneys, Attendance on Master, 80. 
 
 2. Trial at Bar, 751. 
 
 15 E. 1003, reg. 1. Sealing and Signing Writs, 54. 
 
 2. Warrant of Attorney, 548. 
 
 3. Clerks, Secondary, 730. {d.) 
 
 4. Sheriff's Deputies, Warrant, 58, 217. 
 T. § 1. Ejectment, Particulars, 1220. 
 
 2. Sealing Record of Nisi Prius, 770. (/.) 
 
 M. § 1. Additions in Aflidavits, 179, 493. 
 
 2. Ac etiam, Arrest, 150, 175, 193. 
 
 3. Clerk of Declarations, 322. 
 
 15 & 16 H. § 1. Clerks, Secondary, 730. {d.)
 
 xl TABLE OP RULES AND ORDERS. 
 
 In King's Bench, continued. 
 
 of CiiAiiLES II. continued. 
 
 15 & IG, H. 1663, § 2. Issues, Trial, Entering Causes, 764, 
 
 (6.) 776, (/.) 816. 
 
 16 E. 1644, reg. 1. Prisoners, 369. 
 
 2. Error, 1155. 
 
 T. Filing Pleas, 566, (?.)*672. 
 
 16, M. Bail, Habeas Corpus, 253, 256, 409. 
 
 18, E. 1666. Signing Pleas, &c. 567, 672, 721, 738, 1176. 
 
 19, E. 1667. Clerk of Declarations, 322. (e.) 
 
 20, T. 1668. Clerks, Secondary, 730. (d.) 
 
 20 & 21, H. 1668. Issues, Trial, 764, {b.) 776. (/.) 
 
 22, T. 1670. Special Bail, 280. 
 
 24 & 25, H. 1672. Sealing Writs, 55. 
 
 28, M. 1676. Escape, Prisoners, 349. 
 
 29, E. 1677. Bail, Habeas Corpus, 408. (e.) 
 
 80 & 31, H. 1678. Filacers, Signing Writs, 43, 4. 
 
 31, E. 1679. Filacers, Signing Writs, id. 
 
 31, T. 1679. Sealing Record of Nisi Prius, 776. 
 
 32, E. 1680. Sealing Writs, 54. (e.) 
 
 33, E. 1681. Copies of Error, &c. 1176. 
 
 M. Common Bail, Ejectment, 239, 1224. 
 
 36, E. 1684. Error^ll44, 1145, (/.) 1155. 
 James II. 
 
 1, T. 1685. Record of Nisi Prius, Rolls, 730, 776, 777. (b.) 
 
 2, E. Demurrer Books, &c. 505, 738, 1176. 
 
 2 & 3 H. 1686. Bail, Habeas Corpus, 407. 
 
 3 & 4 H. 1687, reg. 1 Pauper, 97. 
 
 4, E. 1688. Warrants of Attorney, Issue Roll, 94, 734. 
 William & Mary : 
 
 1. H. 1689. Conimon Bail, Judgment on Warrant of Attor- 
 
 ney, &c. 239. 
 
 2, M. 1690. Filing Pleas, 566, (l) 672. 
 
 4, T. 1692, reg. 1. Appearance, Process, 238. 
 
 2. Common Bail, 239. 
 
 3. Sealing Writs, 54. 
 
 5, E. 1693, reg. 1. Bringing in Rolls, 730, 940. (5.) 
 
 3, § 1. Prisoners, 344. 
 
 2. Same title, id. 
 
 3. 4, 5. Same title, 346. 
 
 6. Same title, 366. 
 
 7. Same title, 344. 
 M. Bail in Error, 1156. 
 
 H. Habeas Corpus, Prisoners, 351. 
 
 6, D. 1694. Fines, 105. 
 William HI. 
 
 8, T. 1696, reg. 1. Alias Scire Facias, 1124, 5. 
 
 2. Special Juries, 750, 788, 793. 
 
 3, § 1. Bail, Habeas Corpus, 251, 408. 
 
 2, 3. Bail, Affidavit, 252. 
 
 4. Bail, Commissioners, 258. 
 
 5. Bail, Exception, id. 263. 
 
 9, E. 1697. Bringing in Rolls. 730.
 
 TABLE OF RULES AND ORDERS. xli 
 
 In King's Bench, continued. 
 
 of William III. continued. 
 
 9, T. 1GU7. rrisoners, Common Ball. 3G9. 
 M. Bringing in Rolls. 730. 
 
 10, T. Bringing in Rolls, id. 
 
 11. 1698. Bail, Habeas Corpus, 408. 
 
 11, E. 1GG9, rcg. 1. Entering Demurrer, 735. 
 
 2. Special Bail, Continuance Day, 248, 
 
 277. {g.) 
 
 12, T. 1700. Declaration, Issue Money, 4ol, 452, {c.) 457, 
 
 726. 
 Anne: 
 
 1, T. 1702, reg. 1. Bail, Render, 284, 542. (c.) 
 
 2. Notice of Render, Prisoners, 288, 354. 
 
 3, T. 1704. Bail, Render, 285. 
 M. Attorneys, 61. 
 
 4, M. 1705. Notice of Trial, 758. 
 
 5, E. 1706. Imparlance, 462. 
 
 M. reg. 1. Entering Issue, Record of Nisi Prius, 
 
 Bringing in Rolls, 730, 734, 776, 777. 
 
 2. Warrants of Attorney, 452. 
 
 3. Time for Pleading, 95. 
 
 6, T. 1707. Prisoners, Recaption, 346. 
 
 8, M. 1709, reg. 1. Special Bail, 248, 255. 
 
 2. Exception to Bail, 256. 
 
 2, T. 1716. Prisoners, 343, 354, 360, {h.) 363, {g.) 366, («.) 
 
 7, E. 1721. Scaling Record of Nisi Prius, 776. 
 
 8, H. 1721. Notice of Inquiry, 578. 
 11, T. 1724. Declaration, 452. (a.) 
 
 M. Attorneys, Attendance at Judge's Chambers, 
 
 509. 
 George II. 
 
 1, T. 1727. Declaration, Rule to plead. Demand of Plea, 
 
 452, (a.) 456, 474, 476, 576. 
 
 2, T. 1728. Declaration, 452, id. {c) 456. 
 
 H. reg. 1. Time for Pleading, 464. {i.) 
 
 E. 1729. Exception to Bail by Original, 294. (c.) 
 
 3, M. Prisoners, 52, {d.) 372. 
 
 4, Dec. 17, 1730. Prisoners, id. 
 
 E. 1731. Warrants of Attorney, 549. 
 
 5, E. 1732, reg. 1, 2. Bail, 255, 6 ; 260, 280. 
 
 3. Scire Facias, 1125. 
 5 & 6 T, Time for Pleading, 465. 
 
 Notice to Plead, 473. 
 10, M. 1736, rcg. 1. Bail-piece, Declaration by the bye, 243, 
 
 424. 
 
 2. Declaration dc bene esse, Time for Plead- 
 
 ing, 422, 453,456, 7; 
 465, {g.) 473. 
 
 3. Copy of Declaration, 456. 
 10 & 11, T. 1737. Entering Causes, 818.
 
 Xlii TABLE OF RULES AND ORDERS. 
 
 In King's Bench, continued. 
 of George II. continued. 
 
 14, M. 1740, reg. 1. Attorneys, Bail, 247. (/.) 
 
 2. Sheriff's Officer, Bail, 247. 
 H. 1741. Entry and Trial of Causes, 818. 
 
 15, E. 1742, reg. 1. Ac etiam, 37, 151, 450, 1099. 
 
 2. Affidavits, Commissioners, 179. 
 
 3. Declaration, Prisoners, 358. 
 
 20, H. 1746. Attachment of Privilege, 319. 
 30, M. 1756, Enlarged Kules, 505. 
 
 Entering and arguing Special Causes, 504. 
 
 32 & 33, T. 1759. High Bar Money, 509. 
 
 George III. 
 
 3, H. 1763. Attorneys, Residence, 72. 
 
 6, H. 1766. Enlarged Rules, 505. 
 
 T. Rule to return Writ, and bring in Body, 307, 
 
 310. 
 
 7, M, Penal Actions, Compounding, 557. 
 
 8, H. 1768. Abode of Attorneys, Service of notices, &c., 
 
 72. (a.) 
 
 E. Bail, Render, Commitment, 286. 
 
 15, H. 1775. Enlarged Rules, 505. 
 
 17, M. 1776. Enlarged Rules, id. 
 
 T. 1777. Attachment, 169, 307. 
 
 19, T. 1779. Oyer of Original Writ, 588. 
 
 King's Bench Prison, Prisoners, Supersedeas, 
 
 52, {d.) 368, 372. 
 
 21, T. 1781. King's Bench Prison, 52, {d.) 372. 
 
 22, T. 1782. Declaration, Time for Pleading, 453, 456, 465. 
 
 23, M. Original Writ, Costs, 103. 
 
 H. 1783. Writ of Inquiry, 580. 
 
 26, H. 1786. Prisoners, 343, 354, 360, 61 ; 366, 370. 
 
 28, E. 1788. Justifying Bail, 262. 
 
 29, M. Counsel, Affidavits, 508. 
 
 30, E. 1790. Short Notice of Trial, 472. 
 
 Rules of King's Bench Prison, 373. (5.) 
 
 Day Rules, 374. 
 
 Bail-pieces, 240. 
 
 T. Writs, Custos Brevium, 308. 
 
 Trial by Special Jury, 793, {h.) 817. 
 
 31, M. Ejectment, Rule for Judgment, 1221. 
 
 31, M. 1790. Bringing Money into Court, 626. 
 E. 1791. Affidavits of Illiterate Persons, 495. 
 T. Sheriff, Rule to bring in Body, 313. 
 
 Attorneys, QQ, 69. 
 
 32, M. Sheriff, Returning Writs, Attachment, 308. 
 
 II. 1792. Attendance on Master, 86, 336. 
 
 Entering Causes, 818. {b.) 
 
 33, E. 1793. Re-sealing Distringas, and Record of Nisi Prius, 
 
 776, 781, 918. {a.) 
 
 Compounding Penal Actions, 557. 
 
 T. Bail, 282.
 
 TABLE OF RULES AND ORDERS. xliii 
 
 In King's Bench, continued. 
 of George III. continued. 
 
 33, T. 17U3. Attorneys, G9. 
 
 34^ M. Interrogatories on Attachment, 54, [c.) 4»1. 
 
 Seal Ollice, 54. 
 
 II. 17'.I4. Peremptories, 482. 
 
 Entering Causes, 81G. 
 
 35, 11. 1795. Issue Money, 363, (h.) 727, 739. 
 
 E. Rules of King's Bench Prison, 373. (6.) 
 
 T. Midsummer day, 153. [a.) 
 
 Attendance on Judge's Summons, 470. 
 
 Justifying Bail, 202. 
 
 36^ M. Filing Aflidavits, 501. 
 
 Justifying Bail, 272. 
 
 Issue Money, 727. [c.) 
 
 Rule to set aside Award, 498. 
 
 11. 170G. Affidavits on Motions, 49G. 
 
 Enlarged Rules, 506. 
 
 E. Insolvent Debtors, 380. 
 
 T. Rules of King's Bench Prison, 373. {h.) 
 
 37 M. Affidavits by illiterate Persons, or several Depo- 
 
 ' nents, 495. 
 
 Costs on Motions, 503. 
 
 Day Rules, 374. 
 
 H. 1797. Insolvent Debtors, 378. 
 
 T. Intitling Affidavits, 180. 
 
 38, M. Special Cases, 492, 504, 899. 
 
 H. 1798. Demurrer Books, 505, 738, {g.) 1176. [e.) 
 
 40, T. 1799. Paper Books, 504, 738, 1176. 
 M. NcAV Trials, 914. 
 
 41, M. 1800. Service of Rules, &c., 499, 672. 
 E. 1801. Prisoners, Committitur, 364. 
 
 Peremptories, 506. 
 
 42, M. Warrant of Attorney, Defeazance, 545, 555. 
 
 ' T. 1802. Annuity, 527. 
 
 44, H. 1804. Trial by Special Jury, 793, ih.) 817. 
 
 45, H. 1805. Day Rules, 374. 
 
 46, II. 1806. Justifying Bail, 262. {h.) 
 
 48, II. 1808. Arrest, Bail, Trover, Detinue, 172, 18b. 
 
 49, T. 1809. Affidavits, Changing Venue, 609. 
 51, M. 1810. Bail, 251, 263. 
 
 E. 1811. Notice of Trial, 755. 
 
 54, T. 1814. Seal Office Hours, 54. 
 
 56, T. 1816. Prisoners, Supersedeas, 367. 
 
 57, M. Prisoners, Supersedeas, id. King's Bench Pn- 
 
 • son, 52. {d.) 
 II. 1817. King's Bench Prison, Prisoners, Rules, 52, {d.) 
 
 373, 4. 
 
 58, II. King's Bench Prison, 52, {d.) 372. 
 
 T. 1818. Kin-^'s Bench Prison, Prisoners, Spirituous 
 
 Liquors, 52, {d.) 372.
 
 Xliv TABLE OF RULES AND ORDERS. 
 
 In King's Bench, continued. 
 of George III., continued. 
 
 59, M. 1818. Bail Bond, Sheriff, Attachment, Affidavit of 
 
 Merits, 302, 316. 
 H. 1819. King's Bench Prison, Prisoners, 52, {d.) 372. 
 
 Order for Particulars, Pleading issuably, 597. 
 
 Judge's Orders, Time for Pleading, &c. Par- 
 
 ticulars, 471, 598. 
 T. Bail, Service of Notice of justifying, 262. 
 
 1, M.1820. Ejectment, Consent Rule, 1203, 1226, 1231. 
 
 2, E. 1821. Ejectment, Appearance, 1208, 1219, 1220, 21. 
 
 Rule to set aside Award, 845. 
 
 M. Attendance at Judge's Chambers, 509. 
 
 King's Bench Prison, Marshal, 52. 
 
 2 & 3, H. 1822. Bail, Notices of Justification, Costs, 271. 
 
 Indorsement on Process, 159. 
 
 Signing Judgment on Cognovit, 561. 
 
 Executions, 999. 
 
 Rules of King's Bench Prison, Fees, 52, 374. 
 
 3, E. Insolvent Debtors, Prisoners, Supersedeas, 371. 
 
 3 & 4 H. 1823. Commissioners for taking Affidavits, 491. 
 
 4, E. The like, 491, 2. {I.) 
 
 5, T. 1824. Summoning special Juries, Notice, 793. 
 
 New Trial, Affidavit, 914. 
 
 6, M, 1825. Resealing Distringas, and Record of Nisi Prius, 
 
 776, 781, 2; 918, (a.) 
 
 7, T. 1826. Expenses of View, 797. 
 
 M. King's Bench Prison, 52. {d.) 
 
 7 & 8, H. 1827. Quo Warranto, Pleadings, 657. 
 
 King's Bench Prison, 52. [d.) 
 
 8, E. Mesne Process, Defendant's Names, 148, 9. 
 
 In Common Pleas ; 
 of Henry VI. 
 
 35, T. 1457, § 1. Prothonotaries, 47. 
 
 4. Warrants of Attorney, 96. (6.) 
 
 5. Prothonotaries' Fees, 47, 88. {c.) 
 
 6. Custos Brevium's Fees, 53, (e.) 88. (c.) 
 
 7. Clerk of Treasury's Fees, 52, {h.) 88. {c.) 
 
 8. Filacer's Fees, 50, {a.) 88. [c.) 
 Elizabeth. 
 
 6 & 7 M. 1564, § 1, 2. Fees of Attorneys and Officers, 88. (c.) 
 
 3. Rolls, 729, 732. 
 
 4. Attorneys, 74. (a.) 
 
 5. Error, 1149, {c.) 
 9, E. 1567. Attorneys, 88. {h.) 
 
 15, M. 1573, § 1. Attorneys, Attendance, 86. 
 
 4. Sheriff's Deputies, 58. {h.) 
 
 5, 6. Fees of Attorneys and Officers, 88. (c.) 
 8. Attorneys, 74. (a.)
 
 TABLE OF RULES AND ORDERS. xlv 
 
 In Common Pleas, continued. 
 of Elizabeth, continued. 
 
 15, M. 1573, § 10. Attorneys, GO. {e.) 
 
 11, 12, 13. Fees of attorneys and Officers, 88. {c.) 
 15. Venue, 601. (A.) 
 15 & 16, ]M. Filacers, Process, 50. 
 
 23, E. 1581. Error, 1149. 
 
 24, T. 1582, § 1. Bail, 239. 
 
 4. Outlawry, 139. 
 
 6. Attorneys, 74. [a.) 
 
 8. Attorney, Bail, 247. 
 
 9. Attorneys, 60, {e.) 82. (l.) 
 
 James I. 
 
 2 T. 1604. Informations on Penal Statutes, Composition, 
 
 557. 
 
 11, E. 1613. Entering Judgments, 569. 
 
 12, E. 1614, § 1. Carrying Rolls into Country, 731. (c.) 
 
 2. Rolls, Entering Clerks, 47, 728, 9, 30, 31. 
 
 3. Execution, 999. 
 
 4. Attorneys, 86, (^'.) 
 
 M. Informations on Penal Statutes, Composition, 
 
 557, 8. 
 14, M. 1616, reg. 1, 2. Filacers, Process, Appearance, Bail, 
 
 Scire Facias, 50, 239. 
 
 H. reg. 2, § 1. Attorneys' Fees, 60. {e.) 
 
 2. Number of Attorneys, 88. (c.) 
 4. Bail, Process, 238. 
 17, M. 1619. Fees, 88. {c.) 
 
 20, II. 1622. Informations on Penal Statutes, Composition, 
 
 557. 
 
 Charles I. 
 
 2, II. 1626, § 1. Trespass quare clausum fregit, 104. 
 
 2. Outlawry, Bail, 142. {h.) 
 
 3. Same titles, 136. {a.) 
 
 4. Reversal of Outlawry, 143. (e.) 
 
 5. Outlawry, Supersedeas, 135. (l.) 
 8, H. 1632, § 3. Attorneys, 60. (/.) 
 
 8. Rolls, Entering Clerks, 47, 728, 9, 30. 
 
 COMMONWEALTn. 
 
 T. 1649. Filacers, Original Writs, 49, 54, 104. (g.) 
 M. reg. 1. Protlionotaries Rolls, Clerk of the Es- 
 soins, 47, 728, &c. 
 2. Bail, Habeas Corpus, 407, 8. 
 M. 1654, § 1. Under-sheriffs, &c. Sheriff's Deputies, 58, 
 84. Attorneys, 60, 74, 82, 86. Bail, 
 247. Ejectment, 1201. 
 
 2. Sheriff's Bailiffs, 58. Warrant to Arrest, 
 
 217. 
 
 3. Jury of Attorneys, 88. 
 
 4. Attorneys, 60. 
 
 5. Rolls, Entering Clerks, 47, 730.
 
 Xlvi TABLE OF RULES AND ORDERS. 
 
 In Common Picas, continued. 
 
 of Commonwealth, continued. 
 
 M. 1054, § G. Exemplifications, 47, 52. Scaling Writs, 54, 
 
 5. [e.) Executions, 999. 
 
 7. Bringing in Rolls, 47, 728, 730, 31, 2. 
 
 8. Changing Venue, 468, 601, 603, GOB. 
 
 9. Outlawry, 133, 135. Bail, 227. 
 
 10. Habeas Corpus, Prisoners, Bail, 349, 350, 
 
 358, 365, 407. 
 
 11. Bail, Habeas Corpus, 253, 404, 408, 9. Pro- 
 
 cedendo, 410. 
 
 12. Arrest, Bail, Render, 172, 193, 238, 239, 
 
 284, 542. Attorneys, 320. Habeas Corpus, 
 407, 8. 9. Venue, 413, 606. 
 
 13. Attorneys, Undertaking to appear. Attach- 
 ment, 86, 94, 241. Outlawry, 142. Filacers, 
 
 Appearance, 238. Prisoners, 358. 
 
 14. Imparlances, Declaration, Nonpros, 422, 462. 
 
 15. Secondaries, 49. {a.) Rules to declare. Non- 
 
 pros, Prisoners, 354, 421. Oyer, 588. 
 
 16. Declaration, 433. 
 
 17. Amendment, 707, id. (/.) 
 
 20. Demurrers, Amendment, 694, 696. 
 
 21. Notice of Inquiry, 576. Entering Issue, 727, 
 
 734, 764, 777. Notice of Trial and Coun- 
 termand, 755, 6. Costs, 757. Trial by pro- 
 viso, &c. 761. Record of Nisi Prius, 
 777, [c.) 817. (c?.) 
 
 23. Special Verdicts, 897. 
 
 24. Venire de novo, 894, 922. 
 
 25. Habeas Corpus, Costs, 414. 
 
 26. Attorneys, Oath, 70. 
 Charles II. 
 
 13 & 14, H. 1661. Bail, Habeas Corpus, 404, {g.) 408, 9, 10. 
 
 14 & 15, H. 1662. reg. 1. Sheriff's Deputies, 58. Blank War- 
 
 rants, 217. 
 
 2. Attorneys, 74, 86. Warrants of 
 
 Attorney, 96, {h.) 132, (?.) 569. 
 
 3. Prisoners, 354, {k.) 358, 9 ; 363. 
 
 4. Warrants of Attorney, 548. 
 
 15 & 16, H. 1663. Sheriff's Deputies, Outlawry, Bail, 58, 
 
 135. {I.) 
 17, M. 1665. Outlawry, Costs, Sheriff's Bail, 134, (/.) 135, 
 
 (/.) 142, Ui.) 143. (/.) 
 21, T. 1669. reg. 1. Attorneys, Entries, 729. (5.) 
 
 2. Rolls, 47, 729. '(h.) Attorneys, Bill, 323. 
 
 Imparlance, 462. 
 24, E. 1672. reg. 1. Supersedeas, Outlawry, 50, 134. (/.) 
 2. Filacer's Appearance, 50, 238. 
 
 27, E. 1675. Demurrer Books, 739, (e. k.) 1176. 
 
 28, T. 1676. Error, 1155, 1161.
 
 TABLE OF RULES AND ORDERS. xlvii 
 
 In Common Pleas, continued. 
 of Charles II. continued. 
 
 28, M. 1G7G. Error, 1145, (/.) 1155, 1159, llGl. 
 
 29, T. 1G77. reg. 1. Attorneys, Gl. (6.) 
 
 2. Entries on Kolls, 730. (/.) Record of 
 
 Nisi Prius, 77G. 
 
 3. Attorneys, Writ of Privile<re, 320. {<).) 
 
 4. Clerk of the Treasury, 52. Record oi .Nisi 
 
 Prius, 776. (/.) 
 
 5. Sifj^ning and entering Judgments, 52, 
 5G7, 930, (J.) 938. (r/.) Bringing in Rolls, 
 
 47, 731, 938. Posteas, &c. 901. {c.) 
 
 30, M.1G78. Original Writs, 104. 
 
 32, T. 1G80. Ejectment, 1218. 
 
 33, T. 1G81. Outlawry, Costs, Declaration, 143, 423. 
 
 34, E. 1682. reg. 1. Posteas, Qui tam Actions, 901. 
 
 3. Prothonotaries, Clerk of the Essoins, 
 Rolls, 47, 729, 30; 732 (e.) 
 36, M. 1684. Attorneys, 60, 61. 
 James II. 
 
 1, E. 1685. reg. 2. Record of Nisi Prius, Ne Recipiatur, 817. 
 
 2, E. 1686. Posteas, 901. 
 
 T. Outlawry, Bail, Costs, 134, (/.) 135, {l) 143. 
 
 2 & 3, II. Record of Nisi Prius, 51, 2 ; 96, 776. Pluries. 
 
 Capias, 51, 2 ; 132. Warrants of Attorney, 
 96, 132, 569, 776. 
 William & Mary : 
 
 1, T. 1689. reg. 1. Outlawry, Costs, 144. 
 
 2. Filacers, Bail, 50, 251. 
 
 2, T. 1690. reg. 1. Filacers, Rule to bring in Body, 50, 310. 
 
 2. Filing Affidavits, 497. 
 
 5. 10 Mar. 1692. Bail by Commissioners, 251, 258. 
 E. 1693. reg. 1. Enteringlssues, 733. Record of Nisi Prius, 
 
 777. 
 5. E. 1693. reg. 2. Bringing in Rolls, 47, 728, 732. Docket- 
 ing Judgments, 51, 940. {h.) 
 
 3. Prisoners, 343, 4, 5 ; 346, 368. 
 William III. 
 
 9 T. 1G97. Attorneys, Writ of Privilege, Sealing Writs, 54. 
 
 320. 
 13 E. 1701. Certiorari, Isle of Ely, 398. {m.) 
 Anne : 
 
 4 M. 1705. Attorneys 61. 
 
 9 II. 1710. reg. 1. Trials at Bar, Notice, 750. 
 
 2. Declaration, 466. {d.) 
 
 3. The like, 422, 458. 
 
 4. Bail Bond, 299. (a.) 
 George I. 
 
 2. M. 1713. Clerk of the Essoins, Bringing in Rolls, 47, 728, 
 
 732. (h. c.) Docketing Judgments, 51. 
 T. 1716. Notice of Trial, 754. 
 
 3, M. Countermand of Notice of Trial, 757, id. (/.)
 
 jjjyj-- TABLE OF RULES AND ORDERS. 
 
 In Common Pleas, continued. 
 of George I. continued. 
 
 6, H. 1719, reg. 1. Notice of Inquiry, 578. 
 
 2. Attorney's Undertaking, Bail by Com- 
 missioners, 241, 252. 
 8, H. 1721. Rule to Return Writ, 307. 
 E. 1722. Prisoners, 354, 5 ; 361, 2, 368. 
 
 10, T. 1724. Notice of Inquiry, Demurrer, 578. 
 
 11, H, Entering Issue, 734. 
 
 12, M. 1725. Bail, Outlawry, 141. 
 
 T. 1726. Special Arguments, 505, 739. 
 
 13, M. Bail by Commissioners, 252. 
 
 E. & T. 1727. Prisoners, 53. (/.) 
 
 George II. 
 
 1. M. Declaration, 452. 
 
 8, M. 1729, reg. 1. Trials at Bar, 750. 
 
 2. Declaration da bene esse, 453, (<?.) 456, 
 
 466. 
 
 19 Jan. Prisoners, 53, 372. 
 
 H. The like, id. 
 
 E. 1730. Declaration, 457, 466, 473. 
 
 3 & 4, T. Bail, 256. 
 
 5, M. 1731. Warrants of Attorney, Judgment Paper, 51, 96, 
 
 569. 
 6,M. 1732, reg. 1. Bail by Commissioners, 252. 
 
 2. Exception to Bail, 255. 
 
 3. Demurrer Books, 739, 1176. 
 
 4. Signing Judgments, 930. 
 
 5. Attorneys, Bail, 247. 
 
 6. Bail in Error, 1157. 
 
 7. Sheriff's Officer, Bail, 247. 
 8. H. 1734, reg. 1. Prisoners, 359. 
 
 2. Arrest, Prisoners, 177, 367. 
 10, E. 1737. Service of Notices, &c.. 261, 499, 500. 
 
 10 & 11, T. Entering Writ and Record, 818. 
 
 • 11, H. 1738, reg. 1. Filing Affidavits, 497. 
 
 2. Attachment of Privilege, 320. 
 
 3. Attorney, Forejudger, 323. 
 13, T. 1739, reg. 1. Costs of Inquiry, 580, 
 
 2. Posteas, Inquisitions, 52, 569, 901. 
 E. 1740, reg. 1. Affidavits, Commissioners, 179, 242, 494. 
 2. Term's Notice, 577, 756. 
 
 14 H. Entering Causes, 818. 
 
 14 & 15, T. 1741. Warrants of Attorney, 549. 
 
 16, M. 1742. Changing Venue, 608. 
 
 17, H. 1743. Summons and Order, 509. {n.) 
 George III. 
 
 7. H. 1767. Rule to Return Writ, and bring in Body, 307, 
 
 310. 
 
 8, T. 1768. Time for Pleading, 453, 456, 466. 
 
 18, M. 1777. Bail, 266. 
 
 21, E. Bail, Outlawry, Supersedeas, 134.
 
 TABLE OF RULES AND ORDERS. xUx 
 
 In Common Pleas, continued. 
 of George III., continued. 
 
 22, II. 1782. Bail, Warrant on Testatum Capias, Venue, 154, 
 
 250, 294. 
 
 23. II. 1783. Filacer's OfBce, 40. {h.) AVrit of Inquiry, 580. 
 E. Attendance on Summons. 470. 
 
 30, T. 1790. Bail Bond, 249, 299. 
 
 31, T. 1791. Attorneys, m, G9. 
 
 32, II. 1792. Notice of Trial, Entering Causes, 755, 817. 
 
 35, II. 1795. Prisoners, 366. Declaration, 453. Time for 
 
 Pleading, 466. Issue Money, 727, 739. 
 
 36, E. 1796. Bail Recognizance, 251. 
 37^ M. Bail, 266. 
 
 H. 1797. The like, 268. 
 
 T. Attorneys, 70. 
 
 38. T. 1798. Distringas, Issues, Rule to bring in Body, At- 
 tachment, 111, 312. 
 
 42, H. 1802. Days for Arguments, 505. {h.) 
 
 43, M. Warrant of Attorney, Dcfeazance, 545, 555. 
 
 46, M. 1805. Insolvent debtors, 378. (/.) 
 
 47, M. 1806. The like, id. Days for Arguments, 378, 505, 
 
 739. 
 
 48, H. 1808, reg. 1. Arrest, Bail, Trover, Detinue, 172, 186. 
 
 2. Special Ai-guments, Exceptions, 505, (/.) 
 
 739, 1176. {e.) 
 
 E. Ejectment, Rule for Judgment, 1221. 
 
 49^ M. Paper Books, 505, 739. 
 
 H. 1809. Original Writ, Summons, Distringas, Notice, 
 
 113. 
 
 E. Notice of Bail, Declaration de bene esse, 253, 
 
 454. 
 
 51, M. 1810. Bail, Recognizance, 251. Bail, Justification, 
 
 263. 
 
 52, T. 1812. Trial, Special Jury, 817. 
 63, T. 1813. New Trials, 913. 
 
 54, T. 1814. Seal Office Hours, 54. 
 
 57, E. 1817. Supersedeas, Prisoners, 369, 70. 
 
 59, T. 1819. Bail, Service of Notice of justifying, 261. 
 
 Warrant of Attorney, Affidavit, 554. 
 
 60, M. Bail, Service of Notice of justifying, 261. 
 
 60 & 1 Geo. IV. 11. 1820. Amendment of Fines and Recove- 
 ries, &c. 499, 706. 
 George IV. 
 
 1 & 2 II. 1821. Ejectment, Consent Rule, 1203, 1226, 
 
 1231, id. (/.) 
 
 2, E. Ejectment, Appearance, 1208, 1219, 1221, 2. 
 
 T. Particulars of Demand, 596. 
 
 3, M. 1822. Insolvent Debtors, Prisoners, Supersedeas, 371. 
 
 6 & 7 II. 1826. Discharge of Prisoners superscdeable, 368. 
 
 7, M. Bail, Notice of Justification, 259, 265. 
 
 7 & 8 II. 1827. Affidavit, Fine, or Recovery, 494. (a.) 
 
 8, E. 1827. The like, 494. 
 Vol. I. — D
 
 1 TABLE OF RULES AND ORDERS. 
 
 In Common Picas, continued. 
 of George IV. continued. 
 
 8, E. 1827. Fleet Prison, 53. (/.) 
 8 & 9 H. 1828. Demurrer Books. 
 
 In Exchequer; 
 
 34 & 35, M. 1592. Debt to King, Assignment, 1067. 
 James I. 
 
 19, H. 1622. Subpoena ad respondendum, 156. (Jc.) 
 Charles I. 
 
 15, H. 1639, § 1. Debt to King, Assignment, 1067. 
 
 2. Extent in Aid, 1062. 
 
 3. Same Title, 1058. (m.) 
 
 4. Debt to King, Assignment, 1067. 
 
 5. Extent in Aid, 1062. 
 
 6. Same title, id. 
 
 7. Scire facias, 1091. 
 
 8. Extent in Aid, Bonds to Farmers, &c. 1062. 
 Charles II. 
 
 36, M. 1684. Subpoena ad respondendum, 156. [h.) 
 James II. 
 
 E. 2, to E. 3, 1685, 6. Rejoining and joining in Demurrer, 
 
 1079. Notice of Trial, 1080. Rule 
 for Judgment, 1081. 
 William & Mary : 
 
 3, M. 1691. Extents in Aid, 1062. 
 5, E. 1693. Proceedings against Prisoners, 343, 4, 5, 6. 
 Anne: 
 
 11, E. 1712. Extents, Property in Trust, 1048. 
 George II. 
 
 26 & 27, T. 1753, § 1. Special Bail, Exception, Justification, 
 
 257. 
 
 2. Allowance of Writ of Error, Execu- 
 
 tion, 1144, 1146. Bail in Error, 
 
 Exception, Justification, 1156, (5.) 
 
 1157, (a.) 1157, 8. 
 
 3. Prisoners, Detainer, 358. 
 
 4. Notice of Trial and Inquiry, Demurrer, 
 
 578, 696, 754. 
 
 5. Term's Notice of Trial, and Inquiry, 
 
 577, 756. 
 
 6. Distringas, Issues, 155. Time for 
 
 Pleading, 467. 
 
 7. Ejectment, Appearance, 1220, 21. 
 
 8. Imparlance, Time for Pleading, 468. 
 
 {h.) 
 
 9. Declaration, 454. [d.) Time for Plead- 
 
 ing, 467. 
 
 10. Declaration de bene esse. Time for 
 
 Pleading, 454. (/.)
 
 TABLE OF RULES AND ORDERS. U 
 
 In Exchequer, continued. 
 of George II. continued. 
 
 26 & 27, T. 1753, § 11. Proceedings against Prisoners, Super- 
 
 Bodeas, 354, 356, 362, 371. 
 33, E. 17G0. Bail, Justification, 263. (</.) 
 
 Bail in Error, Justification, 1156. 
 
 George III. 
 
 5, M. 1764. Bringing Money into Court, 610. 
 
 Declaration, 454. id. /.) Time for Pleading, 
 
 467, 8. 
 16, II. 1776. Declaration, Time for Pleading, 468. 
 
 Rules to Reply, &c. 676. 
 
 . Notice of Trial, and Countermand, 757. 
 
 26, T. 1786. Declaration, 454. (d. /.) Time for Pleading, 
 
 467, 8. 
 29, T. 1789. Entering Causes, in London and Middlesex, 
 
 ' 817. 
 
 32, H.'1792. Record of Nisi Prius, 818. 
 
 38, H.'*1798. Liability of Bail, 281. 
 
 39, II. 1799. Ejectments, Appearance, 1220, 21. 
 
 Notices of Trial, and Inquiry, 577, 754. 
 
 40, H. 1800. Affidavits of illiterate Persons, 495. 
 
 43, M. 1802. AYarrant of Attorney, Defeasance, 545, 554. 
 45, E. 1805. Precipes for Subpoenas, Attachments, 157. 
 
 48, H. 1808. Bail, Trover, Detinue, 172, 186. 
 
 49, E. 1809. Sittings in London and Middlesex, 753. 
 51, M. 1810. Bail, Justification, 251, 263. 
 
 53, M. 1812. Declaration do bene esse. Time for Pleading, 
 
 454, 5. 
 56, E. 1816. Justifying Bail, 263. (6.) 
 
 Notices of Trial, 755. 
 
 59, T. 1819. Bail, Service of Notice of Justifying, 261. 
 
 60 & 1. Geo. IV. H. 1830. Declaration, Pleading Stamps, 
 
 254. 
 Declaration, Notice, Judgment, 
 
 455. 
 
 George IV. 
 
 1, T. 1820. Affidavit by illiterate Persons, or two or more 
 
 Deponents, 495. 
 1 & 2, II. 1821. Filing Affidavits, 497. 
 
 Shcriffii, Return of AVrits, &c. 1057. 
 
 2, E. Reading Office Copies of Affidavits, 497,(/.) 1203, 
 
 1231. (/.) 
 
 Ejectment, Appearance, 1208, 1219, 1220, 21. 
 
 Ejectment, Consent Rule, 1226. 
 
 3, T. 1822. Extent in Aid, Affidavit of Danger, 1063. 
 
 M. Insolvent Debtors, Prisoners, Supersedeas, 371. 
 
 5, E. 1824. Judgment as in case of Nonsuit, 765.
 
 lii TABLE OF RULES AND ORDERS. 
 
 NOTICES, 
 
 In King's Bench ; 
 of George II. 
 
 2, H. 1728. Ac etiam, 150. (5.) 
 
 Signing Judgment, 474. 
 
 G, M. 1732. Eiile to return Writ, and bring in Body, 307, 
 
 310. 
 9, M. 1735. Filing Affidavits, 497, 501. 
 11 & 12, T. 1738. Kolls, 728, 734. 
 17, M. 1743. Entry and Trial of Causes, 816, (e.) 818. 
 3d April, 1747. Sealing blank Writs, 54. 
 In Common Pleas ; 
 of George I. 
 
 8, H. 1721. Record of Nisi Prius, Ne recipiatur, 817. 
 Ctt^^otipt^ TT 
 
 1, M. 1727. Demand of Declaration, &c. 459, 475, 588. 
 
 2, M. 1728. Enlarging Rules, Irregularity, 503, 513. 
 
 Attorneys, Admission, 69. (c.) 
 
 7, H. 1733. Notices to appear, 167. 
 
 8, H. 1734. Bail, 251. 
 
 13, T. 1739. Notice of Bill against Attorney, 323. (A.) 
 George III. 
 
 2, E. 1762. Record of Nisi Prius, Trial, 817. 
 George IV. 
 
 3, M. 1822. Attendance at Judge's Chambers, 510. 
 In Exchequer; 
 
 of George III. 
 
 54, M. 1813. Sittings in London and Middlesex, 753. 
 
 28th April, 1817. Sittings in outer Court, id. {d.) 
 George IV. 
 
 3, M. 1822. Attendance at Judge's Chambers, 509, 10.
 
 CHRONOLOGICAL TABLE OF 
 
 THE PRINCIPAL REPORTS OF PRKTED CASES, 
 
 REFERRED TO IN THE FOLLOWING WORK. 
 
 IN THE KING'S BENCH, &c. 
 
 Modern Reports, from the Restoration of Car. II. to the end of Geo. I. 
 
 0. Bridgman, from M. 12 to M. 19 Car. II. 
 
 Shower, from E. 30 Car. II. to M. 7 W. III. 
 
 Skinner, from M. 33 Car. II. to M. 9 W. III. 
 
 Comberbach, from M. 1 Jac. II. to T. 10 W. III. 
 
 Carthew, from 3 Jac. II. to 12 W. III. 
 
 Salkeld, from 1 W. & M. to 10 Ann. 
 
 Cases tempore Holt, from E. 1 W. & M. to H. 8 Ann. 
 
 Lord Raymond, from E. 6 W. & M. to T. 5 & 6 Geo. II. 
 
 i<'ortescue temj'). W. III. and Ann. 
 
 Comyns, from H. 7 W. III. to E. 13 Geo. II. 
 
 Gilbert, K. B. 12 & 13 Ann. 
 
 ♦Strange, from T. 2 Geo. I. to T. 20 & 21 Geo. II. 
 
 Barnardiston, K. B. from T. 12 Geo. I. to T. 7 Geo. II. 
 
 Fitz-Gibbon, from M. 1 to T. 5 Geo. II. 
 
 Kelynge, from H. 5 to M. 8 Geo. II. 
 
 Cases tempore Ilardwicke, from M. 7 to E. 11 Geo. II. 
 
 Andrews, 11, 12 Geo. II. 
 
 *1 Wilson, from II. 16 to H. 20 Geo. II. 
 
 *Sayer, from M. 25 to T. 29 & 30 Geo. II. 
 
 *Lord Kcnvon, from E. 26 to T. 32 Geo. II. 
 
 *Sir Wm. Blackstonc, from M. 20 Geo. II. to T. 10 Geo. III. 
 
 *Burrow, from M. 30 Geo. II. to E. 12 Geo. III. 
 
 Lofft, from E. 12 to M. 14 Geo. III. 
 
 *Cowper, from H. 14 to T. 18 Geo. III. 
 
 N. B. All the practical cases in Strange 8 and other reports, having an 
 asterisk prefixed to them, being nearly one hundred volumes in the whole, 
 and most of those in the other reports, particularly in Salkeld and Lord 
 Raymond, are referred to in the following work.
 
 liv TABLE OF REPORTS OF PRINTED CASES. 
 
 *Douglas, from M. to 19 to T. 21 Geo. III. 
 
 *Durnford & East, from M. 26 to T. 40 Geo. III. 
 
 *East, from M. 41 to M. 53 Geo. III. 
 
 *Smitli, from M. 44 to T. 46 Geo. III. 
 
 *Maule & Selwyn, from H. 53 to H. 57 Geo. III. 
 
 *Barnewall & Alderson, from M. 58 Geo. III. to T. 3 Geo. IV. 
 
 * Cresswell, from M. 3 to M. 8 Geo. IV. 
 
 *Cliitty, Vol. I. from H. 59 to M. 60 Geo. III. 
 
 * Vol. II. from M. 10 to T. 37 Geo. III. and from T. 52 Geo. III. 
 
 to T., Geo. IV. 
 *Dowling & Ryland, from H. 2 & 3 to M. 7 Geo. IV. 
 ♦Manning & Ryland, T. & M. 8 Geo. IV. 
 
 IN THE COMMON PLEAS. 
 
 Cases of Practice, C. P. from E. 5 Ann. to M. 13 Geo. II. 
 Practical Register, C. P. temp. Ann. Geo. I. and Geo. II. 
 Barnes, from M. 5, to end of Geo. II. 
 *Willes, from E. 10, to T. 31 & 32 Geo. II. 
 *2 & 3 Wilson, from H. 26 Geo. II. to E. 14 Geo. III. 
 *Sir Wm. Blackstone, from M. 11 to M. 20 Geo. III. 
 *Henry Blackstone, from E. 28 to H. 36 Geo. III. 
 *Bosanquet & Puller, from E. 37 to H. 44 Geo. III. 
 
 *New Reports of, from E. 44 to T. 47 Geo. III. 
 *Taunton, from M. 48 to H. 59 Geo. III. 
 ♦Marshall, from M. 54 to M. 57 Geo. III. 
 *J. B. Moore, from H. 57 Geo. III. to E. 6 Geo. IV. 
 *Moore & Payne, M. 8 & H. 8 & 9 Geo. IV. 
 ♦Broderip & Bingham, from E. 59 Geo. III. to E. 3 Geo. IV. 
 ♦Bingham, from T. 3 to H. 8 & 9 Geo. IV. 
 
 IN THE EXCHEQUER. 
 
 Bunbury, from 1 Geo. I. to 14 Geo. II. 
 Parker, from E. 16 Geo. II. to H. 7 Geo. III. 
 Anstruther, from E. 32 to T. 37 Geo. III. 
 ♦Forrest, from M. to T. 41 Geo. III. 
 ♦Wightwick, from H. 50 to M. 51 Geo. III. 
 
 ♦Price, from E. 54 Geo. III. to E. 3 Geo. IV. ; from T. 3 to H. 3 & 4 Geo. 
 
 IV. ; and from H. 4 & 5 to T. 5 Geo. IV. 
 ♦M'Cleland, from H. 4 & 5 to M. 5 Geo. IV. 
 ♦M'Cleland & Younge, from M. 5 to M. 6 Geo. IV. 
 ♦Younge & Jervis, from M. 7 to M. 8 Geo. IV. 
 
 AT NISI PRIUS. 
 
 ♦Peake, K. B. from E. 30 to M. 35 Geo. III. 
 ♦Espinasse, K. B. & C. P. from E. 33 to M. 48 Geo. III. 
 ♦Campbell, K. B. & C. P. &c. from M. 48 to H. 56 Geo. III. 
 ♦Starkie, K. B. & C. P. &c. from M. 54 Geo. III. to M. 3 Geo. IV. 
 ♦Holt, C. P. &c. from T. 55 to M. 58 Geo. III. 
 ♦Gow, C. P. &c. from M. to E. 59 Geo. III. 
 
 ♦Carrington & Payne, K. B. & C. P. &c. from M. 4 to M. 6 Geo. IV. 
 ♦Ryan & Moody, K. B. & C. P. &c. from M. 4 to T. 7 Geo. IV. 
 ♦Moody k Malkin, K. B. & C. P. &c. from M. 7 to M. 8 Geo. IV.
 
 ALrilABETICAL 
 
 TABLE OF ORIGINAL CASES 
 
 REFERRED TO IN THE FOLLOWING WORK ; 
 
 THE TERMS IN WHICH THEY WERE DECIDED, THE SUBJECT 
 MATTER OF TIIEM, AND BY WHOM THEY WERE COMMUNI- 
 CATED* 
 
 Page. 
 
 Abbis v. Barnard, M. 35 Geo. III. — Judgment. Insolvent Act. 
 
 A. 934 
 
 Adamson v. Gibson, 11. 27 Geo. III. — Attachment. Contempt. 
 
 W. 170 
 
 Amos V. Martin, T. 36 Geo. III. — Prisoners. Detainer. A. - 365 
 
 Anonymous, E. 18 Geo. III.— Oyer. II. ... V2\) 
 
 T. 18 Geo. III.— Bail. R. 247 
 
 E. 19 Geo. III. — Second Arrest. Nonsuit. II. - - 175 
 
 M. 20 Geo. III.— Capias utlagatum. K. - - - 136 
 
 Same Term. — Depositions. H. - - - - 812 
 
 I-I. 20 Geo. III.— Habeas Corpus ad testificandum. R. - 809 
 
 Same Term. — Staying Proceedings on Bail Bond. II. - 303 
 
 M. 21 Geo. III.— Bail. Justification. II. k II. - 260,270 
 
 Same Term. — Notice to Plead. Imparlance. II. - - 467 
 
 11. 21 Geo. III.— Oyer. II. .... 586 
 
 E. 21 Geo. III.— Service of Process. II. - - - 151 
 
 Same Term. — Declaration by the bye. H. - - 425,473 
 
 T. 21. Geo. III.— Taxing bill of Costs. 11. - - - 333 
 
 * N.B. — The cases marked A. Avere communicated by Mr. Ahhott^ 
 those marked II. by Mr. Justice Ilolroi/d, those marked M. & S. by 
 Messrs. Maule <|' Schi'ijn^ those marked II. by the late INIr. Serjeant 
 Ruiuiington, those marked T. by Mr. W. E. Taunton^ and those marked 
 W. by the late ]Mr. George Wihon ; and all the cases were determined in 
 K. B. except such as arc particularly mentioned to be in C. P. or Ex- 
 chequer.
 
 lyj TABLE OF ORIGINAL CASES. 
 
 Anonymous, Same Term. — Bail. Render. H. - - - 283 
 T. 21 Geo. III.— Sheriff's Return. H. - - - 308 
 Same Term. — Staying Proceedings in debt under 40.s. II. - 516 
 Same Term. — Staying Proceedings in debt on Judgment. H. 532 
 Same Term. — Ejectment. Error. Recognizance. H. - 1252 
 M. 22 Geo. III. — Summons. Stay of Proceedings. H. - 470 
 Same Term. — Prisoners. II. _ . _ . 361 
 II. 22 Geo. III.— Outlawry. Bail, &c. H. - - - 142 
 Same Term. — Compounding Penal Action. II. - - 556 
 E. 22 Geo. III.— Notice of Bail. II. ... 254 
 Same Term. — Imparlance. Time for Pleading in Abate- 
 ment. H. 464,639 
 Same Term. — Bringing Penalty into Court. H. - - 541 
 T. 22 Geo. III.— Bail. Perjury. H. - - - 277 
 M. 23 Geo. III.— Bail. Attachment. H. - - - 222 
 H. 23 Geo. III.— Distringas. W. - - - - 813 
 E. 23 Geo. III.— Suggestion. Trial. W. - - - 728 
 M. 24 Geo. III.— Costs. Attachment. R. - - 480,991 
 Same Term. — Justifying Bail. Prisoner. H. - - 259 
 E. 24 Geo. III.— Bail. Render. W. - - - 256 
 Same Term. — Notice to Plead. Imparlance. H. - - 478 
 Same Term. — Interrogatories. Costs. H. - - - 818 
 T. 24 Geo. III.— Bail. Justification. W. - - - 278 
 Same Term. — Setting aside Judgment. W. - - - 568 
 M. 25 Geo. III.— Bail. Justification. W. - - - 273 
 H. 25 Geo. III. — Bail in Error. Justification. H. - - 1155 
 E. 25 Geo. III. Excheq.— Plea in Abatement. H. - - 638 
 T. 25 Geo. III. — Computing Principal and Interest, &c. H. 570 
 Same Term. — Changing Venue. H. - - - - 604 
 Same Term. — Error. Supersedeas. H. - - - 1141 
 H. 26 Geo. III.— Notice of Render. W. - - - 2^8 
 M. 28 Geo. III.— Summons. Stay of Proceedings. W. - 470 
 Same Term. — Arrest. Bail. H. - - - - 178 
 M. 29 Geo. III.— Special Bail. H. - - - - 245 
 Same Term. — Bringing Money into Court. H. - - 622 
 H. 29 Geo. III.— Bail. Execution. Error. H. - - 1129 
 T. 29 Geo. III.— Irregularity. W. - - - - 160 
 H. 30 Geo. III. — Judgment as in case of Nonsuit. II. - 764 
 T. 34 Geo. III.— Taxing Attorney's Bill. A. - - 332 
 E. 35 Geo. III.— Attachment. A. - - - - 836 
 T. 36 Geo. III.— Affidavit to hold to Bail. A. - - 181 
 M. 37 Geo. III.— Changing Venue. A. - - - 606 
 H. 37 Geo. III.— Rule. Irregularity. Costs. A. - - 503 
 Same Term.— Affidavit of Merits. A. - - - 568 
 Same Term. — Assessing Damages. A. - - - 571 
 Same Term. — Changing Venue. A. - - - - 607 
 T. 37 Geo. III.— Costs. Executors. A. - - - 979 
 M. 38 Geo. III.— Service of Ejectment. A. - - 1217 
 Same Term.— Putting off Trial. A. - - - - 771 
 H. 38 Geo. III.— Attachment. Award. A. - - - 837 
 E. 39 Geo. III.— Service of Copy of Bill. A. - - 322 
 H. 40 Geo. III.— Error. Costs. T. - - - 1181
 
 TABLE OF ORIGINAL CASES. Ivij 
 
 Anonymous, E. 40 Goo. III.— Bail. Render. T. - 275, 281 
 
 T. 40 Geo. III.— AfTidavit to hold to Bail. T. - - 184 
 
 Same Term.— Master's Report. T. - - - - 408 
 
 M. 41 Geo. III.— Ameiidiaent. Misnomer. T. - - 101 
 
 Same Term.— Affidavit to hold to Bail. T. - - - 183 
 
 Same Term. — Stayin<j; Proceeding's, pending Error. T. - /j-U 
 
 Same Term. — Costs of former Action. T. - - - 539 
 
 H. 41 Goo. III.— Affidavit to hold to Bail. T. - - 185 
 
 Same Term. — Affidavit. Warrant of Attorney. T. - - 554 
 
 Same Term.— Construction of Stat. 8 & 9 W. III. c. 11. T. 584 
 
 Same Term. — Scire Facias. Execution. Insolvent Act. T. 1112 
 
 T. 41 Geo. III.— Affidavit to hold to Bail. T. - - 179 
 
 Same Term. — Staying Proceedings in Ejectment. T. - 1236 
 
 IVl 42 Geo. III.— Bail. Justification. T. - - - 246 
 
 Same Term.— The like. T. - - - - 247,267 
 
 Same Term.— Rule to Return Writ. T. - - - 306 
 
 Same Term. — Imparlance. Several Defendants. T. - 467 
 
 Same Term. — Cognovit. Stamp. T. - - - 560 
 
 Same Term. — Costs. Executor. T. ... 079 
 
 Same Term. — Execution. Evidence. T. - - - 1022 
 
 Same Term. — Return of non est inventus. T. - - 1098 
 
 T. 42 Geo. III.— Affidavit to hold to Bail. T. - - 186 
 
 M. 43 Geo. III.— Variance from Process. T. - - 294 
 
 Same Term. — Variance. Irregularity. T. - - - 450 
 
 Same Term.— Entering Issue. T. - - - - 733 
 
 H. 43 Geo. III.— Bill of Middlesex. T. - - - 150 
 
 T. 43 Geo. III.— Entering Issue. T. - - - 733 
 
 M. 44 Geo. III.— Notice of Bail. T. - - - 253 
 
 Same Term. — Appearance. Judgment. T. - - - 567 
 
 E. 44 Geo. III.— Demand of Plea. T. - - - 476 
 
 E. 44 Geo. III.— Execution. Error. T. - - - 1147 
 
 T. 44 Geo. III. — Executor. Discontinuance. T. - - 979 
 
 M. 45 Geo. III.— Attachment. Set off. T. - - - 480 
 
 E. 45 Geo. III.— Signing Judgment. T. - - - 930 
 
 T. 45 Geo. III.— Notice of Justification. T. - - - 260 
 
 Same Term.— Warrant of Attorney. T. - - - 552 
 
 M. 46 Geo. III.— Time for Pleading. T. - - - 465 
 
 M. 48 Geo. III. — Amendment. Prisoners. - - - 161 
 
 H. 48 Geo. III. — Nolle prosequi. - - - - 571 
 
 E. 55 Geo. III.— Bail in Error. Justification. - - 273 
 
 11. 56 Geo. III. — Ejectment Execution. - - - 1245 
 
 E. 59 Geo. III. C. P.— Notice of Bail. - - - 254 
 
 Aris V. Dickies, II. 43 Geo. III. — Executing Inquiry. T. - 576 
 
 y. Taylor, T. 35 Geo. III.— Changing Venue. A. - - 605 
 
 Ashby ats. — , T. 22 Geo. III. — Tender. Subsequent Demand. 
 
 Damages. 11. 622 
 
 Ashton V. King & another, M. 21 Geo. HI.— Bail. Render. R. 282 
 
 Atherton v. I'richard, E. 43 Geo. III. — Libcrum (Tenementum. T. 691 
 Atkinson, qui tani, v. Harvey, T. 28 Geo. III. — Trial in adjoining 
 
 County. W. 723 
 
 V. Saunderson, E. 25 Geo. III. — Condition of Bail Bond. 
 
 W. 225
 
 lyiJi TABLE OF ORIGINAL CASES. 
 
 Aysheford v. Charlotte, H. 25 Geo. III.— Witnesses. Perjury. W. 907 
 
 B. 
 
 Baker v. Baker, executrix, 11. 35 Geo. III. — Judgment nunc pro 
 
 tunc. A. 933, 9S9 
 Balein v. Kent, E. 20 Geo. III.— Changing Venue. R. - - P04 
 
 Barnard v. Moss, II. 28 Geo. III. C. P.— Oyer. R. - - 433 
 
 Barnes, assignee, &c. v. Maton, M. 23 Geo. III. — Second Arrest. 
 
 Bankruptcy. W. & H. 176 
 Barry v. Alexander, M. 25 Geo. III. — Discovery on Motion. W. 591, 2 
 
 V. Nugent, in Error. M. 23 Geo. III. — Bill of Exceptions. 
 
 W, 865 
 Bartlett v. Leighton, Oxford Spring Ass. 1828. — Affidavit. Plea puis 
 
 darrein continuance. 851 
 Bartrum & others v. Howell, T. 31 Geo. III. — Staying Proceedings. 
 
 Bail. Costs. W. 542 
 Bates, qui tarn, v. Jenkinson, E. 24 Geo. III. — Evidence. Return- 
 ing Writ. Continuances. W. 162, 3 
 
 V. Maddison, M. 23 Geo. III. — Service of Process. 
 
 H. 169 
 Batt V. Deschamps, T. 24 Geo. III. C. P. — Executors and Adminis- 
 trators. Costs. H. 980 
 Beardmore v. Boulton, H. 30 Geo. III. Excheq. — Carriers. Bring- 
 ing money into Court. H. 620 
 Beck V. Lewin, T. 56 Geo. III. — Attorney. Privilege. Arrest. 80, 81, 83 
 Bedford & Gatfield, H. 26 Geo. III.— Pleading Double. R. - 658 
 
 Bell V. Trevera, M. 23 Geo. III.— Writ of Inquiry Notice. W. - 576 
 Bellis V. Beale, M. 38 Geo. III. — Comnounding Penal Action. A. 557 
 Benfield v. Petrie, M. 22 Geo. III.— Ncav Trial Witnesses. Per- 
 jury. W. 907 
 Bennett v. Hunt, T. 15 Geo. III.— New Trial. Writ of Error. - 913 
 Benson v. King, H. 25 Geo. III. — Process. Continuance. Waiver. 
 
 W. 162,471 
 Bingley v. Mattison, E. 24 Geo. III.— Notice of Trial. New Trial. 
 
 W. & H. 917 
 Birdv.Gunston,E. 24Geo.IIL — Notice of Action. Justices. W. - 29 
 Bishop V. Fry, T. 2 Geo. IV. C. P.— Error. Supersedeas. - 531, 1147 
 Blakely v, Vincent, T. 35 Geo. III. — Warrant of Attorney. Scire 
 
 Facias. A. 553, 1105 
 Blakemore v. Ronea, M. 36 Geo. III. — Prisoners. Lords' Act. A. 382 
 Bligh V. Minister & others, T. 28 Geo. III. — Infant. Common Bail. 
 
 W. 99 
 Boddington & others ats. , M. 20 Geo. III. — Changing Venue. 
 
 Bond V. Gooch, E. 23 Geo. III. — Staying Proceedings. W. 
 Bonner v. Charlton, E. 43 Geo. III. — Award. Execution. T. 
 Bosanquet v. Simpson, E. 42 George. III. — Bail. T. 
 Bovara v. Besesti, M. 24 Geo. III. — Affidavit to hold to Bail. 
 Bowser v. Price, E. 20 Geo. III. — Declaration. Nonpros. 
 
 junction. 
 Boyce v. Rust, T. 22 Geo. III. — Bail in wrong Court. H. 
 
 R. 
 
 610 
 
 _ 
 
 538 
 
 . 
 
 997 
 
 - 
 
 235 
 
 W. 
 
 166 
 
 In- 
 
 
 R. 
 
 460 
 
 - 
 
 250
 
 TABLE OF ORIGINAL CASES. lix 
 
 Boyd V. Gordon, II. 30 Geo. III. — Imparlance. II. - - 467 
 Boyne v. Mills, M. 25 Geo. III. — Declaration. Misnomer. Vari- 
 ance. W. 449 
 Briggs, ex parte, M. 22 Geo. III. — Attornycs. Clerks. II. - 08 
 Broadbent v. "Woodhead, 17U4.— Costs. Certificate. II. - - 953 
 Brown v. Newnliam k others, E. 25 Geo. III. — Consolidation. Terms 
 
 of. W. 615 
 
 V. Phepoe, II. 24 Geo. III.— Affidavit to hold to Bail. W. 100, 182 
 
 Brunsdon & others, assignees, &c. v. Austin, T. 34 Geo. III. — 
 
 Staying Proceedings. 545 
 Bryan v. "Williamson, M. 38 Geo. III. C. P. — Bringing money into 
 
 Court. 625 
 
 Brymer & Atkins, H. 22 Geo. III. C. P.— Costs. Prohibition. - 049 
 
 Buckle V. Ilollis, T. 4 Geo. IV.— New Trial. - - - 917 
 
 Burns v. Palmer, M. 44 Geo. III.— Award. Costa. T. - - 983 
 Butcher v. Holland, H. 25 Geo. III. — Arrest. Judgment. Costs. 
 
 11. 178 
 
 Butler V. Bailey, E. 25 Geo. III.— Pledges. W. - - - 446 
 
 V. Grubb, II. 23 Geo. III.— Court of Conscience. ^V. - 831 
 
 Butt V. Moore & another, bail of lleadc, M. 28 Geo. III. — Arrest. 
 
 Bail. W. k. II. 173 
 
 C. 
 
 Caffin & another v. Idle, M. 3 Geo. IV. — Warrant of Attorney. 
 
 Witness. Attachment. 554 
 
 Callaway v. Seymour, E. 42 Geo. III.— Sheriff 's Bail. Render. T. 220 
 Capper v. Stewart, H. 28 Geo. III. — Plea puis darrein Continu- 
 ance. W. 847, 8; 851 
 Carmichael v. Chandler, T. 24 Geo. III. — Bail Bond. Declaration. 
 
 H. 299, 305, 453 
 Carruthurs v. Parkin, 11. 41 Geo. III. — Arrest. Sequestration, 
 
 Scotland. T. 202 
 
 Carstairs v. Stein, T. 44 Geo. III.— New Trial. M. & S. - - 913 
 Carter v. Roberts, M. 28 Geo. III. — Staying Proceedings, pending 
 
 Error. ^V. 530 
 
 V. Yates, T. 27 Geo. III.— Concluding Replication. ^Y. - 092 
 
 Cawthorne v. Thompson k another, T. 24 Geo. III.— Costs. W. 991 
 
 Cazenove ats. T. 44 Geo. III.— Security for Costs. T. - 537 
 
 Chalk V. Deacon & wife, T. 2 Geo. IV. C. P.— Feme-covert. Ar- 
 rest. 194, 1026 
 
 Chippendale's Case, E. 19 Geo. III. — Attorneys, Privilege. R. 82 
 
 Chrishop V. Coulthard, E. 25 Geo. III.— The like. AV. - - Id. 
 Cleghoru v. Ireland, E. 28 Geo. III. — Staying Proceedings, pending 
 
 Error. W. 531 
 Cleveland v. Dickenson & another, bail of Tomkius, E. 41 Geo. 
 
 III.— Bail. Bankrupt. T. 290 
 Cockson V. Drinkwatcr, T. 23 Geo. III. — Execution. Several Is- 
 sues. W. 980 
 Cohen V. Bell, T. 44 Geo. III.— Security for Costs. T. - - 530 
 Coleman v. City of London, M. 21 Geo. III.— Trial at Bar. R. - 749 
 Colson V. Carhordy, T. 22 Geo. III.— Bail. Justification. W. & H. 271
 
 Ijj TABLE OF ORIGINAL CASES. 
 
 Combrimc v. , T. 42 & M. 43 Geo. III.— Prisoners. Scire 
 
 Facias. T. 366 
 
 Constable v. Edwards, E. 40 Geo. III.— Service of Copy of Bill. T. 322 
 
 Cooke V. Stocks, M. 36 Geo. III.— Stamping Deeds. A. - - 48T 
 Cookson V. Foster, T. 23 Geo. III.— Second Arrest. W. - 176, 343, 357 
 
 Cooper V. Rowe & another, T. 51 Geo. III. Exclieq. — Execution. - 995 
 
 Corbyn v. Dawson, E. 36 Geo. III. C. P.— Putting off Trial. A. 773 
 
 Cowan V. Berry, E. 38 Geo. III. — Striking out Counts. A. - 617 
 
 Cripps & Wiggin, T. 28 Geo. III. — Prisoners. Supersedeas. W. 370 
 
 Crooke v. Curry, 1789.— Notice of Action. H. - - - 30 
 
 Crookson v. Lord Lonsdale, H. 29 Ge3. III. — Essoin. H. - 109 
 Cunningham v. Chambers, E. 45 Geo. III. — Attachment. Bail 
 
 bond. T. 297 
 Curtis V. Taylor, E. 35 Geo. III. — Judge's Order. Attachment. A. 511 
 V. Lord Grandison, M. 37 Geo. III. — Presumption of Pay- 
 ment. Scire Facias. H. 18 
 Cutler V. Powell, H. 35 Geo. III.— Special Cases. A. - - 504 
 
 D. 
 
 Dambon v. Jacob, T. 27 Geo. III. — Staying Proceedings. Mort- 
 gage. W. 1235 
 Davey v. Hollingsworth & another, T. 24 Geo. III. — Execution. 
 
 Amendment. R. 999 
 Davie V. Franklin, H. 26 Geo. III.— Assignment of Error. W. 1169,1173 
 Davies & Brown, M. 27 Geo. III. — Prisoners. Supersedeas. W. 367 
 
 V. Lewis, T. 27 Geo. III. — Hearsay Evidence. Venire de 
 
 novo. W. 923 
 
 — qui tarn, v. Solomon, T. 25 Geo. III.' — Staying Proceed- 
 
 ' ings. W. & H. 535 
 Davy V. Hoskins, M. 23 Geo. III. C. P.— Notice of Action. H. - 31 
 Daubeny v. Hogarth, E. 27 Geo. III. — Several Breaches. W. - 584 
 Dawson v. Shuter, T. 26 Geo. III.— Bail. Surrender. Costs. W. 542 
 Delatre & Mango, M. 20 Geo. III.— Time for Pleading. R. - 465 
 
 Denman v. Golding, M. 59 Geo. III. — Service of Rule for Attach- 
 ment. 838 
 Doe V. Johnson & another, H. 24 Geo. III. — Notice on Process. "VV. 167 
 
 V. Law, H. 25 Geo. III.— Staying Proceedings. W. & H. - 1233 
 
 ex dem. Angell v. Angell, T. 36 Geo. III.— Trial at Bar. A. 747, 8 
 
 Davie v. Haddon, M. 25 Geo. III.— New Trial. Costs. 
 
 W. 915 
 Robinson v. Roe, T. 35 Geo. III. — Service of Eject- 
 ment. A. 1215 
 Douglas V. Child, E. 33 Geo. IIL C. P.— Signing Demurrers. R. 696 
 Drew V. Jeffries, H. 26 Geo. III. — Arrest. Bankrupt. - - 211 
 Duncan v. Thomasin, M. 38 Geo. III. — AlBidavit for putting off 
 
 Trial. A. 773 
 Durant v. Serocold, E. 24 Geo. IIL — Variance. Setting aside 
 
 Proceedings. W. & H. 451
 
 TABLE OF ORIGINAL CASES. Ixi 
 
 E. 
 
 East India Company v. Lord Maiden, E. 32 Geo. III. — Manda- 
 mus. A. 814 
 Edio V. Glover, II. 27 Geo. III.— Venue. W. - - - G05 
 Edmunds v. Cox, E. 24 Geo. III.— Arbitration. Death. 11. - 822 
 Edwards v. Carter, M. 3G Geo. III. — Prisoners. Lords' Act. A. 381 
 Elan V. Rees, II. 24 Geo. III.— Security for Costs. W. - - 534 
 
 Ethcrington v. , M. 45 Geo. III. — Affidavit to hold to Bail. T. 182 
 
 Eyre v. Bull, E. 25 Geo. III.— Liability of Sheriff, • ^V. - - 315 
 
 F. 
 
 Fairclaim v. Thrustout, E. 24 Geo. III. — Staying Proceedings. W. 1233 
 Falkland's (Lord) Case, E. 36 Geo. III.— Peers. Attachment. A. 192 
 Fennell v. Gardner, E. 8 Geo. IV.— Bail. - - - - 271 
 Field V. Lodge, E. 24 Geo. III.— Bail. W. - - - lOOU 
 Fisher v. Coates, E. 8 Geo. IV. — Bankruptcy. Costs. Attach- 
 ment. 211 
 V. Hancock, H. 36 Geo. III. — Judgment as in case of Non- 
 suit. A. 767 
 Fitzgerald v. Smith, T. 36 Geo. III.— The like. A. - - 764 
 Fitzpatrick v. Kelly, M. 22 Geo. III.— Arrest. Franchise. W. - 217 
 Fleetwood v. Cross, 11. 26 Geo. III. — Affidavit to change Venue. 
 
 W. 609,10 
 Flight V. Stanley, M. 44 Geo. III.— Distringas. County palatine. T. 312 
 Flint V. De Loyant, M. 42 Geo. III. — Servant of Public Minister. 
 
 Arrest. T. 191 
 Foley V. Lord Peterborough, II. 25 Geo. III. — Venue. Crim. 
 
 Con. 
 Folkes V. Chad & others, M. 22 Geo. IIL— New Trial. W. 
 Fonncreau v. Fonnereau. — Changing Venue. Suggestion. 
 Ford V. Yates, E. 22 Geo. III.— New Trial. Perjury. H. 
 Forster v. Hyde, M. 41 Geo. III.— Sheriff's Bail. T. 
 Fowler & Dyer, M. 20 Geo. III.— Demand of Oyer. R. - 
 Franklin v. Holmes, T. 21 Geo. III. — Amendment. Prohibition. 
 French v. Moore, M. 45 Geo. III. — Outlawry. Appearance. 
 Fry V. Montgomery & others, M. 26 Geo. III. — Affidavit to hold to 
 
 Bail. W. 188 
 
 G. 
 
 Gage & another v. Parsons, M. 36 Geo. III. — Amendment. T. - 365 
 
 Gagnier v. Stonehouse, M. 24 Geo. III.— New Trial. Costs. W. 915 
 
 Garnans v. Ileskcth, E. 22 Geo. III.— Pleader. Executor. W. - 980 
 
 Gillct V. Mawman, T. 47 Geo. III. C. P.— Subpoena. - - 806 
 
 V. Ridley, E. 20 Geo. III. C. P.— Issuable Plea. R. - 471 
 
 Golding V. Vaughan, E. 22 Geo. III. — Action by or against Sur- 
 viving Partners. H. 6 
 Good V. Wilkes, 11. 56 Geo. III.— Arbitration. - - - 827 
 T. 57 Geo. III.— Arrest. Attachment - - 1030 
 
 w. 
 
 605 
 
 - 
 
 913 
 
 _ 
 
 606 
 
 - 
 
 907 
 
 227 
 
 ,305 
 
 - 
 
 588 
 
 XL 
 
 697 
 
 T. 
 
 140
 
 j^^-j TABLE OF ORIGIiSrAL CASES. 
 
 Goodtitlc V. Mayo, II. 29 Geo. III.— Pauper. Ejectment. H. - 99 
 Goodwin v. Montague, E. 23 Geo. III. — Rule to bring in body, &c. 
 
 W. 311, 316 
 Goss V. Harrison, T. 44 Geo. III.— Bail Bond. T. - - 304 
 
 Gosse V. Macauley & others, T. 42 Geo. III. — Judgment as In case 
 
 Nonsuit. T. 762 
 Grant v. Foley, T. 23 Geo. III.— Setting aside Annuity. W. - 52T 
 Green & Robinson, H. 23 Geo. III. — Declaration. Misnomer. Vari- 
 ance. W. 449 
 
 V. Simmester, H. 27 Geo. III. — Imparlance, Demurrer. W. 464 
 
 Groome v. Symonds, H. 35 Geo. III.— Taxing Agent's Bill. A. - 332 
 Groves v. Durall, H. 38 Geo. III. — Changing Venue. Suggestion. 
 
 A. 606 
 Gwynne v. Toldervy, one, &c. H. 54 Geo. III. — Attorney. Pri- 
 vilege. 81 
 H. 
 
 Hague, one, &c. v. , E. 45 Geo. III. — Error. T. - 1145 
 
 Hale V. Smallwood, E. 35 Geo. III.— Paper Book. A. - - 725 
 
 Hall V. Warner, T. 24 Geo. III.— Costs. Libel. W. - - 962 
 
 Hanson ats. , T. 52 Geo. III. — Notice to appear. T. - 167 
 
 Harcourt v. Knapp, H. 23 Geo. III. — Bringing money into Court. 
 
 W. 541 
 Harewood v. Matthews & another, H. 56 Geo. III. — Costs. Nolle 
 
 Prosequi. 981 
 Harman v. Gilbert, M. 36 Geo. III. C. P. — Judgment as in case of 
 
 Nonsuit. A. 764 
 Harrison v. Slater, T. 44 Geo. III.— Arbitration. Costs. T. - 831 
 Hartley v. Thomson, E. 22 Geo. III. — Judgment as in case of Non- 
 suit. W. 763 
 Haviland v. Cole, M. 24 Geo. III. — Bringing money into Court. H. 627 
 Haydon v. Federici, E. 38 Geo. III. — Affidavit to hold to Bail. 
 
 Scotland. Ireland. A. 181 
 Healey v. Medley, M. 24 Geo. III.— Bail. Render. W. & H. 283, 1128 
 Hicks V. Strutt, E. 27 Geo. III.— Notice of Trial. Remanet. W. 758 
 Hill V. Simpson, bail of Jackson, H. 26 Geo. III. — Bankrupt. Bail. 
 
 Election. W. 291 
 
 V. Stanton, H. 55 Geo. III.— Bail. Recognizance. 248, 251, 278 
 
 Hinckley v. Hutton, H. 27 Geo. III.— Bail in Error. W. - 1157 
 
 Hoare v. Crozier, E. 22 Geo. III.— Damages. W. & H. - - 896 
 
 Hodgson V. Milles, E. 26 Geo. III. — Error. Interlocutory Judg- 
 ment. W. 1141 
 HoUoway v. Whalley, T. 41 Geo. III. — Alias Writ. Irregularity. 
 
 T. 147, 515 
 Hooper v. Cobb, T. 22 Geo. III.— New Trial. Penal Action. H. 910 
 Hoskins V. Ridgeway, H. 23 Geo. III.— Venue. Libel. W. - 605 
 
 Hough, one, &c. ats. , T. 42 Geo. III. — Service of Copy of 
 
 Bill. T. 322 
 Howston V. Howston, T. 25 Geo. III.— Writ of Error. W. - 1145 
 
 Hubbard v. Horton, H. 36 Geo. III.— Demand of Costs. A. - 1243 
 Hudson V. Needham, T. 27 Geo. III. — Changing Venue. W. - 608 
 Humphries v. Ditcher, E. 21 Geo. III.— Bail. Render. H. 286, 288
 
 TABLE OF ORIGIXAL CASES. Ixiii 
 
 Hurt! V. Cock, M. 36 Geo. III.— Striking out Counts. Costs. A. 616 
 Hussey & another v. Jordan, T. 25 Geo. III. — Attorney. Court of 
 
 Conscience. W. 80 
 Hutton V. Bolton, E. 22 Geo. III. — Carriers. Bringing money into 
 
 Court. R. & 11. 620 
 V. Colboys, E. 35 Geo. III. — Pauper. Staying Proceed- 
 ings. A. 98 
 
 I. 
 
 Irwin, qui tarn, v. Sir William Manners, E. 44 Geo. III. — Staying 
 
 Proceedings. Bribery. T. .518 
 Isaacs V. Windsor, T. 24 Geo. III.— Notice of Trial. AV. - 757 
 
 J. 
 
 Jacques v. Nixon, E. 26 Geo. III.— Affidavit to hold to Bail. W. 189 
 James v. Iloskins, T. 25 Geo. III. — Warrant of Attorney. W. - 547 
 Jones V. Perry, T. 21 Geo. III.— Sheriff. Indemnity. H. - 1018 
 
 V. Cox, M. 36 Geo. III. — Prisoner's Allowance. Lords' Act. 
 
 A. 380 
 
 K. 
 
 Kaye v. Patch, T. 27 Geo. III.— Pleading Double. W. - - 655 
 
 Keble v. Markhara, E. 20 Geo. III.— Personating Bail. II. - 275 
 
 Kettle V. Woodfield, T. 40 Geo. III.— Staying proceedings. T. - 304 
 
 King V. Millet, H. 22 Geo. III.— Prisoners. Scire facias. R. - 366 
 Kingsbury v. Vanbergh, E. 22 Geo. III. — Filing or delivering 
 
 Avowry. H. 672 
 
 Kingsford v. Tracey, II. 43 Geo. III.— Bankrupt. Execution T. 1110 
 Knight V. Ilennell, M. 46 Geo. III.— Affidavit. Warrant of At- 
 torney. Scotland. T. 553 (c.) 
 
 L. 
 
 Lamb v. Nutt, T. 29 Geo. III.— Staying Proceedings. W. - 528 
 
 Lampley k wife v. Sands, II. 25 Geo. III. — The like. Baron and 
 
 Feme. R. 539 
 Lando v. Corbett & others, M. 26 Geo. III. — Security for Costs. 
 
 W. 534 
 Lane v. Smith, M. 46 Geo. III.— Striking out Counts. T. - 617 
 
 Langridge, one, &c. v. Flood, II. 26 Geo. III. — Bail. Member of 
 
 the House of Commons. W. 290 
 Lapworth, assignee, &c. v. Wilkes, M. 46 Geo. III. — Bringing back 
 
 Venue. T. 613 
 Lavender v. Kilner, 3Iai/, 1797.— Bail. Exoneretur. 11. - 294 
 
 Law, administrator, v. Wheat, jNI. 23 Geo. III. — Bill against At- 
 torney. W. 321 
 Laycock v. TufTnell, II. 27 Geo. III.— Set off. Replevin. W. - 664 
 Leader v. Uarris, M. 37 Geo. 111. — Motion. Stay of Proceedings. 
 
 A. 498
 
 Ixiv TABLE OF ORIGINAL CASES. 
 
 Legge V. Williams, M. 23 Geo. III.— Notice of Trial. W. - 755 
 
 Liddcll V. Johnstone, H. 38 Geo. III. — Setting aside Award. A. 844 
 Lloyd V. IIowcll, administratrix, II. 37 Geo. III. — Judgment nunc 
 
 pro tunc. A. 93 
 
 V. Maund, T. 25 Geo. III.— Taxation of Costs. Wales. W. 329 
 
 V. Skutt, T. 23 Geo. III.— Amendment. Costs. Error. 
 
 W. 715, 720, 1140 
 
 M. 
 
 M'CuUocli V. Willocks, M. 37 Geo. III. — Setting aside Inquisi- 
 tion. A. 582 
 M'Dougall V. Claridge, M. 48 Geo. III.— Affidavit. Plea in Abate- 
 ment. Privilege. 640 
 Mackenzie v. Higgins, H. 22 Geo. III. — Statute of Limitations. W. 568 
 M'Lean v. Austin, M. 36 Geo. III. — Security for Costs. Scot- 
 land. A. 534 
 Maddox v. Abercrombj, II. 41 Geo. III. — Affidavit to hold to 
 
 Bail. T. 187 
 
 Malone ats. , M. 22 Geo. III.— Affidavits Arrest. H. - 189 
 
 Martineau v. Barnes & others, H. 23 Geo. III. — Consolidating Ac- 
 tions. R. 616 
 Mason v. Caswell, T. 25 Geo. III.— Attorneys' Clerks. Bail. W. 247 
 Massey v. Anderton, H. 43 Geo. III. — Bringing back Venue. T. 610 
 Mattison v. Atkinson, E. 27 Geo. III.— Oyer. Copy. W, - 587 
 
 Meggison & , Assessing Damages. _ . _ 571 
 
 Meggs & another, assignees of Cochran, v. Ford, E. 25 Geo. III. — 
 
 Declaration. Variance. W. 450 
 
 Milles V. Lyne, H. 25 Geo. III.— Writ of Inquiry. Evidence. W. 581 
 
 Monk V. Wade, T. 29 Geo. III.— Notice of Trial. W. - - 758 
 Monkland v. De Grainge, M. 41 Geo. III. — Costs. Executors. 
 
 Trover. T. 978 
 
 Moss V. Thwaite, H. 17 Geo. III. — Staying Proceedings. Trover. H. 545 
 Mountain v. Wilkins, M. 21 Geo. III.— Bankrupts. Bail. R. & 
 
 H. 247,269 
 
 Mullick V. Lushington, M. 26 Geo. III.— Mandamus. A. - 814 
 
 Mussenden & O'Hara, M. 25 Geo. III. — Consolidating Actions. R. 614 
 
 N. 
 
 Napier's (Lady) Case, T. 21 Geo. III. — Scotch Peeress. Setting 
 
 aside Proceedings. H. 118, 145 
 
 Neale v. Porter, T. 44 Geo. III.— Award. Costs. T. - - 983 
 
 Neatly & Eagleton, E. 24 Geo. III.— Execution. Bankrupt. R. - 1010 
 
 Nettleton v. Crosby, H. 38 Geo. III.— Setting aside Award. A. - 498 
 
 Nevitt V. Lade, E. 24 Geo. III.— Staying Proceedings. W. - 539 
 
 ' p /.; ' I H. 37 Geo. III. — Staying Proceedings on 
 
 ;.Trylo'r,j S-IS-^^- ^' 488 
 
 Noel & others v. Eyre, T. 44 Geo. III.— Entitling Affidavits. T. - 500 
 Norfolk (Duke of,) v. Anthony & and another, E. 42 Geo. III. — 
 
 Costs. Executors. T. 986
 
 TABLE OF ORIGINAL OASES. Ixy 
 
 Nutt, administratrix, v. Wright Baronet, E. & T. 25 Geo. III. — 
 
 Time to Plead. W. 470 
 
 0. 
 
 O'llara v. Innes, M. 27 Geo. III. — Setting aside Proceedings. R. 529 
 Over-Kellet Inclosure Act, Case on, 11. 38 Geo. III. — Setting aside 
 
 Award. A. 844 
 
 P. 
 
 Palin V. Nicholson, E. 38 Geo. III. — Assessing Damages. A. - 571 
 
 Palmer v. Henderson, E. 21 Geo. III. C. P.— Double Pleas. R. - 655 
 
 & Turner, 11. 20 Geo. III.— Changing Venue. Set-off. II. G08 
 
 Palter & Ellison, II. 25 Geo. III.— Testatum fieri facias. R. - 1022 
 Parker v. England, M. 45 Geo. III. — Attorney's Undertaking. T. 224 
 Parker & Wall, M. 20 Geo. III.— Rule to bring in Body. Attach- 
 ment. W. 311 
 Peterken v. Samson & another, M. 25 Geo. III. — Liability of Bail 
 
 above. W. & II. 280 
 
 Petre v. Milles, INI. 22 Geo. III.— New Trial. W. - - 907 
 
 V. Lord Porchester, H. E. & T. 23 Geo. IIL— Judgment. 
 
 Relation. W. 935 
 Petty V. Smith, II. 8 & 9 Geo. IV. Exchcq.— Service of Venire 
 
 Facias. 156 
 
 Phillips ats. , E. 42 Geo. IIL— Direction of Process. T. 151 
 
 V. Ilardinge, T. 24 Geo. IIL— Imparlance. W. - - 467 
 
 Philpot V. Muller & another, T. 23 Geo. III. — Non-pros in joint 
 
 Action. W. 459, 077, 728, 1027 
 Pitcher v. Faucett, T. 43 Geo. III. — Prisoner. Committitur-Piece. 
 
 T. 304 
 Pitches V. Davcy & others, H. 44 Geo. III. — Affidavit to hold to 
 
 Bail. 190 
 Poidevin v. Harvey, bail of Martelli, M. 51 Geo. III. — Proceedings 
 
 on Bail-bond. 297 
 
 Pope V. Smith, — Costs. Attachment. Service of Rule. - - 1243 
 
 Potter's Case, II. 26 Geo. IIL— Striking Attorney off Roll. W. - 89 
 
 Powell V. Ellett, T. 21 Geo. IIL— Trespass. Costs. - - 965 
 
 V. Phillips, E. 30 Geo. III. — Arbitration Bond. Submis- 
 
 sions. R. 821 
 
 V. Taylor, M. 28 Geo. IIL— Pleader. W. - - - 1129 
 
 V. Wilkins, H. 37 Geo. IIL— Changing Venue. A. - 607 
 
 Precious v. Bennett, E. 25 Geo. IIL— The like. W. - - 604 
 
 Preston v. Bindley, M. 24 Geo. III. — Attorneys. Bail. Indem- 
 nity. W. 208 
 
 Prichard v. Peacock, E. 35 Geo. III. — Suggestion. Double Costs. A. 489 
 Priddle's Case, E. 27 Geo. IIL— Striking Attorney off Roll. W. 89 
 Pryce v. Hodgson, E. 25 Geo. IIL— Instantcr. W. - - 507 
 
 Pugh V. Martin, H. 24 Geo. III. — Latitat. Commencement of Ac- 
 tion. W. 140,719 
 Putland V. Putland & another, E. 57 Geo. III. — Scire facias. Ele- 
 git. 1104 
 Vol. l— e
 
 l^yi TABLE OF ORIGINAL CASES. 
 
 R. 
 
 Raikes v. Townsend & another, M. 45 Geo. III. — Judgment non 
 
 obstante Veredicto. T. 922 
 Read v. Stone, E. 36 Geo. III. — Judgment as in case of Nonsuit. A. 763 
 Rex V. Aylett, T. 25 Geo. III.— Attachment. Bail. W. - 222. {d.) 
 V. Johnson, M. 22 Geo. III. — Information. Notice of Mo- 
 tion. W. 491 
 V. Keene & others, H. 26 Geo. III. — Trial at Bar. Judg- 
 ment. W. 749, 903, 928 
 
 V. Murray, M. 26 Geo. III.— Habeas Corpus. W. - - 809 
 
 V. Partridge, T. 56 Geo. III.— Extent. Costs. - - 329 
 
 V. Pedley, T. 23 Geo. III. — Habeas Corpus. Changing Cus- 
 tody. W. 28T 
 V. Priddle, M. 27 Geo. III. — Attachment. Arrest. Attor- 
 ney. W. 196 
 V. Sparrow & another, H. 28 Geo. III. — Motion for Informa- 
 tion. Election. W. 10 
 Reynolds v. Beerling, M. 25 Geo. III. — Set-off, pending Error. W. 664 
 
 V. Cowper, E. 22 Geo. III. — Revenue Officer. Probable 
 
 Cause. W. 969 
 Richards v. Hinton, E. 22 Geo. III. — Staying Proceedings. Sug- 
 gestion. Judgment. W. 849, 935 
 Robertson v. Arnold, H. 58 Geo. III. — Security for Costs. Bank- 
 rupt. 536 
 Robinson, assignee, &c. v. Owen, bail of Dunkin, M. 36 Geo. III. — 
 
 Bail Bond. A. 297 
 Rowe V. Power, ex dim. Boys & another, in Error. Dom. Proc. 
 
 8 March, 1803.— Error Diminution. 1167 
 Rowland v. Knapp, H. 41 Geo. III. C. P. — Bringing back Venue. 603 
 
 S. 
 
 St. Leger ats. , H. 37 Geo. III. — Attachment Subpoena. A. 808 
 
 Salisbury v. Whiteall, H. 43 Geo. III.— Second Arrest. T. - 175 
 
 Salter v. Greenway, T. 22 Geo. III.— Costs. Prohibition. W. - 948 
 
 Sambridge, Ex parte, T. 25 Geo. III. — Re-admitting Attorney. W. 90 
 
 Sand V. Heysham, H. 24 Geo. III. — Attorneys. Privilege. W. - 82 
 
 Sanders v. Purse, H. 35 Geo. III. — Staying Proceedings. A. - 536 
 
 Saxby v. Lys, M. 26 Geo. III.— Changing Venue. W. - - 608 
 Schinotti v. Bumstead & others, H. 36 Geo. III. — Inspecting Books. 
 
 A. 594 
 Selby & others, assignees, &c. v. Serres, E. 41 Geo. III. — Bail 
 
 Bond. T. 584 
 Semple v. Lord Newhaven, M. 24 Geo. III. — Sheriff. Indemnity. 
 
 W. & H. 1017 
 Sertes v. Hubbard, E. 44 Geo. III.— New Trial. Costs. T. - 916 
 Shephard v. Macreth, E. 35 Geo. III.— Time for Pleading. A. - 465 
 Sheriff v. Earquharson, M. 37 Geo. III. — Security for Costs. Scot- 
 land. A. 534 
 Schoolbred v. Nutt, M. 23 Geo. III.— New Trial. Costs. "W. - 916
 
 TABLE OF ORIGINAL CASES. Jxyij 
 
 Sillitoe V. Wallage & another, bail of Cawthorne, M. 43 Geo. III. — 
 
 Bail T. 1098, 1124 
 Sinclair v. Assignees of Rentoul, M. 23 Geo. III. — Affidavit. Scot- 
 land. W. 553. {c) 
 Skeat V. Scrivens, M. 31 Geo. III. — Sheriff. Distringas. Attach- 
 ment. II. 313 
 Slack V. Ilurd, T. 31 Geo. III.— Imparlance. II. - - 467 
 Slater v. Ilorne, E. 34 Geo. III.— Oyer. A. - - - 565 
 Smith, ex dim. Jordan v. Roe, M. 22 Geo. III. — Staying Proceed- 
 ings in Ejectment. W. 1232 
 
 , executor, v. Rhodes, T. 26 Geo. III. — Executor. Costs. 
 
 Nonsuit. W. 978 
 
 V. "\Yhymall, M. 26 Geo. III. — Time to plead in Abatement. 
 
 W. 639 
 
 Spalding v. Mure, T. 35 Geo. III. — Mandamus. A. - - 814 
 Sparke v. Stokes, one, &c. H. 24 Geo. III. — Attorney. Venue. W. 
 
 80, 607 
 
 Speers v. Frederic, T. 25 Geo. III. — Statute of Limitations. II. - 14 
 
 Spragg V. Young, II. 35 Geo. III. — Affidavit to hold to Bail. A. 189 
 Stafford V. Rowntree, E. 24 Geo. III. — Issuable Plea. Bankruptcy. 
 
 W. & II. 471, 568 
 Standard v. Baker, M. 26 Geo. III. — Habeas Corpus ad testifican- 
 dum. W. 809 
 Stanly v. Preston, T. 24 Geo. III.— Changing Venue. W. - 606 
 Starkey v. Poole, E. 25 Geo. III.— Liability of Sheriff. W. - 315 
 Stewart v. Freeman, E. 47 Geo. III. — Affidavit to hold to Bail. - 190 
 Still V. M'lver, M. 36 Geo. III.— Security for Costs. Ireland. A. 534 
 Stockton V. Hodges, T. 27 Geo. III.— Putting off Trial. W. - 770 
 Stokes V. Harris, M. 45 Geo. III. — Arbitration. T. - - 835 
 Stone V. Forsyth, T. 22 Geo. III.— Replevin. Costs. H. - 660 
 Sturt V. Moggeridge, E. 43 Geo. III.— Award. T. - - 841 
 Swann v. Boulton, H. 35 Geo. III. — Staying proceedings, pending 
 
 Error. A. 532 
 
 Sydenham v. Rand, T. 24 Geo. III.— Subpoena. W. - - 805 
 
 T. 
 
 Tailleur, qui tarn, v. Cocks, T. 22 Geo. III.— Penal Actions. W. 711 
 
 Talbot V. Villeboys, M. 23 Geo. III.— Inspecting Court Rolls. II. 594 
 
 Taylor v. East India Company, M. 33 Geo. III. — Mandamus. A. 814 
 
 V. Green, II. 38 Geo. III.— New Trial. Trifling Action. 
 
 A. 910 
 
 V. Ward, E. 24 Geo. III.— Sheriff's Poundage. W. -1040 
 
 Teasdale v. Atkins, M. 21 Geo. III. — Enlarging Time for making 
 
 Award. II. 826 
 
 Thomas v. Bayley's bail, E. 53 Geo. III. — Bail Surrender. Costs. 542 
 
 Thompson v. Billingsley, T. 37 Geo. III. — Attachment. Costs. A. 480 
 
 V. Stockdale, H. 23 Geo. III.— Full and Half Defence. 
 
 W. & R. 637 
 Tomlinson v. Harrison, M. 16 Geo. III. Changing Venue. Privi- 
 lege. H. 606 
 Totty V. Nesbitt, T. 24 Geo. III.— Oyer. \V. - - - 587
 
 Jxviii TABLE OF ORIGINAL CASES. 
 
 Triggs V. Triggs, Trin. Vac. 1815. — Arrest. Feme Covert. "War- 
 rant of Attorney. 194 
 Troughton v. Clark & another, bail of Hammerton & another, T. 
 
 49 Geo. III.— Bail. Execution. 1132 
 
 Tucker v. Morgan, E. 35 Geo. III. — Changing Venue. A. - 606 
 Turner & others, assignees, «&;c. v. Kingston, H. 23 Geo. III. — 
 
 Unnecessary Counts. "W. 616 
 
 V. Taylor, E. 23 Geo. III.— Summary Proceeding. W. - 530 
 
 Turtle V. Lady Worsley, M. 29 Geo. III.— Feme Covert. Adul- 
 tery. W. 637 
 Turton v. Chambers, M. 43 Geo. III.— Court of Conscience. T. 960 
 Tweddale v. Fennell, T. 56 Geo. III.— Holydays. - - 67 
 
 V. 
 
 Valley v. Gardiner, H. 24 Geo. III.— Issuable Plea. W. - 471, 2 
 
 Vaughan, ex parte, E. 45 Geo. III. — Re-admitting Attorney. T. 79, 90 
 Voght V. Elgin, H. 38 Geo. III.— Affidavit to hold to Bail. - 166 
 
 ^• 
 
 Ullock V. Hemsworth, T. 6 Geo. IV. — Costs of Counsel on Inquiry. 580 
 
 W. 
 
 Wade V. Huntley,' T. 28 Geo. III.— Setting aside Award. H. - 841 
 Walpole V. Alexander, H. 22 Geo. III. — Arrest. Privilege. Com- 
 mon Bail. W. 196, 216 
 Ward V. Lowring, M. 45 Geo. III. — Taking Money out of Court. 
 
 T. 628 
 Waterlow & another, v. Galiegne, E. 7 Geo. IV. — Misnomer. Set- 
 ting aside Proceedings. 448 
 Waters v. Hales, E. 37 Geo. III. — Judgment. Scire Facias. A. 1105 
 Watson V. Gibson, H. 30 Geo. III.— Arbitration. Costs. - - 831 
 
 V. Preston, E. 25 Geo. III. C. P. — Assessing Damages. H. 570 
 
 Webb V, Mitchell, M. 48 Geo. III.— Entitling Affidavits. Bail 
 
 Bond. 304 
 Webster v. Wilkinson, H. 26 Geo. III.— Lords' Act. W. - 382, 511 
 Wenham v. Tristram, H. 21 Geo. III. — Paying for Issue. R. - 726 
 White V. Givens, T. 57 Geo. III. — Pleading issuably. Abiding by 
 
 Plea. 674 
 
 V. Griffiths, T. 35 Geo. IIL— Staying Proceedings. A. - 516 
 
 Whitworth v. Richardson, E. 23 Geo. III. — Jurisdiction by Bill. 
 
 W. & H. 117 
 Wilby V. Warren, M. 28 Geo. IIL— Tender. Bank Notes. Banker's 
 
 Drafts. H. 187 
 Wilkinson & Jordan, H. 23 Geo. III. — Staying Proceedings on 
 
 Annuity bond. R. 543 
 Wilkinson v. Commissioners of Navy, E. 25 Geo. IIL — New Trial. 
 
 Costs. H. 915 
 Williams v. Jacques, M. 24 Geo. IIL— Bail Bond. W. - - 306
 
 TABLE OF ORIGINAL CASES. Ixix 
 
 Williams v. Williams, T. 2G Geo. III. — Notice. Inquiry. Wales. 
 
 W. 573 
 
 Willie V. Benwell, T. 25 Geo. III.— Death of Sheriff. W. - 314 
 Willison V. Smith, E. 22 Geo. III. — Bankruptcy. Feigned Issue. 
 
 W. & 11. 292 
 
 Wilson V. Campbell, M. 20 Geo. III.— Arrest of Fem.o Covert. II. 195 
 
 Witter V. Cazalets, M. 29 Geo. III.— Inspection. Time to Tlead. 592 
 Wood V. Watkins, II. 43 Geo. III.— Certificate of Wilful Trespass. 
 
 T. 068 
 
 Wright & another v. , 44 Geo. III.— Teste of Process. T. 129 
 
 V. Jones, H, 45 Geo. III. — Costs. Discontinuance. T. - 979 
 
 V. Ley, II. 15 Geo. III. — Bail. Justification. - - 2G0 
 
 & another v. Willes, M. 21 Geo. III. — Indorsement on Pro- 
 cess. Irregularity. R. 100 
 Wrightson V. Mason, E. 27 Geo. III.— Afiidavits. W. - - 502 
 
 Y. 
 
 Yates V. Edmonds, T. 35 Geo. III. — Rule to Plead. Amendment. 
 
 A. 475, 708 
 
 Yeo V. Allen, H. 23 Geo. III.— Bankruptcy. Feigned Issue. W. 212
 
 INTRODUCTION. 
 
 By way of introduction to the following work, it may not be improper to 
 take a cursory view of the proceedings in personal actions, in the courts of 
 King's Bench and Common Pleas ; and the practice by which they are 
 regulated, from the commencement of the suit, to the obtaining of final 
 judgment and execution ; and to give some account of the origin and pro- 
 gress of the work, and the changes it has undergone in the different 
 editions. 
 
 The general nature of an action is thus given by an elegant writer on 
 the law and constitution oi England."^ "A person, (let us suppose,) who 
 has a cause of action, either in a right detained, or an injury done, is 
 determined to bring his action ; and, by his attorney, takes out process 
 against the party complained of ; in consequence of which, the party com- 
 plained of (whom we call the defendant,) either puts in common or special 
 hail, as the case requires. The defendant being thus secm-ed, the plaintiff 
 declares, in proper form, the nature of his case. The defendant answers 
 this declaration ; and the charge and defence, by due course of pleading, 
 are brought to one or more plain, simple facts. These facts, arising out of 
 the pleadings, and thence called issues, come next to be tried by a jury. 
 The jury having heard the evidence upon the issue before them, find (we 
 will suppose,) a verdict for the plaintiff. On that verdict, judgment is 
 afterwards entered. The plaintiff's costs of suit are then taxed, by the 
 oflficer of the court ; and the judgment is put in execution, by levying on 
 the defendant's effects, the damages given by the jury, and the costs 
 allowed by the court ; which being done, there is an end of the suit, and 
 both parties are once more out of court." 
 
 * Wynne's Eunomus, Dial. II. 2 V. p. 131.
 
 Ixxii INTRODUCTION. 
 
 The principal proceedings in an action are first, the warrant of attorney, 
 to prosecute or defend ; secondly, the j^rocess used for bringing the de- 
 fendant into coui't ; thirdly, his appearance and hail; fourthly, the plead- 
 ings, beginning with the declaration ; fifthly, the issue ; sixthly, the trial, 
 or determination of the issue ; seventhly, the Judgment ; and eighthly, the 
 execution : To which may be added the proceedings in scire facias to 
 revive the judgment, or in error to reverse it ; though these are rather to 
 be considered as distinct actions, or proceedings, arising out of, than as 
 parts of the original suit. The above proceedings are from time to time 
 entered on the 7'olls of the court ; which thence take their denomination 
 of the warrant of attorney roll, the process roll, the recognizance roll, the 
 imparlance, plea, or issue roll, the nisi pi'ius roll or record, the judgment 
 roll, (on which latter is entered the award of execution,) the scire facias 
 roll, and the roll of proceedings on writs of error, and false judgment. 
 
 Subordinate to these principal proceedings, there are others of an aux- 
 iliary nature, which occur in the course of a suit ; such as, in bailable 
 actions, the arrest and bail-bond, with the proceedings thereon, or against 
 the sheriff, to compel him to return the writ, and bring in the body. These 
 happen before the plaintiff has declared absolutely. After declaration and 
 before plea, the defendant, in order to prepare for his defence, is, under 
 circumstances, allowed to crave oyer of deeds, &c. or copies of written 
 instruments, call for the particulars of the plaintiff's demand, or claim 
 inspection of public books, court rolls, &c. ; or he may move the court to 
 change the venue, consolidate actions, strike out superfluous counts, or 
 bring money into court. After issue and before trial, the plaintiff should 
 give notice of trial, sue out the jury process, and make up and pass the 
 record of nisi p>rius : and each party should prepare a brief for counsel, 
 and subpoena his witnesses. After trial and before judgment, the unsuc- 
 cessful party may move the court for a new trial, or in arrest of judgment; 
 or for judgment non obstante veredicto, a repleader, or venire facias de 
 novo. 
 
 The variations in the proceedings are occasioned, first, by the natm'e of 
 the action, and the parties by or against whom it is brought ; as whether 
 it be founded in contract or tort, or be brought by or against one or more 
 plaintiffs or defendants, by the assignees of a bankrupt or insolvent debtor, 
 or by or against baron and feme, surviving partners, executors or adminis- 
 trators, heirs or devisees, &c. : Secondly, by the mode of commencing the 
 action ; as whether it be commenced originally in the King's Bench or 
 Common Pleas, or removed thither from an inferior court : and, in the for- 
 mer case, whether it be commenced by original writ, bill of 3Iiddlesex or 
 latitat, capias quare clausum fregit, or attachment of privilege, or by 
 bill exhibited to the court, and brought against common persons, or peers 
 of the realm, members of the House of Commons, corporations, hundre-
 
 INTRODUCTION. Ixxiil 
 
 dors, attorneys, officers of the court, or prisoners in the actual custody of 
 the sheriff or marshal : Thirdly, Jjy the nature of the process used for 
 bringing the defendant into court ; which is either a mere summons, an 
 attachment or distringas against his property, or a capias against his per- 
 son ; which latter process, in point of form, is common or special, and in 
 effect is bailable or not bailable ; and upon a bailable capias, the defendant 
 is either taken, or stands out to process of outlawry : Fourthly, by the 
 appearance of the parties; and whether they prosecute or defend the 
 action in person or by attorney, or, in case of infimcy, ])y prochein amy 
 or guardian : Fifthly, by the course which the proceedings take ; and 
 whether the action be prosecuted, or abate by the death of the parties ; or 
 the plaintiff voluntarily abandon it by a discontinuance, nolle prosequi, 
 stet processus, or cassetur hilla vel breve; or make default, and suffer 
 judgment of non pros for not declaring, replying, or entering the issue, 
 or judgment as in case of a nonsuit for not proceeding to trial ; or the de- 
 fendant compromise or compound the action, confess it or let juilgment go 
 by default. 
 
 If the action be prosecuted, the variations in the proceedings are occa- 
 sioned. Sixthly, by the natui'e of the declaration, and subsef^uent plead- 
 ings; as whether the declaration be common or special, and consist of one 
 or more counts, and whether it be in chief or by the bye, and delivered or 
 filed absolutely or de bene esse, and whether the defendant plead or demur 
 thereto ; and, if he plead, whether it be to the jurisdiction of the court, in 
 abatement, or in bar ; and if the latter, whether he plead one or more pleas, 
 and whether they be general or special ; and if special, whether the repli- 
 cation thereto be in denial, or confession and avoidance, or by way of estop- 
 pel, or new assign the injury complained of ; and whether there be any 
 rejoinder, surrejoinder, rebutter, or surrebutter, and of what it consists : 
 Seventhly, by the nature of the issue, joined upon the pleadings ; as whether 
 it be an issue in fact or in law ; and if in fact, whether it be triable by the 
 court, upon nul tiel record ; by a jury, upon pleadings concluding to the 
 country; or by the bishop's certificate, upon a plea of ne unqucs accouple, 
 &c. : Eighthly, by the mode of trial, and the proceedings in the course of 
 it ; as whether it be at bar or nisi prius, or by a common or special jury, 
 or the defendant at the trial plead ^;?f?8 darrein continuance, or the parties 
 agree to withdraw a juror, or refer the cause to arbitration, or there be a 
 nonsuit or verdict, and if a verdict, whether it be general or special, or there 
 be a special case, bill of exceptions, or demurrer to evidence: Ninthly, by 
 the nature oi i)\G judgment ; which is either for the plaintiff or defendant; 
 for the former by confession, non sum informatus, or nihil dicit, for the 
 latter on a non pros, discontinuance, nolle prosequi, cassetur hilla vel 
 breve, retraxit, nonsuit, or as in case of a nonsuit, and for either party upon 
 demurrer, 7iul tiel record, verdict, or the bishop's certificate : Lastly, by
 
 Ixxiv INTRODUCTION. 
 
 the species of execution ; as whether it be hj fieri facias against the de- 
 fendant's goods, by capias ad satisfaciendum against his person, by elegit 
 against his goods and a moiety of his lands, or by extendi facias, or extent, 
 against his body, lands and goods, or in some cases against his lands and 
 goods, or lands only. 
 
 The practice of the court, by which the proceedings In an action are 
 governed, is founded on ancient and immemorial usage, (which may not 
 improperly be termed the common law of practice,) regulated from time to 
 time by rules and orders, acts of parliament, and judicial decisions. The 
 practice is the law of the court, and as such, is a part of the law of the 
 land ;* and it has been so strictly adhered to, that in the case of Bewdlei/,f 
 a practice of seven years only was allowed to prevail against the express 
 words of an act of parliament.^ The rules and orders of the court are 
 either such as are made for the regulation of its general practice, or such 
 as apply only to the proceedings in particular causes. The general rules 
 are confined in their operation to the court in which they are made ; and 
 for the most part respect the mode of conducting the proceedings. Hence 
 we find, that acts of parliament are sometimes necessary, to introduce 
 regulations extending to all the courts, or creating some changes or alter- 
 ation in the proceedings themselves. And as questions arise respecting 
 the regularity of the proceedings, the courts are called upon to settle, by 
 judicial decisions, the course of their own practice, or to fix the construc- 
 tion of the rules or acts of parliament which have been made respecting it. 
 
 Such is the nature o? practice : upon which it is observable, that as the 
 actions and proceedings in general are the same, in all the superior courts 
 of common law, there must necessarily be a great uniformity in the practice 
 of each ; and especially when it is considered, that the courts have in many 
 instances adopted the same general rules, and are governed by the same 
 acts of parliament, in the construction of which their decisions are for the 
 most similar. The principal difierences arise from the original constitution 
 of each particular court, its jurisdiction and officers, and the peculiar rules 
 laid down for regulating its proceedings ; and they consist for the most 
 part in the nature of the process used for bringing in the defendant, &c. 
 and the manner in which it is returnable, the times prescribed or allowed 
 for particular purposes, and the modes of transacting business by the court, 
 or its officers. § 
 
 * Jenk. Cent. 295. 2 Co. 17. 4 Co. 93, (6). Hard. 98, 2 Ses. Cas. 342. 1 "Wils. 162. 
 4 Bur. 2572. 
 
 t 1 P. Wms. 207, 223. 
 
 % 2 Str. 755 ; and see 3 Bur. 1755. But this doctrine does not seem to be tenable. See 1 
 Blac. Com. 76, 7. 1 Chit. Rep. 299. (a.) 
 
 § It were to be wished that many of these dififerences were abolished, in order to render 
 the practice more simple and uniform.
 
 INTRODUCTION. IxxV 
 
 In the following work, it Is the author's Intention to treat of 'personal 
 actions, and the various means of commencing, prosecuting, and defending 
 them, in the courts of King's Bench and Common Pleas, and occasionally 
 in the court of Exchequer of Pleas : And with that view, he has considered 
 the proceedings, in the order in which they present themselves, and follow 
 one another, in the course of the suit ; and has endeavored to explain, not 
 only the principal proceedings, but also such as are of a subordinate nature, 
 with all the variations attendant upon each, by a methodical arrangement of 
 the several acts of parliament, rules of court, and judicial decisions respect- 
 ing them. In stating the mode of commencing tlie suit, he has attended 
 to the jurisdiction of the courts, as it is exercised by original writ, bill, or 
 attachment of privilege. The proceedings against peers of the realm, cor- 
 porations and hundredors, are classed under the head of proceedings by 
 original writ, to which outlawry is considered as an incident ; and the pro- 
 ceedings against members of the House of Commons, on the statute 12 & 
 13 W. III. c. 3, as well as against attorneys and officers of the court, and, 
 in the King's Bench, against prisoners in the actual custody of the sheriff 
 or marshal, under that of proceedings by hill. 
 
 The doctrine o^ pleas tindi pleading, and of demurrers, amendments and 
 jeofails, is considered, with reference to the different actions, so far as ap- 
 peared to be necessary for understanding the practice of the courts : And 
 the reader will here find a full account of the practice on motions, and the 
 cases in which the courts will set aside or stay the proceedings, the sub- 
 ject of arbitration, and the law of damages and costs, the doctrine of 
 extents, in chief and in aid, with the proceedings in scire facias, and error. 
 The proceedings in criminal cases in general, and in real and mixed ac- 
 tions, being foreign to the purpose of this work, are only incidentally men- 
 tioned in the course of it. The doctrine of attachments, however, is con- 
 sidered, as it arises out of, and is connected with, the proceedings in civil 
 suits. A collection will be found, towards the end of the first volume, of 
 all the cases determined by the court of Common Pleas, on the amend- 
 ment oi fines and recoveries : And the practice in the action of ejectment 
 is fully treated of in the last chapter. 
 
 This work was originally published in three parts : The first part made 
 its appearance in November, 1790; and was received by the profession, in 
 a manner highly flattering to its author. This part contained the whole 
 of the proceedings in personal actions, in the court of King's Bench, pre- 
 vious to the plea ; together with all that was peculiar to the proceedings 
 by and against attorneys and officers of tlie court, against peers of the 
 realm, and members of the house of commons, upon the writ of habeas 
 corpus, and against prisoners in the actual custody of the sheriff, or mar- 
 shal, &c. In the second part, which was published in November, 1794, the
 
 Ixxvi INTRODUCTION. 
 
 proceedings at largo were continued, from the demand of plea, to final 
 judgment and execution ; and the third part, which treated of the proceed- 
 ings in scire facias and error, was published in November, 1798. 
 
 In the following year, a second edition of the whole work was called 
 for: in which some parts of it were considerably enlarged, particularly 
 those which treated of actions and declarations ; of the doctrine of arrest: 
 of tlic proceedings against the sheriff, to compel him to return the writ, 
 and bring in the body : of attorneys, and the mode of their admission, with 
 their duties, privileges, and disabilities ; of the practice on motions ; and 
 the judgment and execution against heirs and tertenants. 
 
 In the third edition, which was published in October, 1803, a new Chap- 
 ter was inserted, on the removal of causes from inferior courts ; by writ 
 of certiorari a.nd habeas corjms, from such as were of record, and by writ 
 of 2^one, recordari facias loquelam, or accedas ad curiam, from such as 
 were not of record: And this edition was not confined altogether to the 
 practice of the court of King's Bench ; but contained an account of the 
 means of commencing actions in the court of Common Pleas ; and refer- 
 ences were occasionally made to the rules of that court, and more fre- 
 quently to the cases of practice determined therein, as reported by Lord 
 Chief Justice Willes, and other subsequent reporters. 
 
 ThQ fourth edition was published in January, 1808. In this was com- 
 prised the substance of all the rules and orders of the court of King's 
 Bench, on the subject of practice, from the beginning of the reign of James 
 the 1st, down to that period ; and in addition to those of the Common 
 Pleas, which were before referred to, from the printed collection, ending 
 in 1743, it contained all the subsequent rules of that court, many of which 
 were never before published. 
 
 Still, however, the publication related principally to the practice of the 
 court of King's Bench. The author had originally intended to treat of 
 the practice of both courts: but was deterred from the execution of his 
 design, by the difficulty of the undertaking, and a fear of failure from at- 
 tempting too much. Encouraged, however, by the success he met with, 
 he afterwards inserted some of the more recent rules and decisions of the 
 court of Common Pleas ; and in the fifth edition, published in November, 
 1812, he endeavoured to incorporate the whole of its practice with that of 
 the King's Bench. For this purpose, and with a view to the difierences 
 between the practice of the two courts, which will be noticed hereafter, 
 particular attention was paid to the constitution of the court of Common 
 Pleas, its jurisdiction and officers, and the process used for bringing in the 
 defendant, &c. And besides some of the earlier cases of practice, most 
 of those reported by Sir G-eorge Cooke, the author of the Practical Regis- 
 ter^ and Mr. Secondary Barnes, were referred to ; and all that were to be
 
 INTRODUCTION. Ixxvii 
 
 found in the reports of Lord Chief Justice Willes, Mr. Serjeant Wilson^ 
 Mr. Justice BlacJcstone, Mr. Henry Blackstone, Messrs. Bosanquet ^ 
 Puller, and Mr. William Pyle Taunton: And lastly, so much of the 
 official practice was added, as tlie Author could collect from the books upon 
 the subject, or was suggested by his own experience and observation. 
 
 In the sixth edition, which appeared in January, 1817, the proceedings 
 in actions by and against attorneys, and against prisoners in custody of 
 the sheriff, &c. and for the removal of causes from inferior courts, were 
 placed before the declaration, and time for pleading in ordinary cases ; 
 and some other transpositions were made, for the sake of perspicuity, and 
 in order more clearly to connect the different parts of the subject. The 
 law and practice of arrest were treated of altogether, in the ninth Chap- 
 ter ; and the motions and rules of the courts were newly arranged, in the 
 eighteenth; which also included the doctrine of attachments, with the 
 mode of proceeding thereon, and some addition to the practice by sum- 
 mons and order. In a subsequent Chapter, a general view was taken of 
 the rolls of the courts, on which issues and other matters of record are 
 entered, with the entries thereon, and by whom, and in what manner they 
 are made, and the time and mode of bringing in and docketing them ; 
 and, in the Chapter on executions, the writ of retorno hahendo in replevin 
 was treated of, as well as the writ of habere facias possessionem in eject- 
 ment. The stamp duties on legal proceedings, which have been since 
 abolished, were also carefully stated in that edition, from the last general 
 stamp act. 
 
 In the seventh edition, which was published in January, 1821, besides 
 other important alterations and additions, which are particularly noticed 
 in the preface thereto, the execution by levari facias, and the law and 
 practice of extents, in chief and in aid, with the proceedings thereon, for 
 the crown or its debtor to obtain execution, or for the defendant or a third 
 person to resist them, were made the subject of a separate Chapter ; and, 
 in the following one, the writ of scire facias for the king was treated of, 
 with the proceedings thereon, for the recovery of his debts, or obtaining 
 a repeal of letters patent. 
 
 In the eighth edition, which was published in June, 1824, besides bring- 
 ing doAvn the acts of parliament, rules of court, and practical decisions, 
 to the end of Michaelmas term preceding, some further important altera- 
 tions and additions were made. The third Chapter was divided, and 
 confined, in that edition, to the admission, enrolment, certificates, and re- 
 admission of attorneys ; their privileges, disabilities, and duties, with the 
 consequences of their misbehaviour. The remainder of that Chapter, 
 consisting of the proceedings in actions by and against attorneys, &c. and 
 for the recovery and taxation of their costs, was made the subject of a
 
 Ijjxyijj INTKODUCTION. 
 
 separate one, being the fourteenth. The numerous decisions respecting 
 attorneys and hail, occasioned considerable alterations and additions in 
 the tliird and tivelfth Chapters ; and in the nineteenth, there was a new 
 and copious arrangement of the cases in which attachments for contempt 
 might be moved for. The Chapter in the former additions, on " motions 
 and rules, &c. and the practice by summons and order, &c." was also di- 
 vided ; and an additional one formed out of it, being the twentieth in the 
 eighth addition, on "motions and rules, &c. peculiar to the action of eject- 
 ment, and affidavits in support of them, and such motions and rules as 
 were not necessarily connected with any suit ;" in which Chapter was in- 
 cluded a full account of the motion and rule for setting aside an annuity, 
 and delivering up the securities to be cancelled, &c. with the decisions of 
 the courts, on the statutes 17 Geo. III. c. 26, 53 Geo. III. c. 141, and 
 3 Geo. IV. c. 92. And, in the thirty-fifth Chapter, an outline was given 
 of written evidence, referring to the different books in which the subject 
 was more fully treated of. That edition too was greatly improved by the 
 insertion of some very valuable notes, and references to MSS. cases of 
 practice, never before published, which were kindly communicated to the 
 Author by Mr. Justice Holroyd. Some references were also made therein 
 to the reports of Sir Orlando Bridgman, and to the first volume of those 
 of the late Lord Kenyon. Of the alterations and improvements in the 
 present edition, a full account is given in the Preface. 
 
 The general order of the proceedings is the same in the courts of King's 
 Bench and Common Pleas: and the reader will observe, that, without 
 breaking in upon that order, the author has first of all treated of the 
 practice that is common to both, and then of what is peculiar to each, or 
 different in one from the other of them. When the practice is the same 
 in both courts, it is in general so stated, by using the word "courts" in 
 the plural number ; and where the peculiarity or difference between them 
 is considerable, it is commonly made the subject of a distinct paragraph ; 
 but otherwise it is noticed in the same paragraph, and most frequently at 
 the end of it. In referring to the rules, they are marked with the initials 
 of the courts to which they belong ; and in citing the cases, the court in 
 which they were decided is in general mentioned. It should still be re- 
 membered, however, that the practice was originally written for, and con- 
 fined to the court of King's Bench: and hence, where the "court" is 
 mentioned in the singular number, it must be understood to mean that 
 court, unless the subject-matter appear by the context, or reference to the 
 notes, to relate to the practice of both courts, or be confined to that of 
 the court of Common Pleas. Whenever the practice of the Exchequer of 
 Pleas is introduced, that court is always particularly mentioned. 
 
 For the original cases referred to in the course of the work, the profes-
 
 INTRODUCTION. \xxix 
 
 sion are chiefly indebted to Mr. Justice Holroyd, the late Mr. Serjeant 
 Munnington, the late Mr. George Wilson, one of his majesty's learned 
 counsel, Mr. Abbot, (now Lord Colchester,) when at the bar, Mr. William 
 Elias Taunton, and Messrs. Maule ^ Sclwyn; whose initials are added 
 in the Table, to the names of the cases they respectively furnished.* The 
 few which are not marked, were communicated singly, by other friends, at 
 different times. 
 
 * The cases of Mr. Justice Holroyd are from M. 16 to E. 37 Geo. III. ; those of Mr. Ser- 
 jeant Jiunninfftoii, from E. 18 to M. 37 Geo. III. ; those of Mr. Wilson, from M. 22 to T. 31 
 Geo. III. ; those of Mr. Abbot, from E. 32 to E. 39 Geo. III. ; those of Mr. Taunton, from H. 
 40 to M. 49 Geo. III. ; and those of Messrs. Maule ^ Selwyn, from E. 5G to T. 57 Geo, III. 
 inclusive.
 
 CHAPTER I. 
 
 Of Actions, and the Time limited for their Commencement ; and of 
 Notices of Action, t^-c. 
 
 Actions are commonly divided into criminal, or such as concern pleas 
 of the crown, and civil, or such as concern common pleas.((i) And these 
 latter are again divided into real^ personal, and mixed actions. In a 
 real action, the proceedings are in rem, for the recovery of real property 
 only; in a jyersonal action, they are in personam, for the recovery of 
 specific chattels, or of some pecuniary satisfaction or rccompencc ; and in 
 a mixed action, they are in rem et personam, for the recovery of real pro- 
 perty, and damages for withholding it. Again, in real actions, there is a 
 distinction between those founded on the possession, and those founded 
 on the absolute propert^or right.{b) 
 
 Personal actions are ex contractu, vel ex delicto ; being founded upon 
 contracts, or for ivrongs independently of contract. (c) Actions upon con- 
 tracts are Account, Assumpsit, Covenant, Debt, Annuity, and Scire 
 facias. 
 
 Account lies, at common law, against a guardian in socage, bailiff, or 
 receiver, to compel an account of profits, or moneys received by the defen- 
 dant ;{d) and by the statute -t & 5 Anne, c. 16, § 27, it may be maintained 
 against the executors and administrators of every guardian, bailiif, and 
 receiver, and also by one joint-tenant and tenant in common, his executors 
 and administrators, against the other, as bailiff, for receiving more than 
 comes to his just share or proportion, and against his executors and 
 administrators. The proceedings in this action being difiicult, 
 *dilatory, and expensive, it is now seldom used, especially as [ *2 ] 
 the party has in general a more beneficial remedy, by action 
 for money had and received, kc. ; or, if the matter be of a complicated 
 nature, by resorting to a court of equity. It has been ruled at JSlsi 
 Prills, that an action of assumj^sit cannot be maintained on a running 
 account between merchants, or a merchant and his broker ; the proper 
 
 (a) Co. Lit. 284, b. Cowp. 391. 
 
 {/>) Steph. PI. 3, and see Com. Dig. tit. Action, D. 2. 
 
 (c) 1 Biic. Abr. 26. Gib. C. P. 5. Tlie outline here given of personal actions is not 
 intended to point out the particular cases in -which they are, or are not maintainable; but 
 merely to exhibit a general view of them, and the form they assume in pleading, to which 
 the practice of the courts more immediately relates. To fill up this outline, and obtain full 
 information on the doctrine of personal actions, and the facts necessary to support them, 
 see, besides the more elementary works of .Mr. Justice Blackstonc, Reeves, and Wovddeson, the 
 appropriate titles in the Abridgements of Rolle, D' Anvcrs, Vincr, and Bacon; Comyns'it 
 Digest; Lord Chief Baron G?Mcr<'s treatises on the actions of debt and replevin; Mr. Wilkin- 
 son's Practice in the latter action; the law of Aisi Prius, by Mr. Justice Buller, Efpinasse, 
 and Seltrt/n; Mr. Serjeant Williavis's 'Sotos on Saunders; Chitt;/ on Pleading, I V. Chap. IL, 
 and Mr. Serjeant Slei'/ien's Principles of Pleading, 12, &c. In the action of assumpsit in par- 
 ticular, the contracts on which it is founded are very fully treated of by Mr. Comi/n, and the 
 pleadings therein by Mr. Serjeant E. Lawcs. See also Mr. Roscoc's treatise on the law of 
 actions relating to real property. (rf) Co. Lit. 172, a. 
 
 Vol. I.— 1
 
 2 OF ACTIONS, ETC. 
 
 remedy being by action of account ;{a) but, in a subsequent case, it was 
 holdcn, that whatever doubt might have existed on the subject a century 
 back, the action of assumpsit, for the bahance due on the result of numer- 
 ous transactions, had been so long maintained, that it was now much too 
 late to make any objection to it ;{h) and it seems to be now settled, that 
 assumpsit will lie for the balance of an account, however voluminous 
 it may be, and that the plaintiff is not obliged to bring an action of 
 account. {c)[Y\ 
 
 Assumpsit, which is now become the most common action of any upon 
 contracts,((^) lies for the recovery of damages, upon promises, express or 
 implied, without deed. These promises are various, according to the sub- 
 ject matter of them, and the considerations upon which they are founded. 
 In general, they are to pay or repay money, or to do or forbear some 
 other act. Promises to pay money are by far the most numerous of any, 
 and may be classed in the following order : First, the indebitatus assump- 
 sit, on a promise to pay a precedent debt, for the sale, exchange or hire 
 of cattle or goods, necessaries, works and services, or moneys ; for the 
 sale, assignment, or use of lands, &c. : Secondly, the quantum meruit, or 
 valebant, on a promise to pay the plaintiff, for the like considerations, as 
 much money as he deserved to have, or, for goods, &c., as much as they' 
 were reasonably worth : Thirdly, the insimul coihputassent, on a promise 
 to pay the sum due on an account stated between the parties. The above 
 are usually denominated common assumpsits : Fourthly, the assumpsit on 
 a promise to pay money, in consideration of a legal liability to pay it, 
 which maybe termed the liability assumpsit ;[e) as upon a bill of exchange, 
 (inland or foreign,) banker's draft, promissory note, bye-law, or foreign 
 judgment ; or for a fine on admission to copyhold premises, legacy charged 
 on land, toll, port-duty, contribution to party-walls, &c. :(/) Fifthly, 
 mutual promises, which are either to pay money, as on wagers or feigned 
 issues, or to do some other act, as to marry, &c., or to perform special 
 agreements, charter-parties, policies of assurance, or awards ; the breach 
 of which may consist either in the non-payment of money, or the 
 [ *3 ] *non-performance of some other act : Sixthly, sp)ecial assumpsits, 
 on promises to pay money, founded on some consideration exe- 
 cuted or executory ; as in consideration of marriage, the sale, exchange or 
 
 (a) 2 Campb. 238, and see Gilb. Evid. 192. 2 Keb. 781. Tri. per pais, 401. 
 
 (b) Arnold v. Webb, 5 Taunt, 432. (a.) 
 
 (c) 5 Taunt. 431. 1 Marsh. 115, S. C., and see 2 Chit. Rep. 10, in which two principal 
 officers of the court were appointed auditors, on motion, in an action of account. 3 Dowl. & 
 Ryl. 596. 
 
 (d) The action of assumpsit, though founded upon contract, is properly an action upon the 
 ease. 1 Bac. Abr. 30. Gilb. C. P. 6. 
 
 (e) The difference between the indebitatus and liabiliti/ assumpsit is, that in the former, the 
 promise is founded on a pre-existing debt, the consideration for which is stated generally ; 
 but in the latter, the circumstances which induce the defendant's liability, are set forth 
 specially in the declaration. 
 
 (/) The promises that have been hitherto mentioned, are for the most part implied: those 
 which follow are generally express. 
 
 [1] In England, to avoid the necessity of bringing this form of action, and at the same 
 time, to retain the business involving the settlement of mercantile accounts in the common 
 law courts, actions on the case for not accounting were introduced, which received judicial 
 sanction when founded on the breach of an express promise to account. Carthew, 89. 1 
 Salk. 9. 1 Shower, 71. 2 Binney, 330. But it has been made a question- whether the law 
 raises a promise by i?iiplication to account, where there has been no express promise given 
 by an agent to account. See 2 Binney, 325.
 
 OF ACTIONS, ETC. 3 
 
 hire of cattle or goods, necessaries, forbearance, work and services, or 
 indemnity; or for the sale, assignment, or use of lands, &c. : which pro- 
 mises may be made either by the party benefited, or by third persons. 
 I'romises to repay money are express or implied ; the latter may in 
 general be given in evidence, under the common count for money had and 
 received. 
 
 Special assumjjsits, on promises to do or forbear some other act, may 
 be considered as they relate to persons, personal property, or real pro- 
 perty; and are first, to marry, or do some personal service: Secondly, 
 upon a sale or exchange of cattle or goods, to accept, deliver, take back, 
 or return them ; or upon a warranty, as to their title, quality, or value : 
 Thirdly, upon a bailment of cattle or goods, to be kept, either generally 
 or by way of pledge ; concerning cattle or goods lent or let to hire ; or 
 against carriers, wharfingers, farriers, &;c. : Fourthly, to provide necessa- 
 ries, for the plaintiff, or for third persons : Fifthly, to forbear to sue, or 
 give time for the payment of a debt : Sixthly, to perform works ; under 
 which may be classed promises made by professional persons, as attorneys, 
 surgeons, &c. ; or respecting personal or real property : Seventhly, upon 
 a retainer, to serve ov employ : Eighthly, to sell, assign, or exchange 
 lands, &c. ; or by or against landlord or tenant, to take, let, hold, repair, 
 cultivate, or quit them : Ninthly, respecting real or personal securities : 
 Tenthly, to account for the profits of lands, or for money or goods, &c. : 
 And lastly, on promises of indemnity. 
 
 Covenant lies for the recovery of damages, upon contracts l)y deed. 
 This action is founded upon articles of agreement, awards, charter-parties 
 of aff'reightment, policies of insurance, indentures of apprenticeship, leases, 
 mortgages, &c. ; and is either for the non-payment of money, or for not 
 doing or forbearing some other act. 
 
 Debt lies for the recovery of a sum certain : First, on records ; as 
 judgments, or recognizances : Secondly, on specialties ; as single bills or 
 bonds, by or against the parties or their personal representatives, or 
 against heirs or devisees ; or upon articles of agreement to pay money, 
 leases, mortgages, &c. : Thirdly, upon simple contracts ; as for services 
 and works, moneys, &c,, it being a rule, that whenever indebitatus 
 assumpsit lies, debt will also lie ; or, by the payee against the drawer, 
 on bills of exchange, bankers' drafts, or promissory notes, expressed to 
 be for value received, or on bye-laws, or foreign judgments, or for fines 
 or amerciaments, &c. : Or lastly, it is founded in malcjicio : and lies 
 against sheriifs, &c., for escapes after judgment ; or upon acts of parlia- 
 ment, by the parties grieved or common informers. [1] 
 
 Annuity is an action which lies for the recovery of an annuity, or 
 yearly payment of a certain sum of money, granted to another in fee, for 
 
 [1] It was formerly holden, in England, that an action of debt would not lie against an 
 executor or administrator, upon a simple contract made by the testator, or intestate, (Barry 
 V. Robinson, 1 New Rep. C. P. 293, and the authorities there cited,) except in London, where 
 such an action was maintainable by the custom ; (City of London's case, 8 Co. 120. Rohun 
 Priv. Lond. 1J7, 14D, 151 ;) but where the contract was mi'.de by the executor or administra- 
 tor, an action of debt might have been maintained against him; [Riddell v. Sutl'm, 5 Ring. 
 200. 2 Moore & P. 345, S. C. :) And now, by the late act for the further amendment of the 
 law, and belter advancement of justice, (3 k 4 W'. IV, c. 42, ? 14, and see the third Report 
 of the Common Law Commissioners, pp. 17, 18, 74,) " an action of debt on simple contract 
 shall be maintainable, in any court of common law, against any executor or administrator." 
 It should also be observed, as connected with this subject, that, by nnother clause of the 
 same statute, (3 & 4 W. IV, c. 42, 2 13,) "no wager of law shall be hereafter allowed."
 
 3 OF ACTIOXS, ETC. 
 
 life or years, cliarging the person of the grantor only ; and it may be 
 brought by the grantee or his heirs, or his or their grantee, 
 [ *4 ] against the *grantor or his heirs. (a) This action is at present 
 out of use, being superseded by the action of debt or covenant. 
 But debt does not lie at common law, nor by stat. 8 Anne, c. 14, § 4, for 
 the arrears of an annuity or yearly rent, devised to A. payable out of 
 lands, during the life of B., to whom the lands are devised for life, B. 
 paying the same thereout, so long as the estate of freehold continues. (6) 
 Scire Facias lies by or against the parties or their representatives, to 
 have execution on a judgment, statute or recognizance, for the sum 
 recovered, or acknowledged to be due. 
 
 Actions for wrongs are Oase, Detinue^ Replevin, and Trespass vi et 
 armis. 
 
 Actions on the case are founded on the common law, or given by act 
 of parliament ; and lie to recover damages, for consequential wrongs or 
 torts, to persons individually or relatively; or to real or personal property, 
 or some right or privilege incident thereto. These actions are either ex 
 delicto, or quasi ex contractu : and they are said to arise from mal- 
 feazance, or doing what the defendant ought not to do ; non-feazance, 
 or not doing what he ought to do ; and mis-feazance, or doing what he 
 ought to do, improperly ; and they are commonly for doing or omitting 
 something contrary to the general obligation of law, the particular rights 
 or duties of the parties, or some implied contract between them. To 
 persons individually, ex delicto, they are for some consequential hurt or 
 damage, arising from public nuisances, or keeping mischievous animals ;(c) 
 in nature of conspiracy; for malicious prosecutions, of civil suits or 
 criminal charges ; libels, scayulalum magnatum, or defamation of com- 
 mon persons ; against justices, or other officers, for refusing bail, &c. : or, 
 quasi ex contractu, against surgeons, &c., for improper treatment. To 
 persons relatively, ex delicto, they are for seducing, enticing away, or har- 
 bouring wives or servants, per quod co7isortium vel serviiium 
 [ *5 ] amisit.{d) *To personal property, ex delicto, they are actions 
 of trover and conversion ; for negligence, in riding horses, 
 
 (a) Co. Lit. 144, b. 
 
 {b) 4 Maule & Sel. 113, and see 6 Moore, 335. 3 Brod. & Bing. 130, S. C, where the 
 annuity was created by grant. See also M'Clel. 495. 
 
 (c) This and some other of the wrongs here mentioned, as affecting persons, may and do 
 frequently &^QQ,i personal property. And, on the other hand, some of the wrongs hereafter 
 referred to, as A^Qciing personal property, may and do sometimes affect persons, as negli- 
 gence in riding horses, and driving carriages, &c. 
 
 (d) In the former editions of this work, actions for criminal conversation, debauching 
 daughters, and beating or imprisoning wives or servants, jtier giiod consortium vel serviiium 
 amisit, were classed under the head of actions on the case ; and in principle they seem to be 
 so, for the following reasons : First, that the wrongs complained of therein are not imme- 
 diate, but consequential : Secondly, that the plaintiff may declare for them by bill, with a 
 quod cum, which is not allowed in trespass: 2 Salk. 636. 1 Str. 621. Thirdly, that in these 
 actions, the plea of the statute of limitations is not guilty within six years ; 2 Wils. 85. 2 
 Bur. 753. 2 Ken. 371. Bui. Ni. Pri. 28, S. C. 6 East, 387, S. P/semb., and not, as in 
 trespass and assault, within /owr years; 2 Salk. 420. And lastly, that though the plaintiff 
 should not recover /or/'y shillings damages, he is nevertheless entitled to full costs. 1 Salk. 206. 
 2 Ld. Raym. 831, S. C. 3 Wils. 319. 2 Blac. Rep. 854, S. C; and see 2 Durnf. & East, 167. 
 5Durnf &East,361. 5 East, 45. 6 East, 251, 387. 4 Dowl. &Ryl. 215. But as these actions, in 
 point of form, are laid, vi et armis and contra pacem, it has been determined, that they are to 
 be considered as actions of trespass : 2 New Rep. C. P. 476. And, accordingly, it is holdea 
 that a count may be joined therein for breaking and entering the plaintiff's house, or other 
 trespass, vi et armis: Id. Ibid., 2 Maule & Sel. 436. 3 Campb. 526, n. S. C. ; and see Cro. 
 Jac. 501 ; in like manner as trespass and rescue may be joined, 2 Lutw. 1249. 1 Ld. Raym.
 
 OF ACTIONS, ETC. 5 
 
 driving carriages, navigating vessels, or performing works ; against 
 sheriffs and other officers, for escapes, false returns, or taking insufficient 
 pledges, &c. : for excesses or irregular distresses, pound breach and rescue 
 of distresses for rent or damage feasant ; rescue of prisoners ; unlawfully 
 exercising trades, or infringing patents, copyrights, &c. ; false and deceit- 
 ful representations ; or on the statute 7 & 8 Geo. IV, c. 31, &c. : or quasi 
 ex contractu,, for deceit on the sale of cattle or goods, or immoderate use 
 of them, when lent or let to hire ; and against innkeepers, carriers, by 
 land or by water, wharfingers, farriers, &c. To real property corporeal, 
 ex delicto, they are for nuisances of a private nature, to houses, lands, &c., 
 to the prejudice of the plaintiff's possession or reversion ; or on the statute 
 7 & 8 Geo. IV., c. 31, &c. : or quasi ex contractu, against tenants, in 
 nature of Avaste ; for not repairing fences, or for not carrying away tithes, 
 &c. And to real property incorporeal, ex delicto, they are for disturbance 
 of common of pasture, &c., ways, offices, franchises, tolls, ferries, and seats 
 in churches. 
 
 Detinue lies upon a purchase, bailment, or finding, for the recovery of 
 goods in specie, or damages for detaining them. And in this action, when 
 the goods are alleged to have come to the defendant by finding, it is suffi- 
 cient for the plaintiff to prove that they came to him by wrong ; at least, 
 unless the finding be traversed. (a) Replevin lies to recover damages for 
 an immediate wrong, without force, in taking and detaining cattle or 
 goods, under a distress for rent, or damage feasant, &c. ; and answers to 
 the action of trespass de bonis asportatis. It seems, that a writ of replevin 
 may be properly brought, not merely where there has been a distress, as 
 is generally imagined, but in all cases where a person takes goods out of 
 the possession of the party who applies for the writ, upon his giving secu- 
 rity, until it shall appear whether the goods are rightfully taken ;[a] but if A. 
 
 83 ; though the consequences of a rescue seem to be properly the subject of an action on 
 the case. 
 
 (a) 1 New Rep. C. P. 140. 
 
 [a] " In an action of replevin, the plaintiff may recover the specific chattels of which he 
 has been unlawfully disposesscd, and not merely damages, as in trespass or trover. It is 
 now the settled doctrine in England, that replevin lies in all cases where the goods have 
 been taken out of the actual possession of the owner, and in Pennsylvania, it lies in all cases 
 where one man claims goods in the possession of another, without regard to the manner in 
 which the possession was obtained. And as the doctrine of market overt does not obtain in 
 this State, the plaintiff may follow his property through successive transfers, and replevin 
 it in whose possession soever he maj- find it. The action is usually grounded on a tortious 
 taking, but, if the detention only is unlawful, replevin lies. It sounds in damages like an 
 action of trespass, to which it is extremely analogous, if the sheriff has made a return, and 
 the plaintiff goes only for damages. It may be resorted to at any time within six years 
 after the cause of action has accrued, but not afterwards. 
 
 It is not in this state a proceeding altogether in rem, but is against the defendant in the 
 writ personally, with a summons to appear; and it is a mistake to suppose that, because the 
 defendant's conduct prevents the replevying and delivering of the property to the plaintiff", 
 a recovery cannot therefore be had by him, for the value of the property so eloigned. 
 
 Though this action, like all personal actions at common law abated by the death of the 
 plaintiff, yet it did not die with the person ; the executor might bring a new one. The act 
 of 13th Ai)ril, 1791, in Pennsylvania, enaldcd the representative, (where the action by law 
 survived) if the plaintiff should die before final judgment, to prosecute the action ; so that 
 it does not abate; and to compel the defendant to appear, the plaintiff may make himself 
 party by substitution, without citation, and he may compel the defendant by scire facias to 
 defend. So the defendant can, by scire facias, compel the representative of a deceased 
 plaintiff to appear, for this action survives the death of the plaintiff. Nor does the action 
 abate by the death of the defendant whilst the action is pending, though it is held other- 
 wise in England and Massachusetts, where it is founded on tort, and does not survive
 
 5 OF ACTIONS, ETC. 
 
 be in possession of fjooils, in which B. cLiims a property, replevin is not 
 the proper writ to try that right. ((';) Trespass vi et armis lies to recover 
 damages for immediate Avrongs, accompanied with force; to the^J»ersow, by 
 menaces, assault, battery, wounding, mayhem, or false imprisonment ; to 
 real property, as houses, lands, fisheries, or watercourses ; and to jyei^sonal 
 property by destroying, damaging, taking away, detaining, or converting 
 
 cattle or goods. 
 [ *6 ] *Upon contracts, the action should be brought by the party 
 
 with whom the contract was made, if living ; or, if dead, by his 
 executors or administrators : And it should be brought against the party 
 who made the contract, or, if he be dead, against his executors or admin- 
 istrators ;(rt) or, upon a bond, against his heirs and devisees. Where there 
 are several parties to a contract, the action should be brought by or against 
 all of them, if living :{h) or, if some are dead, by or against the survivors :(c) 
 And an action may be brought by or against a surviving partner, for his 
 own debt, as well as for that which was contracted in the life-time of the 
 deceased. ((f) If an action be brought upon a joint contract, hy one of 
 several partners,(c) or assignees of a bankrupt,(/) the plaintiff will be non- 
 
 {b) 1 Scho. & Lef. 320, 21, n. 327, and see 2 Stark. Ni. Pri. 288, where, in an action of 
 trover for books of account, Lord Elhnhorough intimated, that the bringing an action of trover 
 was not the most convenient remedy in a case of this nature ; and said, that he liad heard 
 Mr. Wallace express his surprise, that the remedy by replevin was not more frequently 
 resorted to, by means of which the party might obtain possession of the specific chattel of 
 which he had been deprived, instead of an action of trover, in which he would recover dama- 
 ges only.[l] 
 
 (a) I Wms. Saund. 5 Ed, 216, a. (1). 
 
 [h) Id. 291, b. (4) and see 4. Barn. & Aid. 437. 6 Moore, 322. 3 Barn. & Cres. 353. 5 
 Dowl. & Ryl. 152. S. G. 7 Dowl. & Ryl. 144. 
 
 (c) 2 Wms. Saund. 5 Ed. 121, c. (1). 
 
 {d) Golding v. Vaunhan, E. 22 Geo. III. K. B. 2 Chit. Rep. 436, S. C. 5 Durnf. & East, 
 493, 1 ETsp. Rep. 47, S. C. 6 Durnf & East, 582. 
 
 (e) 2 Str. 820. 1 Wms. Saund. 5 Ed. 291, 5-. 
 
 (/) 1 Chit. Rep. 71. 2 Stark. Ni. Pri. 424. S. C. 
 
 [1] In England, however, the action of replevin can only be maintained where goods are 
 tortiously taken, and not where they are delivered upon a contract. 4 Bingham, 299. In 
 Pennsylvania, this form of action is extensively used to try c^uestions of property in chattels, 
 and for the want of a court of chancery, is adopted as the vehicle of equitable claims and 
 rights. See the note of the editor to the last edition of Stephen on Plead. Apj). No. 2. note I. 
 See also 3 Wharton, 369. In the state of New York, the action of replevin is grounded on 
 a tortious or unlawful taking, whether taken under pretence of a distress or not. 10 Johns. 
 Rep. 369 ; 7 /c?. 140 ; Hid. 116. It does not lie, in that state, when the original taking was 
 justifiable. 14 Id. 84 ; 15 Id. 401. So, in the state of North Carolina, 2 Taylor, 98. In the 
 state of Massachusetts, replevin lies for goods wrongfully detained, though the original taking 
 was justifiable, and though the plaintiff never had jjossesion of them, until delivered to him 
 on the service of the writ. 15 Mass. Rep. 359 ; 16 Id. 147 ; 17 Id. 610. In the state of 
 Maryland, as in Pennsylvania, it appears to lie wherever one man claims goods in the pos- 
 session of another. 1 Har. & Johns. 147. In the state of South Carolina, it appears to be 
 unsettled whether replevin will lie in any other case than of a distress for rent. 1 Rep. Con. 
 Ct. 401. In Illinois, to maintain this action, there must be an unlawful taking from the 
 actual or constructive possession of the plaintiff. 1 Breese, 130. 
 
 against the executor or administrator. In our practice, it is an action which is much 
 resorted to, and has undergone material change. It possesses many advantages over any 
 other form of action, and the inclination of the courts is to make it as complete as possible. 
 To expose the plaintiff to the loss of his remedy by the death of the defendant, would be in 
 some cases to destroy his chance of justice ; for unless the property remained in specie in 
 the hands of the executor, he would be remediless, the reason of the rnle, that personal 
 actions die with the person, does not apply to cases involving a right of property. Where 
 one receives the property of another, his estate should answer it; for that swells the assets 
 in the hands of the representatives. The exception to this rule will not be extended beyond 
 the case of trover, which has been held to abate by the defendant's death." 2 Trou. & Hal. 
 Pr. 161, 3d Edition. Morris on Replevin, Ch. 1, p. 17 ; Ch. 2, p. 87.
 
 OF ACTIONS, ETC. 6 
 
 suited, or have a verdict against liirn : But if one of several plaintiffs be 
 mis-named, this is the subject of a plea in abatement, and not in bar:(^) 
 And if an action be brought against one of several partners, or assignees, 
 he can only plead in abatement ; though the plaintiff knew, and even 
 contracted "with the other partners. (Zi) In assumpsit, by one of two sur- 
 viving partners, the fact of the plaintiff's being a surviving partner, must 
 be stated in the declaration ; and, therefore, a count for goods sold by the 
 plaintiff to the defendant, is not supported by proof that the goods were 
 sold by the plaintiff and his deceased partner :(/) But under a declaration 
 containing only one set of counts, charging the defendant in his own 
 right, the plaintiff may recover one demand due from the defendant indi- 
 vidually, and another due from him as surviving partner.(/c) It is also a 
 rule, that, as a man cannot sue himself, an action cannot be maintained 
 by several plaintiffs, on a joint contract, where one or more of them are 
 liable, with the defendants, to the performance of it,(Z) A contract, being 
 a chose in action, was not assignable at common law, so as to entitle the 
 assignee to an action in his own name:(wi) but there was an exception to 
 this rule, in the case of foreign bills of exchange, upon Avhich an action 
 might have been maintained, in the name of the indorsee : And the same 
 doctrine was afterwards applied to inland bills ;(w) and extended to pro- 
 missory notes, by the statute 3 & 4 Anne, c. : and, by other acts of 
 parliament, actions may be maintained by the assignee of the reversion, 
 or against the assignee of a lease, where the covenants run with the 
 land;(c) *or by the assignees of a bail,(a) or replevin, (J) bond; [ *7 ] 
 or of the effects of a bankrupt, {c) or insolvent debtor :{d) But 
 a trustee under the Scotch bankrupt act, (54 Geo. III. c. 137,) cannot sue, 
 for a chose in action, in his own name ;{e) and upon the contract of a 
 bankrupt, or insolvent debtor, an action does not lie against his assignees. 
 By statute 54 Geo. III. c. 170, § 8, "all securities given or received 
 or indemnifying any district, parish, township, or hamlet, for the main- 
 tenance of any bastard child or children respectively, or any expenses 
 in any way occasioned by such district, &c., by reason of the birth or 
 support of any bastard child or children born within such district, &;c., 
 or chargeable thereunto, are declared to be vested in the overseers of the 
 poor of such district, &c. for the time being ; who are authorized to sue 
 for the same, as and by their description of overseers, of such district, &c. : 
 And such action, so commenced by such overseers, shall in no wise abate, 
 by reason of any change of overseers of such district, &c. pending the 
 
 (g) G Maulc & Scl. 45. 
 
 (A) 2 Atk. 510. 5 Bur. 2611. 2 Blac. Rep. 947. 5 Dumf. & East, G49. 1 Wms. Saund. 5 
 Ed. 291, c. d. 
 
 (t) 4 Barn. & Aid. 374, and see 6 Moore, 332 ; but see id. 579. 
 
 \k) 1. Barn. &. Aid. 29, and see 7 Moore, 158. 3 Brod. & Bing. 302, S. C. 
 
 (l) 2 Bos. k Pul. 120, 124. (r). G Taunt. 597. 2 Marsh. 319. S. C. G Moore, 334. 7 Barn. 
 & Ores. 419. 1 Man. & Ryl. 238, S. C. 
 
 (m) For the doctrine as to the assignment of choses in action, sec Chitty on bills, p. 7, &c. 
 
 (n) /(/. 11. 
 
 (o) Stat. 32 Hen. VIII. c. 34. (a) Stat. 4 & 5 Ann. c. IG, I 20. 
 
 (b) Stat. 11 Geo. II. c. 19 § 23. 
 
 (c) Stat. 1. Jac. I. c. 15, § 13. 5 Geo. II. c. 30, ? 2. G Geo. IV. c. 16, ? 63. And see stat. 3 
 Geo. IV. c. 81, I 11, 6 Geo. IV. c. IG, ji 89, authorizing the assignees of one or more mem- 
 bers of a firm, to use the names of partners in suits ; indemaifyiug thera against the payment 
 of costs. 
 
 (d) Stat. 54 Geo. III. c. 28, ? 17. 7 Geo. IV. c. 57, 2 24. 
 (c) 6 Maule & Sel. 126.
 
 7 OF ACTIONS, ETC. 
 
 same; but shall be proceeded in by sucb overseers for the time being, as 
 if no such change had taken place." On this statute it has been holden, 
 that an action on a bond, to indemnify a parish against the expenses of a 
 bastard child, must be brought in the names of the overseers for the time 
 being, and not of those to whom the bond was given. (/) Also, by 
 statute 59 Geo. III. c. 12, § 17, " in all actions, suits, indictments, and 
 other proceedings, for or in relation to any buildings, lands, or heredita- 
 ments, purchased, hired, or taken on lease, by the churchwardens and 
 overseers of the poor of any parish, by the authority and for any of the 
 purposes of that act, or for the rent thereof, or for or in relation to any 
 other buildings, &c. belonging to such parish, or the rent thereof; and in 
 all actions and proceedings upon or in relation to any bond, to be given 
 for the faithful execution of the ofSce of an assistant overseer, it shall be 
 sufficient to name the churchwardens and orerseers of the poor for the 
 time being, describing them as the churchwardens and overseers of the 
 poor of the parish for which they shall act, and naming such parish ; and 
 no action or suit, &c. shall cease, abate, or be discontinued, quashed, 
 defeated, or impeded, by the death of the churchwardens and overseers 
 named in such proceeding, or any of them, or by their removal from, or 
 the expiration of their respective offices." On this statute, where a 
 declaration in ejectment^ by churchwardens and overseers, contained two 
 
 sets of counts, one describing them by their office, without 
 [ *8 ] their names, and the other by * their names, without their office, 
 
 the court held, after verdict, that the objection, if any, was 
 cured. («) 
 
 In the case of friendly societies,{b) the trustees of the institution for 
 the time being are authorized, by the statutes 33 Geo. III. c. 45, § 11, 
 and 59 Geo. III. c. 128, § 7, "to bring and defend, or cause to be brought 
 or defended, any action, suit, or prosecution, criminal as well as civil, in 
 law or equity, touching or concerning the property, right or claim, of or 
 belonging to, or had by such institution ; and such person or persons so 
 appointed shall and may, in all cases concerning the property, right or 
 claim aforesaid, of such institution, sue and be sued, plead and be 
 impleaded, in his, her or their proper name or names, as trustee or 
 trustees of such institution, without other description : And no such suit, 
 &c. shall be discontinued or abate, by the death of such person or persons, 
 or his or their removal from the office of trustee or trustees ; but the same 
 shall and may be proceeded in, by the succeeding trustee or trustees, in 
 the proper name or names of the person or persons commencing the same : 
 And such succeeding trustee or trustees shall pay or receive like costs, as 
 if the action or suit had been commenced in his, her or their name or 
 names, for the benefit of, or to be reimbursed from, the funds of such 
 institution." In an action of debt, on bond given to the plaintiff as 
 treasurer of a friendly society, the defendant pleaded, that the rules of, 
 the society had not been confirmed at the quarter-sessions pursuant to 
 33 Geo. III. c. 54 ; and the court held, upon demurrer, that the plea was 
 bad, the bond being a good bond at common law.(c) 
 
 (/) 3 Moore, 21. 8 Taunt. 691, S. C. and see 6 Dowl. & Ryl. 122. 
 
 (a) 2 Dowl. & Ryl. Y08. 
 
 (b) And see stat. 57 Geo. III. c. 130, ^ 8, as to bringing and defending actions, &c. by or 
 against trustees of Savings Banks. 
 
 (c) 5 Barn. & Aid. T69. 2 Chit. Rep. 322. 1 Dowl. & Ryl. 393, S. C.
 
 OF ACTIONS, ETC. 8 
 
 In actions by or against 'public companies, as the West India,{d) 
 London DocJc,{e) or Tnsurance{f) companies, &c., the plaintiiFs or 
 defendants are frequently authorized and required to sue, or be sued, by 
 or in the name of their treasure); or clerk : And, by the general turii- 
 pihe act,(,^) " the trustees and commissioners of every turnpike road may 
 sue, and be sued, in the name or names of any one such trusteces or commis- 
 sioners, or of their clerk or clerks for the time being ; and that no action 
 or suit to be brought or commenced by or against any trustees or com- 
 missioners of any turnpike road, by virtue of that or any other act or acts 
 of parliament, in the name or names of any one of such trustees or com- 
 missioners, or their clerk or clerks, shall abate or be discontinued, by 
 the death, removal or act of such trustee, &c. without the consent of the 
 said trustee or commissioners, but by any other of such trustees, &c. shall 
 always be deemed to be the plaintiff or plaintiffs, defendant or defendants, 
 (as the case may be,) in every such action or suit: Provided always, 
 that every such trustee, &c., shall be reimbursed and paid out *of 
 the moneys belonging to the turnpike road for which he or they [ *9 ] 
 shall act, all such costs, charges, and expenses, as he or they 
 shall be put unto, or become chargeable with or liable to, by reason of his 
 or their being so made plaintiff or plaintiffs, defendant or defendants." 
 In Ireland, by the statutes 5 Geo. IV. c. 73, and 6 Geo. IV. c. 4:2, § 10, 
 societies or partnerships, formed under the authority of those statutes, 
 may sue and be sued, in the name of any one of their public officers. 
 And by the statute G Geo. IV. c. 131, joint stock societies or partner- 
 ships in Scotland may sue and be sued, in the name of the firms 
 severally used by such societies or partnerships, or in the name of the 
 manager, cashier, or principal officer of such society or partnership. 
 
 For ivrongs, independently of contract, the action must be brought by 
 the party to whom the injury is done, against the party doing it. And 
 if either of the parties die, the action is gone ; for it is a rule, that actio 
 personalis moritur cum 2)erso7id.[a)[A'] But there are some exceptions to 
 
 {d) 39 Geo. III. c. Ixix. ^ 184. [e) 39 & 40 Geo. III. c. xlvii. I 150. 
 
 (/) 53 Geo. III. c. ccxvi. 3 Barn. & Ores. 178, and see 4 Barn. & Crcs. 962. 7 Dowl. 
 & Ryl. 376. S. C. 
 
 {g) 3 Geo. IV. c. 126, § 74. 
 
 (a) 1 Wms. Saund. 5 Ed. 216, a. (1). 
 
 [a] "The personal representatives are, as a general rule, entitled to sue on all covenants 
 broken in tlie life-time of the covenantee ; as for rent then due, or for breach of covenant 
 for quiet enjoyment, or to discharge tlie land from incumbrances. A distinction must, 
 however, ha remarked betvreen a covenant running with the land, and one purely collateral. 
 In the former case, where the formal breach has been in the ancestor's life-time, but the 
 substantial damage has taken place since his death, the real, and not the personal repre- 
 sentative is the proper plaintiff; whereas, in the case of a covenant not running with the 
 land, and intended not to be limited to the life of the covenantee, as a covenant not to fell 
 trees, excepted from the demise, the personal representative is alone entitled to sue. In a 
 recent case, Ricketts v. }Yeaver, 12 M. & W., 718, it was held, that the executor of a tenant 
 for life may recover for a breach of a covenant to repair committed by the lessee of the 
 testator in his lifetime, without averring a damage to his personal estate ; and, in this case, 
 the rule was stated to be, that, unless the particular covenant be one for breach whereof, 
 in the lifetime of the lessor, the heir alone can sue, the executor may sue, unless it be a 
 mere personal contract, to which the rule applies, that actio personalis moritur cum persona." 
 
 "The personal representative, moreover, may sue, not only for the recovery of all debts 
 due to the deceased by speciality or otherwise, but on all contracts with him, whether 
 broken in his life time or subsequently to his death, of which the breach occasions an 
 injury to the personal estate, and which are neither limited to the life-time of the deceased, 
 nor, as in the instance of a submission to arbitration containing no special clause to the
 
 9 OF ACTIONS, ETC, 
 
 this rule, cbieflv arising from an equitable construction of the statute 4 
 Edw. III. c. 7, bj which executors shall have an action of trespass, for a 
 
 contrary, revoked by bis death. Aa administrator's title, moreover, relates back to the 
 time of the intestate's death, so that he may sue for goods sold and delivered between the 
 death and the taking out letters of administration. 
 
 " An action, however, is not maintainable by an executor or administrator for a breach of 
 promise of marriage made to the deceased, where no special damage is alleged ; and, gener- 
 ally, with respect to injuries affecting the life or health of the deceased, — such, for instance, 
 as arise out of the unskilfulness of a medical practitioner, or the negligence of an attorney, 
 or a coach proprietor, — the maxim as to actio personalis is applicable, unless some damage 
 done to the personal estate of the deceased be stated on the record. But, where the breach 
 of a contract relating to a person occasions a damage, not to the person only, but also to 
 the personal estate ; as, for example, if in the case of negligent carriage or cure there was 
 consequential damage — if the testator had expended his money, or had lost the profits of a 
 business, or the wages of labour for a time ; or if there were a joint contract to carry both 
 the person and the goods, and both were injured ; it seems a true proposition, that, in these 
 cases, the executor might sue for the breach of contract, and recover damages to the extent 
 of the injury to the personal estate." 
 
 " It is, however, to actions in form ex delicto^ that the rule actio personalis moritur cum 
 persona is peculiarly applicable ; indeed, it has been observed that this maxim is not applied 
 in the old authorities to cases of action on contracts, but to those in tort which are 
 founded on malfeasance or misfeasance to the person or property of another ; which latter 
 are annexed to the person, and die with the person, except where the remedy is given to 
 the personal representative by the statute law; it being a general rule that an action 
 founded in tort, and in form ex delicto, was considered as actio personalis, and within the 
 above maxim." 
 
 "For a tort committed to a persoH, it is clear, then, that at common law no action can be 
 maintained against the personal representatives of the tort-feasor, nor does it seem that the 
 recent Stat. 9 & 10 Vict. c. 93, supplies any remedy against the executors or administra- 
 tors of the party who, hj his ' wrongful act, neglect, or default,' has caused the death of 
 another; for the first section of this act renders that person liable to an action for damages, 
 ' who would have been liable if death had not ensued,' in which case, as already stated, 
 the personal representatives of the tort-feasor would not have been liable." Broom's Legal 
 Maxims, pages 702, 706, 710, 2d edition. 
 
 But the strictness in this maxim has been most materially modified by recent legislation, 
 in both England and America. 
 
 The act commonly called Lord Campbell's act, is given below, together with the acts of 
 several of the states, of a like character. 
 
 " A further most important alteration, says Williams on Ex'rs., p. 674, 4th Am. Ed., in this 
 part of the law has been effected by the stat. 9 & 10 Vict. c. 93, (entitled, An Act for com- 
 pensating the families of persons killed by accidents,) which, after reciting, that ' no action 
 at law is now maintainable against a person who, by his wrongful acts, neglect, or default, 
 may have caused the death of another person, and it is oftentimes right and expedient, 
 that the -wrong-doer in such case should be answerable in damages for the injury so 
 caused by him :' enacts, whensoever the death of a person shall be caused by wrongful 
 act, neglect, or default, and the act, neglect, or default is such as would (if death had not 
 ensued,) have entitled the party injured to maintain an action and recover damages in 
 respect thereof, then, and in every such case, the person who would have been liable if 
 death had not ensued, shall be liable to an action for damages, notwithstanding the death 
 of the person injured, and although the death shall have been caused under such circum- 
 stances as amount in law to felony." 
 
 IL " Every such action shall be for the benefit of the wife, husband, parent, and child, 
 of the person whose death shall have been so caused, and shall be brought by and in the 
 name of the executor or administrator of the person deceased ; and in every such action, 
 the jury may give such damages as they may think proportioned to the injury resulting 
 from such death to the parties respectively, for whom and for whose benefit such action shall 
 be brought; and the amount so received, after deducting the costs not recovered from the 
 defendant, shall be divided amongst the before-mentioned parties, in such shares as the 
 jury by their verdict shall find and direct." 
 
 in. " Not more than one action shall lie for and in respect of the same subject-matter of 
 complaint ; and every such action shall be commenced within twelve calendar months after 
 the death of such deceased person." 
 
 IV. " In every such action, the plaintiff on the record shall be required, together with 
 the declaration, to deliver to the defendant or his attorney, a full particular of the person 
 or persons for whom and on whose behalf such action shall be brought, and of the nature 
 of the claim in respect of which, damages shall be sought to be recovered." 
 
 V. "The following words and expressions are intended to have the meanings hereby
 
 OF ACTIONS, ETC. 9 
 
 ■UTong done to their tcstator.(J) [1] Where several parties are jointly 
 concerned in interest, or have suflfered a joint injury (c), they may and 
 
 (b) 2 Hac. Abr. 444, 5, and see Cowp. 375. 1 Wms. Saund. 5 Ed. 217. 4 Moore, 532. 
 2 Brod. Si Bing. 102, S. C. 
 
 (c) 2 Wms. tiaund. 5 Ed. 115. 1 Veut. 167. 2 Lev. 27, S. C. 1 Ld. Rayra. 127. 2 "Wils. 
 414. 2 Wms. Sauud. 5 Ed. 116, (2). 
 
 [1] And now, l)y the law amendment act, 3 & 4 W. IV. c. 42, g 2, and see 3 Rep. C. L. 
 Com. 17, 74, reciting that there is no remedy provided by law for injuries to the real estate 
 of any person deceased, committed in his life time ; nor for certain wrongs done by a per- 
 son deceased in his life time to another, in respect of his property, real or personal ; it is 
 enacted, that "an action of trespass, or trespass on the case, as the case may be, may be 
 maintained, by the executors or administrators of any person deceased, for any injury to 
 the real estate of such person, committed in his life time, for which an action might have 
 been maintained by such person, so as such injury shall have been committed within stx 
 calendar months before the death of such deceased person ; and provided such action shall 
 be brought within o?ie year after the death of such person ; and the damages, when reco- 
 vered, shall be part of the personal estate of such i)erson : And further, that an action of 
 ircsjiass, or trespass on the case, as the case may be, may be maintained against the execu- 
 tors or administrators of any person deceased, for any wrong committed by him in his life 
 time to another, in respect of his property, real or personal, so as such injury shall have 
 been committed within six calendar months before such person's death, and so as such 
 action shall be brought within six calendar months after such executors or administrators 
 shall have taken npon themselves the administration of the estate and ellects of such per- 
 son ; and the damages to be recovered in such action shall be payable in like order of ad- 
 ministration, as the simple contract debts of such jierson." But if an action be brought 
 by a termor, upon 7 & 8 Geo. IV. c. 31, for an injury done to his house, within three calendar 
 months from the ofi'euce committed, and that action abates by the death of the termor, after 
 the three months have expired, his executor cannot bring a fresh action : Till-Adam {or 
 Adam) v. Inhabitants of Bristol, 4 Nev. & iM. 144. 2 Ad. & E. 380, S. C. And it is doubt- 
 ful, whether an executor of a termor can in any case bring an action npon the 7 & 8 Geo. 
 IV. c. 31, for any injury sustained in the life time of his testator. By the statute II Geo. 
 IV. & 1 W^. IV. c. 47, for consolidating and amending the laws for facilitating the i)ayment 
 of debts out of real estate, (Sir Edward Sui/den's act,) "all wills and testamentary limita- 
 tions, dispositions, or appointments, made by any person or persons, of or concerning any 
 manors, messuages, lands, &c., whereof any person or persons, at the time of his, her or 
 their decease, shall be seised in fee simple, in possession, reversion, or remainder, or have 
 power to dispose of the same by his, her or their last wills or testaments, shall be deemed 
 or taken (only as against such person or persons, with whom the person or persons making 
 such wills, &c., shall have entered into any bond, covenant, or other specialty, binding his, 
 her or their heirs,) to be fraudulent, and clearly, absolutely, and utterly void, frustrate, and 
 of none cfiect:" § 2, and see stat. 3 W. & M. c. 14. § 2, made perpetual by G & 7 W. III. 
 c. 14. These statutes, however, are repealed by 11 Geo. IV. & 1 W. IV. c. 47, § 1. And 
 for enabling such creditors to recover upon such bonds, covenants, and other specialties, it 
 is thereby enacted, that "in the cases before mentioned, every such creditor shall and may 
 have and maintain his, her and their action and actions of debt or covenant, upon the said 
 bonds, covenants, and specialties, against the heir and heirs at law of such obligor or obli- 
 gors, covenantor or covenantors, and such devisee and devisees, or the devisee or devisees of 
 such first mentioned devisee or devisees jointly, by virtue of that act ; and such devisee and 
 devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same 
 manner as any heir should have been, for any false plea by him pleadetl, or lor not confess- 
 ing the lands or tenements to him descended: Stat. 11 Geo. IV. & 1 W. IV. c. 47, § 3, and 
 see Stat. 3 W. & M. c. 14, § 3. And if in any case there shall not be any heir at law, against 
 whom, jointly with the devisee or devisees, a remedy is thereby given, in every such case, 
 every creditor, to whom by that act relief is so given, shall and m:iy have and maintain his 
 and their action and actions of debt or corcnant, as the case may be, against such devisee or 
 devisees solely; and such devisee or devisees shall be liable for false plea as aforesaid." 
 Stat. 11 Geo. IV. & 1 W. IV. c. 47, \ 4. 
 
 assigned to them respectively so far as such meanings are not excluded by the context or 
 by t he nature of the subject-matter : that is to say, words denoting the singular number 
 are to be understood to apply also to a plurality of persons or things ; and words denoting 
 the masculine gender, are to be understood to apply also to persons of the feminine gender; 
 and the word ' person' shall aj)ply to bodies politic and corporate; and the word 'parent' shall 
 include father and mother; and grand-father and grand-mother ; and step-father and step- 
 mother; and the word 'child' shall include son and daughter, and grand-sou and grand- 
 daughter, and step- son and step-daughter."
 
 9 OF ACTIONS, ETC. 
 
 ought to join in the same action ; and if they do not, the defendant may 
 plead in abatement, but cannot othei'wise take advantage of the objec- 
 
 NEW HAMPSHIRE ACT. 
 
 Sect. 6G. If the life of any person not in the employment of the corporation, shall be 
 lost by reason of the negligence or carelessness of the proprietor or proprietors of any rail- 
 road, or by the unfitness or gross negligence, or by the carelessness of their servants or 
 agents in this State, such proprietor or j)roprietors, shall be liable to a fine not exceeding 
 five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, 
 to the use of the executor or administrator of the deceased person, for the benefit of his 
 widow and heirs, one moiety thereof to go to the widow, and the other to the children of 
 the deceased ; but if there shall be no children, the whole shall go to the widow, and if no 
 widow, to his heirs according to the law regulating the distribution of intestate personal 
 estates among heirs. (Laws of 1850, chap. 953, sec. 7.) New Hamp. Comp. Stat. 364, Ed. 
 1853. Tit. Of Rail Road Corporations, Chapter 150. 
 
 MASSACHUSETTS ACT. 
 
 An Act Concerning Passenger Carriers. 
 
 Liability of carriers when life of a passenger is lost by reason of their negligence, &c. 
 
 If the life of any person being a passenger shall be lost, by reason of the negligence or 
 carelessness of the proprietor or proprietors of any railroad, steamboat, stage-coach, or of 
 common carriers of passengers; or by the unfitness or gross negligence or carelessness of 
 their servants or agents in this commonwealth, such proprietor or proprietors and common 
 carriers, shall be liable to a fine not exceeding five thousand dollars nor less that five hun- 
 dred dollars, to be recovered by indictment, to the use of the executor or administrator of 
 the deceased person, for the benefit of his widow and heirs ; one moiety thereof to go to the 
 widow, and the other to the children of the deceased ; but if there shall be no children, the 
 whole to the widow, and if no widow, to the heirs according to the law regulating the dis- 
 tribution of intestate personal estate among heirs. [March 23, 1840.] Supp. to Rev. Stat. 
 Mass. vol. 1 p. HJ5, Ch. 80, Ed. 1854. 
 
 VERMONT ACT. 
 
 Sect. 16. Whenever the death of a person shall hereafter be caused by the wrongful act, 
 neglect, or default of any person, either natural or artificial, and the act, neglect, or default 
 is such as would, if death had not ensued, have entitled the party injured to maintain an 
 action and recover damages in respect thereof, then, and in every such case, the person or 
 corporation who would have been liable to such action, if death had not ensued, shall 
 be liable to an action for damages, notwithstanding the death of the person injured, and 
 although the death shall have been caused under such circumstances as shall amount ia 
 law to a felony. (Sect. 1 of No. 8, of 1849.) 
 
 Sect. 17. Every such action shall be brought in the name of the personal representative 
 of such deceased person, and the amount recovered in such action shall be for the exclu- 
 sive benefit of the widow and next of kin of such deceased person, who shall receive the 
 same proportions as provided by law for the distribution of the personal estate of persons 
 dying intestate. (Sect. 2 of No. 8, of 1849.) 
 
 Sect. 18. In every such action as hereinbefore provided, the court or jury, before whom 
 such issue shall be tried, may give such damages as they may deem just with reference to 
 the pecuniary injury resulting from such death to the wife and next of kin of such deceased 
 person. Provided, that every such action shall be commenced within two years from the 
 decease of such person. (Sect. 3 of No. 8, of 1849.) Comp. Stat, of Verm. p. 342, tit. 14, ch. 
 51, ed. 1851. 
 
 NEW YORK ACTS. 
 
 An act requiring compensation for causing death by wrongful act, neglect, or default. 
 Passed December 13, 1847. Chap. 450, p. 575. 
 
 Sect. 1. Whenever the death of a person shall be caused by wrongful act, neglect or 
 default, and the act, neglect or default, is such as would (if death had not ensued) have 
 entitled the party injured to maintain an action and recover damages, in respect thereof, 
 then, and in every such case, the person who, or the corporation which would have been 
 liable, if death had not ensued, shall be liable to an action for damages, notwithstanding 
 the death of the person injured, and although the death shall have been caused under such 
 circumstances as amount in law to felony. 
 
 Sect. 2. Every such action shall be brought by and in the names of the personal repre- 
 sentatives of such deceased person, and the amount recovered in every such action shall 
 be for the exclusive benefit of the widow and next of kin of such deceased person, and shall
 
 OF ACTIOXS, ETC. 9 
 
 tion.((/j And, as wrongs arc of a joint and several nature, tlie plalntifl' 
 may proceed against all, or any of the parties who committed them ; and 
 
 [d) G Durnf. & East, 7GG. 7 Durnf. & East, 279. 5 Kast, 420. 1 Wms. Saund. 5 Ed. 
 291, k. 
 
 I'e distributed to such widow aud next of kin in tlie proportion provided bj law in relation 
 to tlie distribution of personal property left by persons dying intestate ; and in every such 
 action, the jury may give such damages as they shall deem a fair and just compensation, 
 not exceeding five thousand dollars, with reference to the i)ecuniary injuries resulting from 
 such death to the wife and next of kin of such deceased i)erson, provided, that every such 
 action shall be commenced within two years after the death of such person ; but nothing 
 herein contained shall alfcct any suit or proceeding heretofore commenced and now pend- 
 ing in any of the courts oftliis state. (As amended by chap. 256 of 1849.) 
 Sect. 3. This act shall take elfect immediately. 
 
 An Act to amend "An Act requiring compensation for causing death by wrongful act, 
 neglect or default," passed December 13, 1847. Passed April 7, 1849, Chap. 250, p. 388. 
 
 [Sect. 1 amends sect. 2 of chap. 450 of 1847,supra.^ 
 
 Sect. 2. Every agent, engineer, conductor, or other person in the employ of such com- 
 pany, or persons through whose wrongful act, neglect or default, the death of a person shall 
 have been caused as aforesaid, shall be liable to be indicted therefor, and upon conviction 
 tliereof, may be sentenced to a state prison for a term not exceeding five years, or in a 
 county jail not exceeding one year, or to pay a fine not exceeding two hundred and fifty 
 dollars, or both such fine and imprisonment. 
 
 Sect. 3. This act shall take effect immediately. Gen. Stat, of N. Y., Blatchford's edition, 
 pages 205, 20G. 
 
 NEW JERSEY ACT. 
 
 An act to provide for the recovery of damages in cases where the death of a person is 
 caused by wrongful act, neglect, or default. 
 
 Sect. 1. Be it enacted by the Senate and General Assembly of the State of New Jersey, 
 That whenever the death of a person shall be caused by wrongful act, neglect, or default, 
 and the act, neglect, or default is such as would, if death had not ensued, have entitled the 
 jjarty injured to maintain an action and recover damages in respect thereof, then and in 
 every such case the person who, or the corporation which, would have been liable if death 
 had not ensued, shall be liable to an action for damages, notwithstanding the death of the 
 person injured, and although the death shall have been caused under such circumstances 
 as amount in law to felony. 
 
 Sect. 2. And be it enacted. That every such action shall be brought by and in the names 
 of the personal representatives of such deceased person ; and the amount recovered in every 
 such action shall bo for the exclusive benefit of the widow and next of kin of such deceased 
 jierson, and shall be distributed to such widow and next of kin in the i)roportions provided 
 by law in relation to the distribution of personal property left by persons dying intestate; 
 aad in every such action the jury may give such damages as they shall deem fair and just, 
 with reference to the pecuniary injury resulting from such death to the wife and next of 
 kin of such deceased person ; provided, that every such action shall be commenced within 
 twelve calender months after the death of such deceased person. 
 
 Sect. 3. And be it enacted, That on request by the defendant, or the defendant's attorney, 
 the jilaintiff on the record shall be required to deliver to the defendant, or to the defcmiaiit's 
 attorney, a particular account in writing of the nature of the claim in respect to which 
 damages shall be sought to be recovered. 
 
 Sect. 4. And be it enacted. That this act shall take effect immediately. Approved March 
 3, 1848. P. L. 151, Nixon's Elmer's N. J. Digest, p. 193, 2d Ed. 1855. 
 
 PE.VNSYLVANIA ACTS. 
 
 Sect. 1. No action hereafter brought to recover damages for injuries to the person by neg- 
 ligence or default, shall abate by reason of the death of the i)lainiill"; but the personal repre- 
 sentatives of the deceased may be substituted as plaiutilf, and prosecute the suit to final 
 judgment and satisfaction. 
 
 Sect. 2. Whenever death shall be caused by unlawful violence or negligence, and no suit 
 for damages be brought by the party injured during his or her life, the widow of any such 
 deceased, or if there be no widow, the jjcrsonal representatives, may maintain an action for, 
 and recover damages for the death thus occasioned. Act April 9, 1852. P. L. p. 301. 
 Purd. Dig. G08, Ed. 1353. 
 
 Sect. 1. The persons entitled to recover damages for any injury causing death, shall be 
 the husband, widow, children, or parents of the deceased, and no other relative; aud
 
 9 OF ACTIONS, ETC. 
 
 it is no plea in abatement,(e) or ground of nonsuit,(/) that there are other 
 partners not named. In bringing actions, by or against husband and 
 wife, the rule is, that whenever the cause of action would survive to or 
 a"-ainst the wife, they ought in general to sue or be sued jointly ;{g) and 
 this rule holds as well with regard to contracts as wrongs. But some- 
 times, and particularly where the cause of action arises during coverture, 
 the husband is allowed to bring the action in his own name, or in the 
 joint names of himself and his wife.(7i) 
 
 The plaintiif has in some cases his election, to bring one species of ac- 
 tion or another for the same cause ; as in actions upon contracts, he may 
 bring assumpsit or debt upon a simple contract, or debt or covenant upon 
 
 a specialty, for the non-payment of money : Or, if the breach 
 [ *10 ] of a simple *contract consists in mis-feazance, he may declare 
 
 in assumpsit, or in case on the special circumstances {{a) as for 
 deceit on the sale of cattle or goods, or immoderate use of them, when 
 
 (c) Durnf. & East, 649. 2 Chit. Rep. 1, and see 6 Moore, 141. 3 Brod. & Bing. 54. 9 
 Price, 408, S. C. but see 2 New Rep. C. P. 365. 6 Durnf. & East, 369. 1 Wms. Saund. 5 
 Ed. 291, e. semb. contra. 
 
 (/) 3 East, 62. 6 Moore, 141. 2 Brod. & Bing. 54. 9 Price, 408, S. C. and see 3 Campb. 
 29." 1 Bing. 143, but see 12 East, 89, 452. 2 Marsh. 485. semb. contra. 
 
 (ff) 1 Wils. 224. 2 Wils. 227. 
 
 (A) For a more particular account of the parties to the action, whether upon contracts or 
 for wronffs, see 1 Wms. Saund. 5 Ed. 291, b. (4). 2 Wms. Saund. 5 Ed. 116, (2), and 1 Chit. 
 FL 4 Ed. Chap. I. 
 
 (a) 2 Wils. 319. 3 Wils. 348. 1 Durnf. & East, 274. But where the substantial ground 
 of action is contract, the plaintiif cannot, by declaring in case, render a person liable, who 
 would not have been liable on his promise : Therefore, where the plaintiff declared that, 
 having agreed to exchange mares with the defendant, the latter, by falsely warranting his 
 mare to be sound, well knowing her to be unsound, falsely and fraudulently deceived the 
 plaiutitf, &c. ; it was holden, that infancy was a good plea in bar to the action. 2 Marsh. 485. 
 
 the sum recovered shall go to them in the proportion they would take his or her personal 
 estate in case of intestacy, and that without liability to creditors. 
 
 Sect. 2. The declaration shall state who are the parties entitled in such action ; the action 
 shall be brought within one year after the death, and not thereafter. Act April 26, 1855. 
 P. L. 309. Purd. Dig. p. 1138. 
 
 OHIO ACT. 
 
 An act requiring compensation for causing death by wrongful act, neglect, or default. 
 Passed March 25, 1851. 
 
 Sect. 1. Damages recoverable for causing death. Be it enacted, &c., That whenever the 
 death of a person shall be caused by wrongful act, neglect, or default ; and the act, neglect 
 or def\iult is such as would (if death had not ensued) have entitled the party injured to 
 maintain an action and recover damages, in respect thereof; then, and in every such case, 
 the person who, or the corporation which, would have been liable if death had not ensued, 
 shall be liable to an action for damages, notwithstanding the death of the person injured, 
 and although the death shall have been caused under such circumstances as amount iu 
 law to murder in the first or second degree, or manslaughter. 
 
 Sect. 2. Action brought by personal representative. Every such action shall be brought 
 by, and in the name of, the personal representatives of such deceased persons ; and the 
 amount recovered in every such action, shall be for the exclusive benefit of the widow and 
 next of kin of such deceased person, and shall be distributed to such widow and next of kin 
 in the proportions provided by law iu relation to the distribution of personal estates, left 
 by persons dying intestate; and in every such action, the jury may give such damages as 
 they shall deem fair and just, not exceeding five thousand dollars, -with reference to the 
 pecuniary injury resulting from such death to the wife and next of kin to such deceased 
 person ; provided, that every such action shall be commenced within two years after the 
 death of such deceased person. Curwen's Laws of Ohio in Force, p. 961. 
 
 Consult Armworth v. The South-Eastern Raihvay, 11 Jurist, 758. Blalcc v. The Midland 
 Counties Railway, 15 Jurist, 562 ; 10 Eng. Law and Eq., 437, S. C. Canning v. WiUiamstown, 
 1 Gushing, 451. Pennsylvania Railroad Company v. 3IcCloskey's Administrators, 11 Harris, 
 526 ; 3 Am. Law Reg., 412. Hodges on Railw. 623, 2d Ed. Shelford on Railw. 503, 3d Ed.
 
 OF ACTIONS, ETC. 10 
 
 lent or let to hire; and against attorneys, carriers, •\\liarfingers, inn- 
 keepers, &;c. And where cattle or goods are wrongfully taken and de- 
 tained, he may bring tresj^ass vi et armis, replevin, trover, or detinue; 
 or, if they are converted into money, he may waive the tort, and bring 
 assmnpsit for money had and received. (?^) But the plaintift", having once 
 made his election, cannot afterwards bring another species of action for 
 the same cause, either whilst the former is depending, or after it has been 
 determined. And it is a rule, that the party applying for an information 
 shall be understood to have made his election, and waived his remedy by 
 action, whatever may be the fate of the motion for the information, unless 
 the court think fit to give him leave to bring an action. (c) 
 
 The law is said to abhor circuittj of action : and therefore if the obligee 
 of a bond covenant generally not to sue upon it, this shall operate as a 
 release, and may be pleaded in bar of the action ; for if it operated oidy 
 as a covenant, it would produce two actions. ((Z) So where, to debt on bond 
 for 200^., the defendant pleaded, that after the making of the bond, the 
 plaintiff by indenture covenanted, that if the defendant should at such a 
 day pay 100/., the obligation should be void, and alleged that he paid the 
 money at the day; and upon demurrer, it was insisted for the plaintiff, 
 that the indenture, being made after the bond, could not be pleaded in 
 bar ; but all the court held, that the defendant might well plead it in bar, 
 without being put to the action of covenant, by circuity of action. (e) 
 But if A. and B. are jointly and severally bound to C, who covenants 
 with A. only, that he will not sue him, this is not construed to be a re- 
 lease, for there is still a remedy on the bond against B. :(/) And so 
 where a man becomes bound to another, who covenants not to put the 
 bond in suit before 3Iichaehnas, and the obligee nevertheless brings debt 
 on the bond before that time, the defendant cannot plead the covenant in 
 bar, but must have recourse to an actioVi upon h.{g) 
 
 It is a rule, that several counts may be joined in the same 
 declaration, *for different causes, p)rovided they are of the same [ *11 ] 
 nature.{a) Thus, in actions upon contract, the plaintiff may join 
 as many different counts as he has causes of action, in account, so like- 
 wise in assumpsit, or in covenant, debt, annuitjj, or scire facias: And 
 there is a case wdiere it was holden, that debt and detinue might be joined 
 in the same action. (/*) In like manner, in actions for wrongs indejicnd- 
 ently of contract, the plaintiff may join as many different counts as lie has 
 causes of action in case, or in detinue, replevin, or trespass : And he may 
 join trespass and battery of his servant, p)er quod servitium ai7iisit,{c) or 
 
 (b) Com. Dig. tit. Action, M. And see PctcrsdorlT on Bail, 40, 41, as to the expediency of 
 adopting particular forms of action, in order to obtain the security of hail. 
 
 (c) Rex V. Sparrow and another, H. 28 Geo. III. K. B. And sec further, as to the election 
 of actions. Com. Dig. tit. Action, M. 1 Chit. PI., 4 Ed. 188. 
 
 (d) 1 Durnf. & East, 446. 
 
 (e) Cro. Eliz. 623. 
 
 (/) 2 Salk. 575. 1 Ld. Raym. 690. 12 Mod. 551, S. C. 8 Durnf. & East, 168. 
 
 ((j) And. 307, pi. 316. Cro. Eliz. 352, S. C, and see further, as to circuity of action, 2 Wms. 
 Saund. 5 Ed. 149. (2.) 4 Durnf. & East, 470. 
 
 (a) 2 Wms. Saund. 5 Ed. 117, a. 
 
 (6) Bro. Abr. tit. Joinder in action, 97, Gilb. C. P. 6. 1 Bac. Abr. 30. But trover and 
 detinue cannot be joined. Willcs, 118. And in order to join debt and detinue, it seems they 
 must be both founded on contract. 
 
 (c) Cro. Jac, 501. Aleyn, 9. 1 Bac. Abr. 30. 2 New Rep. C. P. 476, ante,i.
 
 11 OF ACTIONS, ETC. 
 
 trespass and rescue,{d) in the same declaration. But, with the exceptions 
 before mentioned, counts in action upon contract cannot be joined with 
 counts for wrongs independently of contract ;(e) nor can counts in anyone 
 species of these actions, be joined with counts in another. In a declara- 
 tion on the case, one count stated, that the plaintiff, at the request of the 
 defendant, had caused to be delivered to him certain swine, to be taken 
 care of, for reward, by defendant for plaintiff; and in consideration there- 
 of, defendant undertook and agreed with plaintiff, to take care of said 
 swine, and re-deliver the same on request ; and the court held, on motion 
 in arrest of judgment, that this was a count in assumpsit, and could not be 
 joined with counts in case.{f) 
 
 Wherever several counts may be joined in the same declaration, for 
 different causes of action, there is always the same process by original 
 writ, and in general the same plea or general issue, and the same judg- 
 ment. And hence, rules have been framed, in order to determine what 
 different counts may or may not be joined in the same declaration, from 
 the similarity of the process, the plea, and the judgment. In one case, it 
 was said by Lee, Ch. J. that the true way to judge of this matter is, that 
 whenever the process and judgment are the same on two counts, they may 
 be joined ; otherwise they cannot. (^) But it being found that the simi- 
 larity of the process afforded but a very fallible criterion, there being the 
 same process of summons, attachment and distress, in actions of account, 
 covenant, debt, annuity, and detinue, and the same process of attachment 
 and distress in actions of assumpsit, case, and trespass, none of which can 
 be joined, it was said in a subsequent case, by Wilmot, Ch. J. that the 
 true test to try whether two counts can be joined in the same declaration, 
 is to consider and see whether there be the same judgment on both ; and 
 if there be, he thought they might be well joined. (A) But in a later case, 
 
 the court of Common Pleas were of opinion, that the rule or test 
 [ *12 ] to try whether two counts can be joined, as laid down in the *for- 
 
 merone, was rather too large, and not universally true:(rt) and the 
 reason for this opinion probably was, that there is the same judgment, for 
 damages and costs, in actions of assumpsit, coveiiant, case and trespass, and 
 the same entry of a misericordid in the three first of these actions, and yet 
 no two of them can be joined. Therefore, in a still later case, a new crite- 
 rion was substituted; and it was said by Buller, J. to be universally true, 
 that wherever the same plea may be pleaded, and the same judgment given, 
 on two counts, they may be joined in the same declaration. (i';*) But even 
 this rule is not altogether unexceptionable; for it is clear that case and 
 trespass cannot in general be joined, although the same plea of not guilty 
 of the premises will serve for both, and there is the same judgment in 
 each, for damages and costs: and though in general the judgment in tres- 
 pass is quod capiatur, and in actions upon the case, quod sit in miseri- 
 cordid,{c) yet sometimes there is an entry of a capiatur in case, as well as 
 in trespass.[d) It should also be observed, that this rule is merely affirm- 
 
 ^ (d) 2 Lutw. 1249. 1 Ld. Eaym. 83. There is also a writ in the regisier, detixore abdvctd 
 cum bonis viri. F. N. B. 89. But this writ has been said to be against law. 2 Salk. 637. 
 
 (e) 5 Barn. & Aid. 652. 1 Dowl. &. Ryl. 282, S. C. 
 
 (/) 6 Barn & Cres. 268. 
 
 (g) 1 Wils. 252. [h) 1 Wils. 321. («) 3 Wils. 354. 
 
 {h) 1 Durnf. & East, 276, and see 2 Wms. Saund. 5 Ed. 117, e.f. 
 
 \c) 1 Ld. Rnym. 273. 2 Wms. Saund. 5 Ed. 117, e. 
 
 \d) 1 Rol. Abr. tit. Amercement, E.
 
 OF ACTIONS, ETC. 12 
 
 ative ; and it does not hold e converao^ that different counts cannot be 
 joined, unless there be the same plea and judgment on all of them ; for it 
 is holden, that debt on record, specialty and simple contract, may be 
 joined, although they require different pleas ;(t') and in Jebt and detinue, 
 whicli may also be joined, not only the pleas, but the judgments are differ- 
 ent. (/) The nature of the causes of action therefore should be attended 
 to, in order to determine whether different counts may or may not be 
 joined in the same declaration : and, with the exceptions which have been 
 noticed, it may safely be laid down as a general rule, that wherever the 
 causes of action are of the same nature, and may properly be the subject 
 of counts in the same species of action, they may be joined, otherwise they 
 cannot. 
 
 In order to join several counts however, in the same declaration, it is 
 necessary that they should be all of them in the same rifjid ;{fj) and upon 
 that ground it is holden, that a plaintiff cannot join in the same declar- 
 ation, a demand as executor, with another which accrued in his own 
 right ;(/<) and such misjoinder of action is a defect in substance, and there- 
 fore bad on a general demurrer, or in arrest of judgment, or on a writ of 
 error, (e) But a count for money had and received by the defendant to 
 the use of an executor,(A:) or for money paid by the plaintiff as such, to 
 the use of the defendant,(Z) may be joined with a count on a promise to 
 the testator. So, a count upon a promise to the plaintiff as ad- 
 ministratrix, for *goods sold and delivered by her after the [ *13 ] 
 death of the intestate, may be joined with a count upon an ac- 
 count stated with her as administratrix ; for the damages and costs when 
 recovered with the assets :(a) and it is a rule, that where the transaction 
 has been entirely with executors or administrators in their representative 
 character, and not in their personal character, or altogether in their per- 
 sonal character, the counts may be joined. (6) Three executors having 
 ordered goods to be sold as the goods of their testator, afterwards sued for 
 the amount, without styling themselves executors, and witliout joining a 
 fourth executor, who was named in the will; and the court held they might 
 recover.(c) 
 
 An executor or administrator may declare as such, on an account stated 
 by the defendant, with the testator or intestate, or with the plaintiff, 
 of moneys due to him in his representative charactcr.((?) And where a 
 testator or intestate has stated an account, it is usual to declare for the 
 balance, against his executor or administrator. Or, if an executor or 
 administrator state an account of moneys due from the testator or intes- 
 tate, [e) or, as it seems, of moneys due from himself in his representative 
 
 (r) Cro. Car. 316. 1 Vent. 36G. 1 Lutw. 43. 1 Wils. 248. 
 
 (/) 5 Mod. 9. (g) 2 Wms. Saund. 5 Ed. 117, c.d. e. 
 
 (/i) 1 Salk. 10. 2 Ld. Raym. 841. 2 Sir. 1271. 1 Vvils. 171, S. C. 3 Durnf. & East, 65». 
 4 Durnf. & East, 277. 3 Bos & Pul. 7. 2 Wms. Saund. 5 Ed. 117 c. 
 
 ((■) 4 Durnf. & East, 347. 1 H. Blac. 108. 2 Bos. & Pul. 424. 5 Barn, k Aid. G52. 2 
 Chit. Ilep. 343. 1 Dowl. & Ryl. 282, S. C. but see 1 New Rep. C. P. 43. G East, 333, S. C. 
 in Error. 
 
 {k) 3 Durnf. & East, G50, but see 2 Wms. Saund. 5 Ed. 117, f. 
 
 (/) 3 East, 104. 
 
 («) 6 East, 405. 2 Smith R. 410, S. C, and see 5 Price, 412. 7 Price, 591, S. C. in error. 
 
 \h) Per Le Blanc, J. 2 Smith R. 416. (c) 2 Bing. 177, 9 Moore, 340, S. C. 
 
 ((/) 2 Lev. 1G5. 1 Durnf. & East, 487. 6 East, 405. 1 Taunt. 322. C Taunt. 453. 2 
 Marsh. 147, S. C. 8 Moore, 146. 1 Bing. 249, S. C. Forrest, 98, accord. 
 
 [c) 1 n. Blac. 102. 
 
 Vol. I.— 2
 
 13 OF ACTIONS, ETC. 
 
 character,(/) he may be declared against as such, for what appears to be 
 due. And, in any of the above cases, other causes of action, in the same 
 right, may be joined in the decLaration.[l] But a count upon an account 
 stated with the pLaintifTs, executors, &c., not saying as executors, &c., 
 cannot be joined with counts on promises to the testator ; for it is no 
 allegation that the promises were made to the plaintiffs in their represen- 
 tative capacity ; and, under such a count, proof might be given of an 
 account stated with them individually. ((/) And a count in assumpsit 
 against husband and wife,, who was administratrix with the will annexed, 
 upon promises by the testator to pay rent, cannot be joined with counts 
 upon promises by the husband and wife, as administratrix, for use and 
 occupation by them after the death of the testator. (/«) 
 
 In an action by the assignees of a bankrupt, the plaintiffs may join 
 counts for money lent and advanced, and money paid by them, as assign- 
 ees, with counts for money had and received to their use, and upon an 
 account stated with them, in that character. (e) And the assignees under 
 a joint commission against A. and B. may, in an action to recover a debt 
 due to A., describe themselves in the declaration, as assignees of A. 
 alone. (yt) So, where the plaintiffs sued as assignees of A. and B. and 
 
 also as assignees of C. for a joint demand, due to all the bank- 
 [ *14 ] rupts, the declaration *was holden good, on a motion in arrest 
 
 of judgment. (rt) The assignees under a joint commission against 
 two partners, may recover, in the same action, debts due to the partners 
 jointly, and debts due to them separately. (5) But the assignees of A., a 
 bankrupt, and also of B., a bankrupt, under separate commissions, cannot 
 recover, in the same action, a joint debt due from the defendant to both 
 the bankrupts, and also separate debts due to each ; and if in such an 
 action the jury have assessed the damages severally, on the separate 
 counts, the court will arrest the judgment on those counts which demand 
 the debts due to each bankrupt separately. (c) And the assignees of A. 
 and B., bankrupts, under a joint commission, cannot maintain an action 
 for money had and received to the use of the bankrupts, or to their own 
 use, if it be proved that one of them only had committed an act of bank- 
 ruptcy ; neither are they entitled to recover the separate moiety of one, 
 under such commission. ((i)(A.) 
 
 (/) 7 Taunt. 580. 1 Moore, 305, S. C, but see 1 H. Blac. 108. 2 Bos. & Pul. 424. 2 
 Wms. Saund., 5 Ed. 117, d. 
 
 [g) 5 East, 150, and see 2 Bos. & Pul. 424. 5 Moore, 282. 2 Brod. & Bing. 460, S. C. 
 
 [h) 3 Barn. & Aid. 101, and see 1 Taunt. 212. 2 Chit. Rep. 697. 
 
 (0 5 Maule & Sel. 205 ; 2 Chit. Rep. 325, S. C. 
 
 [k) 2 Stark, Ni. Pri. 27, and see 8 Taunt. 202. 
 
 {a) 3 Durnf. & East, 779. (6) 4 Bing. 115. 
 
 (c) 3 Durnf. & East, 433, and see 2 Moore, 3. 8 Taunt. 134, S. C. 
 
 {d) 8 Taunt. 200. 2 Moore, 122, S. C. And see further, as to the joinder of actions, 2 
 Wms. Saund., 5 Ed. 117, «, 6, c, d, ej. 1 Chit. PL, 4 Ed. 179. Steph. PI. 279, 80. 3 Barn. 
 & Aid. 208. 1 Chit. Rep. 619, S. C, and the cases there cited. 
 
 [1] But a count in assumpsit, for money had and received by defendant as executor, to 
 the use of the plaintiff, cannot be joined with a count for money due to the plaintiff from 
 defendant as executor, upon an account stated with him of money due from him as execu- 
 tor. 7 Barn. & Cres. 444. 1 Man. & Ryl. 180, S. C. But it seems that the latter count 
 may be joined with a count for money paid by the plaintiff, to the use of the defendant as 
 executor. Id. Ibid. 
 
 (a) As a general principle, the issuing or suing out of a writ is considered the commence- 
 ment of an action. Carpenter v. Butterfield, 3 Johns. Casey. 145. Lowry y. Lawrence, 1
 
 OF ACTIONS, ETC. U 
 
 The limitation of personal actions is regulated by several statutes. 
 By the 31 Eliz. c. 5, § 5, " all actions brought for any forfeiture upon a 
 
 Caines, 69. Brace v. Morgan, 3 Gained, 133. Bird v. Carilal, 2 Johns. 342. Cheelham v. 
 Lewis, 3 Johns. 42. Fowler v. Sharjie, 15 Johns. 326. Nosa v. Luther, 4 Con. 158. Ilngan 
 V. Cuyler, 8 Con. 203. Parker v. Colcord, 2 N. Hamp. 36. SocitO/, \c. v. Whilcomb, lb. 
 227. "/on/ V. y'A///(>>», 1 Pick. 202. Reed y. Brewer, Peck, Tenn. Kcp.276. Thompson v. 
 i>W,6 .Moar. 5G0. Z'ay v. /yawi, 7 Verm. 426. Coz v. Cooper, 3 Ala. 256. CAiV*-* v. ^onea, 7 
 Dana, 545. Whiiaker v. Turnbull, 3 Harr. 172. Tcnz/e v. Simpson, 1 Scam. 30. Swift v. 
 Crocker, 21 Pick. 241. Bunker v. aSA«/, 8 Metef. 150. Swisher v. Swisher, Wright, 755. Cald- 
 well V. Ifeilshu, 9 Watts. & Serg. 51. Fi/ndell v. Maijdwell, 7 B. Mon. 314. The date of a writ 
 is, prima facia, the commencement of an action, though the date is only a day or two before 
 the action would be Inirred by the statute of limitations, and though the writ is not served 
 until several weeks after its date, and no reason is shown for the delay. Bunker v. Shed, 
 8 Mecft. 150. The date of the writ is prima facie, but not conclusive evidence of the true time 
 when the action was commenced. Johnson v. Farwcll, 7 Greenl. 373. Day v. Lamb, 7 Verm. 
 426. To prevent the bar of tae statute of limitations, filing the writ in good faitli will be 
 deemed a commencement of the action, although it is not served till several days after- 
 wards, 6'arrfner v. ireMer, 17 Pick. 407. //(/uy/z^ow v. ieary, 3 Dev. & Batt. 21. Bout/hton y. 
 Bruce, 20 Wend. 237. It is not necessary, in order to save the statute of limitations, to 
 show that the writ was returned, or actually delivered to an officer; it is sufficient if it was 
 sent to him with a bona fide intei:tion that it should be served. Burdick v. Green, 18 Johns. 
 14. Bunker v. Shed, 8 Metcf. 150. There may be some uncertainty or ambiguity in the 
 term "suing out the writ,'' but there can be no doubt that the delivery of it to an officer, 
 or leaving it at his house, for the purpose of being executed, is a commencement of the 
 suit. Branson v. Earl, 17 Johns. 05, 11 Johns. 473. Field v. Jacobs, 12 Metcf. 110. Where 
 a writ bears teste of the day when it was actually made, the day of the teste must be con- 
 sidered as the day of the commencement of the action. But the time of the day of the 
 teste when the writ is actually made, is not always to be considered as the true time of the 
 commencement of the action. Robbinson v. Burlci<jh, 5 N. Hamp. 225. Thus when a writ is 
 made, in a case where a demand and refusal were necessary to give a right of action, and 
 the demand is subsequently made, and the writ then served, the action is commenced when 
 the plaintiff elected to use his writ, and directed the officer to serve it. Graves v. Ticknor, 
 6 N.Hamp. 537. The issuing of a wiit of summons, although returned not served, is a suit 
 brought ; and would release the guarantor of a bond who had stipulated in consideration of 
 total forbearance. Caldwell y. lleilshu, 9 Watts & Serg. 51. 
 
 A suit is not deemed commenced, under the code of precedure in New York, so as to 
 institute a proceeding under the act to abolish imprisonment for debt, before the summons 
 is served on the defendant, there being neither personal service nor publication. Lee v. 
 Avcrell, 1 Sandf. Sup. Ct. R. 731. It seems, that a suit is commenced, so as to support the 
 plea of lis pendens in another suit for the same cause of action, when the writ is sued out 
 and an attachment of property made thereon. Bennett v. Chase, 1 Foster, \. li. 570. 
 
 As a general rule, a suit is not commenced, where the service of the summons is by pub- 
 lication, until the expiration of the time for publication prescribed by the code. Yet, where 
 an attachment has been issued against the property of the defendant, and his goods have 
 been taken under it, after which he dies, the court acquires sufficient jurisdiction to put the 
 suit in such a condition that the plaintiff can enforce his lien, notwithstanding a summons 
 has not been served ; and has sufficient control over the action to substitute the personal 
 representative of the deceased, as a party defendant, in order that the summons may be 
 duly served. More v. Thayer, 10 Barb. Sup. Ct. 258. Where an action, brought in New 
 York since the revised statutes, is instituted by capias, the suit is not considered as com- 
 menced until the issuing and serving of the capias ; consequently, to charge a sheriff, in 
 an action of debt for an escape, the writ must be actually served upon him while the debtor 
 is off the limits. Carruth v. Church, 6 Barb. Sup. Ct. R. 504. 
 
 In Connecticut, however, the commencement of the action depends on the service of the 
 writ. Clark v. Helm, 1 Root, 487 ; Jenks v. Phelps, 4 Conn. 149 ; Spalding v. Butts, 6 Id. 
 30 ; Gates y. Bushnell, 9 Id. 530. The return is evidence of the time. Perkins v. Perkins, 
 Conn. 558. The law appears to be the same in Vermont ; the writ must be served and 
 returned. Day v. Lamb, 7 Verm. 426 ; Downes v. Garland. 21 Verm. 362. 
 
 In Indiana, the delivery of the writ to the sheriff is the commencement of the suit. 
 Underwood v. Talham, 1 Smith, 152. 
 
 In Arkansas, the filing of a declaration alone is not the commencement of an action. 
 Bank v. Cason, 5 Eng. 479. In respect to the statute of limitations, an action is to be
 
 J4 OF ACTIONS, ETC. 
 
 penal statute, -wlierebj the forfeiture is limited to the king only, shall be 
 broufTht Avithin two years after the offence committed, and not after. And 
 all actions brought for any forfeiture, upon a penal statute, except the 
 statute of tillage, the benefit AYhereof is limited to the king and the 
 informer, shall be brought within one year after the offence committed ; 
 and in default thereof, the same shall be brought for the king, at any time 
 within tivo years after that year ended : And if any action shall be brought 
 after the time so limited, the same shall be void. Provided, that where a 
 shorter time is limited, the action shall be brought within that time." 
 This statute extends to all actions brought upon penal statutes, whereby 
 the forfeiture is limited to the king and the party, whether made before 
 or since the 31 Eliz.(e) But it does not extend to actions brought by the 
 party grieved.[f) And where the penalty is given to a common informer 
 alone, different opinions have been entertained, whether it is within the 
 statute. On the one hand it has been said, that this is not a case within 
 the words of the act, which ought to be taken strictly, and not extended 
 by an equitable construction. On the other hand, it has with more reason 
 been contended, that as the informer is bound, when the king 
 [ *15 ] is joined with *him, much more should he be bound, when he 
 sues by himself, (a) And accordingly, where an action was 
 brought after a year, by a common informer, on the statute 9 Anne c. 14, 
 the court of Common Pleas held this to be a case within the 31 Eliz., 
 though the action was given in the first instance to the party grieved, and 
 afterwards to a common informer ; for such actions would have been 
 within the 7 Hen. VIII., c. 3, and the 31 Eliz. was made to narrow the 
 time given by that statute, and could never mean to leave any actions 
 unrestrained in point of time : the latter part of the clause must therefore 
 be construed to extend to them. (J) 
 
 By the statute 21 Jac. I. c. 16, § 3, it is enacted, that " all actions of 
 trespass quare clausum fregit, ^e., detinue, trover, and replevin for 
 taking away goods or cattle ; all actions of account, and upon the ease, 
 other than such accounts as concern the trade of merchandize between 
 merchant and merchant, their factors or servants ; all actions of debt, 
 grounded upon any lending or contract without specialty, or for arrearages 
 of rent; and all actions of assault, menace, hattery, ivounding, and im- 
 p-isonment, shall be commenced and sued within the times hereafter 
 expressed, and not after ; that is to say, the said actions upon the case, 
 (other than for slander,) account, trespass quare clausum f regit, ^c, 
 debt, detinue, and replevin, within six years next after the cause of such 
 actions or suit, and not after ; actions of assault, battery, tvounding, or 
 imprisonment, within four years ; and actions upon the case for ivords, 
 within tivo years next after the words spoken, and not after." 
 
 (fi) 1 Marsh. 321, {a) 3 Maule & Sel. 434, &c., 440, &c., 444. 
 
 (/) 1 Show. Rep. 353 ; 4 Garth. 233. Comb. 194. 4 Mod. 129. 12 Mod. 27,8. C. Willes, 
 443, (a) Speers v. Frederic, T. 25 Geo. III., K. B. (a) 1 Ld. Eaym. 78. 
 
 {b) Lookup V. Sir T. Frederic, M. 6 Geo. ILL, Bui. Ni. Pri. 195. 
 
 deemed commenced -when the writ is issued, and not by filing a declaration before the writ 
 is issued. Bank v. Bates, Id. 120. 
 
 It has been held in Tennessee that the service of notice is the commencement of a suit, 
 and if the time required to perfect the bar of the statute of limitations is not complete before 
 service it arrests its operation. Youn^ v. Hare, 11 Humph. 303.
 
 CF ACTIONS, ETC. 15 
 
 " Nevertheless, if in any of the said actions, judgment be given for the 
 plaintiff, and the same be reversed by error ; or a verdict pass for the 
 plaintiff, and upon matter alleged in arrest of judgment, the judgment be 
 given against the plaintiff, that he take nothing by his plaint, "writ, or 
 bill ; or if any of the said actions shall be brought by original, and the 
 defendant therein be outhiwed, and shall after reverse the outlawry ; that 
 in all such cases, the party plaintiff, liis heirs, executors or administrators, 
 as the case shall require, may commence a new action, within a year 
 after such judgment reversed, or given against the plaintiff, or outlawry 
 reversed, and not after." 
 
 " And if any person or persons, entitled to any of the said actions, shall 
 be, at the time of any such cause of action accrued, within the age of 
 twenty-one j^'cars, feme covert, non compos mentis, imprisoned, or beyond 
 the seas ; then such person or persons shall be at liberty to bring the 
 same actions, within such times as arc before limited, after tlieir com- 
 ing to or being of full age, discovert, of sane memory, at large, and 
 returned from beyond the seas."[A] 
 
 These statutes arc confined to the particular actions enumerated there- 
 in : and do not extend to actions of annuity, or for the recovery of a rent- 
 charge ;(6') nor to actions of account concerning the trade of 
 *merchandize between merchant and merchant, where the [ *1G ] 
 accounts arc open and current ; nor to actions of covenant, or 
 debt on specialty, or other matter of a higher nature ; but only to actions 
 of deht upon a lending or contract without specialty, or for arrearages of 
 rent reserved on parol leases. (a) A scire facias also, being founded on 
 matter of record, is not within the statutes of limitations. [1][b] 
 
 (c) 10 Yes. 453. M'Clel. 495. 
 
 {a) Hut. 109. 1 Wms. Saund. 5 Ed. 38. 2 Wms. Saund. 5 Ed. C>Q. 
 
 [I] But now, by the Law amendment act, 3 & 4 W. IV. c. 42. g 3, " all actions of dcht for 
 rent npon an indenture of demise, all actions of covenant or debt upon any bond or other 
 specialty, and all actions of d.hl or scire facias upon any recognizance, and also all actions of 
 debt upon any (?«.v/rf7, where the submission is not by specialty, or for any fine due in respect 
 of any copyhold estates or for an escape, or for money levied on any feri facias, and all 
 actions for penalties, damages, or suras of money, given to the party grieved, by anj' statute 
 now or hereafter to be in force, that shall be sued or brought at any time after the end of 
 the then present session of parliament, shall be commenced and sued within the time and 
 limitation hereinafter expressed, and not after ; that is to say, the said actions of ddit for 
 rent upon an indenture of demise, or covenant or dcht upon any bond or other specialty, 
 actions of deht or scire facias upon recognizance, within ten years after the end of the then 
 present session, or within linntij years after the cause of such actions or suits, but not after ; 
 the said .actions by the party grieved, one year .after tlie end of that session, or within two 
 years after the cause of such actions or suits, but not after ; and the snid other actions, 
 within three years after the end of that session, or within siz j'ears after the cause of such 
 actions or suits, but not after: Provided, that nothing therein contained shall extend to 
 any action given by any statute, where the time for bringing such action is, or shall be, by 
 any statute specially limited." 
 
 And it is thereby further enacted, that " if any person or persons, that is or are or shall be 
 entitled to any such action or suit, or to such scire facias, is or are, or shall be at the time of 
 any such cause of action accrued, within the age of twent)/-one yQnr?,f( me covert, von compos 
 mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same 
 actions, so as thej' commence the same within such times, after their coming to or being of 
 
 (a) The statutes of limitation of the varions States in the Union will be found collected 
 in Mr. Angell's valuable Treatise on Limitations, Apjiendix, 3d Edition, by May. 
 
 (r) The student is referred for a brief but comprehensive discussion of the Statute of 
 Limitations, to Professor Parsons's 2d vol. on the Law of Contracts, Ch. V. p. 341-379.
 
 jg OF ACTIONS, ETC. 
 
 Suits in the Admiralty Court, for seamen s wages, not being provided 
 for by these statutes,(6) it was enacted by the 4 Anne, c. 16, § 17, that 
 " all suits and actions in the court of Admiralty, for seamen's wages, 
 sball be commenced and sued within six years next after the cause of 
 such suits or actions shall accrue, and not after ;" with the like j;romo, 
 as before, in favour of persons within the age of twenty-one years, &c.[l] 
 
 [b) 2 Ld. Raym., 934. 3 Salk., 227. 6 Mod., 25, S. C. 2 Ld. Raym., 1204. 2 Salk., 
 424, S. C. 
 
 full age, discovert, of sound memory, or returned from beyond the seas, as other persons, 
 having no such impediment, should, according to the provisions of that act, have done; 3 & 
 4 W. lY. c. 42, ? 4, and see 3 Rep. C. L. Com. 16, T3. And that if any person or persons, 
 against whom there shall be any such cause of action, is or are, or shall be, at the time of 
 such cause of action accrued, beyond the seas, then the person or persons entitled to any 
 such cause of action, shall be at liberty to bring the same against such person or persons, 
 within such times as are before limited, after the return of such person or persons from 
 beyond the seas." 3 & 4 W. IV. c. 42, § 4, and see 3 Rep. C. L. Com. 16, 73. 
 
 " Provided always, that if any acknowledgment shall have been made, either by writing, 
 signed by the party liable by virtue of such indenture, specialty, or recognizance, or his agent, 
 or by part payment or part satisfaction, on account of any principal or interest being then due 
 thereon, it shall and may be lawful for the person or persons entitled to such actions, to bring 
 his or their action for the money remaining unpaid, and so acknowledged to be due, within 
 tiveniy years after such acknowledgment by writing, or part payment or part satisfaction, as 
 aforesaid : or in case the persons or persons entitled to such action shall, at the time of such 
 acknowledgment, be under such disability as aforesaid, or the party making such acknow- 
 ledgment be, at the time of making the same, beyond the seas, then within Uventi/ years after 
 such disability shall have ceased as aforesaid, or the party shall have returned from beyond 
 seas, as the case may be ; and the plaintiff or plaintiffs in any such action on any indenture, 
 specialty, or recognizance, may, by way of replication, state such acknowledgment, and that 
 such action was brought within the time aforesaid, in answer to a plea of this statute." 3 & 
 4 W. IV., c. 42, g 5, and see 3 Rep. CI. Com. 16, 73. 
 
 "Nevertheless, if in any of the said actions, judgment be given for the plaintifiF, and the 
 same be reversed by error, or a verdict pass for the plaintiff, and, upon matter alleged in 
 arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his 
 plaint, writ, or bill ; or if, in any of the said actions, defendant shall be outlawed, and shall 
 after reverse the outlawry, that in all such cases, the party plaintiff", his executors or admin- 
 istrators, as the case shall require, may commence a new action or suit, from time to time, 
 within a i/ear after such judgment reversed, or such judgment given against the plaintiff, or 
 outlawry reversed, and not after." § 6, and see 2 Rep. CI. Com. 16, 37. 
 
 The statutes of limitations were construed to extend to persons in Scotland ; so that if a 
 plaintiff or defendant resided there, he must have sued, or been sued, within the time limited 
 thereby; Tidd Prac. 9 Ed. 16, and see King v. Walker, 1 Blac. Rep. 286. Du BeUoix v. Lord 
 Waterpark, 1 Dowl. & R. 16. And now, by the law amendment act, 3 & 4 W. IV. c. 42, ^ 7. 
 " no part of the united kingdom of Crreat Britain and Ireland, nor the islands of 3Ian, Guern- 
 sey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the 
 dominions of his Majesty, shall be deemed to be beyond the seas, within the meaning of that 
 act, or of the 21 Jac. 1, c. 16." And where an action was brought in the King's Bench, on a 
 written engagement entered into in Scotland, the court held that the case must be governed 
 by the law of this country, where the statute of limitations had attached, although it was 
 contended that the Scotch law must prevail, which would have allowed /or(!/ years for com- 
 mencing the suit. British Linen Company v. Drummond, 10 Barn & C. 903. 1 Barn & Ad. 
 284, 5, S. C. cited ; and see Trimber v. Vignier, 4 Moore & S. 695. So, upon a promissory note 
 given in France, the payee may sue the maker, if resident in England, during six years from 
 the time it becomes due ; although, by the law of France, all actions upon promissory notes are 
 wholly barred after ^I'c years from the date of the protest thereon. Huberv. Steiner, 2 Bing. 
 N. R.202. 2 Scott, 304. 1 Hodges, 206, S. C. But Ireland is still considered as a place 
 beyond the seas, within the statute 4 Ann c. 16, g 19, notwithstanding the act of Union, and 
 the 3 & 4 W. IV. c. 42, § 7. iawe v. Bennett, 1 Meeson & W. 70. 1 Tyr. & G. 441. 1 Gale, 
 368, S. C, and see Battersbyv. Kirk, 2 Bing. N. R. 584, 3 Scott, 11. 1 Hodges, 451, S. C. 
 
 [1] There is no limitation of time as regards suits in the Admirality for seamen's wages. 
 2 Gallison, 477. The I7th section of the statute of Anne, quoted in the text, is not in force 
 in Pennsylvania. See Angell on Lim., § 32, 33, 3d ed. by May.
 
 OF ACTIONS, ETC. 16 
 
 In the case of a defendant beyond 8ea,(c) it was enacted, by the same 
 statute, § 19, that "if any person or persons, against whom there shall 
 be any such cause of suit or action fur seamen's wages, or any of the 
 causes of action mentioned in the 21 Jac. I., shall be, at the time of any 
 such cause of suit or action accrued, beyond the seas, then the person or 
 persons entitled to any such suit or action, shall be at liberty to bring the 
 said actions, against such person and persons, after their return from 
 beyond the seas, within such times as are respectively limited for the 
 bringing of the said actions by this act, and by the said other act of 21 
 Jac. I." And by the Lords' Act, 32 Geo. II._, c. 28, § 17, " no advantage 
 shall be had or taken in any action or suit against any prisoner discharged 
 by virtue of that act, his heirs, executors or administrators, for that the 
 cause of action did not accrue within six years next before the commencing 
 thereof, unless the prisoner was entitled to take such advantage, before 
 be stood charged in custody, by virtue of the original suit or action ; and 
 in such case, the same may be pleaded by any such prisoner, his heirs, 
 executors or administrators." 
 
 In actions of assumjjsit, if the plaintiff be in England, when the cause 
 of action accrues, though he afterwards go abroad, the time of limitation 
 begins to run, so that if he or his representatives do not sue within six 
 years, the statute is a bar.((7) And if one plaintiff be abroad, and others 
 in England, the action must be brought within six years after the cause 
 of action arises.((?)[A] It has also been determined, that the statute of 
 
 (c) 2 Salk. 420. 
 
 {d) 1 Wils. 134. {e) 4 Durnf. & East, 516. 
 
 [a] The statute of limitations of the state in which the action is brought is to govern, and 
 not that of the place of the contract. Graves v. Graves, 2 Bibb., 207. Ilankins v. Barney, 
 5 Pet., 457. Levy v. Boas, 2 Bailey, 217. Hintoii v. Totcnes, 1 Hill, S. C, 439. M'Clunij v. 
 Silliman, 3 Pet., 270. Ward \. Uallam,2 Ball., 217. jWElmoj/le v. Cohen, 13 Pet., 312. 
 Ward V. HaUam, 1 Yeates, 329. Richards v. Bicldey, 13 S. & R. 395. Leroy v. Crownin- 
 shield, 2 Mason, 151. Jo7ies v. Hook, 2 Rand, 303. Nash v. Tapper, 1 Caines, 403. Rugglet 
 V. Keeler, 3 Johns. 2G3. Lincoln v. Battelle, 6 Wend. 475. Williams v. Preston, 3 J. J. 
 Marsh, 600. Bisscll v. Hall, 11 Johns. 168. Cartier v. Page, 8 Verm., 150. 
 
 "One of the earliest cases in this country upon the subject, is Nash v. Tapper, 1 Caines, 
 (N. Y.) R. 402, where to an action on a note, the plea of the statute of limitations of six 
 years of New York, was pleaded, and the plaintitf replied, that the contract was made in 
 Connecticut, where the limitation was seventeen years. Upon the demurrer to this repli- 
 cation, the court held it bad, and the plea in bar good. In this case, it will be observed, 
 that the limitation fixed by the law of the place where the contract was made, had not ex- 
 pired. So, in an api)cal from the court of sessions, in Scotland, to the House of Lords, one 
 of the points decided was, that a solicitor in Loudon suing a debtor in Scotland for costs of 
 conducting an appeal in England, was a case, in which the triennial prescription of the law 
 of Scotland prevailed, when the term of prescription or limitation in England by the statute 
 of James, was twice that length of time. But a different case is presented from either of 
 the foregoing, if the action has become barred entirely by the lapse of time prescribed by 
 the law of the place where the contract was made. In such a case, where all remedies are 
 barred by the lex loci contractus, Mr. Justice Story, in Le Roy v. Crowninshield, 2 Mason, (Cir. 
 Co.) R. 151, stated the inclination of his mind to be, that "there is a virtual extinction of 
 the right in that place, which ought to be recognized in every other tribunal, as of equal 
 validity." He does not decide so, though he shows that it is not without countenance from 
 the civilians ; and though he reasons, that where no right of action subsists by the lex loci 
 contractus, foreign courts do not enforce the original obligation, because it is gone. It 
 resembled the case of bankruptcy. But the learned judge admitted that the current of au- 
 thority was too strong against him to be resisted. In Bulger v. Roche, 11 Mass. R. 36, it 
 is thus remarked by Ciiief Justice Shaw, " Whether the law of prescription or statute of 
 limitations, which takes away every legal mode of recovering the debt, shall be considered 
 as affecting the contract, like payment, release, or judgment, which in effect extinguish the 
 contract, or whether they are to be considered as all'ecting the remedy, only by determiuing
 
 IQ OF ACTIONS, ETC. 
 
 limitations extends to persons in Scotland; so that if a plaintiff or 
 defendant reside there, he must sue, or be sued, within the time limited 
 
 the time within which a particular mode of enforcing it shall be pursued, were it an open 
 question, might be one of some difficulty. Judge Story, in his very learned work on the 
 Conflict of Laws, seems to have arrived at a conclusion diflFerent from the inclination of his 
 mind, as declared in LeRoyv. Crowninsliield, 2 Mason, (Cir. Co.) R. 151, for he says, "It may 
 be added, that as the law of prescription of a particular country, even in a case of a con- 
 tract made in such a country, forms no part of the contract itself, but merely acts upon it 
 ex post facto in a case of a suit, it cannot properly be deemed a right stipulated for or in- 
 cluded in the contract." In confirmation of the position, he cites the language of Lord 
 Brougham, in giving his judgment in the House of Lords, in Doe v. Lippman, 5 Clark & Finn. 
 R. 1. " It is said, that the limitation is of the very nature of the contract. First, it is said 
 that the party is bound for a given time, and for a given time only. That is a strained con- 
 struction of the obligation. The party does not bind himself for a particular period at all, 
 but merely to do something on a certain day, or on one or other of certain days. In the 
 case at bar, the obligation is to pay a sum certain at a certain day ; but the law does 
 not suppose that he is at the moment of makiug the contract, contemplating the period at 
 which he may be freed, by lapse of time, from performing it. The argument that the lim- 
 itation is of the nature of the contract, supposes that the parties look only to the breach of 
 the agreement. Nothing is more contrary to good faith than such a supposition, that the 
 contracting parties look only to the period at which the statute of limitations will begin to 
 run. It will sanction a wrong course of conduct, and will turn a protection against laches 
 into a premium for evasiveness." The common law, beyond all doubt, has firmly fixed its 
 own doctrine, (whatever views maybe entertained to the contrary by the civilians,) that the 
 limitation prescribed by the lex fori, in respect to remedies, must prevail in all cases of per- 
 sonal actions : though in all cases of real actions, and of actions touching things savouring 
 of the realty,the lex rei sitce prevails." 
 
 " There is, however, a distinction between statutes of limitation, to which Judge 
 Story refers, in his Conflict of Laws, and which he there'treats as deserving of conside- 
 ration. It is this : suppose the statutes of limitation of a particular country to not only 
 extinguish the right of action but the claim itself, and declare it a nullity after the lapse of 
 the time prescribed; and the parties are resident within the jurisdiction during the whole 
 of that period, so that it has fully operated upon the case. Then the question, says the 
 learned writer, might properly arise, whether such statutes of limitation may not afterwards 
 be set up in any other country, to which the parties may remove, by way of extinguish- 
 ment, or transfer of the claim. That there are countries in which such regulations do exist 
 in respect to real property, is unquestionable; and there are States, which have declared 
 that all right to debts due more than a prescribed term of years, shall be deemed extin- 
 guished. It has been held, that where personal property is adversely held in a State for a 
 period beyond that prescribed by the laws of that State, and after that period has elapsed, 
 the possessor should remove into another State, which has a longer period of prescription 
 or none at all, the title of the possessor cannot be questioned. Thus it has been held by the 
 Supreme Court of the United States, that five years' possession of a slave constitutes a title 
 by the laws of Virginia, which might be set up as a defence by the defendant in the courts 
 of Tennessee. But other than in that court the principle does not seem, hitherto, to have 
 obtained, in this country, any direct recognition. On the contrary, in Bulger v. Roche, in Massa- 
 chusetts, where both parties residedduringthe whole period of the running of the statute in 
 Nova Scotia, where the right of action was extinguished by the local law, it was held, that the 
 right of action, after a change of domicil by the defendant, by a removal to Massachusetts, was 
 not thereby extinguished in the State tribunals ; but might be pursued within the period pre- 
 scribed by the statute of limitations of Massachusetts. Lord Brougham, in delivering his opin- 
 ion in Doe v. Lipviann, in the House of Lords, refers to this distinction taken by Judge Story, 
 and calls it an ' excellent' one. In that case it was said that by the law of Scotland, not the 
 remedy alone was taken away, but that the debt itself was extinguished ; but under the 
 Scotch law of prescription, Lord Brougham said, there was no ground for the distinction, 
 and that the debt was still supposed to be existing and owing, though the act of limitation of 
 1772,of Scotland, was strong with respect to the remedy to be enforced. The authority of judge 
 Story for the distinction, was likewise cited by the counsel in nuher v. Steiner, 2 Bing. N. C. 202, 
 in the English Court of Common Pleas, and Chief Justice Tindal, in delivering the opinion, 
 said, that undoubtedly the distinction, when taken with the qualification annexed to it by 
 the author himself, appeared to be well founded. That qualification is, that the parties are 
 resident within the jurisdiction all that period. ' With such restriction,' says Chief Jus- 
 tice Tindal, ' it does indeed appear but reasonable, that the part of the lex loci contractus^ 
 which declares the contract to be absolutely void at a certain limited time, without any 
 intervening suit, should be equally rescinded by the foreign country, as the part of the lex 
 loci contractus, which gives life to, and regulates the construction of the contract ; both parts
 
 OF ACTIONS, ETC. 16 
 
 by the statute. (/) But if the plaintiff be abroad, or beyond the sea, at 
 the time when the cause of action accrues, the statute will not run against 
 
 (/) 1 Blac. Rep. 286. 1 Dowl. & Ryl. 16. 
 
 go equally ad valorem contractus, both ad dccisionem litis.' But in this case, which was in 
 respect to a promissory note, the French law of prescription appertains only to the time 
 and mode of instituting the remedy — ad tempusct modum aclionis instiluenda; ; and, therefore, 
 the payee of promissory notes made in France, may sue the maker, if resident in England, 
 during six years from the time tliey became due." Angell on Lira., ? 66, 67. 
 
 The rule in the courts of the United States, in respect to pleas of the statutes of limita- 
 tion has always been, that they strictly affect the remedy, and not the merits. In the case 
 of McEhnoijle v. Cohen, 13 Peters, 312, this point was raised and so decided. All of the 
 judges were present and assented. The fullest examination was then made of all the 
 authorities upon the subject, in connection with the diversities of opinion among jurists 
 about it, and of all those considerations which have induced legislatures to interfere and 
 place a limitation upon the bringing of actions. 
 
 " We thought then, and still think," says Mr. Just. W.ayne, " that it has become a 
 formulary in international jurisprudence, that all suits must be brought within the period 
 prescribed by the local law of the country where the suit is brought, — the hxfori; other- 
 wise the suit would be barred, unless the plaintiff can bring himself within one of the 
 exceptions of the statute, if that is pleaded by the defendant. This rule is as fully recog- 
 nized in foreign jurisprudence as it is in the common law. We then referred to authorities 
 in the common law, and to a summary of them in foreign jurisprudence. Burge's Com. on 
 Col. and For. Laws. They were subsequently cited, with others besides, in the second 
 edition of the Conflict of Laws, 483, among them will be found the case of Lcroy v. Crown- 
 inshield, 2 Mason, 151, so much relied upon by the counsel in this case. 
 
 " Neither the learned examination made in that case of the reasoning of jurists, nor the 
 final conclusion of the judge, in opposition to his own inclinations, escaped oiir attention. 
 Indeed, he was here to review them, with those of us now in the court who had the^ happi- 
 ness and benefit of being associated with him. He did so with the same sense of judicial 
 obligation for the maxim, Stare decisis ei non quieta movere, which marked his official career. 
 His language in the case in Mason fully illustrates it : — ' But I do not sit here to consider 
 what in theory ought to be the true doctrines of the law, following them out upon princi- 
 ples of philosophy and juridical reasoning. My humbler and safer duty is to administer 
 the law as I find it, and to follow in the path of authority, where it is clearly defined, even 
 though that path may have been explored by guides in whose judgment the most implicit 
 confidence might not have been originally reposed.' Then follows this declaration:— 
 'It does appear to me that the question now before the court has been settled, so far as it 
 could be, by authorities which the court is bound to respect.' The error, if any has been 
 committed, is too strongly engrafted into the law to be removed without the interposition of 
 some superior authority. Then, in support of this declaration, he cites Huberus, Voet, 
 Pothier, and Lord Kames, and adjudications from English and American courts, to show 
 that, whatever may have been the differences of opinion among jurists, the uniform admin- 
 istration of the law has been, that the lex loci contractus expounds the obligation of contracts, 
 and that statutes of limitation prescribing a time after which a plaintiff shall not recover, 
 unless he can bring himself within its exceptions, appertain ad tcmpus et modum actionis 
 instituendoc and not ad valorem contractus. Williams v. Jones, 13 East, 439 ; Xash v. Tupper, 
 1 Caines, 402 ; Rwjgles v. Keelcr, 3 Johns. 263 ; Pearsall v. Dwight, 2 I^Iass. 84 ; Dccouche v. 
 Saveticr, 3 Johns. Ch. 190, 218 ; McCluny v. Silliman, 3 Peters, 276; Hawkins v. Barney, 5 
 Peters, 457 ; Bank of the United States v. Donnally, 8 Peters, 361 ; McElmoyle v. Cohen, 13 
 Peters, 312. 
 
 "There is nothing in Shelby v. Guy, 11 Whcaton, 361, in conflict with what this court 
 decided in the four last-mentioned cases. Its action upon the point has been uniform and 
 decisive. In cases before and since decided in England, it will be found there has been no 
 fluctuation in the rule in the courts there. The rule is, that the statute of limitations of 
 the country in which the suit is brought may be pleaded to bar a recovery upon a contract 
 made out of its political jurisdiction, and that the limitation of the Icr loci contractus cannot 
 be. 2 Bingham, New Cases, 202, 211. Doe v. Lippmann, 5 Clark k Fin. I, \6, 11. It has 
 become, as we have already said, a fixed rule of the Jus gentium privatum, unalterable, in 
 our opinion, either in England or in the States of the United States, except by legislative 
 enactment. 
 
 " We will not enter at largo into the learning and philosophy of the question. We 
 remember the caution given by Lord Stair in the supplement to his Institutes (p. 852), 
 about citing as authorities the works and publications of foreign jurists. It is appropriate 
 to the occasion, having been written to correct a mistake of Lord Tenterden, to whom no 
 praise could be given which would not be deserved by his equally distinguished coutem-
 
 IQ OF ACTIONS, ETC. 
 
 him, till liis return to this country.(^) And if the plaintiff be a foreigner, 
 and do not come to Ungland for many years after the cause of 
 
 [ *17 ] action arises, he *still has six years after his coming hither, to 
 bring his action :(a) And if he never come to England himself, 
 
 [g] 2 Str. 836. Fitzjrib. 81, S. C. 
 
 {a) 3 Wils. 145. 2 Blac. Rep. 723, S. C. 
 
 porary, Judge Story. Lord Stair says, — ''There is in Abbott's Law of Shipping (5th edition, 
 p. 365,) a singular mistake ; and, considering the justly eminent character of the learned 
 author for extensive, sound, and practical knowledge of the English law, one which ought to 
 operate as a lesson on this side of the Tweed, as well as on the other, to be a little cautious 
 in citing the works and publications of foreign jurists, since, to comprehend their bearings, 
 such a knowledge of the foreign law as is scarcely attainable is absolutely requisite. It is 
 magnificent to array authorities, but somewhat humiliating to be detected in errors con- 
 cerning them ; — yet how can errors be avoided in such a case, when every day's experience 
 warns us of the prodigious study necessary lo the attainment of proficiency in our own 
 law? My object in adverting to the mistake in the work referred to is, not to depreciate 
 the author, for whom I entertain unfeigned respect, but to show that, since even so justly 
 distinguished a lawyer fails when he travels beyond the limits of his own code, the attempt 
 must be infinitely hazardous with others.' 
 
 " We will now venture to suggest the causes which misled the learned judge in Leroy v. 
 Croicninshield into a conclusion, that, if the question before him had been entirely new, his 
 inclination would strongly lead him to declare, that where all remedies are barred or dis- 
 charged by the lex loci co7iiracius, and have operated upon the case, then the bar may be 
 pleaded in a foreign tribunal, to repel any suit brought to enforce the debt. 
 
 " We remark, first, that only a few of the civilians who have written upon the point 
 differ from the rule, that statutes of limitation relate to the remedy and not to the contract. 
 If there is any case, either in our own or the English courts, in which the point is more 
 discussed than it is in Leroy v. Ci-oivnhishield, we are not acquainted with it. In every case 
 but one, either in England or in the United States, in which the point has since been made, 
 that case has been mentioned, and it has carried some of our own judges to a result which 
 Judge Story himself did not venture to support. 
 
 " We do not find him pressing his argument in Leroy v. Crowninshield in the Conflict of 
 Laws, in which it might have been appropriately done, if his doubts, for so he calls them, 
 had not been removed. Twenty years had then passed between them. In all that time, 
 when so much had been added to his learning, really great before, that by common consent 
 he was estimated in jurisprudence joarsMOTra/s, we find him, in the Conflict of Laws, stating 
 the law upon the point, in opposition to his former doubts, not in deference to authority 
 alone, but from declared conviction. 
 
 " The point had been examined by him in Leroy v. Crowninshield without any considera- 
 tion of other admitted maxims of international jurisprudence, having a direct bearing upon 
 the subject. Among others, that the obligation of every law is confined to the State in 
 which it is established, that it can only attach upon those who are its subjects, and upon 
 others who are within the territorial jurisdiction of the State ; that debtors can only be sued 
 in the courts of the jurisdiction where they are ; that all courts must judge in respect to 
 remedies from their own laws, except when conventionally, or from the decisions of courts, 
 a comity has been established between States to enforce in the courts of each a particular 
 law or principle. When there is no positive rule, aflSrming, denying, or restraining the 
 operation of foreign laws, courts establish a comity for sucli as are not repugnant to the 
 policy or in conflict with the laws of the State from which they derive their organization. 
 We are not aware, except as it has been brought to our notice by two cases cited in the 
 argument of this cause, that it has ever been done, either to give or to take away remedies 
 from suitors, when there is a law of the State where the suit is brought which regulates 
 remedies. But for the foundation of comity, the manner of its exercise, and the extent to 
 which courts can allowably carry it, we refer to the case of the Bank of Augusta v. Earle, 
 13 Peters, 519, 589 ; Conflict of Laws, Comity. 
 
 '' From what has just been said, it must be seen, when it is claimed that statutes of limi-- 
 tation operate to extinguish a contract, and for that reason the statute of the State in which 
 the contract was made may be pleaded in a foreign court, that it is a point not standing 
 alone, disconnected from other received maxims of international jurisprudence. And it 
 may well be asked, before it is determined otherwise, whether contracts by force of the 
 different statutes of limitation in States are not exceptions from the general rule of the lex 
 loci contractus. There are such exceptions for dissolving and discharging contracts out of 
 the jurisdiction in which they were made. The limitations of remedies, and the forms and 
 modes of suit, make such an exception. Confl. of Laws, 271, and 524 to 527. We may 
 then infer that the doubts expressed in Leroy v. Crowninshield would have been withheld, 
 if the point had been considered in the connection we have mentioned.
 
 OF ACTIONS, ETC. 16 
 
 he has always a right of action while he lives abroad ; and after his death, 
 his executors or administrators are in the same situation. 
 
 " We have found, too, that several of the civilians who wrote upon the question, did so 
 without having kept in mind the diflerence between the positive and negative prescription 
 of the civil law. In doing so, some of them — not regarding the latter in its more extended 
 signification as including all those bars or exceptions of law or of fact which may be opposed 
 to the prosecution of a claim, as well out of the jurisiliction in which a contract was made 
 as in it — were led to the conclusion, that the prescription was a part of the contract, and 
 not the denial of a remedy for its enforcement. It may be as well here to state the differ- 
 ence between the two prescriptions in the civil law. Positive, or the Roman usucnpdo, is 
 the acquisition of property, real or personal, immovable or movable, by the continued 
 possession of the acquirer for such a time as is described by the law to be sufficient. 
 Erskine's Inst. 556. ' Adjeclio dominii per continual ionem possession^ temjwris Icgi definiti.' 
 Dig. 3. 
 
 " Negative prescrii)tion is the loss or forfeiture of a right, by the proprietor's neglecting 
 to exercise or prosecute it during the whole period which the law hath declared to be 
 sufficient to infer the loss of it. It includes the former, and applies also to all those demands 
 which are the subject of personal actions. Erskine's Inst. 560, and 3 Barge, 26. 
 
 " Most of the civilians, however, did not lose sight of the differences between these 
 prescriptions, and if their reasons for doing so had been taken as a guide, instead of some 
 expressions used by them, in respect to what may be presumed as to the extinction or pay- 
 ment of a claim, while the plea in bar is pending, we do not think that any doubt would 
 have been expressed concerning the correctness of their other conclusion, that statutes of 
 limitation in suits upon contracts only relate to the remedy. But that was not done, and, 
 from some expressions of Pothier and Lord Karnes, it was said, 'If the statute of limitations 
 docs create, propria vigore, a presumption of the extinction or payment of the debt, which all 
 nations ought to regard, it is not easy to see why the presumption of such payment, thus 
 arising from the lex loci contractus, should not be as conclusive in every other place as in the 
 place of the contract.' And that was said in Leroy v. Crowninshield, in opposition to the 
 declaration of both of those writers, that in any other place than that of the contract such 
 a presumption could not be made to defeat a law providing for proceedings upon suits. 
 Here, turning aside for an instant from our main purpose, we find the beginning or source 
 of those constructions of the English statutes of limitation which almost made them useless 
 for the accomplishment of their end. AVithin a few years, the abuses of such constructions 
 have been much corrected, and we are now, in the English and American courts, nearer to 
 the legislative intent of such enactments. 
 
 " But neither Pothier nor Lord Kames meant to be understood, that the theory of statutes 
 of limitation purported to afford positive presumptions of payment and extinction of con- 
 tracts, according to the laws of the place where they are made. The extract which was 
 made from Pothier shows his meaning is, that, when the statute of limitations has been 
 pleaded by a defendant, the presumption is in his favour that he has extinguished and 
 discharged his contract, until the plaintiff overcomes it by proof that he is within one of 
 those exceptions of the statute which takes it out of the time after which he cannot bring 
 a suit to enforce judicially the obligation of the defendant. The extract from Lord Kames 
 only shows what may be done in Scotland when a process has been brought for payment 
 of an English debt, after the English prescription has taken place. The English statute 
 cannot be pleaded in Scotland in such a case, but, according to the law of that forum, it 
 may be pleaded that the debt is presumed to have been paid. And it makes an issue, in 
 which the plaintiff in the suit may show that such a presumption does not apply to his 
 demand ; and that without any regard to the prescription of time in the English statute of 
 limitation. It is upon this presumption of payment that the conclusion in Leroy v. Crown- 
 inshield was reached, and as it is now universally admitted that it is not a correct theory 
 for the administration of statutes of limitation, we may say it was in fact because that 
 theory was assumed in that case that doubts in it were expressed, contrary to the judgment 
 which was given, in submission to what was admitted to be the law of the case. What we 
 have said may serve a good purpose. It is pertinent to the point raised by the pleading 
 in the case before us, and in our judgment there is no error in the District Court's having 
 sustained the demurrer. 
 
 " Before concluding, we will remark that nothing has been said in this case at all in conflict 
 with what was said by this court in Shelb)/ v. Guy, 11 Whcaton, 361. The distinctions 
 made by us here between statutes giving a right to property from possession for a certain 
 time, and such as only take away remedies for the recovery of property after a certain time 
 has passed, confirm it. In Shelly v. Guy, this court declared that, as by the laws of 
 Virginia five years' bond fide possession of a slave constitutes a good title upon which the 
 possessor may recover in detinue, such a title may be set up by the vendee of such possessor 
 in the courts of Tennessee as a defence to a suit brought by a third party in those courts. 
 The same had been previously ruled in this court in Brent v. Chapman, 5 Cranch, 358 ; and
 
 15 OF ACTIONS, ETC. 
 
 The statute cannot be a bar in any ease, unless the time of limitation 
 be expired after there hath been a complete cause of action :[b] as if a man 
 
 it is the rule in all cases where it is declared by statute that all rights to debts due more 
 than a prescribed term of years shall be deemed extinguished, and that all titles to real and 
 personal property not pressed within the prescribed time shall give ownership to an adverse 
 possessor. Such a law, though one of limitation, goes directly to the extinguishment of the 
 debt, claim, or right, and is not a bar to the remedy. Lincoln v. Batlelle, 6 Wend. 475. 
 Confl. of Laws, 582. 
 
 "In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It is stated in the 
 Conflict of Laws, 582, to be a settled point. The courts of Louisiana act upon it. We 
 could cite other instances in which it has been announced in American courts of the last 
 resort. In the cases of Z>e la Vega v. Vianna, 1 Barn. & Adol. 284, and the British Linen 
 Company v. Drunimond, 10 Barn. & Cres. 903, it is said, that, if a French bill of exchange 
 is sued in England, it must be sued on according to the laws of England, and there the 
 English statute of limitations would form a bar to the demand if the bill had been due for 
 more than six years. In the case of Doe v. Lippmann, 5 Clark & Fin. 1, it was admitted by 
 the very learned counsel who argued that case for the defendants in error, that, though 
 the law for expounding a contract was the law of the place in which it was made, the 
 remedy for enforcing it must be the law of the place in which it is sued. In that case will 
 be found, in the argument of Lord Brougham before the House of Lords, his declaration of 
 the same doctrine, sustained by very cogent reasoning, drawn from what is the actual intent 
 of the parties to a contract when it is made, and from the inconveniences of pursuing a 
 different course. In Beckford and others v. Wade, 17 Vesey, 87, Sir William Grant, acknow- 
 ledging the rule, makes the distinction between statutes merely barring the legal remedy, 
 and such as prohibit a suit from being brought after a specified time. It was a case arising 
 under the possessory law of Jamaica, which converts a possession for seven years under a 
 deed, will, or other conveyance, into a positive absolute title, against all the world, — without 
 exceptions in favour of any one or any right, however a party may have been situated during 
 that time, or whatever his previous right of property may have been. There is a statute of 
 the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee, there is 
 an act in some respects similar to the possessory law of Jamaica ; it gives an indefeasible 
 title in fee simple to lands of which a person has had possession for seven years, excepting 
 only from its operation, infants, feme coverts, non compotes mentis, persons imprisoned or 
 beyond the limits of the United States and the Territories thereof, and the heirs of the 
 excepted, provided they bring actions within three years after they have a right to sue. 
 Act of November 16, 1817, ch. 28, ^§ 1, 2. So in North Carolina, there is a provision in 
 the Act of 1715, ch. 17, § 2, with the same exceptions as in the act of Tennessee, the latter 
 being probably copied substantially from the former. Thirty years' possession in Louisiana 
 prescribes land, though possessed without title and maid fide. 
 
 " We have mentioned those acts in our own States, only for the purpose of showing the 
 difference between statutes giving title from possession, and such as only limit the bringing 
 of suits. It not unfrequently happens in legislation, that such sections are found in statutes 
 for the limitation of actions. It is in fact because they have been overlooked, that the 
 distinction between them has not been recognized as much as it ought to have been in the 
 discussion of the point, whether a certain time assigned by a statute, within which an action 
 must be brought, is a part of the contract, or solely the remedy. The[rule in such a case 
 is, that the obligations of the contract upon the parties to it, except in well-known cases, 
 are to be expounded by the lex loci contractus. Suits brought to enforce contracts, either in 
 the State where they were made, or in the courts of other States, are subject to the remedies 
 of the forum in which the suit is, including that of statutes of limitations." Townsc7id v. 
 Jamison, 9 How. S. C. Rep. 413. 
 
 [b] " Where a debt due by specialty has been unclaimed, and without recognition, for 
 twenty years, in the absence of any explanatory evidence, it is presumed to have been paid. 
 The jury may infer the fact of payment from the circumstances of the case, within that 
 period; but the presumption of law does not attach till the twenty years are expired. This 
 rule, with its limitation of twenty years, was first introduced into the courts of law by Sir 
 Matthew Hale, and has since been generally recognized, both in the courts of law and of 
 equity. It is applied not only to bonds for the payment of money, but to mortgages, judg- 
 ments, warrants to confess judgment, decrees, statutes, recognizances, and other matters of 
 record, when not affected by statutes ; but with respect to all other claims not under seal 
 nor of record, and not otherwise limited, whether for the payment of money or the per- 
 formance of specific duties, the general analogies are followed as to the application of the 
 lapse of time, which prevail on kindred subjects. But in all these cases the presumption 
 of payment may be repelled by any evidence of the situation of the parties, or other cir- 
 cumstance tending to satisfy the jury that the debt is still due." 1 Greenleaf on Evid. sec. 
 39. Matthews on Presump. Evid. ch. 19, 20. Best on Presump. Evid. p. 1, chaps. 2 & 3. 
 1 Phil, on Evid. p. 160, Cowen & Hill's notes.
 
 OF ACTIONS, ETC. 17 
 
 promise to pay ten pounds to J. S. "when he comes from Borne, or when 
 he marries, and ten years after J. S. marries, or comes from Rome, the 
 right of action accrues from the happening of the contingency, from which 
 time the statute will begin to run, and not from the time of the promise. (6) 
 So in assumpsit, where the plaintifi" declared that the defendant, in con- 
 sideration that the plaintiff, at the defendant's request, would receive A. 
 and B. into his house as guests, and diet them, promised, kc, the defend- 
 ant pleaded non assu7npsit infra sex annos, upon Avhich the plaintiff 
 demurred, and it was held no plea ; for the defendant cannot in such case 
 plead non assumpsit infra sex annos, but aetio non accrevit infra sex 
 annos ; for it is not material when the promise was made, if the cause of 
 action be within the six years, and the dieting might belong afterwards.(c) 
 So if the captain of a ship insured, barratrously carry her out of the 
 course of the voyage, procure her to be condemned in a Vice-Admiralty 
 court, sell her, and deliver her up to the purchaser, it is only from this 
 last event that the statute of limitations begins to run, as between the 
 assured and the underwriter. (cZ) And no debt accrues on a bill payable 
 at sight, until it be presented for payment : Therefore, the statute of limi- 
 tations is no bar to an action on such a bill, unless it has been presented 
 for payment six years before the action commenced.(e) So, the statute 
 is no bar to an action on a promissory note, payable twenty four months 
 after demand, if presented for payment within six years before the com- 
 mencement of the action.(/) But a promissory note, payable on demand, 
 is payable immediately ; and the statute of limitations runs from the date 
 of the note, and not from the time of demand.((/)[l] And where the breach 
 of a contract is attended with special damage, the statute runs from the 
 time of the breach, which is the gist of the action, and not from the time 
 when it was discovered,(7i) or the damage arose.(2) In an action by an 
 administrator, upon a bill of exchange payable to the intestate, but 
 accepted after his death, it was hoklen, that the statute of limi- 
 tations begins to run from *the time of granting the letters [ *18 ] 
 of administration, and not from the time the bill becomes due ; 
 there being no cause of action, until there is a party capable of suing.(a)[2] 
 There is is no statute of limitations in an action of deht on bond.(i) 
 
 (J) Godb., 437. 1 Lev., 48. 1 Blac. Rep., 354. 1 H. Blac, G31. 
 
 (c) 2 Salk., 422. 2 Ld. Raym. 838, S. C, and see Ballantine on the Statute of Limita- 
 tions, p. 215, &c. 
 
 {d) 1 Camp., 539, and see 4 Esp. Rep. 18. [c) 2 Tauut., 323. 
 
 (/) 1 Rv. & Mo., 388. 8 Dowl. & Ryl., 347, S. C. 
 
 \g) Christie v. Fonseck, Sit. Lond. after M. T., 52 Geo. III., C. P., per Mansfield, Ch. J. Sel. 
 Ni. Pri., 6 Ed., 136, 36h 1 Ves., 344, accord., but sec Hardr., 36. 1 Mod., 89. 15 Vin. 
 Abr. tit. Limitatiou, P. 14. M'Clel. & Y., 338. 
 
 (/t) 3 Barn. & Aid., 626, and see 4 Moore, 508. 2 Brod. & Bing., 73, S. C. 5 Barn. & 
 Cres., 259. 8 Dowl. & Ryl., 14. 2 Car. & P., 238, S. C. accord. 
 
 (i) 3 Barn. & Aid., 288. (a) 5 Barn. & Aid., 204. (6) Cowp., 109. 
 
 [1] 7 Har. & Johns., 14. So, also, a receipt given for a sum of money borrowed, whereby 
 the person borrowing undertook to return the money " when called on to do so," creates a 
 cause of action from its date, bearing interest, and against which the act of limitations 
 begins to run from that time. 1 Har. & Gill, 439. 
 
 [2] When the statute once begins to run, no subsequent circumstance stops its operation. 
 It does not, however, begin to operate unless there is a person, in esse, competent to sue at 
 the time the cause of action accrues. Huff's Adm'r v. JJull, 7 Har. & J. 14. So, in trover, 
 where the conversion of the property of the deceased was before letters of administration 
 were granted, the statute runs only from the time a right vested in some one to demand it. 
 Ifaslell's Adm'r v. Glenn, Id. lb. 'Hepburn's Adm'r v. Scwcll, 4 Id. 393, 430. See Augell on 
 Limitations, § 477, 478.
 
 18 OF ACTIONS, ETC. 
 
 But where the bond has been given more than twenty years before the 
 commencement of the action, and no interest has been paid upon it, nor 
 any acknowledgment by the obligor of the existence of the debt, during 
 that period, the law in general will presume it to be satisfied ;(c) particu- 
 larly if the debt be large, and the obligor has been all along in good 
 circumstances. (cZ) And the defendant shall have the benefit of this pre- 
 sumption on the plea of solvit ad diem, unless interest appears to have 
 been paid upon the bond, after the time mentioned in the condition ; in 
 which case he must plead solvit post diem.[e) So, where a bond has been 
 given, or interest paid upon it, within twenty years, the law in some cases 
 will presume it to be satisfied ; as where it has been given eighteen or 
 nineteen years, and in the mean time an account has been settled between 
 the parties, without taking any notice of the demand :(/) but in that case 
 the presumption must be fortified by evidence of some auxiliary circum- 
 stances ;(^) though, after a considerable length of time, slight evidence is 
 said to be sufiicient. (7i) The doctrine of presumption is said to have been 
 first taken up by Lord Hale^{i) who thought the lapse of time a circum- 
 stance whence a jury might presume payment, [a] In this he was followed 
 by Lord Holt, who held that if a bond be of twenty years standing, and 
 no demand proved thereon, or good cause of so long forbearance shown, 
 on solvit ad diem, he should intend it paid.(^) This doctrine was after- 
 
 (c) 6 Mod., 22. 11 Mod., 2. 1 Str., 652. 3 P. Wms., 395, &c. 1 Bur., 434. 1 Blac. 
 Rep., 532. 4 Bur., 1963. Cowp., 109. 1 Durnf. & East, 270. 
 
 {d) 1 Durnf. & East, 271,2. (e) 1 Str., 652. 
 
 (/) 1 Bur., 434. 1 Durnf. & East, 271. 
 
 (V) Cowp., 214. 1 Durnf. & East, 270. 1 Camp., 27. 
 
 {h) 1 Durnf. & East, 272. 
 
 (i) Id., 271, but see 1 Chan. Rep., 42, 47, and the cases referred to in Yin. Abr. tit. 
 Length of Time, 52, &c. 
 
 {k) 6 Mod., 22. 11 Mod., 2. 
 
 » 
 
 [a] a debt once proved to have existed is presumed to continue, unless payment, or 
 some other discharge, be either proved or established from circumstances. A receipt 
 under hand and seal is the strongest evidence of payment, for it amounts to an estoppel, 
 conclusive on the party making it ; but a receipt under band alone, or a verbal admission 
 of payment, is in general on\y j^rima facie evidence of it, and may be rebutted. Of the pre- 
 sumptive proof of payment, the most obvious is that of no demand having been made for 
 a considerable time ; and previous to the 3 & 4 Will. 4, c. 42, § 3, the courts, by analogy 
 to the Statute of Limitations, had established the artificial presumption, that, where pay- 
 ment of a bond or other specialty was not demanded for twenty years, and there was no 
 payment of interest or other circumstance to show that it was still in force, payment or 
 release ought to be presumed by a jury. By that statute it is enacted, that "all actions for 
 debt, for rent upon an indenture of demise, all actions of covenant or debt Ujpon any bond 
 or other specialty, and all actions of debt or sci7-e faeias upon any recognizance that shall 
 be sued or brought at any time after the end of that session of parliament, shall be com- 
 menced and sued within ten years after the end of that session, or within twenty years 
 after the cause of action, but not after." Even though this statute be not pleaded, the fact 
 of payment may still be presumed by a jury from lapse of time, or other circumstances 
 ■which render the fact probable, as, for instance, the settlement of accounts subsequent to 
 the accruing of the debt, and in which no mention is made of it. Where a landlord gives a 
 receipt for rent due up to a certain day, all former arrears are presumed to have been paid ; 
 for ii is likely that he would take the debt of longest standing first. Previous to the statute, 
 it was laid down by Lord EUenborough, in Calsell v. Budd, 1 Campb. 27, that, " after a lapse 
 of twenty years, a bond will be presumed to be satisfied; but there must either be a lapse 
 of twenty years, or a less time, coupled with some circumstance to strengthen the presump- 
 tion." In Brembridge v. Osborn, 1 Stark, 374, also, the same learned judge told the jury, 
 that, where there is a competition of evidence as to the question, whether a security has or 
 has not been satisfied by payment, the possession of the uncancelled security by the claimant 
 ought to turn the scale in his favour, since, in the ordinary course of dealing, the security is 
 given up to the party who pays it. Best on Presump. sec. 127.
 
 OF ACTIONS, ETC. 18 
 
 wards adopted by Lord Raymond^ in the case of Constable y. Somerset. {!) 
 And it is not confined to actions of debt on bond ; but the like presump- 
 tion has been made, after twenty years, in an action of debt,{m) or scire 
 facias,{n) on a judgment :[1] and in a modern case,(o) where it appeared 
 that the bond was not satisfied, the jury, under particular circumstances, 
 and after a great lapse of time, presumed it to have been released. So, in 
 assumpsit, where the statute of limitations is not pleaded or replied, the 
 jury may presume, from length of time and other circumstances, that the 
 debt has been satisfied. (^j) 
 
 *The presumption of payment, however, may in general be re- 
 butted, by showing that interest has been paid on the bond within [ *19 ] 
 twenty years,[A] or that the obligor has acknowledged the exis- 
 tence of the debt within that pcriod,(rt) or that he was in bad circum- 
 stances, (?>) or the demand trifling, (c) or that he has ever since his acknow- 
 ledgment resided abroad. (^Z) But where there was no evidence of payment, 
 or of any sort of acknowledgment, for more than thirty years, the pre- 
 sumption arising from lapse of time, of a judgment being satisfied, was 
 holden not to be rebutted, by evidence of the defendant having been in 
 embarrassed circumstances, and in the opinion of those who knew him, 
 incapable of paying the debt secured by the judgment. (f) In order to 
 prove the payment of interest, or a part of the principal, an indorsement 
 made by the obligee upon the bond, within twenty years, is allowed to be 
 evidence ;(/) but an indorsement made after the presumption had taken 
 place, is not admissible. (^) And, by the statute "J Geo. IV., c. 14, § 3, 
 " no indorsement or memorandum of any payment, written or made after 
 the time appointed for that act to take effect, upon any promissory note, 
 bill of exchange, or other writing, by or on the behalf of the party to whom 
 such payment shall be made, shall be deemed sufficient proof of such pay- 
 ment, so as to take the case out of the operation of the statute of limita- 
 tions." 
 
 In actions for ivrongs, particular times of limitation are frequently 
 appointed by statute, different from those in common cases. Thus, by the 
 statute 24 Geo. II., c. 44, § 8, it is provided, that " no action shall be 
 brought against any justice of the peace, for any thing done in the cxecu- 
 
 {l) Hil. 1 Geo. II., at Guildhall. (m) 1 Str., 639. 
 
 (;j) Peakc's Evid., 5 Ed., 28. Curds v. Lord Grandison, cor. Ld. Kenyon, Sit. Westm., 
 after M., 37 Geo. III., S. P. 
 
 (o) Washington aud Brymcr, H. 42 Geo. III. K. B. Peake's Evid. 5 Ed. Appendix, 
 XXV., S. C. 
 
 [p) 2 Stark. Ni. Pri. 407, and see 5 Esp. Rep. 22. 1 Taunt. 572, but see 1 Dowl. & 
 Ryl. 16. 
 
 '(a) Cowp. 109. 1 Durnf. & East, 271, 2. {b) Cowp. 109. 
 
 (c) Id. 214. {d) 1 Stark. Ni. Pri. 101. (c) 1 Caiupb. 217. 
 
 (/) 2 Sir. 826. 2 Ld. Raym. 1370. 8 Mod. 278. Se!. Cas. Ev. 152. 3 Bro. P. C. 535, 
 B.C. 
 
 {g) 2 Str. 827. 2 Vez. 43, ace. 1 Barnard, K. B. 432, cotitra. 
 
 [1] 14 Serg. &Rawle, 15. 2 Con3t. Rep. S. Car. 617, 146. 2 South. Rep. 721, accord. 
 And satisfaction of a judgment after the lapse of twenty years, is a presumption of law upon 
 the facts; if there are no facts or circumstances to account for the delay, it is not the duty 
 of the court to suV)mit the question, as an open one to the jury. 14 Serg. & R. 15. If the 
 original judgment were against several defendants, and on a scire facias, the return as to 
 one, is nihil hahct, and judgment is entered against him by default, this is not a circumstance 
 to affect the presumption of payment, as an implied confession of judgment. Id. ibid. 
 
 [a] See Best on Presurap., § 137 ; 2 Green!, on Ev., g 528.
 
 19 OF ACTIONS, ETC. 
 
 tion of his office, or against any constable, headhorough, or other officer, 
 or person acting bj his order and in his aid, unless commenced within six 
 calender months after the act committed." In the construction of this 
 statute, it seems that the months are to be reckoned inclusive of the day 
 of committing the act.(7^) And where a constable, acting under a warrant 
 commanding him to take the goods of ^., takes the goods of B., believing 
 them to belong to A., he is entitled to the protection of the statute ; and 
 an action therefore must be brought against him, within six calendar 
 months. (z) And, in like manner, where constables, under a warrant to 
 search a house for black cloth which had been stolen, finding no black 
 cloth, took cloth of other colours, and carried it before a magistrate, 
 refusing at the same time to tell the owner of the house searched, whether 
 they had any warrant or no ; the court of Common Pleas held, that they 
 were within the protection of the statute, and that an action against them 
 ought to have been commenced within six months after the grievance 
 complained of.(/(^) So, where a constable, having a magistrate's warrant 
 of distress, to levy a church rate, under the statute 53 Geo. III., c. 127, 
 § 7, broke the door of, and entered the plaintifif's dwelling house ; the 
 
 court held, that although he thereby exceeded iiis authority, yet 
 [ *20 ] that no action could be maintained, after the expiration of ^three 
 
 calendar months. («) But, in the case of a continued imprison- 
 ment, the magistrate is liable to answer in an action for such part of the 
 imprisonment suffered under his warrant, as was within six calendar 
 months before the action commenced against him. (5) And where an 
 action of assault and false imprisonment was brought against a constable, 
 who had exceeded his authority, it being objected that the plaintiff had 
 not shown the action commenced within six months, according to the 
 above statute. Lord Kenyon over-ruled the objection, on this distinction ; 
 that the defendant acted colore officii, and not virtute officii; and said, 
 that it had often been held, that a constable acting colore officii was not 
 protected by the statute, where the act committed is of such a nature that 
 the office gives him no authority to do it : in the doing of that act he is 
 not to be considered as an officer : but where a man doing an act within 
 the limits of his official authority, exercises that authority improperly, or 
 abuses the discretion placed in him, to such cases the statute extends : 
 The distinction is, between the extent and the abuse of the authority, (c) 
 
 By the statute 28 Geo. III. c. 37, § 23, " if any action or suit shall be 
 brought or commenced against any person or persons, for any thing by 
 him or them done in pursuance of that or any other act or acts of parlia- 
 ment then in force, or thereafter to be made, relating to his majesty's 
 revenues of customs and excise, or either of them, such action or suit 
 shall be commenced within three months next after the matter or thing 
 done."(c?) And, by the statute 6 Geo. IV. c. 108, § 97, " if any action 
 or suit shall be brought or commenced against any officer of the army, 
 navy, marines, customs or excise, or against any person acting under the 
 
 {K) 4 Moore, 465. [i) 3 Barn. & Aid. 330. 
 
 \k) 5 Moore, 322. 2 Brod. & Bing. 619, S. C, and see 7 Moore, 51. 3 Bred. & Bing. 239. 
 S. C. («) 1 Barn. & Aid. 227. {b) 12 East, 67. 
 
 (c) 2 Esp. Rep. 542, m notis, and see 2 Chit. Rep. 140. 6 Barn. & Cres. 351. 7 Barn. & 
 Cres. 394. 1 Man. & Ryl. 102, S. C. Id. 211. Post, 29, 31. 
 
 (d) See also the former statutes of 23 Geo. III., c. 70, § 34, 24 Geo. III., sess. 2, c. 47, \ 35, 
 39, which latter statute, however, is repealed by 6 Geo. IV., c. 105. And for the construc- 
 tion of the former of these statutes, see 2 Dowl. & Ryl. 9.
 
 OF ACTIONS, ETC. 20 
 
 direction of the commissioners of his majesty's customs, for any thing 
 done in the execution of or by reason of his office, such action or suit 
 shall be brought or commenced within six months next after the cause of 
 action shall have arisen, and not afterwards." On the former of these 
 statutes, it has been holden, tliat the action must be commenced Avithin 
 three months from the time of the original seizure, notwithstanding the 
 pendency of process in the Exchcqucr.(c) And as the statute 28 Geo. 
 III. c. 37, is not repealed by the 6 Geo. IV. c. 105, it seems that actions 
 for any thing done in pursuance of the acts relating to the customs or ex- 
 cise, must still be commenced within three months after the matter or 
 thing done. Also, by the acts relating to the West India,{f) and Lon- 
 don,{g) Dock companies, actions against their treasurer must be brought 
 within six calendar months after the fact committed. 
 
 *By the general highwai/,{a) turnpike,{b) and hmlding{e) [ *21 ] 
 acts, actions for things done in pursuance thereof, must be 
 brought within three months next after the act committed, and not after- 
 wards. But it has been determined, that if surveyors of highways, in the 
 execution of their office, undermine a wall adjoining to the highway, 
 which does not fall till more than three months afterwards, they are sub- 
 ject to an action on the case, for the consequential injury, within tJiree 
 months after the falling of the wall.(fZ) By the statute 43 Geo. III. c. 
 99,_§ 70, for consolidating the provisions in the acts relating to the duties 
 under the management of the commissioners for the affairs of taxes, "if 
 any action or suit shall be brought against any person or persons, for any 
 thing done in pursuance of that act, or any act for granting duties to be 
 assessed under the regulations of that act, such action or suit shall be 
 commenced within six calendar months next after the fact committed, 
 and not afterwards." By the statute 6 Geo. IV. c. 16, to amend the laws 
 relating to hankrupts,{e) " every action brought against any person, for 
 any thing done in pursuance of that act, shall be commenced within three 
 calendar months next after the fact committed." By the statutes 7 & 8 
 Geo. IV. c. 29, § 75, and c. 30, § 41, "all actions and prosecutions 
 against any person, for any thing done in pursuance of the acts for con- 
 solidating and amending the laws relative to larceny, kc, and malicious 
 injuries to property, shall be commenced within six calendar months after 
 the fact committed, and not otherwise." And, by the statute 7 & 8 Geo. 
 IV. c. 31, for consolidating and amending the laws relative to remedies 
 against the hundred,{f) " no person shall be enabled to bring any action 
 by virtue of that statute, unless he shall commence the same within three 
 calendar months after the commission of the offence." 
 
 The statute of limitations is a bar to an action of trover, commenced 
 more than six years after the conversion, although the plaintiff did not 
 
 (e) 2 H. Blac. 14. 2 East, 254, and see 1 Bing. 167. 
 
 (/) Stat. 39 Geo. III., c. Ixix., ? 184, and see 5 Taunt. 534. 
 
 {g) Stat. 39 & 40 Geo. III., c. xlvii., g 151, and see 1 Ry. & Mo. IGl. 1 Car. & P. 541, 
 S. C. («) 13 Geo. III., c. 78, ? 82. 
 
 {h) 13 Geo. III., c. 84, § 85. 3 Geo. IV., c. 126, ? 147, and sec statutes 5 Geo. III., c. 105. 
 42 Geo. III., Chap. C. 56 Geo. III., c. li. And for decisions on these statutes, see 1 Marsh. 
 429. 6 Taunt. 29, S. C. 2 Barn. & Cres. 703. 4 Dowl. & Ryl. 195, S. C. 4 Barn. & 
 Cres. 200. 
 
 (c) 14 Geo. III. c. 73, ? 100, and see 4 Barn, k Cres. 269. 6 Dowl. & Ryl. 360, S. C. 
 
 \d) 16 East, 215, and see 5 Taunt. 537, 8. 1 Marsh. 429. 6 Taunt. 29, S. C. 3 Maule & 
 Sel. 580. 2 Barn. & Cr«3. 703. 4 Dowl. & Ryl. 195, S. C. 
 
 {e) i 44. (/) ? 3. 
 
 Vol. I.— 3
 
 21 . OF ACTIONS, ETC. 
 
 know of it until witliin thcat period ; the defendant not having practised 
 any fraud, in order to prevent the plaintiff from obtaining that knowledge 
 at an earlier period. (^) And in an action on the case against an attorney, 
 for misconduct, in laying out money on insufficient securities, the statute 
 of limitations begins to run from the time when the defendant was guilty 
 of such misconduct, and not from the time when it was discovered that 
 the securities were insufficient. (//,) To a declaration in an action 
 [ *22 ] on the *case, founded in tort, the defendant, in pleading the 
 statute of limitations, should allege that the cause of action did 
 not accrue within six years next before the commencement of the suit ; a 
 plea of not guilty of the grievances mentioned in the declaration, within 
 six years, being bad upon special demurrer. (a) And a subsequent admis- 
 sion by the defendant, of having committed a trespass, will not take the 
 case out of the statute of limitations. (5) 
 
 To take a case out of the statute, it is usual, in assumpsit, to prove a 
 promise to pay, or acknowledgment of the debt, within six years before 
 the commencement of the action. [a] And a conditional promise has been 
 holden sufficient for this purpose, as well as an absolute one ; as where 
 the defendant said to the plaintiff, j^rove your debt, and I ivill pay it.{c) 
 But if an executor bring assumpsit on a promise made to his testator, 
 and the defendant plead that he made no promise to the testator within 
 six years: if issue be joined thereon, a promise to the executor within six 
 years will not maintain the action. (cZ) So, where an action was brought 
 against A. and B. and C, his wife, upon a joint promissory note made by 
 A. and C before her marriage, and the promise was laid by A. and C. 
 "while the latter was sole, and the defendants pleaded the statute of limi- 
 tations, whereupon issue was joined ; the court held, that an acknow- 
 ledgment of the note by A., within six years, but after the intermarriage 
 of B. and C, was not evidence to support the issue. (g) And, upon a 
 replication that the defendant did promise within six years, to a plea of 
 the statute of limitations, fraud in the defendants cannot be set up as an 
 answer to the plea.(/)[l] 
 
 (g) 5 Barn. & Cres. 149. 7 Dowl. & Ryl. 729, S. C, and see Ballentine, on the statute of 
 limitations, 97, &c. 
 
 (h) 5 Barn. & Cres. 259. 8 Dowl. & Ryl. 14. 2 Car. & P. 238, S. C, and see 3 Barn. & 
 Aid. 288, 626. 4 Moore, 508. 2 Brod. & Bing. 73, S. C. (a) 3 Barn. & Aid. 448. 
 
 (6) 1 Barn. & Aid. 92. 2 Chit. Rep. 249, S. C, and see 2 Campb. 160. 3 Barn. & Aid. 
 626. 5 Moore, 105. 2 Brod. & Bing. 372, S. C, Post, 27. 
 
 (c) 1 Ld. Raym. 389, 422. 1 Salk. 29. Carth. 470. 5 Mod. 425, S. C, and see 2 Show. 
 126. 2 Vent. 151. 12 Mod. 224. 
 
 (d) 1 Salk. 28. 2 Ld. Raym. 1101. 6 Mod. 309, S. C. Bui. M. Pri. 150. 3 East, 409. 
 
 (e) 1 Barn. & Cres. 248. 2 Dowl. & Ryl. 363, S. C. 
 (/) 2 Barn. & Cres. 149. 3 Dowl. & Ryl. 322, S. C. 
 
 [1] In this case, each of the judges intimated an opinion that fraud would have been a 
 good answer, if it had been specially stated in the replication. See 2 Barn. & Cres. 149, par- 
 ticularly what is said by Bayley and Best, Js. See also 5 Barn. & Cres. 149. In this country, 
 the cases on this subject are as follows : when the statute is pleaded to an action founded on 
 fraud, a replication which avers an ignorance of the fraud until within six years, is sufEcient. 
 1 Pickering, 438. 3 id. 74. 2 M'Cord, 426, contra, 20 Johns. 33. And the ignorance so 
 averred is traversable, and may be proved or disproved, like other traversable matters. 1 
 Pick, ut supra. Such replication is good, though the plaintiff aver generally that he did not dis- 
 cover the fraud until within six years, without stating the time when he discovered it, or any 
 act of the defendant by which the knowledge of it was prevented. Ibid. Mr. Chitty, in his 
 work on the Practice of the Law in all its Departments (vol. i. p. 766,) makes, upon this sub- 
 ject, the following observations : " It has been suggested that even at law a case might be taken 
 
 [a] See a full discussion of the subject and collection of authorities in Angell on Limita- 
 tions, I 208, 235, 3d Ed.
 
 OF ACTIOXS, ETC. 22 
 
 It was formerly doubted, whether a bare aeknomledgment of the debt, 
 without a jJroinise of payment, was sufficient to take the case out of the 
 statute ; such an acknowledgment being only considered as evidence of a 
 promise ; as in trover^ where a demand and refusal arc not holden to be a 
 conversion, but only evidence of it. A bare acknowledgment, however,(,^) 
 and that of the slightest nature,(7i) is now deemed sufficient to prevent the 
 operation of the statutc.[A] So, in an action brought by an administrator, 
 an agreement for a compromise, executed between the intestate and the 
 defendant, wherein the existence of the debt sued for was admitted, was 
 deemed sufficient to take the case out of the statute of limitations. (i) And 
 where the defendant, having entered into a guarantee in writing, and 
 become liable upon it, at a period of more than six years before 
 the *commenccment of the suit, verbally promised, within six [ *23 ] 
 years, that the matter should be arranged ; and afterwards, on 
 an action being brought, pleaded actio non accrevit, kc. the court held, 
 that the statute of frauds having been once satisfied, by the original pro- 
 mise being in writing, it was not necessary, in order to take the case out 
 of the statute of limitations, that the latter promise should also be in wri- 
 ting.(rt) If an agent has been employed to pay money for work done 
 for the defendant, and the workmen are referred to him for payment, an 
 acknowledgment or promise to pay by him, will take the case out of the 
 statute of limitations. (5) So the admission of the wife, who was accus- 
 tomed to conduct her husband's business, is sufficient to take the case out 
 of the statute of limitations, in an action against the husband. (c) And, in 
 an action against a husband, for goods supplied to his wife for her accom- 
 modation, while he occasionally visited her, a letter written by the wife, 
 acknowledging the debt, within six years, was deemed admissible evidence 
 for that purpose. ((i) 
 
 An acknowledgment by one of several drawers of a joint and several 
 promissory note, will take the case out of the statute, as against any one 
 of the other drawers, in a separate action on the note against him.(c') So, 
 in a joint action against several drawers of a promissory note, an acknow- 
 ledgment Avithin six years, by one of them, will revive the debt against 
 another, although the latter has made no acknowledgment, and only 
 signed the note as a surety.(/)[l] And where one of two drawers of a 
 
 (.y) 2 Bur. 1099. 
 
 (A) 5 Bur. 2630, and see Cowp. 548. 4 Esp. Rep. 46. 1 Car. & P. 452, 3, 631, 675. 3 
 Bing. 119, but see the opioion of Best, CIi. J. id. 331. 
 
 (i) 9 Price, 122. (a) 1 Barn. & Aid. 690. (b) 5 Esp. Rep. 145. 
 
 (c) Holt iW. Pri. 591. (d) 1 Campb. 394. (e) Doug. 652, 3. 
 
 (/) 2 Bing. 306. 9 Moore, 566, S. C. 
 
 out of the statute of limitations, by showing that the ^vrong-doQT by fraud, concealed from the 
 party injured the knowledge of the cause of action until after the limited time liad elapsed. 
 Granger v. George, 5 B. & C. 149, S. C. 7. D. & R. 729 ; Howell v. Young, 5 B. & C. 259 ; but the 
 case appears to have been put rather as a possible than a positive exception, and in these cases 
 it seems at least better to resort to a court of equity, or by an injunction in that court to 
 prevent tiie defendant from setting up the lapse of time as a bar." Whallcy v. M'halley, 3 
 Bligh's Rep. 2. 
 
 [1] So, in the State of Connecticut, it is held that the acknowledgment of one of several 
 joint makers of a promissory note, will take it out of the statute as against the others. 
 Bound V. Lnthrop, 4 Conn. Rep. 336. So, in Massachusetts, the acknowledgment by one of 
 several joint promisors, or debtors, even though the others be sureties. Hunt v. Bridgliam. 
 2 Pick. 58 1. White v. Hale, 3 Id. 291. Fn/e v. Baker, 4 Id. 382. It is said, however, that 
 this is true, only, where the acknowledgment is made under such circumstauces, as to entitle 
 it to its full weight. For, although such evidence is in all cases admissible, for such a pur- 
 
 [a] See Angell on Limitations, § 235, 240, 3d Ed.
 
 23 OF ACTIONS, ETC. 
 
 joint and several promissory note having become a bankrupt, the payee 
 received a dividend under the commission on account of the note, the court 
 of Common Pleas held that this would prevent the other draAver from avail- 
 ing himself of the statute, in an action brought against him for the remain- 
 der of the money due on the note ; the dividend having been received 
 within six years after the action brought. ((/) But in a subsequent case, 
 ■where one of two joint drawers of a bill of exchange became bankrupt, and 
 the indorsees proved a debt under his commission, beyond the amount of 
 the bill, for goods sold, &c., and exhibited the bill as a security they then 
 held for their debt, and afterwards received a dividend ; the court of King's 
 Bench held, in action by the indorsees of the bill against the solvent 
 partner, that the statute of limitations was a good defence, altough the 
 dividend had been paid by the assignees of the bankrupt partner, within six 
 years. (A) In an action against A. on the joint and several promissory note 
 of himself and B., to take the case out of the statute of limitations, it is 
 enough to give in evidence a letter written by A. to B., within the six 
 years, desiring him to settle the money. (i) But it is not sufficient to show 
 a payment by a joint maker of the note to the payee, within six years, so as 
 
 to throw it upon the defendant to show that the payment was not 
 [ *24 ] made on account of the note. An acknowledgment by *one 
 
 drawer in such case, to bind the other, must be clear and explicit, (a) 
 And where A. and B. made a joint and several promissory note, and A. 
 died, and ten years after his death, B. paid interest upon the note; it was 
 holden, in an action brought thereon against the executors of A., that the 
 payment of interest by B. did not take the case out of the statute, so as 
 to make the executors liable.(6)[l] 
 
 (^r) 2 H. Blac. 340. 
 
 (A) 1 Bara. & Aid. 463, and see 1 Barn. & Cres. 248, 2 Dowl. & Ryl. 363, S. C. 
 
 (t) Campb. 32. (a) 1 Stark. Ni. Pri. 488. 
 
 (b) 2 Barn. & Cres. 23. 3 Dowl. & Ryl. 200, S. C. 
 
 pose, it will not in all cases be sufficient. Coit v. Tracy, 8 Conn. Rep. 2G8. Therefore, where 
 there was a joint indebtedness by A. k B. to C, growing out of an agency conducted by A. 
 & B. joint ; and more than twenty years after such agency was ended, B. made an acknow- 
 ledgment of the debt, and then, at his own expense, and with a view to obtain an advantage 
 to himself, by a recovery against A., procured a suit to be brought in the name of C, against 
 A. and himself; it was held that the acknowledgment of B. under such circumstances, was 
 not sufficient to remove the bar of the statute of limitations set up by A. Ibid. The same 
 distinction between the admissibility and the sufficiency of evidence, was made in the case of 
 Peck V. Botsford, 7 Id. 172 ; in which it was held, that an acknowledgment by a personal 
 representative of a deceased person, that a demand against the estate of the deceased, barred 
 by the statute, is due, will not take the case out of the statute. 
 
 An acknowledgment of debt, or a new promise, by the maker of a promissory note, takes 
 it out of the statute of limitations only so far as he is concerned; but does not affect the 
 rights or obligations of collateral parties. Gardiner v. Nutting, 5 Greeuleaf, 140. Where 
 the maker of a promissory note, of more than six years standing, died insolvent, and a col- 
 lateral guarantor of the note was appointed a commissioner on his estate; the allowance of 
 the note by the commissioner, as a valid claim against the estate, being an ofBcial act, was 
 held, not to amount to a new promise on his part to pay the debt. Id. Ibid. 
 
 The acknowledgment of a debt by one partner, after a dissolution of the partnership, is 
 not sufficient to take the case out of the statute, as to the other partners. Arnold v. Dexter^ 
 
 4 Mason, 122. Bell v. Morrison, et al. 1 Pet. Rep. S. C. 351, 373. Searight \. Craighead, 1 
 Pennsyl. Rep. 135. Levy v. Cadet, 17 Serg. & Rawle, 126. Contra, in the State of Mary- 
 land, where it is held that, although the admissions of one partner, after the partnership is 
 dissolved, are not sufficient to charge the other partners with a debt, they are sufficient to 
 take a debt due from the partners out of the statute of limitations. Ward v. Iloicell et al. 
 
 5 Har. & J. 60. So, also, in the State of New York; Patterson v. Choate, 7 Wendell, 441 ; 
 where the admission was made twelve years after the dissolution. But see Cady v. Shepherd, 
 11 Pick. 400. Van Kusen v. Parmelee, 2 Comst. 523, and 2 Parsons on Contr. p. 360, note j, 
 p. 364, note p. 
 
 [Ij A payment of interest by A., on the joint and several note of A. and B., is evidence of
 
 OF ACTIONS, ETC. 24 
 
 If a letter be written by a plaintiiF to tbe defendant's attorney, on being 
 served Avith a writ, couched in ambiguous terms, neither expressly admit- 
 ting nor denying the debt, it should be left to the jury to consider whether 
 it amounts to an acknowledgment of the debt.((?)[A] And if there be a 
 mutual account of any sort between the plaintiff and defendant, for any 
 item of which credit has been given within six years, that is evidence of an 
 acknowledgment of there being such an open account between the parties, 
 and of a promise to pay the balance, as to take the case out of the statute. (<i) 
 So, if a defendant admit the existence of a debt, which would otherwise be 
 barred by the statute of limitations, but claim to be discharged by a writ- 
 ten instrument, which does not amount to a legal discharge, he shall be 
 bound by his admission. (e) And where the acceptor of a bill of exchange 
 acknowledged his acceptance, and that he had been liable, but said that 
 " he was not liable then, because it was out of date, and that he would 
 not pay it, and that it was not in his power to pay it," this was deemed 
 sufficient to take the case out of the statute. (/) So it is sufficient to prove, 
 that a demand being made by a seaman on the owner of a ship, for wages 
 which had accrued during an embargo, he said, " if others paid, he should 
 do the same."(_7) So where A., by means of a misrepresentation, received 
 of B. and several other persons, his tenants, various sums of money, to 
 which he was not entitled: and B. having applied to him to have the 
 money which he had so paid returned, saying, that he and the other ten- 
 ants had been induced to pay more than was due, A. replied, that " if 
 there was any mistake, it should be rectified;" it was holden, that this 
 obviated the statute of limitations, as to payments made by the other ten- 
 ants, as well as by B.(7i) So where, in a deed between the defendants and 
 a third person, defendants acknowledged, within six years, the existence 
 of a debt, and the plaintiffs were wholly strangers to the deed ; the court 
 held this was sufficient to take the case out of the statute of limitations. (i) 
 And a promise by a defendant, in embarrassed circumstances, to pay a 
 debt by instalments, if time were given him, is sufficient to take a case out 
 of the statute. (A;) 
 
 On the other hand, a note, written by a debtor to an executor, that 
 *"the testator always promised never to distress him for the 
 debt," is not evidence of a promise to pay it, made to the tes- [ *25 ] 
 tator within six years. («) And where the acknowledgment was, 
 "I had the money, but the testatrix gave it to me;" the latter words 
 
 (c) 2 Durnf. & East, Y60, and see 8 Moore, 180. 1 Bing. 206, S. C. 
 
 (d) 6 Durnf. & East, 189. [e] 6 Esp. Rep. 66. (/) 16 East, 420. 
 [g) 4 Campb. 185, and see 5 Maule & Sel. 75. 2 Stark. Ni. Pri. 98, but see 3 Dowl. & 
 
 Ryl. 267. 4 Dowl. & Ryl. 179. (h) 2 Barn. & Cres. 149. 3 Dowl. & Ryl. 322. S. C. 
 
 '(t) 3 Barn. & Aid. 141. (k) 2 Stark. M. Pri. 98. 
 
 (a) 6 Taunt. 210. 
 
 a promise by B., and lakes the case out of the statute, though B. were a mere surety, and 
 the payment was made without his knowledge. Burleigh v. Sc(jU, 2 Man. & Ryl. 93*, S. C. 
 8 Barn, k Cres. 36. And per Ilolroi/d, J. The joint and several promises applj- to the same 
 sum of money. It was a joint debt, though there was a several promise by each to pay it. 
 Such payment, therefore, operates as a new promise to the full extent of the original pro- 
 mise contained in the note. Jhid. 
 
 Payment within si.x years of interest due on a note beyond six years, where the note 
 remains in the payee's hands, is sufiicient to take tbe case out of the statute of limitations. 
 Beahj v. Greensladc, 2 Cromp. & Jer. 61. 
 
 [a] See Angell on Limitations, §270, 285, 3d Ed.
 
 25 OF ACTIONS, ETC. 
 
 ■were holden to qualify the generality of the first admission, and not to 
 amount to a new promise or confession of the defendant, sufficient to 
 take the case out of the statute.(5) So, where the defendant had said to 
 the plaintiff, " I owe you not a farthing, for it is more than six years 
 since;" the court held, that this was not to be left to the jury, as evidence 
 of an admission, to take a debt out of the statute of limitations. (c) So, an 
 acknowledgment by the acceptor of a bill of exchange, within six years, 
 of his liability to the payee of the bill, there being no consideration for 
 the acceptance, is not sufficient, in an action by the drawers against the 
 acceptor, to take the case out of the statute of limitations. (t^) So where, 
 upon demand made of payment of two promissory notes, over-due ten 
 years, the defendant said, "I cannot afford to pay my new debts, much 
 less my old ones;" the court held, that the jury were warranted in nega- 
 tiving this as evidence of a subsisting debt, to take the case out of the 
 statute. (e) And where the defendant, on being arrested for a debt more 
 than six years old, said, " I know than I owe the money, but the bill I 
 gave you is on a tliree-pe^iny receipt stamp, and I will never pay it ;" the 
 court of Common Pleas held, that this was not such an acknowledgment, 
 as would revive the debt.(/) 
 
 In like manner, a qualified admission, by a party who relies on an objec- 
 tion, which would at any time have been a good defence to the action, does 
 not take the case out of the statute.(^) So where a defendant, on being 
 applied to by the plaintiff's attorney, for the payment of a debt, wrote in 
 answer, that " he would wait on the plaintiff, when he should " be able to 
 satisfy him respecting the misunderstanding which had occurred between 
 them :" this was holden not to be such an acknowledgment of a debt, as 
 would bar a plea of the statute of limitations ; and that such evidence ought 
 not to be left to a jury, as a ground to infer a new promise to pay.(7i) So, 
 in assumpsit by an executrix, where the defendant, on being applied to by 
 the plaintiff for payment of interest, stated that he would bring her some on 
 the following Sunday; the court held, that although this was an admission 
 that something was due, still as it did not appear what the nature of the 
 debt was, or that it was due to the plaintiff as executrix, or in her own right, 
 or that it was one for which assumjjsit would lie, the plaintiff was not 
 entitled to recover even nominal damages, and a non-suit was entered.(z) 
 And where, in an action against several executors, on a promise made by 
 
 themselves, as well as by the testator, to which the defendants 
 [ *26 ] pleaded the general issue, and the *statute of limitations ; it was 
 
 holden, that neither a mere acknowledgment of the debt by all the 
 executors, nor an express promise by one of them, would take the case out 
 of the statute; but there must be an express promise by all. (a) So, in 
 assumpsit by an attorney, to recover his charges relative to the grant of an 
 annuity, evidence that the defendant said, " he thought it had been settled, 
 when the annuity was granted, but he had been in so much trouble since, 
 that he could not recollect any thing about it," was holden not to be a suf- 
 ficient acknowledgment of the debt, to take the case out of the statute of 
 
 (b) 6 Esp. Rep. 67, 8. 
 
 (c) 3 Taunt. 380, and see 5 Esp. Rep. 81. 4 Manle & Sel. 457. 5 Price, 636, accord. 
 
 (d) 3 Stark. M. Pri. 186. («) 4 Dowl. & Ryl. 179. 
 
 (/) 3 Bing. 329, and see 4 Bing. 105. [g) 1 Stark. Ni. Pri. 7. 
 
 {h) Holt A^i. Pri. 380, and see 4 Esp. Rep. 184, 5 Esp. Rep. 81, 1 New Rep. C. P. 20, 3 
 Dowl. & Ryl. 207. 
 {i) 4 Barn. & Cres. 235. (a) 1 Ry. & Mo. 416. 9 Dowl. & Ryl. 40 S. C.
 
 OF ACTIONS, ETC. 26 
 
 limitations, and ought not to be left to the jury, as evidence of an admission 
 of such debt ; although the plaintiff proved his bill was not paid at the time 
 of granting the annuity. (Z*) So Avhcre, in assumpsit on a promissory note, 
 it was proved that on the plaintiff's showing the note to the defendant 
 within six years, the latter said, " you owe me more money ; I have a set-off 
 against it;" this was holden, by two of the judges, not to be a sufficient 
 acknowledgment within six years, to take the case out of the statute of 
 limitations.(c) And where a party, on being asked for the payment of his 
 attorney's bill, admitted that there had been such a bill, but stated that it 
 had been paid to the deceased partner of the attorney, who had retained the 
 amount out of a floating balance in his hands ; it seems that, in order to take 
 the case out of the statute of limitations, evidence is inadmissible to show 
 that the bill had never in fact been paid in this manner.(cZ) 
 
 In assumpsit for goods sold and delivered, and on the money counts, 
 where the defendant had pleaded the general issue, with the statute of limi- 
 tations, and paid money into court generally ; the court held, that such pay- 
 ment did not take the case out of the statute, (e) And where a party revives 
 a debt barred by the statute of limitations, by paying it into court, but at 
 the same time refuses to pay interest, such payment of the principal does 
 not revive the claim for interest. 4 Bing. 313. So, in an action by an 
 executor for the balance of an account, a warrant of attorney given by the 
 defendant to the testator, to confess a judgment for such balance, was holden 
 not to be sufficient to take the case out of the statute of limitations. (/ ) And 
 where the defendant, on being applied to for payment, said, " I think I am 
 bound in honour to pay the money, and shall do it when I am able ;" Lord 
 Kenyon ruled, that it was a conditional promise[A] only, and that the 
 
 (b) 7 Taunt. 603. 1 Moore, 340, S. C. 
 
 (c) 2 Bara. & Aid. 759. {d) 4 Barn. & Aid. 568. 
 
 (e) 3 Barn. & Ores. 10. 4 Dowl. & Ryl. 632, S. C. (/) 2 Stark. Ni.Pri. 234. 
 
 [a] " The acknowledgment of a debt if accompanied with a promise to pay conditionally, 
 is of no avail unless the condition to which the promise is subjected by the defendant is 
 complied with, or the event has happened upon which the promise depends. It would be 
 absurd to say that a conditional promise is the continuation of one which is unconditional. 
 Therefore the cases wherein it has been held that if the condition accompanying the ac- 
 knowledgment is complied with, it will avail and not otherwise, must be on the ground that 
 the acknowledgment furnishes a new promise in the words of Mr. Justice Story in Bell v. 
 Morrkon, 1 Pet. 360, springing out of and supported by the original consideration." All 
 those cases, according to Lord Chief Justice Tenterden, "proceed upon the principle, that 
 under the ordinary issue of the statute of limitations, an acknowledgment is only an evi- 
 dence of a promise to pay; and unless it is conformable to, and maintains the promises in 
 the declaration, though it may show to demonstration that the debt has never been paid, 
 and is still subsisting, it has no effect. The question, then, comes to this: is there any 
 promise in this case, which will sup{)ort tlie promises in the declaration? The promises in 
 the declaration are absolute and unconditional to pay when thereunto afterwards requested. 
 The promise proved here was, ' I will pay you as soon as I can ;' and there was no 
 evidence of ability to pay, so as to raise that, which was in its terms a quallQed promise 
 into one that was absolute and unqualified." Tanner v. Smart, 6 B. & C. 603. Chief Justice 
 Marshall, in delivering the opinion of the Supreme Court of the United States, in Wdzell v. 
 Bussard, 11 Wheat. 309, held that certain declarations could not be construed into a revival 
 of the original cause of action, unless that was done on which the revival was made to de- 
 pend. Says he, "It m.iy be considered a new promise for which the old debt is a sufficient 
 consideration." I know, says Carr, J., (in the case of the Farmers' Bank v. Clark, in the 
 Court of Appeals of Virginia,) 4 Leigh, 603, " there are many old cases which consider the 
 statute founded on the presumption of payment : that whatever repels that presumption is 
 in legal etfect, a promise to pay the debt; and that such acknowledgment, is accompanied 
 with only a conditional promise, or even a refusal to pay, the law considers the condition 
 or refusal void, and the acknowledgment itself as an unconditional answer to the statute. 
 But," he continues, " the more recent, and, I think, the more rational decisions, take a
 
 26 OF ACTIONS, ETC. 
 
 plaintiff was bound to show that the defendant was then of sufficient 
 ability to pay; adding, that it had been so ruled before, by Lord Chief 
 Justice Eyre.{g) In a late case,(7i) the Court of Common Pleas were 
 divided in opinion, whether, on a promise to pay ivlien of ability^ made 
 tliree years after the original cause of action accrued, and within six 
 years before the commencement of the action, it was necessary for 
 the plaintiff to prove the defendant's ability. But, in a subsequent 
 case,(2) where it appeared that the defendant, being applied to to pay a 
 
 debt barred by the statute of limitations, said " he should be 
 [ *27 ] happy to pay, *if he could;" the court held, that the plaintiff 
 
 must show the defendant's ability to pay. So, in the King's 
 Bench, where assumpsit was brought to recover a sum of money, and the 
 defendant pleaded the statute of limitations, upon, which issue was joined, 
 and, at the trial, the plaintiff proved the following acknowledgment by the 
 defendant, within six years, "I cannot pay the debt at present, but I 
 will pay it as soon as I can ;" the court held, that this was not sufficient 
 to entitle the plaintiff to a verdict, no proof being given of the defendant's 
 ability to pay. 6 Barn. & Cres. 603. If a cause of action arising from the 
 breach of a contract to do an act at a specific time, be once barred by the 
 statute of limitations, a subsequent acknowledgment by the party, that he 
 broke the contract, will not it seems take the case out of the statute. (a)[l] 
 
 {g) 4 Esp. Rep. 36, but see 2 Stark. Ni. Pri. 99, in nods, mnh. contra; and see 2 H. Blac. 
 116. 3 Esp. Rep. 159. 
 
 (h) 3 Bing. 638. (t) 4 Bing. 105. 
 
 (a) 2 Campb. 160, and see Peake's Evid. 5 Ed. 212, 271. 1 Barn. & Aid. 92. 2 Chit. Rep. 
 249, S. C. 3 Barn. & Aid. 626. 5 Moore, 105. 2 Broad & Bing. 372, S. C. Ante, 22. 
 
 [1] In order to prevent various questions which had arisen in actions founded on simple 
 contract, as to the proof and effect of acknowledgments and promises oflFered in evidence, 
 for the purpose of taking the case out of the operation of the enactments of the statute 21 
 Jac. 1, c. 16, ^ 1, and to make provision for giving effect to the said enactments, and to the 
 intention thereof; it is enacted by the statute 9 Geo. IV. c. 14, | 1, that " in actions of debt, 
 or upon the case, grounded upon any simple contract, no acknowledgment or promise, by 
 words only, shall be deemed sufficient evidence of a new or continuing contract, whereby 
 to take any case out of the operation of said enactments, or either of them, or to deprive 
 any party of the benefit thereof, unless such acknowledgment or promise shall be made or 
 contained by or in some writing, to be signed by the party chargeable thereby : And that 
 where there shall be two or more joint contractors, or executors, or administrators of any 
 contractor, no such joint contractor, executor or administrator, shall lose the benefit of the 
 said enactments, or either of them, so as to be chargeable in respect or by reason only of 
 any written acknowledgment or promise, made and signed by any other or others of them. 
 Provided always, that nothing therein contained shall alter or take away, or lessen the 
 effect of any payment of any principal or interest, made by any person whatsoever. Pro- 
 vided also, that in actions to be commenced against two or more such joint contractors, or 
 executors or administrators, if it shall appear at the trial or otherwise, that the plaintiff, 
 though barred by either of the therein recited acts or that act, as to one or more of such 
 joint contractors, or executors or administrators, shall nevertheless be entitled to recover 
 against any other or others of the defendants, by virtue of a new acknowledgment or pro- 
 mise or otherwise, judgment may be given and costs allowed for the plaintiff as to such 
 defendant or defendants against whom he shall recover, and for the other defendant or 
 defendants against the plaintiff." 
 
 different view of the case. They consider this a statute of repose, which ought to receive 
 from the courts a firm and just support. They consider the acknowledgment a new promise, 
 not a continuance of the old." Angell on Limitations, § 235. 
 
 Direct proof of an acknowledgment or promise, in any set form of words, is not required 
 to take a case out of the statute. It may be inferred from facts without words. Whitney 
 T. Bigelow, 4 Pick. 110. It is for the court to decide what kind of promise or acknowledg- 
 ment is suCBcient ; and the evidence offered is proper to be submitted to the jury, under the
 
 OF ACTIONS, ETC. 27 
 
 In order to show that the action was commenced in due time, a bill of 
 3Iiddlesex or latitat in the King's Bench, (?/) or a capias quare clausum 
 fregit in the Common Pleas,(c) is as effectual as an original writ :[1] and 
 suing out a testatum capias ad respondendum is a good commencement of 
 an action by original. (rZ) In proceeding against Vk j)ccr of the realm, cor- 
 poration, or hundredors on the statute 7 & 8 Geo. IV. c. 31, an original 
 writ must, in both courts, be sued out for avoiding the statute : and where 
 a member of the House of Commons is defendant, the plaintiff must pro- 
 ceed for that purpose, either by suing out an original writ, and getting it 
 returned nihil,{e) or by bill and summons, &c., on the statute 12 & 13 W. 
 III. c. 3, § 2.(/) An attachment of privilege is holden to be a good 
 commencement of the suit,((/) at the suit of an attorney, even though it be 
 informal :(A) But an attachment of privilege, in the King's Bench, is not 
 a continuance of a bill of Middlesex, so as to avoid the statute. (^') And, 
 in the Common Pleas, an original writ of quare clausum fregit, upon which 
 no proceedings were had, cannot be connected with another writ of the 
 same nature, subsequently issued.(^) As against an attorney or officer of 
 the court of King's Bench, or a p)risoner in the actual custody of the 
 marshal of that court, the statute can only be avoided, by filing a bill 
 with the clerk of the declarations, in the King's Bench office ; which bill 
 
 (h) Sty. Rep. 156, 178. 1 Sid. 53, 60. Carth. 233. 2 Ld. Raym. 883. 1 Str. 550. 2 
 Str. 736. 2 Ld. Raym. 1441, S. C. 2 Bur. 961. 1 Blac. Rep. 215, S. C. 3 Bur. 1241. 
 
 1 Blac. Rep. 312, S.C. 
 
 (c) 2 Ld. Raym. 880. Willes, 258. 2 Blac. Rep. 925. 
 
 (d) 5 Barn. & Aid. 452. 1 Dowl. & Ryl. 27, S. C. (e) 1 Lev. 111. 2 Ld. Raym. 1113. 
 (/•) Append. Chap. VL g 28. {<;) 1 Show. 366. 2 Salk. 420, S. C. 
 (h) 2 Blac. Rep. 1131. 
 
 (i) 3 Durnf. & East, 662, and see 6 Moore, 525. 3 Brod. & Bing. 212, S. C. 1 Bing. 324. 
 5 Barn. & Cres. 341. 8 Dowl. & Ryl. 270, S. C, as to the effect of entering continuances, on 
 a writ of special capias ad respondendum, in K. B., in supporting a commission of bankrupt, 
 for a debt that would otherwise have been barred by the statute of limitations. 
 
 (k) 3 Bos. & Pul. 330, but see Willes, 259.(c) 
 
 [1] A writ of latitat is considered as a continuance of a bill o{ 3Iiddlesez, 1 Barn. & Cres. 
 526. 1 Man. & RyL 232, 237, S. C. 
 
 direction of the court. Oliver v. Gray, 1 Har. & Gill. 204. Every acknowledgment must be 
 taken altogether, and no evidence can be received to turn a denial of the existence of a 
 debt into an acknowledgment of a subsisting liability, by proving that the party making 
 the admission was mistaken in supposing the debt to have been paid. lb. An acknow- 
 ledgment, accompanied by a naked refusal to pay, or a refusal and an excuse for not pay- 
 ing, which in itself implies an admission that the debt remains due, and furnishes no real 
 objection to the payment of it, is sufBcient. lb. An admission that the sum claimed has 
 not been paid, is not sufficient, without some further admission, or other proof that the 
 debt once existed. lb. 
 
 The acknowledgment maybe in whole or in part, and is sufficient after suit is brought; 
 but there must be evidence of a promise, express or implied to pay the debt. Allcock v. 
 Guan, 2 Hill, S. C. 326. Lawrcnccv. Hopkins, 13 Johns. 288. Sands v. Gclston, 15 ib. 511. 
 Moore v. JJank of Columbia, 6 Pet. 86. Moshcr v. Hubbard, 13 Johns. 510. Guicr v. riercc, 
 
 2 Browne, 35. Young v. Monpocy, 2 Bailey, 278. Cohen v. Aubin, ib. 283. Lowryy. Dubose, 
 ib. 425. Tntmmell v. Salmon, ib. 308. 
 
 The acknowledgment must admit that the debt continues due at the time of the acknow- 
 ledgment. Bangs v. Hall, 2 Pick. 368. French v. Frazicr, 7 J. J. Marsh. 425. Wctzell v. Bus- 
 sard, 11 Wheat. 310. OUrer v. Gra;/, 1 Har. & Gill, 204. Ferguson v. Taylor, 1 Haj-w. 20. 
 Belles v. Belles, 7 Halst. 339. Furd;/ v. Austin, 3 Wend. 187. Jiussellv. Gass,'M&Tt. & Yerg. 
 270. Barlow v. Bellomy, 7 Verm. 54. Mellick y. He Scelhoerst, Breese, 171. 
 
 Such an acknowledgment as will satisfy a reasonable man that the defendant, at the time 
 of making the acknowledgment, considered the debt then existing, is sufficient. Harwell v. 
 M'CuUock, 2 Overt. 275.
 
 27 OF ACTIONS, ETC. 
 
 may be filed in vacation, as well as in term-time. (?) In the Common 
 Pleas, the bill against an attorney is filed in the Prothonotaries' ofiice ; 
 and to avoid the statute of limitations, it may, it seems, be filed in vaca- 
 tion. (wi) If a plaint be levied in an inferior court, in due time, and then 
 it be removed into the King's Bench by habeas corpus, and the plaintiff 
 declare there de novo, and the defendant plead the statute of limitations, 
 the plaintiff may reply, and show the plaint in the inferior court, and that 
 
 will be sufficient to *avoid the statute. (a) In the Exchequer, 
 [ *28 ] the suing out of process is considered as the commencement of 
 
 proceedings by information, within the statute of limitations. (6) 
 If an executor take out proper process in assumpsit, within a year after 
 the death of his testator, the six years not being elapsed before, though 
 they expire within that period, yet it will be sufficient to take the case out 
 of the statute. (c) So, if assumpsit be brought in proper time, but the 
 plaintiff or defendant die before judgment, and the six years run, his 
 executor or administrator may notwithstanding bring a fresh action •,{d) 
 provided he does it recently, or within a reasonable time. What shall be 
 deemed a reasonable time, in this case, is a matter of considerable doubt, 
 and there are various opinions in the books upon the subject. In Spen- 
 cer s case,(e) it is said to be entirely in the discretion of the court. In 
 another case it is said, that heretofore they used to allow half a year, but 
 that was held to be too long, and therefore they allowed but thirty days.(/) 
 In a third case, a year was said to be a reasonable time :(</) And this 
 opinion was adhered to in a subsequent case,(7i) in analogy to that part of 
 the statute, which authorizes the party to bring a new action within a year, 
 after the reversal of the judgment, by writ of error, (z) &c. But whatever 
 may be the precise rule upon this subject, it seems that if a new action be 
 brought within a half a year after the abatement of the former, it would 
 be sufficient to avoid the statute.(A;)[A] 
 
 [I) Doug. 313, 14. 5 Durnf. & East, 173, 325, but see Peake's Cas. Ni. Pri. 3 Ed. 275. 
 (m) Imp. 0. P. 7 Ed. 456, {a). 6 Taunt. 347, 8, 355. 2 Marsh. 50, 52, 56, S. C. 
 (a) 1 Sid. 228. 1 Lev. 143, S. C. 1 Ld. Raym. 553. 2 Salk. 424. 2 Ld. Raym. 881. 
 2 Str. 719. 2 Ld. Raym. 1427, S. C. (6) Forrest, 210, and see 2 Price, 116. 
 
 (c) Bui. Ni. Pri. 150. (r/) 2 Salk. 425. Bui. Ni. Pri. 150. (e) 6 Co. 10. 
 
 (/) 1 Ld. Raym. 283. 1 Salk. 393, S. C, and see 1 Lutw. 297. 
 ig) 1 Ld. Raym. 434. 1 Lutw. 256, S. C, and see 6 Edw. IIL 32, b. Willes, 257. (a) 
 (A) 2 Str. 907. Fitzgib. 170, 289. 1 Barnard, K. B., 335, S. C. {() Cro. Car. 294. 
 
 {k) Cowp. 738, 740, and see Ballantine, on the statute of limitations, 156, 166. 
 
 [a] Under the statute of Limitations, a presumption arises that the defendant, from the 
 lapse of time, has lost the evidence which would have availed him in his defence, if he had 
 been seasonably called upon for payment; but, when this presumption is rebutted by an 
 acknowledgment of the defendant within six years, the contract is not within the intent of 
 the statute. Baxter v. Penniman, 8 Mass. 133. Fiske v. JVeedham, 11 ib. 452. Grist v. Neuman, 
 2 Bailey, 92. McLean v. TJiorj}, 3 Mis. 215. Gailerv. Grinnell, 2 Aik. 349. Lyon v. Marclay^ 
 1 Watts, 271. Bullock v. Perry, 2 Stew. & Port. 319. Beale v. Edmonson, 3 Call. 514. 
 
 The statute of limitations does not run against a state, unless it is expressly named. 
 Lindsey v. Aliller, 6 Pet. 666. State v. Arledge, 2 Bailey, 401. Weathcrhead v. Bledroe, 2 
 Overt. 352. People v. Gilbert, 18 Johns. 227. Slate Treasurer v. Weeks, 4 Verm. 215. 
 Stoughton v. Baker, 4 Mass. 522, 528. Nimmo v. Commonwealth, 4 H. & M. 57. Bayl/y v. 
 Wallace, 16 S. & R. 245. Munshowcr v. Patton, 10 ib. 334. Commonwealth v. Baldwin, 1 
 Watts, 54. Wallace v. Miner, 6 Ham. 366. 
 
 Where an act of the legislature allowed credits to be given to persons who had made 
 payment by mistake to D., an officer whose term of ofiBce had expired, on their complying 
 with certain requisitions, and a collector, on complying with those requisitions, obtained 
 credits to a large amount, by fraud and collusion with D. ; and, in an action by the Com- 
 monwealth to recover the amount, commenced in pursuance of a subsequent statute, the
 
 OF NOTICES OF ACTION. 28 
 
 Previous to the commencement of an action, it is sometimes necessary 
 for the intended plaintiff to make a request or demand^ or to give notice 
 to the opposite party, for completing the cause of action ; and after it is 
 completed, some things are required to be done, before the action is 
 brought. A formal demand is necessary, before an action can be main- 
 tained against overseers, for the surplus arising from a distress for poor's 
 rates, under the statute 27 Geo. II. c. 20, § 2.(/) And, in order to main- 
 tain an action for the recovery of 'an attorney's bill for fees and disburse- 
 ments, at law or in equity, it is in general necessary, by the statute 2 
 Geo. II. c. 23, § 23, that it should be signed by the attorney, and deli- 
 vered to the party to be charged therewith, a month at least before the 
 action is commenced. 
 
 [1) 4 Dowl. & Ryl. 181. 2 Barn. & Cres. G82, S. C. 
 
 defendant pleaded the statute of limitations, it was held, that the plea could not be sus- 
 tained. Commomcealth v. iM^Gouan, 4 Bibb, C2. 
 
 The general statute of limitations in Massachusetts does not apply to trusts. Ilemin- 
 way V. Gates, 5 Pick. 321, and cases cited in note thereto. But held otherwise in Penn- 
 sylvania as to implied or constructive trusts. Walker v. Walker, IG S. & R. 369. Except 
 implied trusts in favour of infants, Smilec v. B)J)lc, 2 Barr, 52. To exempt a trust from 
 the bar of the statute, it must be, first, a direct trust ; secondly, it must be of a kind be- 
 longing exclusively to the jurisdiction of a court of equity, and, thirdly, the question must 
 arise between the trustee and the cestui que trust, per Ross, J. in Lyon v. Marclay, 1 Watts, 
 275. Rush V. L'arr, 1 Watts, 120. Finney v. Cochran, 1 Watts & Serg. 118. 
 
 It has been uniformly ruled in the United States, that in the case of an express continu- 
 ing trust, the statute of limitations docs not begin to run as against the cestui que trust, and 
 in favour of the trustee, until there has been some open, express denial of the right of the 
 former, and what amounts to an adverse possession on the part of the latter. Decouche v. 
 Savetier, 3 J. C. R. 190. Anstice v. Broicn, G Paige, 448. Kane v. Bloodyood, 1 J. C. R. 90. 
 Bohannon's Heirs v. Sthreslcy's Administrators, 2 B. Monr. 438. Fescue v. Foscue, 2 Ired. Eq. 
 321. White v. WJiite, 1 Johns. Maryl. Ch. 53. Finson v. Grey, 1 Yerg. 29G. Cook v. Wil- 
 liams, 1 Green. Ch. 209. Boone v. Chiles, 10 Pet. 177. Prevost v. Gratz, 6 Wheat. 48. Oliver 
 V. Fiatl, 2 How. U. S. 333. Zellers Lessee v. Fckart, 4 Id. 289. Johnson v. Humphries, 14 
 S. & R. 394. Finney v. Cochran, 1 W. & S. 118. Murdoch v. Hughes, 7 Sm. & M. 219. 
 Starke v. Starke, 3 Rich. 438. Perkins v. Cartwell, 4 Harring.*270. Varick v. Edwards, 11 
 Paige, 259. Furnnm v. Brooks, 9 Pick. 212. Smith v. Calloway, 1 Blackf. 86. McDonald 
 X.Sims, 3 Kelly, 383. Wickl iff e y. City of Lexinyton, U B. Monroe, 161. And even in 
 cases of adverse possession, the knowledge of, or notice to, the cesttd que trust is neces- 
 sary. Fox V. Cash, 11 Penn. St. R. 207. Starke v. Starke, 3 Rich. 438. Where a trustee 
 for the sale of stock actually sells, and incurs a liability for the proceeds, the statute begins 
 to run from that time. White v. While, 1 John. Mary. Ch. 56. So, in general, where the 
 relation is terminated by a breach of trust. Wickliffe v. City of Lexington, 11 B. Monroe, 
 ICl. Where the trust, however, is merely implied or constructive, there has been some 
 disagreement among the cases, but the better opinion appears to be that, as in general, the 
 facts out of which such trust arises, from their very nature, presupposes an adverse claim 
 of right on the part of the trustee by implication, from the beginning, the statute will com- 
 mence to run against the cestui que trust, from the\ period from which he could have vindi- 
 cated his right by action or otherwise ; which, however it may be at law, where there has 
 been a dilference among the cases, (see Angell on Limit. Ch. 18,) in equity is considered 
 to bo when he has, or, with reasonable diligence, could have made himself acquainted 
 with th.at right. Angell on Limitation, Ch. 16, 35 and cases there cited; 19 Am. Jurist, 
 389. Sheppard v. Turpin, 3 Grat. 373. Murdoch v. Hughes, 7 Sm. & M. 219. Gratz v. Pre- 
 vost, 6 Wheat. 481. Cuyler v. Brant, 2 Caines, Cas. 326, on the effect of lapse of time in 
 equity. A resulting trust from, the payment of purchase money is barred by the statute, 
 Strimpfler v. Roberts, 18 Penn. St. R. 300. 
 
 An executor or administrator is a trustee for legatees, next of kin, or creditors, and the 
 general rule applies, Lindsai/ v. Lindsay, 1 Desaus. 150, Carr v. Boh, 7 Dana, 417, Blee 
 V. Patterson, 1 Dev. & Batt. Eq. 457, Bird v. Graham, 1 Ired. Eq. 196, (except where there 
 is some statutory limitation, as there is indeed in most of the States,) though there will be 
 a presumption of payment after a great lapse of time. Bird v. Graham, ul supr. Graham 
 V. Torrance 1 Ired. Eq. 210. Shearing. Eaton, Id. 282. Graham v. Davidson, 2 Dev. & Batt. 
 155. Tatex. Connor, 2 Dev. Eq. 224. Hudson v. Hudson, 3 Rand. 117. Hayes v. Good, 7 
 Leigh, 452. Skinner v. Skinner, 1 J. J. Marsh. 594. Hill on Trustees, page 264, 2d Am. Ed. 
 by Wharton.
 
 28 OF NOTICES OF ACTION, 
 
 A notice of action is also in some cases required to be given, to the 
 
 party or parties against whom it is intended to be brought, in 
 [ *29 ] order to give them *an opportunity of tendering amends.(a) 
 
 Thus, by the statute 24 Geo. II. c. 44, it is enacted, that " no 
 writ shall be sued out against, nor any copy of any process at the suit of 
 a subject shall be served on, any justice of the peace, for any thing by 
 him done in the execution of his office, until yiotice in writing of such in- 
 tended writ or process shall have been delivered to him, or left at the 
 usual place of his abode, by the attorney or agent for the party who in- 
 tends to sue or cause the same to be sued out or served, at least one 
 calendar month before the suing out or serving the same ; in which notice 
 shall be clearly and explicitly contained the cause of action, which such 
 party hath or claimeth to have against such justice of the peace : on the 
 back of which notice shall be indorsed the name of such attorney or agent, 
 together with the place of his abode ; who shall be entitled to have the 
 fee of twenty shillings for the preparing and serving such notice, and no 
 more. (5) And no evidence shall be permitted to be given by the plaintiff, 
 on the trial, of any cause of action, except such as is contained in the 
 notice, (c) [a] 
 
 It has been deemed sufficient, to entitle a justice to the benefit of this 
 statute, that he conceived himself to be acting as a justice, though what he 
 did was not in the regular execution of his office.(cZ) And accordingly, the 
 lord of the manor, who was also a justice of the peace, was held to be enti tied 
 to a month's notice of action against him, for taking away a gun in the house 
 of an unqualified person. (g) So, one magistrate who had committed the 
 mother of a bastard to prison, for not filiating the child, was holden to be 
 entitled to the notice of action required by the statute, though by the 18 
 Eliz. c. 3, § 2, jurisdiction over the subject matter is given to two magis- 
 trates. (/) And where a justice of the peace does not act under colour of his 
 office, though he exceed his jurisdiction, he is entitled to notice, before an 
 action can be brought against him \{g) but where he does not act colore 
 officii, a notice is unnecessary. (7i) And no notice is necessary, to support 
 an action against a person, for the penalty given by the statute 18 Geo. II. 
 c. 20, for acting as a justice, without a proper qualification. (2) The notice 
 to a justice of the peace must express the nature of the tvrit or process 
 intended to be sued out, as well as of the cause of action :{k) And where 
 the notice was not indorsed with the place of abode of the attorney, but 
 concluded thus — " Given under my hand at Durham, this day of 
 
 ," &c. it was deemed insufficient.(Z) But a notice to a 
 
 [ *30 ] magistrate *need not specify the/orm of action intended to be 
 
 brought : It is sufficient if it state the writ or process, and the 
 
 {a) Append. Chap. I. \ 1, &c. N. B. — The references are to the seventh edition of the 
 Practical Forms, which were originally intended as an Appendix to the Practice, and are re- 
 ferred to accordingly throughout. (b) | 1. (c) § 4. 
 
 (d) Birdy. Gunston, E. 24 Geo. III. K. B., 2 Chit. Rep. 459, S. C, and see 8 East, 113. 
 9 East, 365. 3 Campb. 242. 3 Maule & Sel. 580. 2 Price, 126. 10 Moore, 63. 2 Bing. 483, 
 S. C. 3 Bing. 78. 10 Moore, 376, S. C. Post, 31. 
 
 (e) 2 H. Blac. 114. (/) 9 East, 364. 2 Campb. 199, n. 
 
 Iff) 1 Barn. & Cres. 12. 2 Dowl. & Ryl. 43, S. C, and see 1 Car. & P. 459, 466, n. 669. 
 (/ij 2 Barn. & Cres. 729. 4 Dowl. & llyl. 283, S. C. 6 Barn. & Cres. 351. Ante, 20. 
 {i) Holt Ni. Pri. 458. [k] 7 Durnf. & East, 631. 
 
 (l) Taylor y. Fenwick, M. 23 Geo. III. K. B. 7 Durnf. & East, 635. 3 Bos. & Pul. 553.('a.) 
 S. C. cited. 
 
 [a] See 2 Troubat & Haley's Pract. 515, 3d ed.
 
 OF NOTICES OF ACTION. 30 
 
 cause of action :{a) and in stating the cause of action, it is sufficient to 
 inform the defendant suhstantially of the ground of complaint. (i) Where 
 notice of action is given to a magistrate, under the 2-4 Geo. II. c. 44, it is 
 sufficient, in indorsing the attorney's name, to put the initial only of his 
 christian name, Avith his surname and place of ahodc, in words at length {:c) 
 And where the notice was signed T. and W. A. Williams, the names of 
 the attorneys for the plaintiff being Tliomas Adams Williams ?ii\i[William 
 Adams Williams, it was deemed sufficient. (c?) The attorney giving the 
 notice, may describe himself generally of the town in which he resides, as 
 '"'• oi Bir7ning1iam,'\e) or ^'- Bolt on en le 3Ioo7\-"{f) though where he 
 described himself in the notice as of a place in London, which in fact Avas 
 in Westminster, it was holdcn to be fatal.(^) 
 
 In like manner, by the statute 28 Geo. III. c. 37, § 25,(74) "no writ or 
 process shall be sued out against any officer of the customs or excise, or 
 against any person or persons acting by his or their order, in his or their 
 aid, for any thing done in the execution or by reason of that or any other 
 act or acts of parliament then in force, or thereafter to be made, relating to 
 the said revenues, or cither of them, until one calendar month next after 
 notice in writing shall have been delivered to him or them, or left at the 
 usual place of his or their abode, by the attorney or agent for the person or 
 persons who intends or intend to sue out such writ or process as aforesaid; 
 in which notice shall be clearly and explicitly contained the cause of action, 
 the name and place of abode of the person or persons in whose name such 
 action is intended to be brought, and the name and place of abode of the said 
 attorney or agent :(^') and that a fee oHiventy shillings, and no more, shall 
 be paid for the preparing and serving of every such notice." And, by the 
 statute 6 Geo. IV. c. 108, § 93, a similar notice is required to be given, 
 previously to the commencement of an action against any officer of the 
 army, navy, or marines, or against any person acting under the direction 
 of the commissioners of his majesty's customs, for any thing done in the 
 execution of, or *by reason of his office. On the former of these 
 statutes it has been holden, that notice of action against a custom- [ *31 ] 
 
 house officer, for breaking the plaintiff's dwelling house in C 
 
 street, in the Parish of G , is not a sufficient notice of the plaintiff's 
 
 place of abode.(a) 
 
 An extra man, not appointed by the board of excise, is holden to be en- 
 titled to the benefit of the statute 28 Geo. III. c. 37, § 25 ; or at least he is 
 
 (a) 2 Campb. 196. 
 
 (h) 5 Barn. & Aid. 837. 1 Dowl. & Ryl. 497, S. C, and see M'Clel. k Y. 4(59, but see 2 
 Chit. Rep. 673. 
 
 (c) 7 Taunt. 63. 2 Marsh. 377, S. C. In Crookc v. C'/m/, Durham Sum. Assiz., 1789, 
 Thomson, B. held, that the attorney's name and place of abode being in the body, instead of 
 on the back of the notice, was sufiicient, on the grounds of the intent of the statute being, 
 that the justice might be able to tender amends to the party or his attorney, and of the 
 case oi Rex v. Bigg, (3 P. Wms. 419. 1 Str. 18,) in which a writing on the inside of a bank 
 note, was holden to be properly described as an indorsement, even in an indictment for 
 forgery. Sedqucere? and see 7 Durnf. <fc East, 634, 5. 
 
 (d) 4 Barn. & Ores. 681. 6 Dowl. & Ryl. 625. 2 Car. & P. 237, S. C. 
 {fi) 3 Bos. & Pul. 551. 
 
 (/) Crooke r. Curry, Durham Sum. Assiz., 1789, but Thomson, B. there said, ^^ London, 
 Manchester, or other such large town, generally, would not be sufficient." 
 
 (g) 6 Esp. Rep. 138. 
 ' (A) And see the statutes 23 Geo. III., c. 70, ? 30, 32, and 24 Geo. III., sess. 2, c. 47, ? 35, 
 .which latter statute, however, is repealed by 6 Geo. IV., c. 105. 
 
 (i) Append. Chap. I., g 7, 8, 9. 
 
 (a) 3 Taunt. 127.
 
 31 OF NOTICES OF ACTION. 
 
 entitled to it, as a person actingimder an excise officer, if he be sent to make 
 a search, though no regular officer be present. (6) And an excise officer is 
 entitled to notice, before an action is brought against him, for an act not war- 
 ranted by his official capacity, if done bo7id fide, in the supposed, execution 
 of his duty; such as the assaulting of an innocent person, whom he suspects 
 to be a smuggler employed in running goods :{c) for otherwise, he would 
 never be entitled to notice, except in cases where he did not needit.(6?) But 
 a constable detaining a person by direction of a custom-house officer, who 
 had himself no power to detain him, is not within the protection of the act, 
 there being no pretence that he was acting within the scope of his author- 
 ity.(<3) And where a revenue officer, having seized goods as forfeited, which 
 were not liable to seizure, takes a sum of money of the owner to release 
 them, an action for money had and received will lie to recover it back, 
 though the officer has not had a month's notice previous to bringing the ac- 
 tion.(/) The month begins the day on which the notice is served :(^) and 
 the action, we have seen, (A) must be brought within three months (which 
 are holden to be lunar months,)(z) after the cause of it accrued : so that the 
 notice must be served one calendar month at least before the expiration of 
 three lunar months from the time of the cause of action. 
 
 The statute 39 Geo. III. c. Ixix. § 184, directs, that the West India 
 Dock Company/ shall sue in the name of their treasurer, in all actions by 
 or on behalf of the company, and that he shall be sued for the recovery of 
 any claim or demand upon, or of any damages occasioned by the com- 
 pany ; and § 185, after extending the protection of the statute 24 Geo. II. 
 c. 44, for privileging justices of peace, in actions brought against them as 
 such, to the Lord Mayor and Aldermen of London, acting under this act 
 beyond the limits of the city, directs that " no action shall be commenced 
 against an^ person or p)ersons, for any thing done in pursuance or under 
 colour of this act, until after fourteen days notice in writing, or after 
 tender of amends, &c. :" upon which it has been holden, that the trea- 
 surer of the company is a person within the said clause ; and being sued 
 *for an act done by the company, which induced an injury to 
 [ *32 ] the plaintiffs, was entitled to such notice before the action 
 brought. (a) And there are similar provisions in the act relating 
 to the London Dock company.(5) 
 
 By the building act,(c) " no action or suit shall be commenced against 
 any person or persons, for any thing done in pursuance of that act, until 
 tiventy-one days after notice in writing, of an intention to bring such ac- 
 tion or suit, has been given to the person or persons against whom it shall 
 be brought." And, by the statute 43 Geo. III. c. 99, § 70, for consolida- 
 ting the provisions in the acts relating to the duties under the manage- 
 
 (b) 2 Smith R. 220. 
 
 (c) 5 Durnf. & East, 1. Davtj v. Hoslcms, M. 23 Geo. III., C. P. S. P., and see 1 Car. & P. 
 466, n. 4 Barn. & Ores. 200. 6 Dowl. & Ryl. 257, S. C. 4 Barn. & Cres. 2G9. But per 
 Heath, J. he is not entitled to notice, for any collateral act. 
 
 (d) Per Lawrence, J., 2 Smith R. 223, and see 9 East, 365. 3 Camp. 242. 
 
 (e) 2 Chit. Rep. 140, and see 6 Barn. & Cres. 351. 
 
 (/) 4 Durnf. & East, 485, and see 5 East, 122. 1 Barn. & Aid. 42. 2 Barn. & Cres. 729. 
 4 Dowl. & Ryl. 283, S. C, accord, but see 4 Durnf. & East, 553, semb. contra. 
 [g) 3 Durnf. & East, 623. (A) Ante, 20. 
 
 (i) 6 Durnf. & East, 224. 8 Moore, 265. 1 Bing. 307, S. C. 
 [a) 5 East, 115, and see Holt Ni. Pri. 27. 7 Taunt. 1. 
 (6) 39 & 40 Geo. III. c. xlvii. § 150, 51. 
 (c) 14 Geo. III. c. 78, § 100, and see 4 Barn. & Cres. 269. G Dowl. & Ryl. 3G0, S. C.
 
 OF NOTICES OF ACTION. 32 
 
 mcnt of the commissioners for the ail^iirs of taxes, " no writ or process 
 shall be sued out, for the commencement of any action or suit, against any 
 person or persons, for any thing done in pursuance of that act, or any act 
 for granting duties to be assessed under the regulations of that act, until 
 one calendar month next after notice in writing shall have been delivered 
 to, or left at the usual place of abode of such person or persons, by the 
 attorney or agent for the intended plaintiff or plaintiffs ; in which notice 
 shall be clearly and completely contained the cause and causes of action, 
 the name and place or places of abode of the intended plaintiff or plain- 
 tiffs, and of his or their attorney or agent : and no evidence shall be given, 
 on the trial of such action or suit, of any cause or causes of action, other 
 than such as is or are contained in such notice." It is not necessary to 
 give a notice of action on this statute, where assumpsit is intended to be 
 brought, for money had and received, to recover the amount of an exces- 
 sive charge made by the defendants as collectors, on a distress for arrears 
 of taxes. (t7) And a sheriff, who levies arrears of taxes, under 48 Geo. III. 
 c. 1-41, (e) is not entitled to notice of an action to be brought against him, 
 for any thing done under the provisions of that act.(/) 
 
 By the statute 57 Geo. III. c. 99, § 40, " no writ shall be sued out 
 against, nor any copy of any process, at the suit of any informer, be served 
 upon any spiritual person, for any penalty or forfeiture incurred under 
 any of the provisions of that act, until a notice in writing of such intended 
 writ or process shall have been delivered to him, or left at the usual or 
 last place of his abode, and also to the bishop of the diocese, by leaving 
 the same at Jhe registry of his diocese, by the attorney or agent for the 
 party who intends to sue or cause the same to be sued out or served, one 
 calendar month at the least before the suing out or serving of the same ; 
 in which notice shall be clearly and explicitly contained the cause of ac- 
 tion, which such party hath or claimeth to have, and the penalty or penal- 
 ties for which such person intends to sue ; and on the back of which 
 notices respectively shall be indorsed the name of such attorney 
 or agent, together with the place of his abode ; and no *such [ *33 ] 
 notice shall be given before the first day of Ai^ril, in the year 
 next after any such penalty or penalties shall have been incurred." By 
 the statute 6 Geo. IV. c. 10, § 41, " no writ shall be sued out against, nor 
 copy of any process served on any commissioner of bankrupt, for any 
 thing by him done as such commissioner, unless notice in writing, of such 
 intended writ or process, shall have been delivered to him, or left at his 
 usual place of abode, by the attorney or agent for the party intending to 
 sue, or cause the same to be sued out or served, at least one calendar 
 month before the suing out or serving the same ; and such notice shall set 
 forth the cause of action which such party has or claims to have against 
 such commissioner ; and on the back of such notice shall be indorsed the 
 name of such attorney or agent, together with the place of his abode, who 
 shall receive no more than tiventy shillings for preparing and serving 
 such notice." And, by § 42, "no such plaintiff shall recover any verdict 
 against such commissioner, in any case where the action shall be grounded 
 on any act of the defendant as commissioner, unless it is proved upon the 
 trial of such action, that such notice was given as aforesaid ; but in default 
 thereof, such commissioner shall recover a verdict and costs as thereinafter 
 
 (d) 1 Barn. & Aid. 42. (c) No. V. Rule, 2. 
 
 (/) 8 -Moore, 400. 1 Blng. SCO, S. C.
 
 33 OF NOTICES OP ACTION. 
 
 mentioned ;(a) and no evidence shall be permitted to be given by the 
 plaintiff, on the trial of any such action, of any cause of action, except 
 such as is contained in the notice." And lastly, by the statutes 7 & 8 
 Geo. IV. c. 29, § 75, and c. 30, § 41, " notice in writing of an action, for 
 any thing done in pursuance of the acts for consolidating and amending 
 the laws relative to larceny^ &c., and malicious injuries to property, and 
 of the cause thereof, shall be given to the defendant, one calendar month 
 at least before the commencement of the action." 
 
 A separate notice to each of several persons intended to be sued in tres- 
 ]mss, has been deemed sufficient to found a joint action against all of them, 
 for things done in pursuance of an act of parliament ; although none of the 
 other persons, who were afterwards joined in the action, were named in 
 the notice to either of them. (J) But where one person acted as clerk to 
 two public bodies, and a notice of action required by statute was given, 
 addressed to him as clerk to one body, the cause of action arising under 
 the authority of the other body, the court of Common Pleas held that the 
 notice was insufficient. (c) And a notice of action, under an act of parlia- 
 ment against a toll-gate keeper, " for demanding and taking toll, for and 
 in respect of certain matters and things particularly mentioned and ex- 
 empted from the payment of toll, in and by a certain act of parliament, 
 intituled, &c.," is too uncertain, and bad.((^) 
 
 For the protection of constables, &c., acting in obedience to the warrant 
 of a magistrate, it is enacted by stat. 24 Geo. II. c. 44. § 6, that 
 [ *34 ] "no *action shall be brought against any constable, headborough 
 or other officer, or against any person or persons ^.cting by his 
 order and in his aid, for any thing done in obedience to any warrant under 
 the hand or seal of any justice of the peace, until dcynand hath been made,(«) 
 or left at the usual place of his abode, by the party or parties intending to 
 bring such action, or by his, her or their attorney or agent, in writing, 
 signed by the party demanding the same, of the perusal and copy of such 
 warrant, and the same hath been refused or neglected for the space of six 
 days after such demand : And in case, after such demand and compliance 
 therewith, by showing the said warrant to, and permitting a copy to be 
 taken thereof, by the party demanding the same, any action shall be brought 
 against such constable, &c., without making the justice or justices, who 
 signed or sealed the said warrant, defendant or defendants, that on produc- 
 ing and proving such warrant at the trial of such action, the jury shall give 
 their verdict for the defendant or defendants, notwithstanding any defect of 
 jurisdiction in such justice or justices : And if such action be brought 
 jointly against such justice or justices, and also against such constable, &c. 
 then, on proof of such warrant, the jury shall find for such constable, &c. 
 notwithstanding such defect of jurisdiction as aforesaid : And if the verdict 
 shall be given against the justice or justices, in such case the plaintiff or 
 plaintiffs shall recover his, her or their costs against him or them ; to be 
 taxed in such manner, by the proper officer, as to include such costs as the 
 plaintiff or plaintiffs are liable to pay to the defendant or defendants, for 
 whom such verdict shall be found." 
 
 The intent of these provisions was to prevent the constable or other 
 
 («) See I 44. {b) 2 Price, 126, and see 5 Price, 168. (c) 1 Taunt. 383. 
 
 {d) 2 Ciiit. Rep. 673, and see 5 Barn. & Cres. 125. 7 Dowl. & Ryl. 810, S. C. 
 (a) For the form of the demand, see Append. Cliap. I. § 10, 11.
 
 OF TUE DEMAND, ETC. 34 
 
 officer, when acting in obedience to his warrant, (5) from being answerable, 
 on account of any defect of jurisdiction in the justice : Therefore, if an 
 officer seize goods, in obedience to the warrant of a magistrate, whether that 
 warrant be legal or not, he cannot be sued, until a previous demand has 
 been made of a copy of it.(t') And a constable, executing the warrant of a 
 justice of peace, if sued in trespass without the magistrate, is within the 
 protection of the statute, and entitled to a verdict, on proof of such warrant; 
 having first complied with the plaintiff's demand of a perusal and copy of 
 it, before the action brought, though not within six days after such demand, 
 as the act directs. (tZ) But where a constable of one hundred took upon 
 him to execute a warrant out of his own hundred, directed to the constable 
 of another hundred byname, "and to all other peace officers in the county 
 oi Kent ;'' this was holden not to be a case within the protection 
 of the statute.(<') So, where goods were taken under a *warrant [ *35 ] 
 of distress, granted by a justice of peace for the county of Kent, 
 directed to the constables of the lower half-hundred of C. and G. in the 
 county of Kent, if it turn out, that the warrant was executed within the 
 jurisdiction of the cinque ports, and not in the county of Kent, the consta- 
 bles who executed it are not entitled to the benefit of the statute, but may 
 be sued in trespass, without the magistrate being made a defendant. (aa) 
 And where the defendants, in order to levy a poor's rate under a warrant 
 of distress granted by two magistrates, broke and entered the plaintiff's 
 house, and broke the windows, &c. the court held that they might be sued 
 in trespass, without a previous demand of the perusal and copy of the 
 warrant. (J) 
 
 It has been determined, that a cTiurchivarden or overseer of the poor, 
 taking a distress for a poor's rate,((?) or a gaoler, receiving and detaining a 
 prisoner, ((:?) under a warrant of magistrates, is entitled to the protection of 
 the statute, in having the magistrates made defendants with him, in an action 
 of trespass. ' And a constable, who merely acts in aid of a parish officer,, 
 in levying a distress for poor rates ; under a warrant of magistrates directed 
 to such officer, is not liable to an action of trespass, although a demand was 
 duly made on such constable, in pursuance of the statute. (c) But an action 
 of ?'epZt;ymisholdennotto be an action, within the meaning of the statute. (/) 
 And the act extends only to actions of trespass, or tort : Therefore, where 
 an action for money had and received was brought against an officer, who 
 had levied money on a conviction by a justice of the peace, the conviction 
 having been quashed, it was holden that a demand of a copy of the warrant 
 was not necessary. (</) In cases to which the act applies, if the plaintiff's 
 attorney make out two papers precisely similar, purporting to be demands 
 of a copy of the warrant, pursuant to the statute, and sign both for his client^ 
 
 (i) 3 Bur. 1742. 1 Blac. Rep. 555, S. C. 3 Esp. Rep. 22G. 2 Maule & Sel. 259. 1 Car. 
 & P. 41,(<;). 
 
 (c) 2 Bos. & Pul. 158. 3 Esp. Rep, 96, S. C. (d) 5 East, 445. 
 
 ((?) 1 H. Blac. 15, n. and see 3 Barn. & Aid. 330, but see stat. 5 Geo. IV. c. 18, ? 6, which 
 authorizes constables to execute warrants out of their prcciucts, provided it be within the 
 jurisdiction of the justices granting or backing the same. 
 
 (aa) 5 East, 233. 
 I (b) 2 Maule & Sel. 259, and see 2 Bos. k Pul. 158. G Barn. & Crcs. 232. 
 
 (c) Bui. Ni. Pri. 24. 7 Durnf. & East, 270. (rf) I Gow, 97. 
 
 (e) 4 Moore, 4G5. 
 
 (/) 2 Blac. Rep. 1330, G East, 283, but see Willes, 6G3. 7 Durnf. & East, 270, contra. 
 
 Iff) Bui m Pri. 24. Anle, 31, 2. 
 
 Vol. l— 4
 
 35 OF THE DEMAND, ETC. 
 
 and then deliver one to the defendant, the other will be sufficient evidence 
 at the trial. (/t) 
 
 The benefit of the statute 24 Geo. II. c. 44, § 1, was extended to commis- 
 sioners of bankrupt, by the statute G Geo. IV. c. 16, § 31, by which it is 
 enacted, that " no action shall be brought against any person appointed by 
 commissioners of bankrupt, for anything done in obedience to their warrant, 
 prior to the choice of assignees, unless demand of the perusal and copy of 
 such warrant hath been made, or left at the usual place of abode, of such 
 person or persons, by the party or parties intending to bring such action, or 
 by his or their attorney or agent, in writing, signed by the party or parties 
 demanding the same, and unless the same hath been refused or 
 [ *36 ] neglected for six days after such demand : and if, *after such 
 demand and compliance therewith, any action be brought against 
 the person so appointed as aforesaid, without making the petitioning creditor 
 or creditors defendant or defendants, if living, on producing and proving such 
 warrant at the trial of such action, the jury shall give their verdict for the 
 defendant, notwithstanding any defect of jurisdiction in the commissioners; 
 and if such action be brought against the petioning creditor or creditors, 
 and the person so appointed as aforesaid, the jury shall, on proof of such 
 warrant, give their verdict for the person so appointed, notwithstanding 
 any such defect of jurisdiction ; and if the verdict shall be given against the 
 petitioning creditor or creditors, the plaintiff or plaintiffs shall recover his, 
 her or their costs against him or them, to be taxed so as to include such 
 costs as the plaintiff or plaintiffs are liable to pay to the person so appointed 
 as aforesaid." 
 
 Having thus stated what is necessary to be done by the plaintiff, before 
 the commencement of the action, it may be proper to add, that where it 
 is meant to be defended on the ground of a terider of the debt, such tender 
 should be made before the action is brought : And a tender of sufficient 
 amends may be made, by the statute 21 Jao. L, c. 16, § 5, in an action 
 for an involuntary trespass to real property. (a)[l] 
 
 (h) 2 Bos. & Pul. 39, and see 4 Esp. Rep. 203. Peake's Evid. 5 Ed. 104. 2 Campb. 110. 
 7 Moore, 112, 3 Bred. & Bing. 288, S. C. 1 Car. & P. 41. (a) 6 Bam. & Cres. 394. 
 (a) 1 Str. 549. 
 
 [1] Before the statute 3 & 4 W. IV., c. 98, the tender should regularly have been made 
 in lawful money of England; which is of two sorts, viz., English money, coined by the 
 King's authority, or foreign coin, made current by his royal proclamation within the realm, 
 Co. Lit. 207 ; the latter was considered as a good tender, Wade's case, 5 Co. 114, b. ; and 
 though banli notes were not made a legal tender, by the statute 37 Geo. III., c. 45, Grigby 
 V. Oahes, 2 Bos. & P. 526, and see stat. 56 Geo. IIL, c. 68, § 11, by which gold coin was 
 declared to be the only legal tender ; yet a tender in Bank of England, or country bank 
 notes, was good, unless specially objected to on that account at the time. Wright v. Reed, 3 
 Durnf. & E. 554. Broivn v. Saul, 4 Esp. Rep. 261, per Ld. Ellenborough, Ch. J. Saunders v. 
 Graham, Gow, Ul,per Dallas, Ch. J. Polglass v. Oliver, 2 Cromp. & J. 15. 2 Tyr. Rep. 89. 
 
 1 Price N. R. 133, S. C. The same doctrine was applied to a draft on a banker, pe?- Buller,J., 
 in 117% v. Warren, Sit. Md. after M. T. 28 Geo. III. K. B., Tidd Prac. 9 Ed. 187 :(m) and in 
 one case it was holden, that a tender in a Liverpool bank bill of exchange was good, if not 
 specially objected to, Lockyer v. Jones, Peake Cas. Ni. Pri. 180, n. ; but, in a subsequent 
 case, the tender of a Bristol bank bill was holden not to be good, although the party made 
 no objection as to the form of the tender, 3Iills v. Safford, id. ib., and see Polglass v. Oliver, 
 
 2 Cromp. & J. 15. 2 Tyr. Rep. 89, S. C. And for the doctrine of tender in general, and in 
 what cases it is, or is not allowed, at common law, or by statute ; at what time, by and to 
 whom, and in what manner it should be made ; and when and how it should be pleaded, 
 &c., see Tidd Sup. 1830, p. 10, &c. And now, by the statute 3 & 4 W. IV., c. 98, \ 6, it is 
 enacted, that " from and after the 1st day of ^-Iw^ms^, 1834, unless and until parliament shall 
 otherwise direct, a tender of a note or notes of the Governor and Company of the Bank of
 
 OF THE JURISDICTION OF THE COURTS. *37 
 
 •CHAPTER II. 
 
 Of the Jurisdiction of the Courts of King's Bench, Common Pleas, 
 and Exchequer ^/ Pleas, in personal Actions; and of the Judges, 
 Advocates, and Officers of the Courts. 
 
 The Court of King's Bench has an original jurisdiction in actions for 
 trespasses vi et arniis, committed in Middlesex, or other county, -svhere 
 the court sits :{aa) and it has by degrees acquired a jurisdiction, which it 
 exercises by original writ, against peers of the reahn, and members of the 
 house of commons : and against corporations, and hundredors on the 
 statute 7 & 8 Geo. IV., c. 31 ; and in all personal actions, brought against 
 any person not being a jirisoner in the actual custody of the marslial, nor 
 privileged as an attorney or officer of the court. It has likewise jurisdic- 
 tion by bill, in all personal actions, brought against prisoners in the actual 
 custody of the marshal, or persons who have put in bail upon a cepicorpxis^ 
 or habeas corpus, and who are still for this purpose supposed to be in 
 custody.(6) On which latter ground, the court is enabled, by a fiction, to 
 hold plea by bill, in all personal actions whatever ; for, by feigning a 
 complaint of trespass, over which the court has an inherent jurisdiction, 
 the plaintiff is allowed, when the defendant is brought in on such com- 
 plaint, to waive or abandon it, and to exhibit his bill and declare against 
 him as a prisoner, for any other species of injury.(c) This court has also 
 jurisdiction in all personal actions, brought by or against its attorneys and 
 officers ;{d) who are entitled to sue therein by attachment of privilege, and 
 must be sued by bill: And members of the house of commons may be sued 
 therein by bill and summons, &c., in consequence of the statute 12 & 13 
 W. III., c. 3, § 2. 
 
 The court of Common Pleas has a concurrent jurisdiction with the court 
 of King's Bench, in all personal actions. This jurisdiction is exercised, 
 first, by original writ, issuing out of Chancery ; which, however, is seldom 
 issued, except where it is necessary in consequence of a writ of 
 error, after *a judgment by default : Secondly, by writ of capias [ *38 ] 
 quare clausumf regit, which supposes an original to have issued, 
 
 (aa) TTje'sJusfilizarii, 28. 
 
 (b) Id. ih. 
 
 (f) R. E. 15 Geo. II., m/. 1. K. B. Cowp. 455. And, for an account of the jurisdiction in 
 general of the court of King's Bench, and of that in particular which it e.xercises in civil 
 actions by bill, see Sul. Lect. XXXII., p. 300, &c. 3 Blac. Com. 42. 2 H. Blac. 2T1, 299, 
 300. And see further, as to the jurisdiction of the King's Bench in personal actions, by 
 oru/inal writ, Steph. PL 4, 5, b}- bil/, LI. 52, <kc., and by aitachmenl of privilege, Id. 58. 
 
 (d) 4 Inst. 71, 72. 2 H. Blac. 270, 299. 
 
 England, expressed to be payable to bearer on demand, shall be a legal tender, to the amount 
 expressed in such note or notes; and shall be taken to be valid, as a tender to such amount, 
 or all sums above Jive pounds, on all occasions on which any tender of money shall be 
 legally made, so long as the Bank of Enyland shall continue to pay on demand their said 
 notes in legal coin. Provided always, that no such note or notes shall be deemed a legal 
 tender of payment, by the Governor and Company of the Bank of England, or any branch 
 bank of the said Governor and Company : but the said Governor and Company are not to 
 become liable, or be required to pay and satisfy, at any branch bank of the said Governor 
 and Company, any note or nolcs of the said Governor and Company, not made specially 
 payaVile at such branch bank ; but the said Governor and Company shall be liable to pay 
 and satisfy, at the bank of England in London, all notes of the said Governor and Company, 
 or of any branch thereof."
 
 38 OF THE JURISDICTION OF THE COURTS. 
 
 and is the ordinary mode of commencing actions in this court : Thirdly, 
 by attachment of privilege, at the suit of attorneys and officers of the 
 court : and fourthly, by hill against attorneys and officers, or members of 
 the house of commons. (a) This court has also jurisdiction, exclusive of 
 the King's Bench in all rea/, and the greater part of mixed actions : and 
 writs of haleas co7'pus, and prohibition, may be moved for therein, as well 
 as in the King's Bench ; though it is more usual to move for the writ of 
 habeas corpus in the latter court. 
 
 It should also be observed, that personal actions are either commenced 
 originally, by the means which have been stated, in the courts of King's 
 Bench and Common Pleas ; or are removed thither from inferior courts by 
 writ of certiorari or habeas corpus before judgment, or by writ of error 
 after judgment, from such as are of record; or by writ oi pone, recordari 
 facias loquelam, or accedas ad curiam, before judgment, or by writ of 
 false judgment afterwards, from such as are not of record : and both courts 
 have the power of punishing their own officers, or other persons, for a 
 contempt, by attachment. 
 
 The court of Pleas, in the Exchequer, is holden before the barons ;{bb) 
 and has jurisdiction of all causes which concern the king's profit or 
 revenue, (cc) as of debts or duties to the king ;{dd) and of matters which 
 relate to tenures of the king in capite, as of an honour or manor,(e) &c., 
 or which concern the lands, rents, franchises, hereditaments, goods and 
 chattels of the king.(/) So, one who is indebted to the king, may sue 
 his debtor in the court of Pleas, in the Exchequer, upon a suggestion of 
 quo minus, &c., or that he is thereby the less able to satisfy his majesty, 
 the debts which he owes to him.(^) And the court of pleas has jurisdic- 
 tion in all personal actions, where the plaintiff or defendant has privilege 
 as an officer or minister,(7i) or the defendant is a prisoner,(^) of the court. 
 But the plaintiff cannot proceed in this court by 07-iginal writ ; and there- 
 fore the defendant cannot be outlawed therein. (Z::) 
 
 There are three sorts of privilege in this court : First, as debtor ; sec- 
 ondly, as accountant ; and thirdly, as officer of the court. Against the 
 first of these, any man who hath a special privilege in another court, as 
 an officer of the court or attorney, shall have his privilege. But if an 
 accountant begin his suit here, no privilege shall be allowed elsewhere ; 
 because he has a special privilege, by reason of his attendance to pass his 
 account, in which the king hath a particular concern. The same 
 [ *39 ] holds *with regard to an officer of the court : If he commence a 
 suit here, no privilege in another court shall prevail against him ; 
 because his attendance here is requisite, and his privilege here is first at- 
 tached by commencing his suit. But when the accountant has finished 
 his account, and reduced it to a certainty, so that it is become a debt, then 
 he is only privileged as a general debtor. So, a servant to an officer or 
 minister of the court has no privilege against a privileged person else- 
 where, (a) And, accordingly, where the plaintiff, as debtor to the king, 
 
 (a) See further, as to the jurisdiction of the Common Pleas in personal actions, hj original 
 ■writ, Steph. PI. 4, 5, by attachment of privilege. Id. 58. and by bill, Id. 52, &c. 
 
 {bh) 4 Inst. 109. {cc) Id. 112. (dd)' Id. 103, 110, 112. 2 Inst. 551. 
 
 \e) 4 Inst. 110. 
 
 (/) 4 Inst. 112. 2 Inst. 551, and see the statute 33 Hen. VIII., c. 39, § 56, 7. 
 
 (^r) 2 Inst. 551. 4 Inst. 112. Plowd. 208, a. [h) Id. ibid. 
 
 [i) 2 Inst. 551, and see Com. Dig. tit. Courts, D. 2. \k) 1 Price, 309. 
 
 {a) Hardr. 365.
 
 OF TUE JUDGES. 39 
 
 and treasurer of the navy, exhibited his bill in this court, and the defend- 
 ant pleaded his privilege, as one of the six clerks in Chancery, under the 
 great seal ; Hah, chief baron, and the court held, that a general privilege 
 as debtor, will not hold against a special privilege ; but against a general 
 privilege it •will : and a privilege as accountant will hold against a special 
 privilege in another court, as officer of the court or otherwise ; though it 
 be not alleged, that he has entered upon his account ; and in this case the 
 plaintiff, being treasurer of the navy, is eo ipso an accountant in the Ex- 
 chequer :(6) But it must be averred, that he is present in court on his 
 account, (c) 
 
 The judges of the courts of King's Bench and Common Pleas are, in 
 each court, the Lord Chief Justice, created by writ, and three ]misne 
 judges, created by letters patent ; who, by the statute 12 & 13 W. III. c. 
 2., hold their places (fiamdiu hene se gesserint, and not as formerly, du- 
 rante bene j^lacito. In the court of Pleas in the Exchequer, the judges 
 are the Chief Baron, and three puisne barons, who are created by letters 
 patent •,{d) and were formerly barons and peers of the realm. (<;) And, by 
 the statute 1 Geo. III. c. 23., enacted at the earnest recommendation of 
 the king himself from the throne, the judges are continued in their offices 
 during their good behaviour, notwithstanding any demise of the crown, 
 (which was formerly holden(/) immediately to vacate seats,) his majesty 
 having been pleased to declare, that he looked upon the independence and 
 uprightness of the judges, as essential to the impartial administration of 
 justice; as one of the best securities of the rights and liberties of his sub- 
 jects ; and as most conducive to the honour of the crown. (^) 
 
 Before the making of the statute 1 & 2 Geo. IV. c. 1(3. a practice had 
 prevailed, for the judges of the court of King's Bench to sit in Sergeants 
 Inn Hall, some days previous to the commencement of Hilary, 
 Easter, and *Michaelmas terms, and hear special arguments on [ *40 ] 
 demurrers, writs of error, special verdicts, special cases, and new 
 trials, &c., upon which they delivered their opinions, except in cases re- 
 served for further consideration, and judgment was afterwards formally 
 pronounced in the following term. (a) By the above statute, the judges of 
 the court of King's Bench were enabled and required, for the despatch of 
 matters depending in the said court, to sit, at certain times therein men- 
 tioned, before Hilary, Easter and Michaelmas terms respectively : But 
 that statute was repealed by the 3 Geo. IV. c. 102., which authorizes his 
 majesty, "by warrant under his sign manual, directed to the judges of the 
 said court, to direct and require the judges of the said court, or any two 
 or more of them, to meet at Sergeants Inn Hall, Westminster Hall, or some 
 other convenient place to be by them appointed, on such and so many days 
 
 (6) Hardr. 316, and seo Bro. Abr. tit. Privilege^ 16, 25. 1 Lutw. 44, 46. Sty. Rep. 339. 
 W. Jon. 288. 2 Salk. 546. 
 
 (c) Bro. Abr. tit. Brief, 342, and see Man. Ex. Pr. 143, 4. Steph. PI. 5, 53, 4, 59, 60. 
 
 \d) Mad. 582. 4 Inst. 117. 
 
 \e) 4 Inst. 103 in marg., and see Com. Dig. tit. CourU, D. 10. (/) 2 Ld. Ryara. 747. 
 
 Iff) Com. Journ. 3 mt r. 17C1. And for the salaries of the chief justices of tlie King's 
 Bench and Common Pleas, see stat. 6 Geo. IV. c. 82, 3, and for those of the Master of the 
 Rolls, Vice-Chancellor, Chief Baron of the Exchequer, puisne judges and barons, see stat. 6 
 Geo. IV. c. 84. And for the sa/aries of the judges in India, &c., see stat. 6 Geo. IV. c. 85. 
 
 (a) 1 Maiile & Sel. 304, (a). 2 Maule & Sel. 1, (a). 1 Barn. & Aid. 1, (a). 218, (a). 2 Barn. 
 & Aid. 2,(a) and see 7 Taunt. 192.
 
 40 OF THE JUDGES. 
 
 in the vacation or interval between any terms, as to his majesty shall seem fit 
 and proper, for the despatch of such matters as, at the end of the term men- 
 tioned in such warrant, maybe depending in the said court, whether on the 
 eroivn or plea side thereof: which warrant shall be made and issued ten days 
 at the least before the end of the term preceding the vacation mentioned in 
 such Avarrant, for the meeting of the judges for the dispatch of business as 
 aforesaid ; and the issuing of such warrant shall, tJiree days before the 
 end of the said term, be openly and publicly, in the said court of King's 
 Bench, notified and declared, and be afterwards published in the London 
 Crazette: And when and so often as any such warrant shall be made and 
 directed to the judges of the said court, the same judges, or any two or 
 more of them, are authorized and required, unless prevented by illness, 
 public business, or other reasonable cause to meet, in pursuance of such 
 warrant, for the dispatch of such matters as aforesaid, or of so much and 
 such parts thereof as may appear to such judges chiefly to require dis- 
 patch, and as may be then most conveniently dispatched, and to hear, de- 
 cide, and pronounce rules, orders, and judgments thereupon ; which rules, 
 orders and judgments, shall be drawn up and entered of record, either of 
 the term last past before the pronouncing thereof, or as of the term then next 
 ensuing, as the said judges shall direct : And that all enlarged rules to 
 show cause, which may be pronounced or drawn up by, or by the direc- 
 tion of the said court, for showing cause in any term next after any 
 of such sittings directed by such warrant as aforesaid, shall be deem- 
 ed and taken to be rules to show cause, as well at such sittings, as 
 in the term then next following, and may be heard and decided in such 
 sittings accordingly : Provided, that nothing therein contained shall alter 
 or affect the return of any writ, either mesne or judicial, or require any 
 return of such writ, or appearance thereto, before the day therein men- 
 
 tioned."(6) *This act of parliament is to be construed liberally, 
 [ *41 ] for the dispatch of business ; and therefore, it has been holden 
 
 that an affidavit sworn during term, is sufficient to bring the sub- 
 ject matter before the court, "as a matter depending in the court," within 
 the terms of the act, and the king's warrant founded thereon. (a) 
 
 The judges, upon their circuits, sit by virtue of five several authorities: 
 1. the commission of the peace : 2. a commission of oyer and terminer : 
 3, a commission of general gaol delivery : 4. a commission of assize, 
 directed to the justices and Serjeants therein named, to take (together with 
 their associates,) assizes in the several counties, that is, to take the verdict 
 of a peculiar species of jury, called slu assize, and summoned for the trial of 
 landed disputes : 5. their authority at nisi p'ius is by the commission of 
 assize,{bb) being annexed to the office of justices of assize, by the statute of 
 Westm. 2, (13 Edw. I.) c. 30, which empowers them to try all questions 
 of fact, issuing out of the courts at Westminster, that are then ripe for trial 
 by jury.(c) And, by a late act of parliament,(c?) " whenever it shall happen 
 that the commissions, under which the judges sit upon their circuits, shall 
 not be opened and read, in the presence of one of the quo^mm commission- 
 ers, at anyplace specified for holding the assizes, on the very day appointed 
 
 [b) For the first warrant issued on this statute, see 2 Dowl. & Rjl. 439, (a) and see 1 Barn. 
 &Cres. 288,(a). 657,(«). 2 Barn. & Cres. 112,((z). 3 Barn. &Cres. HS.fa). 738,(a). 5 Dowl. 
 & Ryl. 629,(a). 4 Barn. & Cres. 899,(«). 5 Barn. & Cres. 797,(0). 6 Barn. & Cres. 268,(aj. 
 
 (a) 7 Dowl. & Ryl. 382. [bb) 2 Salk. 454. (c) 3 Blac. Com. 59. 
 
 {d) 3 Geo. IV., c. 10.
 
 OF ADVOCATES, OR COUNSEL, 41 
 
 for such purpose,, it shall and may be lawful to open and read the same, in 
 the presence of one of the quorum commissioners therein named, on the 
 following day, or, if such following day shall be a Sunday, or any other 
 day of public rest, then on the succeeding day; and such opening and read- 
 ing thereof shall be as effectual, to all intents and purposes, as if the same 
 had been opened and read, in the presence of one of the quorum commis- 
 sions, on the very day appointed for that purpose, and shall be deemed 
 and taken to be an opening and reading thereof, on the day for that purpose 
 appointed: and all records and other proceedings, under or relating to any 
 commission, which may be opened and read by virtue of that act, shall and 
 may be drawn up, entered, and made out, under the same date, and in the 
 same form, in all respects, as if such commission had been opened and read 
 on the day originally appointed for that purpose : Provided, that the judges 
 and quorum commissioners are directed and required to have such commis- 
 sions opened and read, on the very days appointed for that purpose, unless 
 the same shall be prevented for the pressure of business elsewhere, or by 
 some unforeseen cause or accident." 
 
 The advocates, or counsel, who next claim our attention, are of two spe- 
 cies or degrees ; barristers, and Serjeants. Before a student can be called to 
 the bar, it is requisite that he should be a member oi five years standing, at 
 one of the four principal inns of court; unless he has taken the degree of 
 Master of Arts, or Bachelor of Laws, at one of the universities of Oxford, 
 Cambridge, ov Dublin ; in which case three jenra standing will be suffi- 
 cient ; and he must keep at least tzvelve terms, by dining in commons, or 
 being present at least four days in every term ; that is to say, ttvo 
 days *in each of iwo separate full weeks in each term : And, unless [ *42 ] 
 a certificate be produced, of his being a member of the college of 
 advocates in Scotland, or member of one of the said universities of Oxford, 
 Cambridge, or Dublin, he must make a deposit of XlOO, previously to his 
 entering into commons, which is allowed him on being called to the bar: 
 And, after being called, he must, within six calendar months, take the oaths 
 of allegiance and supremacy, and subscribe the declaration against popery ; 
 or, if a roman catholic, the declaration and oath prescribed by the statute 
 31 Geo. III. c. 32, in one of the courts at Westminster, or at the general or 
 quarter sessions of the place where he shall reside ; which oaths may be 
 taken, and the declarations subscribed, in the King's Bench, before a single 
 judge, in the bail court.(«) 
 
 Serjeants at law are appointed, or called, at the pleasure of the king, by 
 writ issuing out of chancery ; And, by a late act of parliament(6) his 
 majesty may, in vacation, cause a writ to be issued, directed to any barris- 
 ter*, calling him to the degree of a scjeant at law; and such persons as his 
 majesty may be pleased to call, are authorized to take upon themselves that 
 office, in vacation. From both the above degrees, some are usually selected, 
 to be his majesty's counsel learned in the laAV ; the two principal of Avhom 
 are called his attorney, and solicitor general. And a custom has of late 
 years prevailed, of granting letters patent of precedence, to such barristers 
 as the crown thinks proper to honour with that mark of distinction ; whereby 
 they are intitled to such rank and pre-audience, as are assigned in their 
 respective patents; sometimes next after the king's attorney-general, but 
 usually next after his majesty's counsel then being. These (as well as the 
 
 (a) Stat. 1 Geo. IV., c. 55, ? 4. (b) 6 Geo. IV., c. 95.
 
 42 OF THE OFFICERS OF THE COURTS. 
 
 queen's attorney and solicitor-general,)((?) rank promiscuously with the 
 kino-'s counsel, and together with them sit within the bar of the respective 
 courts. The king's counsel have a standing salary, and cannot be employed 
 in any cause against the crown, without special license ; but those who have 
 merely patents of precedence receive no salaries, and are not sworn ; and 
 therefore are at liberty to be retained in causes against the crown. (c^) 
 
 By a mandate of his late majesty,(g) the king's attorney and solicitor- 
 general are now to have place and audience, before the king's premier 
 Serjeant ; and the following may be considered as the order of precedence, 
 or pre-audience, which obtains among practisers : 1. The king's attorney- 
 general : 2. The king's solicitor-general: 3. The king's jpremz'er serjeant, 
 (so constituted by special patent :) 4. The king's ancient Serjeant, or the 
 eldest among the king's Serjeant's: 5. The king's advocate-general : 6. The 
 king's Serjeants : 7. The king's counsel, or those who have patents of pre- 
 cedence, with the queen's attorney and solicitor-general : 8. Serjeant's at 
 law: 9. The recorder of London: 10. Advocates of the civil law; and 
 lastly. Barristers. In the court of Exchequer; two of the most 
 [ *43 ] experienced *barristers, called the postmari, and the tubman, 
 (from the place in which they sit,) have also precedence in 
 motions. (aa) 
 
 The officers of the court of King's Bench, on the crown side, are the 
 clerk of the crown,{bb) or king's coroner and attorney, usually called the 
 master of the crown office, who holds his place for life, by letters patent un- 
 der the great seal, and has the appointment of the secondary, clerk of the 
 rules, examiner, calendar, keeper, clerk of the grand juries, and clerks in 
 court; and, on thepZea side, ^\q prothonotary, or chief clerk for enrolling' 
 pleas, in civil causes depending between party and party, and particularly 
 by bill;{c) the secondary, or deputy to the chief clerk, usually called the 
 master of the King's Bench office, and his assistant; the clerk of the 
 treasury ;[d) the keeper of the writs and records of the court, commonly 
 called the custos brevium,{e) who has annexed to his office, the making up 
 of records of nisi prius, except in Middlesex; the Jilacer,{f) exigenter, 
 and clerk of the outlatvries,{g) for proceedings by original writ ; the signer 
 of writs, and signer of bills of Middlesex ; the clerk of the rules; the clerk 
 oi i\i.Q i^ayers ;[h) the clerk of the declarations ; the clerk of the common 
 bails, posteas, and estreats; the clerk of the dockets, commitments, and 
 satisfactions ; the clerks of the in7ier and upper treasury ; the clerk of the 
 outer treasury; the clerk of nisi prius in London, and other cities, and on 
 the several circuits ; the clerk of nisi prius for Middlesex ; the clerk of the 
 errors ; and bag bearer, on the plea side of the court. 
 
 Before the making of the statute 6 Geo. IV. c. 82, the several offices of 
 chief clerk, clerk of the treasury, and custos brevium, and filacer, exi- 
 genter, and clerk of the outlawries^ of the court of King's Bench, were in 
 
 (c) Seld. tit. hon. 1, 6, 7. (d) 3 Blac. Com. 27, 8. 
 
 (e) 14 Bee. 1811. (aa) 3 Blac. Com. 28. 
 
 (bb) Show. P. C. Ill, and see Cas. temp. Talb. 97. 
 
 (c) 1 Ch. Cas. 20. Show. P. C. 111. Skin. 354. 
 
 (d) This officer is required to appoint a person to attend in the treasury, that the clerks 
 may have access to the rolls. R. T. 1656, reff. 2, K.B. (e) 1 Lev. 1. 1 Sid. 74. 
 
 (/) This officer is appointed to sign original writs, and all writs and process issuing thereon, 
 before the appearance of the defendant. R. H. 30 Car. II., R. H. 31 Car. II., and R. E. 31 Car. 
 II. K. B. See also R. M. 15 Car. I. K. B., and Trje'sjws fil.per tot. 
 
 (g) Trye, inpref. (A) i Vent. 296. 2 Mod. 95, S. C.
 
 OF THE OFFICERS OF THE COURTS. 43 
 
 the gift of the Lord Chief Justice of the same court, and deemed to he 
 saleable by him, as and when the same from time to time became vacant ; 
 and the several offices of clerk of the rules on the plea side, clerk of the 
 jjapers on the pica side, clerk of the declarations, clerk of the common 
 bails, estreats, and jmsteas, and clerk of the dockets of the same court, 
 were in the gift of the said chief clerk, and deemed to be saleable by him ; 
 and the several offices of clerks of the imier and outer treasury, clerks of 
 nisiprius in London, and other cities, and on the several circuits, and bag 
 bearer, on the plea side of the same court, were in the gift of the said 
 eustos brevium, and deemed to be saleable by him ; and the said several 
 offices were held for the respective lives of the persons then holding the 
 same, (or for the life of the survivor of two persons, where the office was 
 then vested in two persons,) and the emoluments thereof were derived 
 entirely from the fees payable by the suitors of the same court ; 
 and some thereof were, and for "many years had been, executed [* 44 ] 
 by deputy :{a) But now, by the above statutc,(6) it is enacted, 
 that " the said offices of chief clerk, clerk of the treasury, and cmtos bre- 
 vium, and filacer, exigenter, and clerk of the outlawries, shall from and 
 after the passing of that act, and the said several offices thereinbefore 
 mentioned to be in the gift of the said chief clerk, shall from and after 
 the time when the said office of chief clerk shall become vacant, and the 
 said several offices thereinbefore mentioned to be in the gift of the said 
 eustos breviian, shall from and after the time when the said office of eustos 
 brevium shall become vacant, be disposed of, and all appointments to the 
 said respective offices, as they may respectively become vacant, shall be 
 made, according to the directions of that act, and not otherwise : And all 
 and every the persons to be so appointed to the said several offices, shall 
 continually execute the same in person, and not by deputy, unless for 
 some reasonable cause to be allowed as thereinafter mentioned; and every 
 such officer and his deputy, to be appointed according to the directions of 
 that act, shall be deemed and taken to be a public accountable officer, to 
 all intents and purposes, and shall severally account for the fees and 
 emoluments of his office, according to the directions of that act. And that 
 all appointments to the said several offices, to be made by virtue of that 
 act, shall be made by the Lord Chief Justice of the said court for the time 
 being, by warrant under his hand and seal, without any fee, gratuity, or 
 reward, to be directly or indirectly paid or received for the same ; and 
 every such appointment shall be made, and shall be in such warrant ex- 
 pressed to be made, during the good behaviour of the person appointed, 
 and for so long time only as the person appointed shall execute the same 
 in person : Provided always, that no such office shall be vacated, by reason 
 of the officers not executing the office in person, if he shall execute the 
 same by some deputy to be appointed by virtue of that act ; nor in cases 
 of occasional illness, or other like necessary cause of absence, not conti- 
 nuing more than two months at any one time." And, by the same 
 statute,((?) "the several offices of clerk of the ^j'r/?crs, and clerk of the 
 declarations, shall, so soon as an appointment thereto may be made by 
 authority of that act, be consolidated into one office, and be executed by 
 one and the same person." 
 
 The master and his assistant, and signer of the zvrits, are appointed by, 
 
 (a) Stat. 6 Geo. IV. c. 82, § 1. (6) § 1, 2. (c) § 8.
 
 44 OF THE OFFICERS OF THE COURTS. 
 
 and hold their situations, during the pleasure of the chief clerk. The 
 chief justice has also the appointment of the clerk of the errors, and clerk 
 of nisi prius for Middlesex, whose business it is to transcribe from the 
 plea rolls, the records of nisi priiis in that county, and to examine and 
 seal the same, and to receive and file the warrants of attorney on the plea 
 side of the court. The three other judges have the appointment of signer 
 of bills of Middlesex ; and each of the judges appoints his own clerk. 
 
 The officers of the .court of Common Pleas are the three prothonotaries ; 
 the three secondaries ; the filacers ; the clerk of the exigents ; 
 [ *45 ] the clerk of *the supersedeases ; the clerk of the outlawries ; the 
 clerk of the reversal of outlawries ; the clerk of the king's silver ; 
 the clerk of the jurata ; the clerk of the juries ; the clerk of the warrants, 
 enrolments, and estreats ; the clerk of the essoitis ; the clerk of the dockets ; 
 the clerk of the judgments ; the clerk of the treasury ; and the clerk of 
 the errors. 
 
 Before the making of the statute 6 Geo. IV. c. 83, the several offices of 
 chief and third prothonotaries, clerk of the king's silver, clerk of the 
 jurata, clerk of the essoitis, clerk of the warrants, enrolments, and estreats, 
 exigenter, clerk of the supersedeas, filacers for all the counties in England, 
 and clerk of the errors in the Exchequer Chamber, were appointed by the 
 Lord Chief Justice of the Common Pleas, and were saleable by him, as 
 and when the same from time to time became vacant ; And the offices of 
 second prothonotary, and clerk of the juries, were appointed by the said 
 Lord Chief Justice, on the nomination of the custus hrevium ; for which 
 last mentioned appointment the said Lord Chief Justice had been deemed 
 entitled to, and had always received, whenever such appointments had 
 been made, certain fees ; and each of the three prothonotaries of the said 
 court had the appointment of one secondary : and the said several offices 
 were held for the respective lives of the persons then holding the same, and 
 the emoluments thereof were derived entirely from the fees payable by the 
 suitors of the same court ; and some of such offices were, and for many years 
 past had been, executed by deputy. But now, by the above statute,(a) it 
 is enacted, that "the said offices of chief and ^/^/rc? prothonotaries, clerk 
 of the king's silver, clerk of the jurata, clerk of the essoins, clerk of the 
 luarrants, enrolmejits, and estreats, exigenter, clerk of the supersedeas, 
 filacers for all the counties in England, and clerk of the errors in the 
 Exchequer Chamber, shall be disposed of, and all appointments to the 
 said respective offices, as they may respectively become vacant, shall be 
 made, according to the directions of that act, and not otherwise : And all 
 and every the persons to be so appointed to the said several offices, shall 
 continually execute the same in p>erson, and not by deputy, unless for some 
 reasonable cause to be allowed as thereinafter mentioned : And every such 
 officer and his deputy, to be appointed acccording to the directions of that 
 act, shall be deemed and taken to be a public accountable officer, to all 
 intents and purposes, and shall severally account for the fees and emolu- 
 ments of his office, according to the directions of that act. And that all 
 appointments to the several offices, to be made by virtue of that act, shall 
 be made by the Lord Chief Justice of the said court for the time being, 
 by warrant under his hand and seal, without any fee, gratuity, or reward, 
 to be directly or indirectly paid to, or received for the same, by the Lord
 
 OF THE OFFICERS OF THE COURTS. 45 
 
 Chief Justice, or any judge of the said court; and every such appoint- 
 ment, except the appointment of the filacers^ shall be made, and shall be 
 in such warrant expressed to be made, during the good behaviour of the 
 person appointed, and for so long a time only as the person appointed 
 shall execute the same in person : Provided always, that no 
 *such office shall be vacated, by reason of the officer's not exe- [ *46 ] 
 cuting his office in person, if he shall execute the same by some 
 deputy, to bo appointed by virtue of that act ; nor in cases of occasional 
 illness, or other like necessary cause of absence, not continuing more than 
 two months at any one time. "(aa) 
 
 " And if any person to be appointed by virtue of that act, or of the 
 statute G Geo. IV., c. 82, § 1, 2, shall demean himself in any manner 
 contrary to the true intent and meaning thereof, or otherwise misbehave 
 himself, it shall be lawful for the court, of which he is an officer, to hear 
 and decide upon such misbehaviour, and also to hear and determine all 
 complaints that may be made against such person, in a summary way ; 
 and, by rule of the same court, to order compensation to be made to any 
 person injured by such misbehaviour ; or to fine such offender, or make 
 void his appointment, or punish the offender by all or any of the ways 
 aforesaid, as to such court in its discretion shall seem fit. "(6) 
 
 "Provided always, that in case any officer to be appointed by virtue of 
 either of the above acts, shall, by ill health or other infirmity, become 
 incapable of discharging the duties of his said office, or shall for any 
 other reasonable cause to be allowed by the Lord Chief Justice of the court 
 of which he is an officer, be desirous of being relieved from the discharge 
 of the duties thereof, either permanently or for a certain time only, it 
 shall and may be lawful for the said Lord Chief Justice to appoint some 
 fit and proper person to act as a deputy of such officer : the cause of such 
 appointment being always distinctly mentioned and specified in the war- 
 rant of such appointment."(c) 
 
 For the purpose of uniting the two offices of chief and third prothono- 
 tary in the same officer, it is enacted by the statute 6 Geo. IV., c. 83, § 
 12, that " whoever shall be appointed to the first of those offices that shall 
 become vacant after the passing of that act, shall, on the other of the said 
 offices becoming vacant, take upon himself and perform the duties of the 
 other of the said offices, and shall receive the fees accruing in respect of 
 the said last mentioned office ; and shall retain out of the fees of the office 
 last becoming vacant, so much as the Lord Chief Jnstice of the said court 
 of Common Pleas, and the lord high treasurer, or any three or more of the 
 commissioners of the treasury for the time being, shall think a reasonable 
 compensation for his additional trouble, and shall account for and pay the 
 residue of such fees into his majesty's Exchequer, on the first day of every 
 term : And the said offices of cliief and third prothonotary shall, after such 
 union as aforesaid, be always executed by one officer, who shall be called 
 the clilcf prothonotary of the court of Common Pleas, and who shall 
 receive the fees payable in respect of the offices of chief and third pro- 
 thonotary, and account for the same, in such manner as may be directed 
 by the lord high treasurer or commissioners of the treasury for the time 
 beiug."((Z) 
 
 {aa) § 2. {b) Stat. 6 Geo. IV., c. 82, 3, ? 3. (c) Id. { 4. 
 
 (dj'Stat. 6 Geo. IV., c. 83, I 12.
 
 46 OF THE OFFICERS OF THE COURTS. 
 
 The duties of the protlionotaries are, to attend the sitting *of 
 [ *47 ] the court at Westminster hall, for the despatch of such matters 
 as arise from causes entered in their office ',{a) to inform the court 
 of the state of such causes ; to draw up general rules, for regulating and 
 settling the practice of the court, and the proceedings therein ; and to 
 certify to the court in matters of practice, when required. A great variety 
 of matters arising out of causes are referred to the prothonotaries ; who 
 make reports thereon to the court, and also on the examination of persons 
 in contempt upon interrogatories. They enter, in books kept in their office, 
 the declarations filed and delivered out in all the several causes passing 
 through their office, and also the pleas and subsequent pleadings between 
 the parties, the money paid into and out of court, the records passed for 
 trial, the entries of issues joined between the parties, the interlocutory 
 and final judgments thereon, writs of inquiry and executions, the bills 
 filed against privileged persons, and the appearances to such process as 
 issues out of their office. They inquire into and state the debt and costs 
 on bills, bonds, mortgages and other securities : name and strike special 
 juries, sign records of nisi p7-ius, see that all common recoveries are 
 carefully engrossed on rolls of the court, examined, docketed, and placed 
 in their proper offices, and that the writs belonging to the same are 
 filed with the proper officer, and examine all exemplifications of such 
 recoveries. (5) They have the custody of all common and plea rolls,((?) 
 deliver the same out,(fZ) and keep an account of the names of the 
 persons to whom the rolls are delivered,(e) that they may be enabled 
 to call for their return, and make caret papers of the defaulters, (/) 
 in order to enforce their being brought in, pursuant to various rules 
 of the court.(^) They keep an account of all rolls received into their 
 office, after the proper entries are made thereon ; keep dockets of all 
 judgments, entries, of writs, and other entries, which they carefully exa- 
 mine with the rolls, before they are delivered to the proper officers, keep 
 remembrance rolls, in which all rules made in court, appearances, and recog- 
 nizances of bail on attachments of privilege, and jjrascipes taken at bar on 
 common recoveries, are entered. They enter on a remembrance roll, the 
 names of all attorneys sworn in court, and make certificates thereof to the 
 clerk of the warrants ; and have the custody of the court-books, in which 
 are entered the names of all causes on demurrers, special verdicts, and other 
 matters which are to be argued in court, and of causes which are to be tried 
 at bar, with the respective terms and number-rolls ; and take minutes of the 
 judgment of the court, in all cases argued therein. And they regulate and 
 allow costs, on all judgments, rules, and judicial orders; and tax bills of costs 
 between attorneys and their clients, and settle and adjust accounts 
 [ *48 ] implicated therein. *ror these purposes, one of the prothono- 
 taries alternately attends at the office in term-time, from eleven to 
 tzvo (except the first and last days of term, when all attend the court ;) the 
 
 (a) R. T. 35 Hen. IV., § 1, C. P. And for the ancient fees payable to the prothonotaries, 
 see the same rule, ^ 5. 
 
 (b) R. M. 1654, § 6, C. P. 
 
 (c) R. H. 8 Car. 1, § 8, R. M. 1654, § Y, R. E. 34 Car. II., reff. 3, R. E. 5 W. & M., reff. 2, 
 R. M. 2 Geo. I., C. P. The plea rolls are in real, and the common ones in personal actions. 
 
 (d) R. E. 12 Jac. I., § 2, R. M. 1649, R. M. 1654, ? 5, R. T. 21 Car. II., C. P. 
 
 (c) R. E. 34 Car. II. reg. 3 C. P. (/) Same rule, R. M. 2 Geo. 1, C. P. 
 
 Iff) R. E. 12 Jac. I., R. M. 1649, reff. I, Z 3, R. M. 1654, I 7, R. T. 29 Car. II., reg. 5, R. E. 
 34 Car. II., reg. 3, C. P.
 
 OF THE OFFICERS OF THE COURTS. 48 
 
 others attending the court during the sitting. In the evening, all the pro- 
 thonotaries attend at the office from six to eight, and sometimes later : Out 
 of term, they all attend every day, from eleven to two o'clock. 
 
 The secondaries were formerly appointed for life, by the prothonotaries, 
 eacli of whom appointed one. But, by tlic statute (i CJeo. IV. c. 83, § 13, 
 "no person who shall hereafter be aj)pointed to the office of chief or third 
 prothonotary, or shall hold the said two offices when united, shall appoint 
 a secondary ; but the secondary of such prothonotary shall be appointed by 
 the lord chief justice of the said court of Common Pleas : and all secondaries 
 so appointed, shall hold their offices during their good behaviour, and shall 
 receive such a proportion of the accustomed fees of the said office, as the 
 lord chief justice of the said court, and the lord high treasurer, or any three 
 or more of the commissioners of the treasury for the time being, shall think 
 reasonable ; and shall account for and pay the residue into his majesty's 
 Exchequer, on the first day of every term." And, by § 14, " the person 
 who shall first be appointed secondary, under the provisions of that act, 
 shall, when the office of secondary to the other prothonotary appointed by 
 virtue of that act shall become vacant, take upon himself and perform the 
 duties of both of the said secondaries, and receive the fees, and retain out 
 of the same so much as the said lord chief justice of the said court, and 
 the lord high treasurer, or any three or more of the commissioners of the 
 treasury for the time being, shall think a reasonable compensation for his 
 additional trouble ; and shall account for and pay the residue of such fees 
 into his majesty's Exchequer, on the first day of every term." 
 
 Tiie duties of the secondaries are, constantly to attend the court and 
 judges in the treasury, in term time; to read all records, writings, affida- 
 vits, petitions, papers and exhibits, produced upon motions, complaints, 
 or other applications, and to take minutes of all rules and orders pro- 
 nounced thereon ; to take all recognizances in court ; to enter discontinu- 
 ances, commitments of prisoners, and satisfactions acknowledged upon 
 record ; to amend records, by order of the court ; to administer the oaths 
 appointed to be taken by prisoners, by the acts of parliament for the relief 
 of debtors with respect to the imprisonment of their persons, and to pre^ 
 pare assignments of such prisoners' goods and effects, to be signed by 
 them, as directed by the said acts, and to draw up rules for their discharge. 
 Upon trials at bar, it is their duty to copy the issues for the judges, and 
 to deliver four copies thereof, to call the jury out of and in court, to read 
 the record, to call the defendant, to read all written evidence, to call the 
 jury before a verdict is given, and to record the verdict ; to take minutes 
 of special verdicts, and to draw up the same ; to make two copies for the 
 ])laiutift' and defendant, and four copies for the judges; to take an account 
 of all fines and recoveries, passed and suffered at bar; and in term time, 
 after the rising of the court, to attend at their respective offices, 
 there to draw up such rules and *orders as have been pronounced [ *4'J ] 
 in court, or in the treasury, and enter the same in books kept for 
 that purpose,((T) and make copies of such rules or orders, if applied for ; 
 as also to enter all rules to declare, plead, reply, rejoin, surrejoin, rebut, 
 surrebut, and join in demurrer, in paper, and ufterwards to enter the same 
 in books ; to give rules for attorneys, and other officers of the court, to 
 appear to bills filed against them; to file and copy all affidavits, papers 
 
 (a) Formerly, it appears, they were entered upou remembrance rolls. R. M. 1G54, § l.'j, 
 C. \^.
 
 49 OF THE OFFICEKS OF THE COURTS: 
 
 and exhibits, pi'oduced on motions, taxation of costs, or otherwise, and all 
 suo^fTcstions and proceedings in spiritual courts, in causes where j^^'ohibi- 
 tions are applied for ; to examine persons in contempt upon interrogato- 
 ries, and to file and copy such interrogatories, and the depositions taken 
 thereon. Their attendance is also necessary in vacation time, by them- 
 selves, clerks or assistants. Upon all complaints made by prisoners in the 
 Fleet against the warden, it is the duty of the secondaries to attend the 
 judges, at such times and places as they may appoint to hear and deter- 
 mine the said complaints, and to file and read all affidavits and exhibits 
 produced on such attendance, and to draw up all orders made thereupon, 
 as well as all orders made by the court, for the regulation of the Fleet 
 prison. The secondary to the chief prothonotary administers in court the 
 oaths of allegiance, supremacy, and abjuration ; and, if required, makes 
 out and signs certificates of persons having taken the same : he als6 
 administers the oath in court, to every person who is admitted an attor- 
 ney. The secondary to the second prothonotary enters in a. book kept for 
 that purpose, the particulars of all fines acknowledged at the bar of the 
 court. 
 
 Ihe filacers were formerly appointed, for the diiferent counties, by the 
 chief justice, for their lives ; and their several offices were required to be 
 executed in one certain place. (5) But now, by the statute 6 Geo. IV. c. 
 83, § 15, reciting that the offices of filacers of all the counties in Eng- 
 land would be executed better, and at less expense, by one person : and 
 as such offices were then holden by many different persons, and the whole 
 of such offices were not likely soon to become vacant, that they might, 
 when the then present interests in them should expire, be all given to 
 some one fit and proper person ; it was enacted " that when the office of 
 filacer of any county or counties shall become vacant, the person to be 
 appointed to discharge the duties of such office, shall only receive an 
 appointment during the pleasure of the lord chief justice ; and when all 
 the present interests shall have vacated those offices by death or otherwise, 
 the lord chief justice of the court of Common Pleas shall revoke the 
 appointments made during pleasure, and appoint some one fit and proper 
 person to hold the united office of filacer of all the counties of England, 
 during his good behaviour in the said office." 
 
 The duties of the filacers are ; to procure original writs to be duly 
 sued forth and filed ;(c) to take affidavits of debt, in order to hold to bail 
 r *rn n ^^^ ^0 *file such affidavits when the process is issued, and to 
 L -I make office copies of them, when required ; to make out writs of 
 
 capias, alias and i^luries, and all other incident process, before appearance 
 of the defendant, in all actions wherein process of outlawry lies, until the 
 exigent is awarded ; («) and all writs of supersedeas, upon any writs of 
 capias awarded out of their own offices and writs of rescous upon the sher- 
 iff's return ;(6) to take and file affidavits of service of common process; 
 and file bills against persons entitled to privilege of parliament, and make 
 out the subsequent process thereon, before appearance, to enter appear- 
 ances upon all writs issuing out of their own offices, (c) and give rules for 
 the sheriff to bring in the body •,{d) to attend the court, or a judge, on taking 
 
 (b) R. H. 2.'? Geo. III. C P. (c) R. T. 1649, C. P. 
 
 (a) II. M. 15 & 16 Eliz. R.M. 14 Jac. I. reg. 1, C. P. And for the fees anciently payable to 
 the Jilacers, for common process, see R. T. 35 Hen. VI. § 8, C. P. 
 
 {b) Same rules. (c) R. M. 14 Jac. I. re(f. 1,2. R. E. 24, Car. II. reg. 2, C. P. 
 
 {d) Id. R. T. 2 W. & M. reg. I, C. P.
 
 OF THE OFFICERS OF THE COURTS. 50 
 
 special bail by oru/inal :{e) to enter recognizances of bail, and make out 
 the first writ of scire facias thereon ;(/) to enter and file writs of re. fa. lo, 
 &c. issuing out of the court of Chancery, and returnable in the court of 
 Common Pleas, for the removal of plaints from inferior courts, and to 
 issue writs of jjone and distrin[/as, to compel appearances in such pro- 
 ceedings ; and to make out all writs of retorno halcndo upon nonsuit, writs 
 of second deliverance, and writs of capias in ivitliernam^ alias, and j^^wms, 
 before appearance,(^) &c. 
 
 The duty of the clerk of the exigent is to make out writs of exi- 
 gent and proclamations, in order to proceed to outlawry ; and of the 
 clerk of the supersedeases, to make out Avrits of superdeas to exigents quia 
 improvide, kc.,{h) in order to prevent persons from being outlawed or 
 waived, against whom exigents have issued. The office of clerk of the 
 outlaivries is incident to the office of his majesty's attorney-general ; and 
 usually executed by his clerk. His duty is to make out all writs of capias 
 utlagatum, and sequestrations of ecclesiastical benefices, in personal ac- 
 tions, after the return of the exigent. Inquisitions taken on special writs of 
 capias utlagatum, are transmitted into this office ; and are here exemplified, 
 upon rolls signed by the clerk of the outlawries, and then carried into the 
 office of the king's remembrancer of the court of Exchequcrer, and there 
 filed of record; and the inquisitions themselves, and writs of exigent, are 
 filed with the custos hrevium. The clerk of the reversal of outlawries is 
 appointed by the prothonotaries, during pleasure : His duty is to draw up 
 and enter the reversals of outlawries on remembrances, and deliver cer- 
 tificates thereof to the clerk of the outlawries ; to make out bail-pieces on 
 such reversals, and writs oi supersedeas Avhen necessary. The clerk of the 
 juries is appointed by the custus hrevium, for life: His duty is to make 
 out writs of habeas corpora juratormn, for the trials of issues in London 
 and 3Iiddlesex, and for the assizes in the country. 
 
 *The duties of the clerk of the luarrants, inrolments, and es- 
 treats, are, to file warrants of attorney upon judgments, issues, [ *51 ] 
 outlawries, and writs of covenant for levying fines ; and also the 
 warrants of attorney of sheriff's for the different counties in England ; 
 to stamp all judgment-papers,(rtrt) records of nisii)rius,{hh) w^-its oi pluries 
 cajnas on outlawries,(i)and writs o^ covenant ; to enroll deeds, recoveries, 
 and foreign estreats ; and to file affidavits of the execution of articles of 
 clerkship, and enter attorneys' certificates, &c. This officer may refuse 
 to file a warrant of attorney, or pass a fine, till the attorney cniployed by 
 the parties, has paid his termage fees.(6') 
 
 The clerk of the essoins is appointed by the chief justice, for life : his 
 duty is to enter essoins for the tenants in real actions, (for it is now deter- 
 mined, that no ession lies in p)ersonal actions ;) and in case the tenant be 
 not essioned, by the time limited by the rules of the court in real actions, 
 the demandant may enter a 7ie recipiatur. This officer is required, by the 
 statute 4 & ') W. k M. c. 20. § 2. to make an alphabetical doget, by the de- 
 fendants' names, of all judgments for debt by confession, kc, in the court 
 of Common Pleas ;(c^) and rolls belonging to the several offices of the said 
 
 (c) R. T. 1 W. & M. reg. 2, G. P. ( f) R. M. 14 Jac. I. rcg. 1 C. P. Barnes, 9Y. 
 
 {g) R.M.I 5 & leEliz. R.M. 14 Jac. 1. reg. 1,C.P. 
 
 \h) R. E. 24 Car. W. reg. 1,C. P. 
 
 \aa) R. M. 5 Geo. II. C. P. (hh) R. H. 2 & 3 Jac. II. C. P. 
 
 \b) R. II. 2 & 3 Jac. II. C. P. (c) 1 Bing. 277. 8 Moore, 229, S. C. 
 
 {(1) R. E. 5 W. & M. reg. 2, R. M. 2 Goo. I. C. P.
 
 51 OF THE OFFICERS OF THE COURTS. 
 
 court are marked, numbered and delivered out by the clerk of the essions 
 to the prothonotaries : and when the proper entries are inade thereon, they 
 are returned into his office, whence they are carried, by the clerk of the 
 judgments, to the treasury at Westminster. 
 
 The clerk of the dockets is appointed by the prothonotaries, during plea- 
 sure. The duty of this officer is to draw up, exemplify, and enter on the 
 roll, the admission of the several officers of the court ; to prepare bail- 
 pieces, entered into any attachment of privilege, or other bailable process, 
 issuing out of the prothonotaries' office, and attend the court or a judge 
 therewith, when entered into, and when the bail are justified, or fresh bail 
 added, or the defendant surrendered ; to make copies of all special juries, 
 named by the prothonotaries, for the plaintiff and defendant ; to make 
 copies of reports in court by the prothonotaries, if desired, and of all spe- 
 cial verdicts, for the judges and attorneys ; to make copies of all rules of 
 court, from the remembrances of terms past ; to make certificates of de- 
 clarations not being filed against prisoners, according to the rules of the 
 court, in order to their being discharged ; to make out certificates of writs 
 of 7'ecordari and false judgment not being filed according to the course of 
 court, to enable the parties, to proceed in inferior courts ; to copy, if de- 
 sired by the parties, all bills of cost, and other papers produced before the 
 prothonotaries relating to such bills, when taxed ; to attend the office of 
 the prothonotaries daily during office hours, and to do the common busi- 
 ness belonging to the office. 
 
 The clerk of the judgynents is also appointed by the prothonotaries, 
 during pleasure. His duty is to draw up every final judgment, after in- 
 quisition taken, verdict obtained, or nonsuit had at nisi prius, 
 [ *52 ] and upon every *demurrer, issue of nul tiel record, and rule of 
 court ;(a) and to draw up and enter all the continuances neces- 
 sary to the said judgments : and he is directed, by the statute 4 & 5 W. 
 & M. c. 20, § 2, to bring in all the above-mentioned judgments, to be 
 docketed ; after which he carries them to the treasury at Westminster. 
 He draws up the award of writs of elegit and p)C-^^tition, and enters the 
 same, with the returns thereof, upon the roll ; enters satisfaction on all 
 judgments, when the same is done by a judge's order, and not in open 
 court ; and makes out exemplifications of any of the above-mentioned 
 judgments, if applied for within a year after the signing thereof. 
 
 The chief justice for the time being, is keeper and clerk of the treasury, 
 and also clerk of the errors, of the court of Common Pleas ; and executes 
 these offices by his clerks, who are appointed by him during pleasure. The 
 clerk of the treasury has the custody of the records of the court ; the sign- 
 ing and sealing of records of nisi prius ;[b) and the signing of exemplifi- 
 cations, except of fines and recoveries, within two terms. (c) The clerk 
 of the errors has the allowance and receipt of all writs of error, upon 
 judgments in this court; gives certificates thereof; makes out writs of 
 supersedeas ; enters bail taken thereon ; makes out writs of scire facias 
 against the bail ; gives rules for bail, and for the plaintiff in causes to certify 
 the record ; makes transcripts of the records and judgments, and transmits 
 the same into the court of King's Bench, &c. ; signs no7ip)rosses for not 
 certifying the record ; and allows and returns all writs of certiorari 
 
 {a) R. T. 29, Car. II. reg. 5, R. T . 1 3 Geo. II. rcg. 2 C. P. 
 
 [h) R. T. 29 Car. II., rcg. 4. R. H. 2 & 3 Jac. II., C. P. And for the fees anciently due 
 to the clerk of the treasury, see R. T. 35 Hen. VI., § 7, C. P. 
 (c) R. M. 1654, I 6, C. P.
 
 OF TEE OFFICERS OF THE COURTS. 52 
 
 directed to the lord cliief justice, for certifying records from tliis court 
 into any other. 
 
 Besides the officers that have been mentioned, there are others who de- 
 rive their authority more immediately from the crown, namely, the mar- 
 slial of the King's Bench prison, ((?) and chief usher and crier of the court, 
 in the King's Bench : and the ciintos hrevmm, warden of the Fleet prison, 
 and chief proclamaior to the court, in the Common Pleas; and the sealer 
 of writs, for both courts. The office of marslial of the King's Bench pri- 
 son was granted by king James the First, in the 14th year of his reign, to 
 Sir William iSmith, knight, in fee ; and the appointment to that office, as 
 well as of the inferior officers, continued in the proprietors of the 
 ♦inheritance of the prison, till the statute 27 Geo. II. c. 17, by [ *53 ] 
 which the office was revested in the crown ; and by that statute, 
 the marshal has the appointment of all inferior officers belonging to his 
 office, such as the deputy marshal, chaplain, clerk of the p)apers of the 
 King's Bench prison, and clerk of the day rules : (which latter officers 
 must be resident within the prison, or its rules, )(rt) three turnkeys and four 
 tipstaffs, (one for each of the judges,) &c. And, by a late rule, {bb) the 
 marshal must also reside within the King's Bench prison, or the rulea 
 thereof, according to the terms of the above statute, § 5, and of his patent. 
 The chief usher and crier of the court of King's Bench holds his place for 
 two lives, by letters patent under the great seal ; and executes the same by 
 two deputy ushers, and two deputy criers, who, according to a modern 
 determination, (d?c) are considered as distinct and independent officers. 
 
 The office of custos brevium of the court of Common Pleas was granted 
 by king Charles the Second, by letters patent dated the 14th of December^ 
 in the 20th year of his reign, with all profits, rights and privileges thereunto 
 belonging, (after the determination of grants for lives, then subsisting,) to 
 certain persons therein named, and their heirs and assigns, in trust for the 
 then earl and countess of Litchfield, and for the issue of the countess in 
 tail.(cZ) The persons at present entitled to the office, acquired it by inheri- 
 tance : and the general business of the office is to record and file all original 
 and judicial writs, and inquisitions taken by virtue of any such writs; all 
 posteas after verdicts, and fines, with the concords signed by the parties 
 acknowledging the same, and the writs of dedimus p)otestatum issued for 
 taking the acknowledgment of such fines, with the transcripts thereof; which 
 fines are entered in a book of the same term the respective writs of cove- 
 nant are returnable, and the proclamation of such fines arc indorsed upon 
 the captions, according to the statute; to record and file all writs of entry 
 and summons, writs of dedimus potestatum for taking warrants of attor- 
 ney thereupon, and writs of seisin to support recoveries sufi'ered in the said 
 
 (</) 2 Salk. 439. 3 Salk. 320, S. C. And for the rules and orders made for the better 
 government of the King's Bench prison, see R. M. 3 Geo. II. R. T. 19 Geo. III. R. T. 21 
 Geo. III. R. II. 57 Geo. III. R. M. 58 Geo. III. R. T. 58 Geo. III. 1 Barn. & Aid. 728. 
 2 Chit. Rep. 373. R. H. 59 Geo. III. 2 Barn. & Aid. 403. 2 Chil. Rep. 374. 2 Barn. 4: 
 Cres. 344. 3 Dowl. & Ryl. 599, S. C. R. M. 7 Geo. IV. 6 Barn. & Ores. 123. 9 Dowl. k 
 Ryl. 180. R. II. 7 & 8 Geo. IV. 6 Barn. & Cres. 2G7, K. B. And, for the fees payable bv 
 the prisoners therein see R. Dec. 17, 1730. 4 Geo. II. R. M. 57 tJcq. III. R. II/ 2 & 3 
 Geo. IV. K. B. The above rules, subsequent to those of 3 & 4 Geo. II. are to be found in 
 the collection of rules and orders, on the pica side of the Court of King's Bench, with which 
 Mr. ^horl, the clerk of the rules, has obliged the profession. 
 
 (a) 4 Durnf. & East, 71G. 5 Durnf. & East, 511. {lb) R. M. 2 Geo. IV. K. B. 
 
 [ce) Peake's Cas. Ni. Pri. 3 Ed. 243. 
 
 (d) Stat. 6 Gco.*IV. c. 89. 
 
 Vol. I.— 5
 
 53 OP THE OFFICERS OF THE COURTS. 
 
 court • to make copies and exemplifications of the said writs and records, 
 when required ; and to return writs of certiorari, directed to the custos 
 brevium, for removing any writs or other records into the court of King's 
 Bench.(e) 
 
 The warden of the Fleet prison, (/) holds his office, by letters patent from 
 the crown, during pleasure ; and has the appointment of the clerk of the 
 papers and rules of the Fleet prison, and keeper of Westminster hall ; and 
 also of four tipstaffs, two for the Common Pleas, one for the court of Fx- 
 chequer and Rolls, and another for the court of Gliaiicery ; the 
 [ *54 ] Fleet being *the prison for all these courts. The two tipstaffs for 
 the Common Pleas attend the judges while sitting in court, and in 
 the afternoon at their chambers ; and out of term, they attend there morning 
 and afternoon : One of them also attends the lord chief justice, at the sit- 
 tings of 7iisi prius for London and 3Iiddlesex. The office of chief pro- 
 clamator, in the court of Common Pleas, is an hereditary office, claimed by 
 descent in fee. This officer has no personal duty attached to his office; but 
 he appoints four criers, one of whom is also court-keeper, and another por- 
 ter of the court : They hold their places for life ; and their duty is to 
 attend the court, and make proclamations, &c. 
 
 The office of receiver general and comptroller of the seal of the courts of 
 King's Bench and Common Pleas, (commonly called the seal office,) was 
 granted by King Charles the second, by letters patent dated the 30th of 
 April, in the 25th year of his reign, (after certain estates tail, since deter- 
 mined,) to Henry earl of Fusion, afterwards duke of G-rafton, in tail 
 male. (a) This office is now vested in the duke of G-rafton, who exercises 
 the same by deputy ; and has the sealing of all process, except bills of 3Iid- 
 dlesex, issuing out of the King's Bench and Common Pleas, and the exem- 
 plification of recoveries and judgments. But, by a late act of parliament,(5) 
 the commissioners of his majesty's treasury are authorized " to treat, con- 
 tract, and agree with the several persons beneficially entitled to the fees, 
 receipts, and profits of the said office, and also of the office of custos brevium 
 of the court of Common Pleas, for the purchase of all the rights, profits, 
 privileges and advantages whatever belonging thereto, for such annuity or 
 annuities, to be charged upon the consolidated fund of the united kingdom, 
 as the said commissioners, or any three or more of them, shall think fit ; and 
 from and after the confirmation of the said agreement by parliament, the 
 rights and interests of all persons whatsoever, claiming or entitled to claim 
 under the said letters patent, shall cease and determine : And the said an- 
 nuity or annuities so to be granted, shall go and be paid from time to time 
 to such person or persons, as would have been entitled to the fees, profits, 
 and advantages of the said offices respectively, under the said letters patent, 
 in case that act had not been passed." 
 
 The seal office is required to be open from eleven in the morning till two 
 in the afternoon, and from five to seven in the evening, during term, and for 
 ten days after every issuable term, and one week after every other term ; 
 and from eleven in the morning till three in the afternoon, at all other 
 
 («) For the fees anciently payable to the custos brevium, see R. T. 35 Hen. VI. ^ 6. 
 
 {/) For the rules and orders made for the better government of the Fleet prison, and the 
 fees payable by the prisoners, see R. E. and T. 13 Geo. I. Jan. 19. 3 Geo. II. H. 3 Geo. 
 II. E. 8. Geo. IV. 4 Bing. 247, C. P. and see 1 H. Blac. 105. 8 Moore, 157. 1 Bing. 255, 
 S. C. 
 
 (a) Stat. 6 Geo. IV. c. 89. (b) Id, «
 
 OF THE OFFICERS OF THE COURTS. 54 
 
 times. (c) It was formerly usual to seal hJanlc writs; hut an inconvenience 
 having attended this practice, it was ordered that for the future, no printed 
 blanks or other writs should be sealed, before the same were regularly made 
 out and filled up :((i) And by several old rules of court,(c') no 
 *signablc writs are to sealed, till they have been duly signed by [ *55 ] 
 the proper oflBcer. 
 
 The sealer of writs however, and other law officers, are not bound to 
 attend, or keep open their offices, on licensed hohjdaijs. It Avill therefore 
 be proper to consider what these holydays are, and when they are com- 
 manded or allowed to be kept, in term time or vacation, with the remedies 
 for not opening the offices on other days, or refusing to do business in office 
 hours, without the payment of extra fees. Holydays, it appears, are of two 
 kinds; first, such as were originally derived from thccJnircJt ; and secondly, 
 state holydays; the former are of ecclesiastical institution ; but when, upon 
 the reformation, the liturgy was settled and established, such days were 
 enjoined to be observed ; as plainly appears by the statutes 2 & 3 Edw. VI. 
 c. 1 & 19, and 5 & 6 Edw. VI. c. 3: And though these acts were abrogated 
 by Queen Mar-y, yet they were revived and continued in the first years of 
 Queen Elizabeth and King James.{a) 
 
 The reasons for these holydays, being of a religious nature, are fully stated 
 in the preamble to the statute 5 & 6 Edw. VI. c. 3, by which it is enacted 
 that " all the days hereafter mentioned shall be kept and commanded to be 
 kept holydays, and none other, that is to say, all Sundays in the year ; the 
 days of the feast of the Circumcision of our Lord, (being the 1st of Janu- 
 ary) ; of the JEpipliany, (6th of January') ; of the Purification of the 
 blessed virgin Mary, (2d of February)', of St. Matthias the apostle, (21th 
 0^ February) ; of the Annunciation of the blessed virgin, (25th of 3Iarch) ; 
 of St. 3Iark the evangelist, (25th of April) ; of St. Fhilip and Jacob the 
 apostles, (1st of 3Iay) ; of the Ascension of our Lord, (which is a movable 
 feast, happening 40 days after Easter, and ten days before ^VJlitsuntide) ; of 
 the Naticity of St. Jolin the baptist, 24th of June) ; of St. Peter the Apos- 
 tle, (29th of June) ; of St. James the Apostle, (25th of July) ; of St Bartho- 
 lomew the apostle, (24th of August); of St. Matthezo the apostle, (21st of 
 Sejytember) ; of St. Michael the archangel, (29th of September); of St. 
 Luke the evangelist, (18th of October) ; of St. Simon and Jude the apos- 
 tles, (28th of October) ; of All Saints, (1st of November) ; of St. Andrew 
 the apostle, (30th of November); of St. Thomas the apostle, (21st of De- 
 cember) ; of the Nativity of our Lord, (25th of December) ; and the three 
 following days, (being the feast days of St. Stephen the martyr, St. Jolni the 
 evangelist, and the Holy Innocents) : and Monday and Tuesday in Easter 
 andir/fiVsMn wieeks:" to which may be added Good Friday, though it is 
 not mentioned in the statute. Hence it appears, there are tiventy four 
 licensed holydays in a year, besides those in Easter ^niiWliitsun weeks ; 
 of which, it will be seen, there are five in the month of December, and in 
 every other month two, except in March, April, July and August, in each 
 
 (c) R. T. 54 Geo. III. K. B. 3 Maule & Sel. 163. 2 Chit. Rep. 379. 5 Taunt. 702. 1 
 Marsh. 245, C. P. and see a former rule of M. 34 Geo. III. K. B. 
 
 {d) N. 3 Apr. 1747, K. B. and see the statute G Geo. I. c. 21, ^ 53. 2 Wils. 47. 1 Chit. 
 Rep. 320.(rt) 
 
 (e) R. T. 1656, rcg. 1, R. E. 1059, R. E. 15 Car. II. reg. 1, K. B. and see R. M. 13 Car. 11. 
 R. II. 24 & 25 Car. II. R. E. 32 Car. II. R. T. 4 W. & M. rcg. 3, K. B. II. T. 1049, R. M. 1654, 
 \ 6, R. T. 9 W. III. C. P. 
 
 (rt) Nelson's Festivals, 1, 2.
 
 55 OF THE OFFICERS OF THE COURTS. 
 
 of which there is only one ; which was probably on account of these being 
 
 the months of seed time and harvest. 
 [ *56 ] *The statute being express, that " none other days shall be kept 
 
 or commanded to be kept holyday, or to abstain from lawful 
 bodily labour," it has been determined, that the feast day of St. Barnabas, 
 (11th oi June,) not being mentioned in the statute, is not a legal holyday at 
 the seal office ;(a) and though it appeared by affidavit, in the case of Fig- 
 gins V. WiUie,{b) that this feast was kept at the excise, customs, &c. and 
 that for 35 years together, and before the then officers came into the office, 
 it had been kept at the seal office in this manner, that is, the outer door had 
 been kept shut the whole day, if St. Barnabas fell on a Monday, Wednes- 
 day or Friday, but on Tuesdays, Thursdays, and Saturdays, it was shut 
 in the mornings only, those being post nights, yet from the opinion of Mr. 
 Justice Blackstonc in that case,(6') it seems that this practice crept in when 
 St. Barnabas became a state holyday, by coinciding with the king's inau- 
 guration or accession, which it did for the first 25 years of the reign of 
 G-eorge the Second, till they were separated by the new style act, in 1752. 
 It is also observable, that there is another feast day observed by the church, 
 which is not mentioned in the statute 5 & 6 Edw. VI. namely, the conver- 
 sion of St. Paul, which happens on the 25th of January : and the reason 
 why this feast day, as well as that of St. Barnabas, are not mentioned in 
 the statute, probably w^as, that one of these feasts always happens in Hilary 
 term, and the other frequently in Trinity term ; and as there was already 
 one holyday at least in each of these terms, it might have been thought that 
 the business of the court would have been interrupted, if more had been 
 allowed, and directed to be kept. 
 
 State holydays are either appointed by act of parliament, or founded on 
 ancient usage. The former are the anniversary of the Crunpowder Trea- 
 son, [November 5,) the martyrdom of Charles the First, [January 30,) 
 and the restoration of Charles the Second, [May 29,) which are made state 
 holydays by the statutes 3 Jac. I. c. 1, 12 Car. II. c. 14, (confirmed by 13 
 Gar. II. Stat. 1, c. 11,) and 12 Gar. II. c. 30. The latter are the birth day, 
 accession, 'proclamation, and coronation of the reigning monarch ; and the 
 bii'th days of his consort, and the prince of Wales. And it has been usual 
 to keep half holidays on some other days ; as on Shrove Tuesday, Ash 
 Wednesday, the feast of All Souls, [November 2,) and the birth day and 
 landing of William the Third, [NoveiJiber 4) ; the offices being open only 
 half the usual hours of attendance on those days. The 5th of November is 
 a holyday at the office of signer of writs, in the King's Bench, during the 
 time of morning service.(t?) But it has been determined, by the court of 
 Common Pleas, that Lord Mayor s day is not such an holyday, as entitles 
 the sealer of writs to an extraordinary fee for sealing a writ on that day.(e) 
 In the Exchequer, the anniversary of the king's accession has been holden 
 not to be an holyday :(/) And, on the anniversary of the martyrdom of 
 
 Charles the First, the junior baron of the court sits in the morn- 
 [ *57 ] ing, to take motions *of course. (a) In that court also, the service 
 
 of a rule to bring in the body, on the day of the 2^U7'iJication, is 
 deemed good service.(J) 
 
 The only licensed holidays in term time, are said to be the Purification 
 
 (a) 2 Blac. Rep. 1186, 1314. [b) Id. 1186. (c) Id. 1188. 
 
 [d) 6 Maule & Sel. 136. (e) 5 Taunt. 180. (/) 9 Price, 13. 
 
 (a) 9 Price, 15. (6) 13 Price, 208. M'CIel. 66, 7, S. C.
 
 OF THE OFFICERS OF TEE COURTS. 57 
 
 in ITilar?/ term, Ascemion day in Easter term, and St. Jb/m the baptist((?), 
 (being Midsummer day,) if it happen in Trinity term, unless it be on Fri- 
 day next after Trinity Sunday, in which case it is dies juridicus, by the 
 statute 32 Een. VIII. c. 11.[dd) These are considered as dies non juridici ; 
 but on all other days, the courts regularly sit for the dispatch of business in 
 term time, though it has been usual on the 30th of January, (being the 
 anniversary of the martyrdom of Charles the First,) for the courts to rise 
 early, or as soon as the common business is over. And, as the courts sit 
 themselves, they expect that the offices should be open on all other days in 
 terra time : For, as was observed by Mi\ Justice Blackstone, in the case of 
 Sparroiv v. Cooperiee), the officers are supposed to be every day in court, 
 sitting at the feet of the chief justice, and (in the case of the sealer of writs,) 
 affixing the seal of the court to all judicial writs, which are witnessed at 
 Westminster, in the name of the lord chief justice : The sufferin"- him to 
 do this in a private chamber is a mere indulgence, convenient to tlio court, 
 the suitor, and the officer, and therefore connived at ; but the supposition of 
 law is otherwise. Of course, upon all days when the courts sit at West- 
 miyister, he ought to be ready to execute his duty at all convenient hours. 
 On these or similar grounds it has been determined, that the feast of St. 
 Philip and Jacob, which happens on the 1st of May, is not a holyday,(^) 
 nor the 29th of 3Iay, being the restoration of Charles the sccond,{y) when 
 these days fall in Faster terra ; nor the feast of St. Peter, being the'29th of 
 June, when it falls in Trinity term ;{h) and consequently, no officer can 
 take an extraordinary fee for business done on these days. 
 
 It has been made a question, whether the officers are entitled to take extra 
 fees, for business done on legal holydays in vacation : and upon this subject, 
 Lord Ellenhorough is reported to have said, in the case of Tweddale v. 
 Fennell,{i) that the officers, though they may keep legal holydays, must 
 not be allowed to sell or make a traffic of them. But it should be observed, 
 that in this case an extra fee had been taken by the clerk of the declarations, 
 on the feast of St. Peter, which, though mentioned in the statute 5 & 6 
 Fdio. VI. is not considered as a legal holyday in term time. This question 
 however, carae directly before the court of Common Pleas, in the case of 
 Martin v. Bold,{k) but was not decided. In that case, the deputy sealer of 
 writs, being at his office on a legal holyday, (that of St. Luke, which 
 falls on the 18th of October,) a writ was offered him to seal, 
 *which he refused to do without an extra fee; and the court with- [ *58 ] 
 out deciding on his right to make such a demand, held that at all 
 events, his refusal to seal the writ was not an offence, for which they would 
 grant an attachment : so that the question may be considered as still un- 
 settled. 
 
 The remedies against officers, for not opening their offices, on days which 
 are not licensed holydays, is by special action on the case for consequential 
 damages, (a) or by summary application to the court for an attachment :{b) 
 or, if they have taken improper fees, an action of assumpsit may be main- 
 tained for money had and received ; or the court will order them to be ra- 
 re) 2 Blac. Rep. 1316. 7 Durnf. & East, 336. [dd) 1 Chit. Rep. 400. (a) 
 \ee) 2 Blac. Rep. 1316. (/) 2 Smith R. 403. {</) 7 Durnf. & East, 336. 
 (h) Tweddale v. Fmnell, T. 56 Geo. III. K. B. 
 (t) T. 56 Geo. III. K. B. This case is not reported ; but is referred to in the case of 
 Martin v. Bold, 1 Taunt. 182. 2 Marsh. 487, S. C. 
 {k) 7 Taunt. 182. 2 Marsh. 487, S. C. 
 (a) 2 Blac. Rep. 1187. [b) 7 Taunt. 182. 2 Marsh. 487, S. C. 
 
 («
 
 gg OF THE OFFICERS OP THE COURTS. 
 
 funded. (c) And, in the Common Pleas, when a complaint is made against 
 an officer of the court, the judges will not refer it to the prothonotaries for 
 examination, but will examine it themselves. (t^) 
 
 The officers of the court of Exchequer of Pleas, are the clerk of the pleas, 
 and his deputy, who is called the mastei'. The clerk of the pleas is ap- 
 pointed by the chancellor of the Exchequer for life, or quamdiu se bene 
 qesserit, and the deputy or master, by the clerk of the pleas; and the busi- 
 ness of the master is to take minutes of what is done in court, draw up rules, 
 make reports on matters referred to him, tax bills of costs, allow bails, and 
 sign process, and judgments. The clerk of the pleas is also clerk of the 
 errors in the Exchequer Chamber : and his duty in that character is to allow 
 writs of error, certify transcripts, and attend the court of Exchequer Cham- 
 ber, and draw up rules thereon. The general business of the office is the 
 prosecution and defence of actions at common law, and the enrolment of 
 deeds; which business is transacted hj four sworn clerks or attorneys, ap- 
 pointed by the clerk of the pleas for life, and sixteen side clerks, or clerks 
 in court, /o?^r of whom are appointed by each of the attorneys. (t?) In this 
 court, the office of sealer of writs, &c., is executed by the under- secretary of 
 the chancellor of the Exchequer.f/) 
 
 Sheriffs may also, to some purposes, be considered as officers of the 
 courts ; and it is their duty to have deputies therein, to receive and return 
 writs and process :{g) which deputies are required to give their personal 
 attendance in Westminster hall, daily in term time.(7i) And, for the pre- 
 vention and remedy of delays and abuses in sheriffs, under-sheriffs, bailiffs of 
 liberties, and their deputies, and other bailiffs of sheriffs, &c. in the execution 
 of process and writs, it is a rule,(z') that "if any such officer shall wilfully 
 delay the execution or return of any process or execution, or shall take or 
 require any undue fees for the same, or shall give notice to the defendant, 
 thereby to frustrate the execution of any process or writ, or, having 
 [ *59 ] levied money, shall detain it in his hands, after the return of *the 
 writ besides the ordinary course of amerciaments, the contempt 
 or misdemeanor appearing, an attachment, information, commitment or fine 
 shall be, as the case requireth ; and this as well in case of a late, as the 
 present sheriff, &c." 
 
 There are other officers, who may here be noticed, though they are not 
 properly officers of the court. These are the officers who attend on the trial 
 of causes at nisi prius in London and Middlesex, consisting of the clerk of 
 wui j:?rms, associate and marshal, crier and train-bearer, who are appoint- 
 ed by the chief justice ; and the officers belonging to the different circuits, 
 namely, the clerk of assize, associate, clerk of arraigns, clerk of indict- 
 ments, judge's marshal, crier, clerk, steward, and tipstaff. (a) 
 
 (f) 2 Blac. Rep. 1314. 7 Durnf. & East, 336. 5 Taunt. 180. {d) 1 H. Blac. 105. 
 (e) See 5 Price, 559, n. ( f) Man. Ex. Append. 270. 
 
 [g) Stat. 23 Hen. VI. c. 9, R. M. 1654, ^ 1, R. E. 15 Car. IL reg. 4 K. B. R. M. 1654, § 1, R. 
 H. 14 & 15 Car. II. reg 1, R. H. 15 & 16 Car. 11. C. P. 
 
 {h) R. H. 21 Car. I. R. E. 15 Car. II. reg. 4 K. B. and see R. E. 23 Car. I. R. M. 1654, § 1, 
 K. B. R. M. 15 Eliz. i 4, R. M. 1654, g 1, R. H. 14 & 15 Car. II. rc^. 1, R. H. 15 & 16 Car. II. 
 C. P. 
 
 (i)R. M. 1654, § 2K. B. & C. P. 
 
 {a) For a more particular account of the Officers of the Courts, their appointment, duties, 
 and fees, &c. see the Report of the Select Committee of the House of Commons, respecting 
 Courts of Justice, 26 June^ 1798.
 
 OF THE ADMISSION OF ATTORNEYS. *G0 
 
 ♦CHAPTER III. 
 
 Of the Admission, Enrolment, Certificates, and Readmission of 
 Attorneys; their Privileges, Disabilities, and Duties, with the 
 Consequences of their Misbehaviour. 
 
 An Attorney is a person put in the place, stead, or turn of another, to 
 manage his concerns ; and may be either appointed to jjrosccute, or defend 
 an action, (rta) or other purposes. (6) Before the statute Westm. 11. (13 
 Edw. I.) c. 10, the parties to a suit coukl not have appeared by attorney, 
 without the king's special warrant, by writ or letters patent ; but must have 
 attended the court in person. (c) By the above and other ancient statutes, 
 a general liberty Avas given to the parties, of appearing and prosecuting or 
 defending their suits by attorney ;{d) in consequence whereof the increase 
 of attorneys was so great, that several acts of parliament were made to 
 regulate them, and limit their number."(e) And by the statute 3 Jac. 1 
 c. 7, § 2, it was enacted that " none should from thenceforth be admit- 
 ted attorneys, in any of the king's courts of record at Westminster, but 
 such as had been brought up in the same courts, or otherwise well prac- 
 ticed in soliciting causes ; and had been found by their dealings to be skil- 
 ful, and of honest dispositions." In confirmation of this statute, a rule was 
 made in both courts, that none should be admitted an attorney therein, un- 
 less he should have served, by the space of five years, as a clerk to some 
 judge, Serjeant at law, practising counsel, attorney, clerk or officer of one 
 of the courts at Westminster ; and were also, on examination, found of 
 good ability and honesty for such employments. (/) And it was then usual 
 to nominate twelve or more able practisers of the courts yearly, whose 
 business it was to examine such persons as should desire to be admitted 
 attorneys : which persons were first to attend the prothonotary, with their 
 proof of service, and then to repair to the persons appointed to examine 
 them, and on being approved, were to be presented to the court and sworn 
 in unless some just exception were made against them.(^) it was 
 also necessary that attorneys *should be admitted, and reside in [ *G1 ] 
 or near some inn of chancery, and keep commons there.(<a!) 
 
 At length, by the statute 2 Geo. II. c. 23, § 5, [continued by 12 Geo. 
 II. c. 13, § 3, and 22 Geo. II. c. 46, § 2, and made 2yerpetual by 30 Geo. II. 
 c. 11>, § 75,) it was enacted, that " no person shall be permitted to act as 
 an attorney, or to sue out any writ or process, or to commence, carry on, 
 or defend any action or actions, or any proceedings, either before or after 
 judgment obtained, in the name or names of any other person or persons, 
 in his majesty's court of King's Bench, Common Pleas, or Exchequer, or 
 duchy of Lancaster, or any of his majesty's courts of Great Sessions in 
 
 (aa) Com. Dig. tit. Attorney, A. B. (i) Id. C. and see 3 Black Com. 25. 
 
 (c) Co. Lit. 128, a, 2 Inst. 249, 378, F. N. B. 25. C. Gill'. C. P. 32. 
 
 {d) Com. Dig. tit. Attorneu, B. 5. 
 
 (e) 4 Hen. IV. c. 18. 33 Hen. VI. C. 7. See also the rules of M. 15 Eliz. § 10, T. 24 Eliz. 
 5 9, & H. 14 Jac. I. rcg. 2, § 2, C. P. 
 
 (/•) 11. M. 1654, 1 1, K. B. & C. P. and see R. H. 8 Car. I. § 3, C. P. 
 
 (V) II. M. 1654, 1 4, K. B. & C. P. 
 
 («) R. M. 1654, \ 1,R. M. 3 Ana. K. B. R. M. 1G54. \ 1. R. T. 29 Car. II. rcr,. 1. R. 11. 
 36 Car. II. R. M. 4 Ann. C. P.
 
 Ql OF THE ADMISSION 
 
 Wales or in any of the courts of the counties palatine of Chester, Lan- 
 caster and Durham, or in any other court of record in that part of Great 
 Britain called Ungland, wherein attorneys have been accustomably admit- 
 ted and sworn, unless such person shall have been bound, by contract in 
 writinq,{h) to serve as a clerk, for and during the space oi five years to an 
 attorney duly and legally sworn and admitted according to that act ; and 
 that such person, for and during the said term of five years, shall have 
 continued in such service ;(c) and also unless such person, after the expi- 
 ration, of the said term of five years, shall be examined, sworn, admitted, 
 and enrolled, in manner therien mentioned ; And in case any person shall 
 in his own name, or in the name of any other person, sue out any writ or 
 process, or commence, prosecute, or defend any action or suit, or any pro- 
 ceeding, in any of the courts of law aforesaid, or courts of Equity therein 
 mentioned, as an attorney or solicitor, for or in expectation of any gain, 
 fee, or reward, without being admitted and enrolled as aforesaid, every 
 such person, for every such offence, shall forfeit and pay 501. to the use 
 of the person who shall prosecute him for the said offence; and it is there- 
 by made incapable to maintain or prossecute any action or suit, in any 
 court of law or equity, for any fee, reward or disbursements, on account of 
 prosecuting, carrying on, or defending any such action, suit, or proceed- 
 ing."{d) The court of Common Pleas, however would not grant an at- 
 tachment against a person who had acted as an attorney of that court, 
 without having been admitted ; but left the party to sue for the penalty 
 given him by the statute 2 Geo. 11. c 23, § 24.((?) 
 
 By subsequent statutes, it is made penal for any person to act as an attor- 
 ney in the county court,(/) or at any general or quarter sessions of the 
 peace,(^^) unless such person shall have been duly admitted an attorney, and 
 enrolled as aforesaid. And by the statute 34 Geo. III. c. 14, § 4 
 [ *G2 ] " in case *any person, other than such who shall have been admit- 
 ted an attorney, in one of the courts of Great Sessions' in Wales, 
 or of the counties palatine of Chester, Lancaster, or Durham, or in some 
 other court of Record in England where attorneys have been accustomably 
 admitted and sworn, by virtue of a contract made before the 5th and 10th 
 days of February, 1794, respectively, and a service in pursuance thereof, 
 or who shall have been admitted a solicitor in one of the said courts of 
 Great Sessions, or of the said counties palatine, or some other inferior court 
 of equity in England, by virtue of a like contract and service, and accord- 
 ing to the directions of the several acts then in force for the regulation of 
 attorneys and solicitors respectively, shall in his own name, or in the name 
 of any other person, sue out any writ or process, or commence, prosecute 
 or defend any action or suit or any proceeding, in any of the said courts at 
 Westminster, as an attorney or solicitor, for or in expectation of any gain, 
 fee or reward, without being admitted and enrolled an attorney or solicitor 
 in one of the said courts at Westminster, according to the directions of the 
 several acts in force for the regulation of attorneys and solicitors, every such 
 person shall, for every such offence, forfeit the sum of one hundred pounds ; 
 
 (J) Append. Chap. III. § 1. 
 
 (c) But see 2 Blac. Rep. 734, 957, where attorneys were admitted hy the court of Commoa 
 Pleas, under special circumstances, though they had not regularly served the whole term of 
 five years under the original articles: and see 1 Chit. Rep. 14. 1 Dowl. & Ryl. 14. 
 
 {d) 2 Geo. II. c. 23, § 24, and see 7 Moore, 54, 3 Brod. & Bing. 241, S. C. 
 
 {e) 6 Moore, 70. (/) 12 Geo. II. c. 13, § 7. {gg) 22 Geo. II. c. 46, § 12.
 
 OF ATTORNEYS. 62 
 
 one moiety thereof to the use of his majesty, and the other moiety, with 
 full costs of suit, to the use of such person ^vho shall prosecute for the said 
 offence, hy action of deht, kc. in any of his majesty's courts of record at 
 Westminster : And such person is thereby also made incapable to maintain 
 or prosecute any action or suit, in any court of law or equity, for any fee, 
 reward or disbursements, on account of prosecuting, carrying on or defend- 
 ing any such action, suitor proceeding." An attorney therefore, who has 
 been admitted in one of the courts of Great Sessions in Wales, or of the 
 counties palatine of Clicster, Lancaster, or Durham, kc. since the 10th 
 day of February 1794, is not entitled to practise in the courts ^iWest- 
 minster, without being also admitted an attorney therein ; and he cannot be 
 so admitted, unless the highter duty was paid on his articles of clerkship. 
 
 There is a 2?roviso, however, in the statute 2 Geo. II. c. 23, § 20, that 
 " nothing therein contained shall extend, or be construed to extend, to the 
 examination, SAvearing, admission, or enrolment of the six clei'ks of the 
 court of Chancery, or the sworn clerks in their office or the waiting clerks 
 belonging to the said six clerks, or the cursitors of the said court, or of the 
 clerks of the petty bag office, or of the clerks of the king's coroner and 
 attorney in the court of King's Bench, or of the filacers of the same court, 
 or of the filacers of the court of Common Pleas at Westminster, or of the 
 attorneys of the court of the duchy chamber of Lancaster, or of the attor- 
 neys of the court of Exchequer at Chester, or of the attorneys of the courts 
 of the lord mayor and sheriffs of London respectively, for the time being ; 
 but that the said clerks, filacers, and attorneys respectively, shall and may be 
 examined, sworn, admitted, enrolled, and practise, in their respective courts 
 and offices aforesaid, in like manner as they might have been or done before 
 the making of that act." And, by the statute 49 Geo. III. c. 28, 
 § 1, " persons having *served a clerkship o^ five years, to some of [ *63 ] 
 the clerks of the king's coroner and attorney in the court of 
 King's Bench, who have been regularly admitted as such clerks, shall and 
 may be approved, sworn and admitted to practise, and may practise as 
 attorneys in the said court of King's Bench, and may also practise in any 
 other of the courts of record in the said recited act mentioned, in the name, 
 and with the consent of some sworn attorney of such court, such consent 
 to be in writing, and signed by such attorney as aforesaid, in like manner as 
 the attorneys of such court, or the attorneys or clerks of the offices of the 
 king's remembrancer, treasurer's remembrancer, pipe, or office of pleas in 
 the court of Exchequer at Westminster, are in and by the said act empow- 
 ered to do."(a) 
 
 Also, by the statute 1 & 2 Geo. IV. c. 48, § 1, (as amended by the statute 
 3 Geo. IV. c. 16, "in case any person, who shall have taken the degree of 
 bachelor of arts, or bachelor of law, either in the university of Oxford or 
 Cambridge, or in the university of Dublin, shall, at any time after he shall 
 have taken such degree, be bound by contract in writing to serve as a clerk, 
 for and during the space of three years, to an attorney or solicitor, &c. in 
 some or one of the courts of law or equity in the therein recited acts of the 
 second, seventh, and twenty-second years of the reign of king George the 
 second mentioned, and during the said term of three years shall continue in 
 such service, and during the whole term of such three years' service, shall 
 continue and be actually employed by such attorney or solicitor, or his 
 
 [a) 2 Geo. II. c. 23, g 27.
 
 (53 or THE ADMISSION 
 
 af^ent or a.o-ents, in the proper business, practice or employment of an attor- 
 ney or solicitor, and shall also cause an affidavit, or being one of the people 
 called Quakers, a solemn affirmation, of himself, or of such attorney or so- 
 licitor to whom he was bound as aforesaid, to be duly made and filed, that 
 he hath actually and really so served and been employed, during the said 
 whole term of three years, in like manner as is required by the said recited 
 acts with respect to persons thereby required to serve for the term of five 
 years, shall and may be qualified to be sworn, or take his solemn affirma- 
 tion, and to be admitted and enrolled as an attorney or solicitor respectively, 
 according to the nature of his service, in the several and respective courts of 
 law or equity, as fully and effectually to all intents and purposes, as any 
 person, have been bound, and having served five years, is qualified to be 
 sworn or take his solemn affirmation, and to be admitted or enrolled, un- 
 der or by virtue of the said recited acts, or any other act or acts for the 
 regulation of attorneys or solicitors in England. Provided always, that 
 nothing in this act contained shall extend to any person who shall have taken 
 such degree of bachelor of arts, unless such person shall have taken such 
 degree within six years next after the day when he shall have been first 
 matriculated in the said universities respectively ; nor to any person who 
 shall have taken such degree of bachelor of law, unless he shall have taken 
 
 the same within eight years after such matriculation ; nor to any 
 [ *64 ] person, who shall be bound *by contract in writing to serve as 
 
 clerk to an attorney or solicitor, under the provisions of this act, 
 unless such person shall be so bound within four years next after the day 
 when he shall have taken such degree. "(^) This i^roviso however, by a 
 subsequent statute, (6) does not apply to persons who had taken such 
 degrees, previous to the passing of the former act. 
 
 And, for the better preventing unqualified persons from being admitted 
 attorneys and solicitors, and for rendering the said act of 2 Geo. II. more 
 effectual, "every person who shall be bound, by contract in writing, to serve 
 as a clerk to any attorney or solicitor, as by the said act is directed, shall 
 within three months next after the date of every such contract, cause an 
 affidavit to be made and duly sworn, of the actual execution of every such 
 contract, by every such attorney or solicitor, and the person so to be bound 
 to serve as a clerk as aforesaid : and in every such affidavit shall be speci- 
 fied the names of every such attorney or solicitor, and of every such per- 
 son so bound, and their places of abode respectively, together with the day 
 of the date of such contract ;{c) and every such affidavit shall he filed, within 
 the time aforesaid, in the court where the attorney or solicitor to whom 
 every such person respectively shall be bound, hath been enrolled as an 
 attorney or solicitor, with the respective officers, or their deputies, therein 
 mentioned, who shall make and sign a memorandum, or mark the day of 
 filing every such affidavit, at the back or bottom thereof ;((i) and no person 
 who shall become bound as aforesaid, shall be admitted or enrolled an attor- 
 ney or solicitor, in any court in the said act mentioned, before such affidavit, 
 so marked by the proper officer, shall be produced, and openly read in the 
 court where such person shall be admitted and enrolled an attorney or solici- 
 tor." (e) The officers appointed for this purpose, are the chief clerk, or his 
 
 (a) § 4. And, for the form of an affidavit of execution of articles, &c. on this statute, see 
 Append. Chap. III. ^ 3. 
 
 (i) 7 Geo. IV. c. 44, | 5. (c) Append. Chap. III. g 2. 
 
 id) 22 Geo. II. c. 46, | 3. (e) d. \ 4.
 
 OF ATTORNEYS. 64 
 
 deputy, in the King's Bonch,(/) and the clerk of the warrants in the Com- 
 mon Pleas ;(/) who are directed to keep a book, wherein shall be entered 
 the substance of such affidavit, specifying the names and places of abode of 
 every such attorney or solicitor, and clerk or person bound as aforesaid, and 
 of the person making such aflidavit, with the date of tlic articles or contract, 
 and the days of swearing and filing every such affidavit respectively ; for 
 which a fee of two shillings and sixpence is allowed to ba taken, and no 
 more.(//) Indemnity acts, however, are occasionally passed, relieving per- 
 sons who have neglected to file their affidavits witliin the limited 
 time :(7i) And *in some of these acts,(a) there is a clause allowing [ *G5 ] 
 persons to make and file affidavits of the execution of articles of 
 clerkship, within a limited time, although the persons whom they served, 
 have neglected to take out their annual certificates. This clause, in the in- 
 demnity act of 4 Geo. IV. c. 1, was holden to be prosj^cctioe, as well as 
 retrospective ; extending to those persons who might be in default during 
 the time for which it was made, and not being limited to those who had 
 incurred penalties or disabilities, before it passed. (J) 
 
 By the last general stamp act,(6') a duty of one hundred and tiventy 
 pounds is imposed upon the articles or contract, whereby any person shall 
 first become bound to serve as a clerk, in order to his admission as an attor- 
 ney or solicitor, in any of his majesty's courts at Westminster ; and a duty 
 of sixty pounds, in any of the courts of Great Sessions in Wales, or coun- 
 ties palatine of Chester, Lancaster, and Durham, or in any other court of 
 record in England, holding pleas where the debt or damage amounts to 
 forty shillings ; and a duty of one pound fifteen shillings, for any counter- 
 part or duplicate of any such articles of contract of clerkship : which are in 
 lieu of all former duties previously imposed, as well on the articles or con- 
 tract, as on the amount of the premium paid with the clerk. This regula- 
 tion, being calculated to prevent improper persons from being admitted 
 into the profession, has been productive of the most beneficial consequences. 
 And by the statute 34 Geo, III. c. 14, § 2, "no person, who by any such 
 contract shall be bound to serve as a clerk as aforesaid, shall be admitted to 
 be a solicitor or attorney in any of the said courts, unless the indenture or 
 other writing containing such contract, duly stamped according to the direc- 
 tions of the said act, shall be enrolled or registered, with the proper officer 
 to be appointed for that purpose, in the court wherein such person shall pro- 
 pose to be afterwards admitted a solicitor or attorney, by virtue of his ser- 
 vice under such contract ; together with an affidavit of the time of the exe- 
 cution of the contract by such clerk : And in case such indenture or other 
 writing shall not be enrolled or registered in such court, within six months 
 
 (/) Id. ? 5. This section also appoints the proper officers for filing such aflidavits, in the 
 courts of Chaiicen/ and Exchequer, Duchy Chamber of Lancaster County Palatine courts, and 
 courts of Great Sessions in Wales. 
 
 iff) Id. I 6. 
 
 \h) See the statutes 37 Geo. III. c. 60, § 3*, c. 93*. 39 & 40 Geo. III. c. 72. 44 Geo. III. 
 c. 59*. 50 Geo. III. c. 4. 52 Geo. III. c. 26. 54 Geo. III. c. 5*. 55 Geo. III. c. 17. 56 
 Geo. III. c. 33. 57 Geo. III. c. 14. 58 Geo. III. c. 5*. 59 Geo. III. c. 11. 60 Geo. III. & 
 1 Geo. IV. c. 10. 1 & 2 Geo. IV. c. 5. 3 Geo. IV. c. 12*. 4 Geo. IV. c. 1*. 5 Geo. IV. c. 
 6*. G Geo. IV. c. 45*. 7 Geo. IV. c. 44, § 1, 2,* and 7 & 8 Geo. IV. c. 45. N. B. Such of 
 these statutes as are marked with an asterisk ,are to be found in the statutes at large. 
 
 (a) 58 Geo. III. c. 5, ? 7. 3 Geo. IV. c. 12, g 8. 4 Geo. IV. c. 1, § 8. 6 Geo. IV. c. 46. 
 
 \b) 2 Barn. & Cres. 34. 
 
 (c) 55 Geo. III. c. 184, Sched. Part. I. And, for the former duties, see the statutes 8 Ann. 
 c. 9, I 32, 37. 34 Geo. III. c. 14, § 1. 44 Geo. III. c. 98, Sched. A, and 48 Geo. III. c. 149, 
 Sched. Part I.
 
 g5 OF THE ADMISSION 
 
 next after the execution thereof, together with such affidavit of the time of 
 the execution of the contract, then the service of such clerk, under such in- 
 denture or writing, shall be deemed to commence from the time of such 
 enrolment or registry only, and not from the execution of such indenture or 
 writing." By a subsequent statute,(fZ) however, persons who shall have 
 paid the duties, within six months after execution of the articles 
 [ *QQ ] of ^clerkship, but shall have neglected to cause the necessary affi- 
 davits to be filed within the time required, were indemnified, on 
 filing them on or before the 10th October. 1826: but the commissioners of 
 stamps are prohibited by that statute, from stamping any articles of clerk- 
 ship, &c., after six months from the date thereof.(a) Where the original 
 articles of clerkship had been lost, the court of King's Bench, on motion, 
 ordered that the master should be at liberty to enrol a copy of them. (6) But 
 where a clerk had been articled to an attorney in the country, and the in- 
 dentures had been sent up to London, to be enrolled in the master's office, 
 pursuant to the statute, and after the clerkship had been served, no trace of 
 the indentures could be discovered in the master's office, the court refused 
 to admit him ; although it appeared from the books of the town agent, that 
 a clerk of the latter had paid the fees payable in the master's office upon 
 the enrolment, at the time when it was supposed to have taken place. (c) 
 
 No attorney or solicitor is allowed to have more than tivo articled clerks, 
 at the same i\m.Q',(dd) nor can take, have, or retain any clerk, who shall 
 become bound by contract in writing as aforesaid, after such attorney or soli- 
 citor shall have discontinued or left off, or during such time as he shall not 
 actually practise as, or carry on the business of an attorney or solicitor.(e) 
 And, by a rule of court of the King's Bench and Common Pleas,(/) " no 
 attorney who shall be retained or employed as a writer or clerk, by any 
 other attorney, shall, during the time of such employ, take or have any 
 clerk under articles ; and no service to any such attorney under articles, 
 during the time that such attorney shall be so employed by any other attor- 
 ney, shall be deemed good service:" which rule was determined by the 
 court of King's Bench, to have a retrospective operation ; it not being in- 
 troductive of any new regulation, but confirmatory of an old one.(^) And 
 where articles of clerkship appeared to have been entered into collusively, 
 between an attorney and a person who was and continued to act as a turn- 
 key of the King's Bench prison, for the purpose of securing the business of 
 the prisoners to the attorney, the court ordered them to be cancelled, (A) 
 
 With respect to the service in general, under articles of clerkship, it is 
 enacted, by the statute 22 Geo. , II. c. 46, § 8, that "every person who 
 shall become bound by contract in writing to serve any attorney or solicitor, 
 shall, during the whole time and term of service to be specified in such 
 contract, continue and be actually employed by such attorney or solicitor, 
 or his or their agent or agents, in the proper business, practice, or employ- 
 ment of an attorney or solicitor." By the above statute, it is necessaay 
 that a clerk, in order to be admitted an attorney, should actually serve jive 
 years under articles : Therefore, where a clerk had served part of his time 
 
 [d) 7 Geo. IV. c. 44, § 1. 
 
 (a) § 4. (b) 3 Barn. & Aid. 610. 
 
 (c) Dowl. & Ilyl. 429. 1 Barn & Cres. 264, S. C. 
 
 {dd) 2 Geo. II. c. 23, § 15. {e) 22 Geo. II. c. 46, § 7. 
 
 (/) R. T. 31 Geo. III. K. B. & C. P. 4 Durnf. & East, 379. 
 
 {g) 4 Durnf. & East, 492. {h) 1 Bur. 291.
 
 OF ATTORNEYS. 66 
 
 with a master who had left the country, and, before his articles 
 *were assigned to another master, an interval of ten months had [ *C7 J 
 elapsed during which he was not serving under any articles, but 
 under the assignment, he served the remainder of the time specified, the 
 court would not allow him to be admitted, until he had served out the te7i 
 months, under new articles. (a) And it has been holden, that the requisite 
 of the statute is not complied with, by the clerk's serving part of the time 
 with another attorney, though with his master's consent, and the rest of 
 the time with his master.(i) So, where a clerk to an attorney held, during 
 the term for which he was bound, the office of surveyor of taxes under the 
 crown, the court of King's Bench determined, that he could not be consi- 
 dered as having served his whole time and terra in the proper business of 
 an attorney ; and upon that ground, ordered him, after he had been admit- 
 ted to be struck off the roll.(c) In this case the clerk afterwards bound 
 himself to another attorney, and served him for tivo years ; at the expira- 
 tion of which time he was again admitted an attorney, upon an affidavit 
 stating that for more than three of the Jive years for which he was origin- 
 ally bound, his service had been given to the attorney to whom he was 
 articled ; and on moving to strike him off the roll, it was held, that his 
 service under the first articles, could not be coupled with his service under 
 the second, so as to entitle him to be admitted. (c^) But the court of Com- 
 mon Pleas refused to strike an attorney off the roll, on an affidavit which 
 stated that he had not served a regular clerkship : as he had been opposed 
 by counsel before a judge, on the same ground, at the time he was admit- 
 ted, and no misconduct or malpractice had been imputed to him, subse- 
 quently to such admission. (e) 
 
 There is a pr'oviso, however, in the statute 22 Geo. II. c. 4G. (/) that "if 
 any attorney or solicitor, to or with whom any such person shall be so bound, 
 shall happen to die, before the expiration of such term, or shall discontinue 
 or leave off such his practice as aforesaid, or if such contract shall by mutual 
 consent of the parties be cancelled, or in case such clerk shall be legally 
 discharged, by any rule or order of the court wherein such attorney or 
 solicitor shall practice, before the expiration of such term, and such clerk 
 shall in any of the said cases, be bound by another contract or other con- 
 tracts in writing to serve, and shall accordingly serve, in manner before 
 mentioned, as clerk to any other practising attorney or attorneys, solicitor 
 or solicitors respectively, during the residue of the said term of five years, 
 then such service shall be deemed and taken to be as good, effectual, and 
 available, as if such clerk had continued to serve as a clerk for the said term, 
 to the same person to whom he was originally bound ; so as an affidavit be 
 duly made and filed, of the execution of such second or other con- 
 tract or contracts, within the time, *and in like manner as is be- [ *GS ] 
 fore directed, concerning such original contract." And, by the 
 statute 34 Geo. III. c. 14, § 5, "if any person, having been articled to any 
 attorney or solicitor for the term of five years, and having duly paid the 
 duty by that act imposed, shall, on the event of such attorney or solicitor 
 dying, or leaving off his practice, or of such articles being cancelled or dis- 
 charged, or on any other event, before the expiration of such term of five 
 
 (a) 2 Chit. Rep. 61, 
 
 (b) 7 Durnf. & East, 456, but see the case ex parte Blunt, 2 Blac. Rep. 764. Ante, 61, (<?). 
 
 (c) 5 Barn. & Aid. 538. (d) 4 Barn. & Crcs. 341. 6 Dowl. k Rvl. 428, S. C. 
 («) 7 Moore, 572. 1 Bing. IGO, S. C. {/) g 9, and see stat. 2 Geo. H. c. 23, g 12.
 
 68 
 
 OF THE AD.A[ISSION 
 
 years enter into any subsequent contract, with any other attorney or soli- 
 citor to serve him as his clerk, for the residue of the said term of five 
 ^'•ears such last-mentioned contract shall not be subject to or chargeable 
 •with any of the duties by that act imposed. "(a) The duty of one pound 
 fifteen shillings, however, is payable, by the last general stamp act,(5) for 
 any articles of clerkship or contract, whereby any person shall become 
 bound to serve as a clerk, in order to his admission as an attorney or soli- 
 citor, for the residue of the term for which he was originally bound, in 
 consequence of the death of his former master, or of the contract between 
 them being vacated by consent, or by rule of court, or in any other event; 
 and for any counterpart or duplicate thereof. 
 
 An articled clerk, having served part of his clerkship with an attorney 
 who died before the expiration of his term, is, it seems, at liberty, even 
 after an interval of six years, to serve the remainder of his clerkship with 
 another attorney, with a view to his admittance :(c) And the court of 
 King's Bench granted a rule to discharge an articled clerk, where the at- 
 torney to whom he was bound had become bankrupt, and absconded ; and 
 directed the rule to be served at the last place of abode of the attorney, 
 and on the clerk to the commission of bankruptcy, and also to be stuck up 
 in the King's Bench office. (t?) This court has also a summary jurisdiction 
 over matters in difference between attorneys and their clerks : and, therefore, 
 where a clerk had misconducted himself, and left the service of the attor- 
 ney to whom he was articled, at the end of a year and a half, and the latter 
 refused to take him back in consequence of his previous misconduct, the 
 court referred it to the master, who decided that a portion of the premium 
 should be returned ; and this decision was confirmed by the court, though 
 the point in question had been decided otherwise in a suit in the Exche- 
 quer, (c) But the court refused to compel an attorney to execute an assign- 
 ment of articles of clerkship, where the clerk had been guilty of criminal 
 conversation with an attorney's wife, even though the attorney had pro- 
 mised to assign him over.(/) 
 
 It is a rule, that " no person who shall enter into articles with an attorney 
 or attorneys, shall be at liberty to serve the agent or agents of such 
 [ *69 ] attorney or attorneys, under such articles, for a longer time than *one 
 year of his clerkship : and any such service to an agent or agents, 
 beyond that time, shall not be deemed good service. "(aa) But, by the 
 statute 1 & 2 Geo. IV. c. 48, § 2, " if any person, bound by contract 
 in writing, to serve as a clerk for the space of five years, in manner men- 
 tioned in the therein recited acts, shall actually and bona fide be and con- 
 tinue as pupil to any practising barrister, or to any person bona fide prac- 
 tising as a certificated special pleader, in England or Ireland, for any part 
 or parts of the said term of five years, not exceeding one year, it shall be 
 lawful for the judge, or other sufficient authority, to whom such persons shall 
 apply to be admitted as attorney or solicitor, or upon affidavit or affirmation 
 of such clerk, and of such barrister or special pleader, to be duly made and 
 
 (a) And see the statutes 48 Geo. III. c. 149, § 10, & 55 Geo. III. c. 184, Sched. Part I. tit. 
 Articles of Clerkship. 
 
 (6) 55 Geo. III. c. 184, Sched. Part I. And, for the former duty, see the statutes 44 Geo. 
 III. c. 98, Sched. A. 48 Geo. III. c. 149, Sched. Part I. 
 
 (c) 1 Dowl. & Ryl. 14. {d) 1 Chit. Rep. 558, in noiis. 2 Chit. Rep. 62, S. 0. 
 
 (/) 3 Barn. & Aid. 257. 1 Chit. Rep. 694, S. C. 
 
 {f)Ex parte Briggs, M. 22 Geo. III. K. B. 
 
 [aa) R. T. 31 Geo. III. K. B. 4 Durnf. & East, 379.
 
 OF ATTORNEYS. 69 
 
 filed, and upon being satisfied that sucli person, so applying for admission, 
 had actually and really been and continued witli, and had been employed as 
 pupil by such practising barrister or special pleader as aforesaid, (but not 
 otherwise,) to admit such person as attorney or solicitor, in like manner as is 
 now done in cases where the clerk has served part of the term of his clerk- 
 ship, with the agent of the person to whom he has been bound." 
 
 And, to the intent that better information may be obtained, touching the 
 fitness and qualifications of persons applying to be admitted attorneys, there 
 arc rules in the king's Bench,(i) that " every person who shall intend to 
 apply for admission as an attorney in that court, and who shall not have 
 been admitted an attorney or solicitor of any other court, shall, for the space 
 of one full term previous to the term in which he shall apply to be admitted, 
 cause his name and place of abode, and also the name or names, and place or 
 places of abode of the attorney or attorneys to whom he shall have been 
 articled, written in legible characters, to be affixed on the outside of the 
 court of King's Bench, in such places as public notices are usually affixed 
 on, and in the King's Bench office; and also enter or cause to be entered, in 
 a book to be kept for that purpose, at each of the judges chambers of this 
 court, his name and place of abode, and also the name and place of abode of 
 the attorney or attorneys to whom he shall have been articled." And there 
 is a similar rule in the Common Pleas,(6') directing the notice to be affixed 
 on the outside of the court, in such places as public notices are usually 
 affixed on, and to be left at each of the judges chambers of that court, and 
 there fixed up in some conspicuous place, and that such notice shall like- 
 wise be fixed up, for the like time, in the Common Pleas office. This notice 
 must be put up for the term immediatelu preceding that in which the appli- 
 cation is made for admission. (c?) And, in the King's Bench, 
 where an *attorney's clerk has served part of his time with one [ "70 ] 
 attorney, and part with another to whom the articles were assigned, 
 the name of the assignee must be inserted in the notice of intention to 
 apply for admission. (a) 
 
 Before a clerk can be admitted an attorney or solicitor, he is required to 
 cause an affidavit, of himself or the attorney or solicitor to whom he was 
 bound, to be duly made and filed with the proper officer appointed for that 
 purpose, (being, in the King's Bench, the chief clerk or his deputy, and, in 
 the Common Pleas, the clerk of the warrants,) that he hath actually and 
 really served, and been employed by such practising attorney or attorneys, 
 solicitor or solicitors, to whom he was bound as aforesaid, or his or their 
 agent or agents, during the said Avhole term of five years, according to the 
 true intent and meaning of the statute 22 Geo. II. c. 40, § 10. (^/) And, in 
 the Common Pleas, it is a rule, that "every person who shall be admitted 
 an attorney of that court, not being already an attorney of the King's ]]cnch, 
 or a solicitor in Chancery, or in the court of Exchequer, shall, before he is 
 sworn, file, with the secondary, his articles of clerkship, together with the 
 affidavit of the due execution thereof, and also the affidavit of the due ser- 
 vice under such articles, and of the notice having been given pursuant to the 
 
 {b) R. T. 31 Geo. III. K. B. 4 Dnrnf. & East, 379. R. T. 33 Geo. III. K. B. 5 Durnf. & 
 East, 3G8. And for the form of the notice, and affidavit tliereof, see Append. Chap. III. § 4, 5. 
 
 (r) R. T. 31 Geo. III. C. P., and see N. M. 2 Geo. II. 2, C. P. Append. Chap. III. g 4. 2 
 Marsh. 43, [a). 
 
 (d) 6 Taunt. 335. 2 Marsh. 48, S. C. 
 
 [a) 1 Chit. Rep. 556. (6) Append. Chap. III. I 5, G, K. B.
 
 7Q or THE ADMISSION, AND 
 
 rule of Trin. 31 Geo. III."(^') ^^ affidavit is also required to be made by 
 the person to be admitted, of the payment of the duty imposed on the arti- 
 cles or contract of service ; in which he shall insert the sum paid in respect 
 thereof, and shall specify the name and place of abode of the person or per- 
 sons with whom such contract of service was entered into, the time of the 
 execution thereof, and the time of enrolling or registering the same, and, in 
 case. such person shall have been previously admitted a solicitor or attorney 
 in some other court, shall also specify in such affidavit the court in which he 
 has been so admitted, and the time of his admission therein \{d) and shall 
 cause the same to be duly filed in the court in which he proposes to be so 
 admitted a solicitor or attorney, with the proper officer appointed for 
 receiving and filing such affidavits ; and every such affidavit shall be pro- 
 duced, and openly read in the court in which such person shall be admitted 
 a solicitor or attorney, before he shall be enrolled or registered therein. (c^) 
 The oath (or affirmation, if by a Quaker,) required to be taken before 
 admittance, is that the person to be admitted will truly and honestly demean 
 himself, in the practice of an attorney, according to the best of his know- 
 ledge and ability :(/) besides which, he has taken the oaths of allegiance 
 
 and supremacy, and to subscribe the declaration against popery •,{g) 
 [ *71 ] *or, if a Roman Catliolic, the declaration and oath prescribed by 
 
 the statute 31 Geo. III. c. 32, § l.(«) But the judges of the court, 
 or one or more of them, before they admit any person to take the said oath 
 or affirmation, are to examine and inquire, by such ways and means as they 
 shall think proper, touching his fitness and capacity to act as an attorney, 
 and if such judge or judges respectively shall be thereby satisfied, that such 
 person is duly qualified to be admitted to act as an attorney, then, and not 
 otherwise, the said judge or judges are to administer in open court to such 
 person, the said oath or affirmation ; and after such oath or affirmation to 
 cause him to be admitted an attorney, and his name to be enrolled as an 
 attorney in such court, without any fee or reward, other than one shilling 
 for administering the oath or affirmation ; which admission shall be written 
 on parchment, in the English tongue, in a common legible hand, and signed 
 by such judge or judges respectively, whereon the lawful stamps shall be 
 first impressed, and shall be delivered to the person so admitted. (66) The 
 stamp duty on admission, by the last general stamp act,(c) amounts to 
 twenty-jive pounds, unless the person has been before admitted an attorney, 
 in one of the courts mentioned in the statute 2 Geo. IL c. 23, § b.{d) And 
 the chief clerk or his deputy in the King's Bench, and clerk of the warrants 
 or his deputy in the Common Pleas, are required, without fee or reward, to 
 enroll, the name of every person who shall be admitted an attorney, therein, 
 
 (c) R. T. 37 Geo. III. C. P. 1 Bos. & Pul. 90. Append. Chap. III. g 7, 8. 
 
 \d) Append. Chap. III. ? 9, 10. (e) 34 Geo. III. c. 14, I 3. 
 
 (/) 2 Geo. II. c. 23, § 13. 12 Geo. II. c. 13, % 8. Append. Chap. III. § 11. And for the 
 form of the oath anciently taken, on the admission of attorneys in the Common Pleas, see 
 R. M. 1654, I 26, C. P. 
 
 (^) 7 & 8 W. III. c. 24. 13 W. III. c. 6, § 3. These oaths may be taken, and the declara- 
 tion subscribed, in the King's Bench, before a single judge, in tlie bail court, by stat. 1 Geo. 
 IV. c. 55, I 4. 
 
 (a) For the form of a rule of court, for the admission of an attorney on this statute, see 
 Append. Chap. III. I, 12. And, for the disabilities of jRomfm Cff//io?i'c5, and the statutes which 
 have been passed for their relief, &c., see a very learned and elaborate note by Mr. Butler, 
 in his valuable edition of Co. Lit. p. 391, (a). {hh) 2 Geo. II. c. 23, | 6. 
 
 {c) 55 Geo. III. c. 184, Sched. Part I. And for the former duty, see the statutes' 44 Geo. 
 III. c. 98, Sched. A. 48 Geo. III. c. 149, Sched. Part I. {d) Ante, 61.
 
 ENROLMENT OF ATTORNEYS. 71 
 
 and the time when admitted, in an alphabetical order, in rolls or books to be 
 provided and kept for that purpose in their respective offices ; to which rolls 
 or books all persons may have free access, without fee or reward. (e;) An- 
 ciently it appears there Avere rolls kept of the attorneys, in the King's Bench ; 
 but after the stamp acts, that method was disused, and books kept in lieu of 
 them.(/) These books were considered in one case,(/) merely as minutes 
 to make up the record, and a warrant to the officer for that purpose : But 
 from the evidence given in a subsei^uent case,((/) it appears that when an 
 attorney is admitted, and takes the oaths, he subscribes a roll, which is 
 the original roll of attorneys ; whence the names are copied into the above 
 books. The record of admission is of so high an authority, that if an 
 exemplification of it be annexed to a plea of privilege, the plaintiff must 
 reply nul tiel record, and cannot otherwise try the fact of the defendant's 
 being an attorney.(/i) 
 
 The habitations, however, of many attorneys practising in the court of 
 King's Bench, resident in and near the cities of London and 
 Westminster, *being often very difficult to be found, whereby it [ *72 ] 
 was impracticable duly to serve them with notices, summonses, 
 orders and rules, to the great delay of the proceedings, a rule was made 
 in this court, (a) that the master should forthwith cause to be prepared a 
 proper alphabetical book, for the purposes after mentioned ; and that the 
 same should be publicly kept at the master's office in the King's Bench 
 walk, to be there inspected by any attorney or his clerk, without fee or 
 reward ; and that every attorney practising in this court, and residing in 
 London dindi Westminster, or within ten miles of the same, should before 
 the first day of the then next term, enter in such beok, in alphabetical 
 order, his name and place of abode, or some other proper place, within 
 the cities of London and Westminster, where he might be served with such 
 notices, summonses, orders and rules; and it is thereby required, that 
 " every attorney afterwards to be admitted, and practising and residing 
 as aforesaid, shall, upon his admission, make the like entry ; and that as 
 often as any such attorney shall change his place of abode, or the place 
 where he may be so served with notices, summonses, orders and rules, he 
 shall make the like entry thereof, in the said book ; and that all notices, 
 smmonses, orders and rules, which do not require a personal service, shall 
 be deemed sufficiently served on such attorney, if a copy thereof shall be 
 left at the place lastly entered in such book, with any person resident at 
 or belonging to such place ; and if any such attorney shall neglect to 
 make such entry, that then the fixing up of any notice, or the copy of any 
 summons, order or rule, for such attorney, in the said master's office, 
 shall be deemed a sufficient service, unless the matter bo such as shall 
 require a personal service." In conformity to this rule, it is usual for 
 practitioners, who live remote from the inns of court or chancery, to add 
 to the place of their abode, the name and place of abode of some other 
 person, where and with whom notices, summonses, orders, rules and other 
 proceedings that do not require personal service, may be left for them, 
 near to such inns :{b) But when the name and place of abode of the 
 attorney are entered, then service at that place is the proper service. (c) 
 
 (c) 2 Geo. II. c. 23, § 18. ( /•) 1 Str. 76, 7. (.7) 2 Esp. Rep. 526. 
 
 (h) 1 Ld. Raym. 336. 7 Mod. 106. 2 Salk. 545. 6 .Mod. 305. 2 Ld. Raym. 1172. 1 Str. 
 
 76, 532. (a) R- H. 3 Geo. III. K. H. 
 
 (6) Imp. K. B. 10 Ed. 33. (c) LoiTt, 357. 
 
 Vol. I.— 6
 
 72 OF THE ADMISSION, AND 
 
 An attorney, s-worn admitted and enrolled in any of the courts of law, 
 mentioned in the statute 2 Geo. 11. c. 23,(f7) may be sworn admitted and 
 enrolled a solicitor, in all or any of the courts of equity therein men- 
 tioncd,(g) without any fee for the oath, or stamp on the parchment whereon 
 such admission shall be written :(/) And an attorney in any of his 
 majesty's courts of record at Westminster, is capable of being admitted to 
 practise as an attorney in any inferior court of record, provided he be in 
 all other respects capable and qualified to be admitted an attorney, accord- 
 ing to the usage and custom of such inferior court. (^) So, a solicitor in 
 any of his majesty's courts of equity at Westminster, may be 
 [ *73 ] sworn admitted and *enrolled an attorney of his majesty's court 
 of King's Bench or Common Pleas at Westminster. {a) And a 
 solicitor in any of the courts of equity mentioned in the statute 2 Geo. 
 II. c. 23, may be sworn admitted and enrolled a solicitor in all or any of 
 the other courts of equity, or in any inferior court of equiety.(55) An 
 admitted attorney of the court of King's Bench may sue out a commission 
 of bankrupt, and maintain an action for his fees and disbursements thereon, 
 although he be not a solicitor in Chancery.((?c) But a solicitor on the 
 equity side of the court of Exchequer, is not entitled, as such, to practise 
 in the Court of Chancery ; nor, if he do, can he maintain an action for 
 the amount of his bill :{dd) And it seems, that a solicitor of the latter 
 court cannot, by consent in writing, authorize a solicitor of the court of 
 Exchequer to practise there in his name.(eg) 
 
 It is also declared to be lawful, for any person who shall be sworn ad- 
 mitted and enrolled to be an attorney, in any of his majesty's courts of record 
 at Westminster, &c. by and with the consent and permission of any attor- 
 ney, in any of the said other courts of record, &c. such consent being in 
 writing, signed by such attorney, and in the name of such attorney, to sue 
 out any writ or process, or to commence, carry on, prosecute or defend any 
 action or actions, or any other proceedings in such court, notwithstanding 
 such person is not sworn or admitted to be an attorney of such court.(^) 
 And where an attorney acts in the name of another, a demand of costs by 
 the acting attorney is good.(^(/) But where an attorney's name had been set 
 to process without his authority, the court ordered the proceedings to be 
 set aside, and granted an attachment against the plaintiif's attorney.(7i) So, 
 where process in the Common Pleas appeared to have been sued out in the 
 name of A. by B., neither of whom were attorneys of this court, and B. had 
 no authority from any other attorney to act in his name, the court set aside 
 the proceedings, and ordered A. and B. to pay the costs, (z) And where 
 judgment was entered up by an attorney's clerk, in the name, but without 
 the knowledge or consent of a regular attorney, it was ordered to be set 
 aside. (A;) 
 
 By the statute 2 Geo. II. c. 23, § 17, " if any person, who shall be a sworn 
 attorney of any of the courts of law aforesaid, shall knowingly and willingly 
 permit or suffer any other person or persons to sue out any writ or process, 
 
 ^d) § 1. (,) ^ 3. 
 
 (/) I 20, and see stat. 34 Geo. III. c. 14, § 5. 44 Geo. III. c. 98, Sched. A. 48 Geo. III. c. 
 149, Sched. Part I., and 55 Geo. III. c. 184, Sched. Part I. (g) 6 Geo. II. c. 27, § 2. 
 
 (ff) 23 Geo. II. c. 26, § 15. (66) 2 Geo. II. c. 23, ^ 21. 
 
 {cc) 1 Barn. & Cres. 158. 2 Dowl. & Ryl. 302, S. C. 
 
 (dd) 4 Taunt. 452, but see 1 H. Blac. 50, semb. contra. {ee) 4 Taunt. 452. 
 
 iff) 2 Geo. II. c. 23, § 10. [gg) Say. Rep. 95. (A) 1 Bur. 20. 
 
 (i) 4 Moore, 603. i^) 5 Bur. 2660.
 
 ENROLMENT OF ATTORNEYS. 73 
 
 or to commence, prosecute, follow, or defend any action or actions, or other 
 proceedings, in his name, not being a sworn attorney of one of the said other 
 courts of law, or a sworn solicitor of the court of Chancery, or other 
 court of equity, and shall be thereof lawfully convicted, every person so 
 convicted shall, from the time of such conviction, be disabled and made in- 
 capable to act as an attorney in any of the courts of laAv aforesaid ; 
 and the admittance of such person •to be an attorney of any of the [ *74 ] 
 said courts of law, shall from thenceforth cease and be void." 
 And, by a subsequent act,(«) " if any sworn attorney or solicitor shall act as 
 agent for any person or persons not duly qualified to act as an attorney or 
 solicitor, or permit or suffer his name to be any ways made use of, upon the 
 account or for the profit of any tinqualified person or persons, or send any 
 process to such unqualified person or persons, thereby to enable him or 
 them to appear, act, or practise in any respect as an attorney or solicitor, 
 knowing him not to be duly qualified as aforesaid, and complaint shall be 
 made thereof in a summary way, to the court from whence any such pro- 
 cess did issue, and proof made thereof upon oath, to the satisfaction of the 
 court, that such sworn attorney or solicitor hath offended therein as afore- 
 said, then every such attorney or solicitor so offending shall be struck off 
 the roll, and for ever after disabled from practising as an attorney or solici- 
 tor ; and in that case, and upon such complaint and proof made as aforesaid, 
 it shall and may be lawful to and for the said court to commit such unquali- 
 fied person, so acting and practising as aforesaid, to the prison of the said 
 court, for any time not exceeding one year." 
 
 The courts, in several recent instances, have proceeded on this statute, by 
 ordering attorneys, who have acted as agents for, or suffered their names to 
 be made use of, upon the account or for the profit of unqualified persons, to 
 be struck off the roll ; and the unqualified persons to be committed to pri- 
 8on.(6) And where a bailiff had written to an attorney for writs which the 
 latter sent without knowing anything of the parties or circumstances ; but 
 the bailiff had never represented himself, or been considered as an attorney, 
 nor looked for any profit upon the law proceedings ; the court of King's 
 Bench held, that though this was not a case within the statute, yet that it 
 was a most improper practice, which the court, in virtue of its general juris- 
 diction over attorneys, would punish severely, (c) But the court of Common 
 Pleas refused to strike an attorney off the roll, on an aflidavit which stated, 
 that the person who had lately been his clerk, and who lived at a town eight 
 miles distant from the residence of the attorney, and carried on business at 
 an office, over the door of which was written the attorney's name, but that 
 he only attended on market days, and then transacted all his business at an 
 inn ; on the ground that it should have been shown that such person either 
 participated in the profits, or carried on business on his own account. (tZ) In 
 proceeding against an unqualified person, for practising in the name of an 
 attorney, contrary to the provisions of this statute, the party is not 
 entitled to have the "witnesses in support of the charge examined [ *75 ] 
 
 [a) 22 Geo. II. c. 46, ? 11. See also the statute 3 Jac. I. c. 7, § 2, and R. M. 1654, g 1, 
 K. B., by which rule, attorneys dismissed by one court from their practice for misdemeanors, 
 are not, after certificate, to be admitted to practise in another court, it being contrary to the 
 intent of the law : And see R. M. 6 & 7 Eliz. § 4. R. M. 15 EHz. § 8. R. T. 24 Eliz. J 6 
 R. M. 1654, § 1. R. H. 14 & 15 Car. II. reg. 2, C. P. 
 
 {h) 2 Dowl. & Ryl. 64. 1 Barn. & Cres. 270. 3 Dowl. & Ryl. 263, [a), S. C. Id. 260. 8 
 Moore, 214, 322. 1 Bing. 272, S. C, and see 5 Barn. & Cres. 108. 7 Dowl. & Ryl. 548, S. C. 
 
 (c) 5 Barn. & Aid. 824*. {d) 9 Moore, 157. 2 Bing. 74, S. C.
 
 Y5 OF TUE CERTIFICATES OF ATTORNEYS. 
 
 vivd voce; but after the matter had been referred, by consent of 
 counsel to the master of the crown office, who reported the party in con- 
 tempt, the court of King's Bench allowed him to bring the whole of the 
 case under their own consideration, when brought up to be committed. (a) 
 And, in the Common Pleas, after the court had ordered the parties to be at- 
 tached, and give bail to answer interrogatories before the prothonotary, who 
 reported them to be in contempt, for not having satisfactorily answered the 
 interrogatories put to them ; such report was holden not to be conclusive on 
 the parties, but that they might take exceptions to any specific or material 
 parts of it. (5) And where, after the prothonotary had made his report, it 
 appeared that certain books of account had not been laid before him, which 
 tended to support the answers given by one of the parties ; the court ordered 
 the prothonotary to inspect them, but would not allow a clerk who had 
 made the entries therein, to be examined by the prothonotary, on an appli- 
 cation made by the prosecutor for that purpose. (5) 
 
 It will next be proper to consider the, cei'tificates of attorneys, which were 
 first required by the statute 25 Geo. III. c. 80. And, by a subsequent sta- 
 tute,(c) " every person admitted, sworn and enrolled a solicitor or attorney, 
 &c. in any of his majesty's courts at Westminster, &c. or in any other court 
 in England, holding place where the debt or damage shall amount io forty 
 shillings or more, shall annually, between the first day of November and 
 the end of 3Iichaelmas term then next following, during such time as he 
 shall continue so to practise in any of the said courts, or before such person 
 shall commence, carry on or defend any action or suit, or any proceedings 
 whatsoever, in any of the said courts, deliver in to the commissioners of the 
 stamp duties, or to their officer appointed for that purpose, at the head office 
 of stamps in 3Ilddlesex, a paper or note in writing, containing the name and 
 usual place of residence of such person : and thereupon, and upon payment 
 of the duties, according to the place of his residence, every such person shall 
 be entitled to a certifioate, duly stamped, to denote the payment of the said 
 duties ; which certificate the said commiisioners shall cause to be immedi- 
 ately issued, under the hand and name of the proper officer, in such form as 
 they shall devise." The period fixed for attorneys, &c. to take out their 
 annual certificates, and pay the stamp duty thereon, was altered by the sta- 
 tute 54 Geo. III. c. 144,(J5) by which it is enacted, that " all attorneys, &c. 
 who by the laws in force would be bound to take out stamped certificates, 
 and pay the duty thereon, at the head office of stamps m Middlesex, annually, 
 between the first day of November and the end of Michaelmas term fol- 
 lowing, shall in future take out such certificates, and pay the duty thereon, 
 and do all other acts necessary for that purpose, annually, between the 
 fifteenth day of November and the sixteenth day of December in each 
 year; and in default thereof shall be subject and liable to such and 
 [ *TG ] the same penalties, forfeitures *and disqualifications, as they would 
 have been, under the laws then in force, for not taking out such 
 certificates, within the period first above mentioned : And that all certifi- 
 cates, which shall be taken out between the fifteenth day of November and 
 the sixteenth day of December in any year, by attorneys, &c., thereby 
 required to take out the same within that period, shall be dated on the six- 
 teenth day of November ; and all certificates which shall be taken out by 
 any such persons at any other time, shall be dated on the day on which 
 
 {a) 2 Dowl. & Ryl. 64. {I) 8 Moore, 214. 1 Bing. 272, S. C. ^ 
 
 (c) 37 Geo. III. c. 90, g 26, 28. [dd] § 13, 14. '
 
 OF THE CERTIFICATES OF ATTORNEYS. 7(5 
 
 the same shall be granted ; and all such certificates respectively shall have 
 effect and continue in force from the day of the date hereof, until the fif- 
 teenth day of November following, both inclusive, and no longer." But 
 an attorney may sue by attachment of privilege, though his certificate has 
 expired, and not been renewed, if the writ be sued out within a year trom 
 the expiration of his certificate. (a) 
 
 The duties now payable for certificates, under the last general stamp 
 act,(6) are tivelve pounds yearly, by every person admitted as an attorney 
 or solicitor, in any of his majesty's courts at Westminster, &c., if he shall 
 reside in the city of London or Westminster, or within the limits of the 
 two-penny post in England, or within the city or shire of Edinhurrfh, and 
 shall have been admitted, or in possession of his office, for the space of three 
 years or upwards ; or if he shall not have been admitted or in possession so 
 long, six pounds : and if he shall reside elseivhere, and have been admitted 
 or in possession of his office, for the space of three years or upwards, eight 
 pounds ; or if he shall not have been admitted or in possession so long, 
 four pounds. 
 
 And, by the 37 Geo. III. c. 90,((7) " every certificate so to be obtained 
 as therein mentioned, shall be entered in one of the courts in which the 
 person described therein shall be admitted and enrolled, with the respec- 
 tive officer or officers of the said courts, appointed by the 25 Geo. III. c. 
 80, to grant certificates of enrolment or admission, within the time therein 
 before prescribed, or before such person shall be permitted to practise as 
 aforesaid ; and the said respective officers shall from time to time, upon 
 payment of the fee of one shilling, enter, in alphabetical order, the names 
 of the persons described in such respective certificates, together with the 
 places of such their residence as aforesaid, and the respective dates of 
 such certificates, in books or rolls to be prepared for that purpose ; to 
 which books or rolls, in the said courts respectively, all persons shall 
 and may at seasonable times have free access, without fee or reward." 
 
 By the same statute,((^) "if any person shall, in his own name, or in 
 the name of any other person or persons, sue out any writ or process, or 
 commence, prosecute, carry on or defend any action or suit, or any pro- 
 ceedings, in any of the courts aforesaid, for or in expectation of 
 any gain, *fee or reward, or shall do any act in any of the said [ *77 ] 
 courts, as an attorney of such court, without obtaining a certifi- 
 cate in the manner before directed, or without entering the same in one 
 of the courts aforesaid, wherein such person shall be admitted or enrolled 
 as an attorney, &c. ; or shall deliver in to any person, at tho said head 
 office, any account, containing a place of residence, as the place of his 
 residence, contrary to the directions of the said act of the 2oth year of 
 the reign of his late majesty, with intent to evade the payment of the 
 higher duties, every such person shall, for every such offence, forfeit and 
 pay the sum of fifty pounds ; and shall be made incapable to maintain or 
 prosecute any action or suit, in any court of law or equity, for the reco- 
 vering of his fees, &c." But it is no ground of objection to bail,(rta) nor 
 for cancelling a bail bond,(6) or setting aside proceedings, that the attor- 
 
 (a) 2 Maule k Sel. 605. 5 Manle & Sel. 281. 
 
 (6) 55 Geo. III. c. 184, Sche.d. Part I. Aud, for the former duties, see the statutes 44 Geo. 
 III. c. 98, Sched. A. 48 Geo. III. c. 140, Sched. Part I. 
 (c) I 27. [d) § 30. {aa) 2 Chit. Rep. 98. 
 
 {b) 1 Dowl. &Ryl. 215.
 
 'jj OF THE CERTIFICATES OF ATTORNEYS. 
 
 ney by whom the bail was put in, or who sued out the writ, had neglected 
 to take out his certificate: and the circumstance of the plaintiff's cause 
 havintr been conducted by an attorney, who has not obtained his certifi- 
 cate, does not deprive the plaintiff of his right to full costs against the 
 defendant.(c) 
 
 Also, by the statute 44 Geo. III. c. 98, § 14, "every person who shall, 
 for or in expectation of any fee, gain or reward, directly or indirectly, 
 draw or prepare any conveyance of, or deed relating to, any real or per- 
 sonal estate, or any proceedings in law or equity, other than and except 
 Serjeants at law, barristers, solicitors, attorneys, notaries, proctors, agents 
 or procurators, having obtained regular certificates, and special pleaders, 
 draftsmen in equity, and conveyancers, being members of one of the four 
 inns of court, and having taken out the certificates mentioned in the sche- 
 dule to that act annexed, and other than and except persons solely employed 
 to engross any deed, instrument, or other proceedings, not drawn or prepared 
 by themselves, and for their own account respectively, and other than and 
 except public officers, drawing or preparing oflicial instruments, applicable 
 to their respectire ofiices, and in the course of their duty, shall forfeit and 
 pay for every such offence, the sum o^ fifty pounds : Provided always, that 
 nothing therein contained shall extend, or be construed to extend, to pre- 
 vent any person or persons drawing or preparing any will or other testa- 
 mentary papers, or any agreement not under seal, or any letter of attor- 
 ney." The certificates required by the above statute are subject, by the 
 last general stamp act,(iZ) to the duty of 12/. if the party reside in the 
 city of London or Westmiiiste?; or within the limits of the two-penny post 
 in England^ or 8?. if he shall reside elsewhere: But, under the latter act, 
 such persons only are qualified to practise, as are members of one of the 
 four inns of court, &c.(e) A certificated conveyancer may maintain an 
 action for his fees.(/) 
 
 An attorney is liable to penalties, for practising without obtaining or 
 
 entering his certificate, according to the provisions of the statute 
 [ *78 ] 37 Geo. *III. c. 90, § 26, 30, though no power to sue is expressly 
 
 given by that statute ; for the 25 Geo. III. c. 80, § 29, which gives 
 that power, and the 37 Geo. III. c. 90, are in jyari materid.[aa) And if an 
 attorney be in partnership with another, and they carry on their business 
 together, and their joint names are put on their papers in causes in their 
 ofiice, either of them is liable to the penalties of the last mentioned act, for 
 practising as an attorney, without entering his certificate ; though it do not 
 appear that one of them had any profit or advantage from the suit for which 
 the qui tarn action is brought.(6i) The consequence is, and it has been 
 accordingly determined, that two attorneys or proctors cannot be sued toge- 
 ther, as for one offence, in practising without having obtained and entered 
 their certificate. (c(?) It has likewise been determined, that the certificate 
 act does not extend to the county court, though an attorney prosecute a 
 suit there, by virtue of a writ oi justicies, for more than 40s.((:?5) But, by 
 the statute 44 Geo. III. c. 98, § 10, the penalties incurred by virtue of that 
 
 (c) 3 Bing. 9. 10 Moore, 261, S. C. 
 
 {(l) 55 Geo. III. c. 184, Sched. Part I. {e) Holt. Ni. Pri. 528. 
 
 (/) 3 Barn. & Ores. 744. 5 Dowl. & Ryl. 648, S. C. 6 Dowl. & Pvjl. 4, S. P. 
 
 (aa) 3 Bos. & Pul. 386. 1 New Rep. C. P. 245, S. P. 2 East, 5C9, contra. 
 
 (bh) 4 Esp. Rep. 14. (cc) 1 New Rep. C. P. 245. 2 East, 569, contra. 
 
 (dd) 6 Durnf. & East, 663.
 
 OF THE RE-ADMISSION OF ATTORNEYS. 78 
 
 or any other act of parliament, relating to tlie stamp duties, can only be 
 recovered in the name of the attorney general. And acts of indemnity are 
 occasionally passed, to relieve attorneys who have neglected to take out 
 their certificates in due time.(c') 
 
 As a further inducement for attorneys to take out their certificates, it is 
 enacted, by the statute o7 Geo. III. c. *.'0,(/) that " every person admitted, 
 sworn and enrolled in any of the courts therein mentioned, who shall neglect 
 to obtain his certificate thereof, in the manner before directed, for the 
 space of one whole year, shall from thenceforth be incapable of practisin"- 
 in his own name, or in the name of any other person, in any of the said 
 courts, by virtue of such admission, enti-y and enrolment of such person, 
 in any of the said courts, shall from thenceforth be null and void. Pro- 
 vided always, that nothing therein before contained shall be construed to 
 prevent any of the said courts from re-admitting any such person, on 
 payment to the commissioners, of the duty accrued since the expiration of 
 the last certificate obtained by such person, and such further sum of money, 
 by way of penalty, as the said court shall think fit to order and direct. "(^) 
 On the above statute, it has been holden, in the Common Pleas, that where 
 a person is admitted an attorney, and omits to take out his certificate 
 ■within the year, he must be re-admitted before he can practise, thouf^h he 
 should never have practised on his former admission. (7i) And, in the 
 King's Bench, where an attorney has discontinued practice, after the 
 expiration of his certificate, though in consequence of pecuniary difliculties 
 and *illness,(a) or of absence abroad,(?») a term's notice must be 
 stuck up, and entered at the judges' chambers, for the purpose [ *79 1 
 of re-admitting him, in like manner as upon original admission. (c) 
 But where an attorney continued to practise, after the expiration of his 
 certificate, through the inadvertence or misconduct of his agent or clerk, 
 in neglecting to get it renewed, the court, on an afiidavit of the circum- 
 stances, will re-admit him, without giving a term's notice.(t'Z) And where 
 the certificate of an attorney of the Common Pleas, has been, througli the 
 mistake of his agent, filed in the King's Bench, where he was not admitted, 
 for four successive years, such certificate was allowed to be entered and 
 filed in the Common Pleas, on notice of the application being given to the 
 stamp ofiice.((3e) Where a tenn's notice was necessary, and the party 
 intending to apply to be re-admitted on the roll, aflfixed his notice outside 
 the court of King's Bencli, in the morning, before the sitting of the court, 
 on the first day of the term of which the notice was intended to be given, 
 this was holden to be a sufficient compliance with the rule.(^) 
 
 In the King's Bench, it is a rule, that where an agent employed to take 
 out an attorney's annual certificate, has neglected to do so, and the attor- 
 ney has from ignorance of the fact continued to practise, the court will 
 only allow him to be re-admitted, upon payment of a fine, with the arrears 
 
 (c) See Stat. 1 Geo. IV. c. 44, 3 3, and other statutes referred to, ante, C4, 5, (h). 
 
 if) f 31. 
 
 {[/) For the evidence, in an action by an attorney for his fees, as to his not having been 
 re-admitted, after neglecting to take out his certificate, see 5 Barn. & Cres. 38. 7 Dowl. & 
 Ryl. 512, S.C. 
 
 (h) 6 Taunt. 408. 2 Marsh. 123, S. C, and see 1 Chit. Rep. 729. 
 
 (a) 1 Chit. Rep. 207. {b) Id. 208. 
 
 (c) Ex parte Vaur/han, E. 45, Geo. III. K. B. Append. Cliap. TIT. ^ 4. 
 
 (rf) 1 Barn. & Aid. 189, 90. 8 Taunt. 129. 3 Moore, 578. 1 Chit. Rep. 163, 673, 692. 
 
 (ee) 4 Moore, 347. (/} 4 Dowl. & Ryl. 64G.
 
 79 
 
 OF THE PRIVILEGES 
 
 of dut3^(^^) But attorneys have been re-admitted in that court, "without 
 payint^ any fine or arrears, on making it appear that they had never prac- 
 tised (h) or had discontinued practice after their last certificate had 
 expired, (^') or that they were prevented from practising by illness,(A:) or 
 by being reduced to the situation of a clerk :{l) and the distinction is said 
 to be this ; that ■when the party has been practising in the interval, he 
 must pay the arrears of duty; but not so when he has not practised.(wi) 
 So, in the Common Pleas, an attorney "who had ceased to practise after 
 the passing of the 25 Geo. III. c. 80, and before the operation of the 37 
 Geo. III. c. 90, § 31, had commenced, was re-admitted, without paying 
 any penalty, or arrears of duty.(M) And, in a late case,(o) an attorney 
 who had ceased to practise for six years, was re-admitted in that court, on 
 payment of a nominal fine, without the arrears of duty ; on an affidavit, 
 stating that he had discontinued to practise, on account of his afi'airs 
 having become embarrassed, that he had not practised in the interval, and 
 that no misconduct could be imputed to him in his character of an 
 attorney. 
 
 *The rule for re-admitting an attorney is a rule to show cause ; 
 [ *80 ] founded on an affidavit, stating the payment of the duty on the 
 articles of clerkship, the admission under them, and up to what 
 time the attorney obtained his certificate. It must also be sworn, that he 
 has since discontinued to practise ; for otherwise he might be criminally 
 culpable :{a) and, where a considerable time has elapsed, the reason of his 
 ceasing to take out his certificate must be stated, and how he has been 
 since employed, in order to show, that he has not been employed in any 
 manner that may unfit him for the duties of his profession. (5) The affidavit 
 then states, that a term's notice has been given, when necessary of his 
 intention to apply to the court ; and that notice of his name and place of 
 abode, &c., has been served on the solicitor to the commissioners of stamp 
 duties. (c) An attorney may be re-admitted on the last day of term, when 
 notice has been stuck up all the term.(c^) 
 
 An attorney, when duly admitted, enrolled and certificated, is supposed 
 to be always present in court : and on that account has many privileges 
 belonging to him, in common with the other officers of the court. [a] Where 
 an attorney of the King's Bench or Common Pleas is plaintiff, he is enti- 
 
 {g) 4 Barn. & Aid. 90. For the form of afiSdavit for his admission, on the above ground, 
 and the rule of court thereon, see Append. Chap. III. § 15, 16. 
 
 (A) 1 Chit. Rep. V29. (?) 2 Dowl. & Rvl. 238. {k) 1 Chit. Rep. 101, 692. 
 
 {I) 2 Barn. & Aid. 314. 1 Chit. Rep. 102, («), S.C, and see id. 692. 1 Lee's Prac. Die. 2 Ed. 
 333, 4 n. 2 Marsh. 123. 
 
 {m) 2 Dowl. & Ryl. 239, per Abbott, Cb. J. {n) 2 Taunt. 398. 
 
 (o) 1 Moore, 410. 1 Bing. 91, S. C, and see Y Moore, 493, 495. 
 
 {a) 1 Chit. Rep. 207, 316, 646. (h) 2 Smith R. 155. 5 Moore, 141. 
 
 (c) For the form of this aflSdavit, see Append. Chap. III. § 13, and for the rule of court 
 thereon, id. ^ 14. 
 
 (d) 1 Chit. Rep. 557, in notis. 
 
 [a] a plea of privilege is effectual in a suit against an attorney, commenced in a justice's 
 court by summons. Gilbert v. Vanderpoel, 15 Johns. 242. Van Alseyne v. Dearborn, 2 Wend. 
 257. Bridgeport Bank v. Sherwood, 16 Johns. 43. Brown v. Childs, 17 Johns. 1. King v. Burr, 
 20 Johns. 274. The privilege of being sued by bill is personal merely, and the attorney may 
 waive it. Seal v. Wigram, 12 Johns. 88, Cole v. M'Clellan, 4 Hill, 59.
 
 OF ATTORNEYS. 80 
 
 tied to sue in bis own court, by attachment of privilege ;(e) and may lay 
 and retain the venue in Middle 8ex.[f) Where he is defendant, he must be 
 sued in his own court by l>iU,(r/;/) even as acceptor of a bill of exchange ;{hh) 
 and cannot be arrested, or holdcn to special bail.(?7) It is also said, that 
 an attorney is entitled to have his cause tried atbar.(/f) And as an attor- 
 ney is not subject to the jurisdiction of the courts of conscience, except 
 where he is expressly made liable thereto, na in London, (r)West7ninstcr,{m) 
 and the Toiver ITamh'ts,{n)he may in all other cases sue,(o) and be sued,(j9) 
 in his own court for debts under forti/ shillings. But an attorney defend- 
 ant, has not the privilege of changing the venue into 3Iiddlt'scx, yvhen it iB 
 laid in another county. (y) In the Common Pleas, the attorneys and officers 
 of the court ought to be sued there by hill, because they are supposed to be 
 always present in court ; but the Serjeants and their clerks, and the clerks 
 of the judges and prothonotaries, are, it is said, privileged to be sued in 
 the Common Pleas by original writ, and not hy bill. (r) 
 
 *Where an attorney is arrested upon process issuing out of an 
 inferior court, he may sue out his writ of privilege,(a) which [ *81 ] 
 ought to be allowed instanter:{h) But if he be arrested upon 
 process issuing out of a superior court, his remedy is by moving the court, 
 to be discharged out of custody on common bail ; or by finding special bail, 
 and pleading his privilege in abatement. If an attorney, or other officer of 
 the King's Bench be arrested, by process issuing out of the same court, he 
 may move to be discharged on common bail.((?) But an attorney or officer 
 of a different court was formerly obliged to find special bail, and plead his 
 privilege in abatement. (cZ) This distinction however seems to be now abo- 
 lished : and, in a late case, the court of King's Bench stayed the proceed- 
 ings in an action brought in that court against an attorney of the Common 
 Pleas, who gave notice of his privilege, but neglected to plead it, after the 
 plaintiff had signed judgment for want of a plea.(e) So, where an attor- 
 ney of the Common Pleas was arrested, on an attachment of privilege, at 
 the suit of an attorney of the King's Bench, the latter court ordered the 
 bail-bond to be delivered up to be cancelled, on his entering a common 
 appearance ;(/) and in a subsequent case, the proceedings were ordered to 
 be set aside for irregularity, with costs. (^) But where an attorney, having 
 been arrested in the beginning of January, put in bail above, and did not 
 apply to the court for his discharge until the 3d of February, the court 
 
 (e) Gilb. C. P. 3. 
 
 (/) 2 Salk. 668. 4 Bur. 202?. 2 Rlac. Rep. 10G5. 3 Durnf. & East, 573. 
 
 (V.y) 3 Blac. Com. 289. 3 Taunt. 166. 
 
 (/(/() Doug. 312. 2 Chit. Rep. 63. 
 
 (jV) 1 Mod. 10. Beck v. Lewin, T. 56 Geo. III. K. B. 4 Dowl. & Ryl. 73. 
 
 (A-) 6 Mod. 123. {I) Stat. 39 & 40 Geo. III. c. civ. I 10. 
 
 {in) 24 Geo. II. c. 42, § 1. Doug. 381. («) 19 Geo. III. c. 68, § 24. 
 
 (o) Doug. 382, in notis. ITutsei/ <j- another v. Jordan, T. 25 Geo. III. K. B. 7 East, 47. 3 
 Smitli 11. 52, S. C. 5 Moore, 622.' 2 Brod. & Bing. 608, S. 0. 
 
 (/)) 2 Wils. 42. Doug. 381, but see 3 Bur. 1583, conYrrt. 
 
 (g) 4 Bur. 2027. 2 Blac. Rep. 1065. Sparkc v. Stofccs, one, &c., U. 24 Geo. III. K. B. 3 
 Durnf. k East, 573. 2 Str. 1049, contra. 
 
 (r) 1 Ld. Raym. 399. 3 Salk, 283, S. C., and see Cas. Pr. C. P. 104, Pr. Reg. 380. Barnes, 
 371, S. C. 
 
 (a) Append. Chap. III. § 17. 
 
 \b) Ca?. Pr. C. P. 2. 2 Blac. Rep. 1087, but see 10 Moore, 270. 
 
 (c) 1 Mod. 10. 2 Salk. 544. 1 Wils. 298. 
 
 (d) 2 Salk. 544. 2 Str. 8G4. 2 Ld. Raym. 1567, S. C. 1 Wils. 306. 
 
 (e) Gwynne v. Toldervy, one, <fec., 11. 54 Geo. III. K. B. 
 
 (/) Beck V. Lewin, T.'56 Geo. III. K. B. {o) 4 Dowl. & Ryl. 73.
 
 81 
 
 OF THE PRIVILEGES 
 
 held the application to be too late.(7i) A defendant who is snedhj hill, as 
 an attorney of the court of King's Bench, not being such, may set aside the 
 proceedings as irregular. (z) But where, in a similar case, a rule was 
 obtained for setting aside the proceedings, on the ground that they were 
 absolutely void, and not merely irregular ; the court held, that they were 
 not void, but irregular only ; and that the defendant, not having applied 
 in time, could not take advantage of the irregularity.(M) 
 
 In the Exchequer of Pleas, an a'ttorney, side clerk, or other officer, may 
 sue by venire facias, or capias of privilege, (Z) and must be sued by bill. 
 A person suing there by process of privilege, is entitled to have his writ 
 sealed, without paying fees :{m) and it is holden, that an attorney of the 
 King's Bench or Common Pleas may be arrested and held to bail, upon a 
 capias of privilege issuing out of this court. (?«.) It also seems that, an 
 officer or accountant, suing with his wife, is entitled to privilege in the 
 Exchequer :(o) but it is otherwise, when he is sued with her;(j9) for a bill 
 cannot be iBled against the wife, as present in court. It should also be 
 observed, that in the Exchequer, a member of either university cannot set 
 up his privilege, *against that of an officer or accountant, or 
 [ *82 ] against any person suing as a debtor; this court not being men- 
 tioned in their charter of exemption, (a) But an attorney, not 
 being one of the sworn attorneys of the court, is not entitled, as such, to 
 the privilege of laying his venue in Middlesex.ih) 
 
 An attorney or officer is also, by reason of the supposed necessity of his 
 attendance in court, exempt from all offices that require personal service, 
 as sheriff,{c) constahle,[d) overseer of the poor,{e) ^c; and formerly, he 
 was not liable to serve in the militia ;[f ) but several acts of parliament 
 that were passed in the course of the late reign, having allowed personal 
 service in the militia to be commuted for a certain sum of money, to be 
 laid out in providing a substitute, it has been holden that this exemption 
 no longer exists,(^) 
 
 These privileges are allowed, not so much for the benefit of attorneys, 
 as of their clients ;(7i) and are therefore confined to attorneys who prac- 
 tise,(i) or at least have practised within a year ',[k) 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 '.{II) And an attorney, not having practised for 
 some time previous to the issuing of the plaintiff's writ against him, is not 
 
 {h) 1 Chit. Rep. 188. 
 
 \i) 5 Maule & Sel. 324. 2 Chit. Rep. 396, S. C, and see 6 Barn. & Cres. 79, {b). 
 
 (M) 6 Barn. & Cres. 77, {h). 
 
 a) 9 Price, 16 Append. Chap. XIV. § 15, 16. (m) Man. Excheq. 1 42, 3. 
 
 (n) Id. 142. 9 Price, 16. 1 Y. & J. 199. (o) 1 Taunt. 254. 
 
 (jo) Man. Excheq. 145, 6. {a) Hadr. 188. Man. Ex. Pr. 145. 
 
 (6) 1 Price, 384. (c) 4 Bur. 2109. 
 
 {d) Doug. 538, and see 1 Esp. Rep. 359. 
 
 (e) 2 Blac. Rep. 1126. 8 Durnf. & East, 379, {a), and see Append. Chap. III. I 18. 
 
 (/) Barnes, 42. Andr. 355. 2 Str. 1143. {g) Gerard's Case, 2 Blac. Rep. 1123. 
 
 {h) 2 Wils. 44. 4 Bur. 2113. Doug. 381. 
 
 {i) 2 Wils. 232. 4 Bur. 2113. 2 Blac. Rep. 1086. 1 Bos. & Pul. 4. 2 Lutw. \QQl , contra. 
 
 {k) Ridley and Car. E. 1656. 1 Lil. P. R. 142. Chippendale's Case, E. 19 Geo. III. K. B. 
 Sand V. Heysham, H. 24, Geo. III. K. B. Chrishop v. CouUhard, E. 25 Geo. III. K. B. 
 
 (11) R. M. 1654, § 1, K. B. & C. P. 2 Maule & Sel. 605. Formerly, if an attorney of the Com- 
 mon Pleas absented himself from the court for two terms together, except it were by occa- 
 sion of sickness, or other like urgent cause, to be allowed of by the court, he was liable to 
 be forejudged the court, and to be no longer an attorney thereof. R. T. 24 Eliz. g 9, C. P.
 
 OF ATTORNEYS. 82 
 
 privileged from being arrested tLcreon, and held to bail, on the ground of 
 having recommenced his practice, and taken out his certificate, before he 
 was actually arrested. (7»m) But an attorney we have 8ecn,{nn) may sue 
 by attachment of privilege, though his certificate has expired, and not 
 been renewed, if the writ be sued out within a year from the expiration of 
 his certificate. 
 
 AVhen the plaintiff and defendant arc attorneys of different courts, the 
 plaintiff is allowed his privilege of suing the defendant by attachment ;(oo) 
 and in this case it is commonly said, that there is no privilege against pri- 
 vilege ; or in other words, the privilege of the plaintiff takes away that of 
 the defendant; for the attendance of the plaintiff is as necessary in his court, 
 as that of the defendant in his, and therefore the cause is legally attached 
 in the court where the plaintiff" is an officcY.{p) But where the plaintifi" 
 and defendant are both attorneys of the sa^^jc court, the defendant 
 *is entitled to his privilege of being sued by hill;{a) and if not so [ *83 ] 
 sued, he may plead his privilege in abatement, or the court on 
 motion will stay the proceedings, but without costs. (i) In the King's 
 Bench, where an action is brought by an attorney of that court, against an 
 attorney of the Common Pleas, though the former is entitj^d to sue in his 
 own court by attachment of privilege, yet he cannot arrest the defendant, 
 and hold him to special bail.(<?) But in the Exchequer, we have seen,(t?) 
 an attorney of the King's Bench, or Common Pleas, may be arrested and 
 held to bail upon a capias of privilege^ issuing out of the former court. (tf) 
 So, in Chancery, it has been determined, that an attorney of the King's 
 Bench, and practising solicitor of the court of Chancery, may be arrested 
 on an attachment of privilege, at the suit of a sworn clerk of the latter 
 court. (e) And it has even been holden, that an attorney of the King's 
 Bench may be arrested on an atachment of privilege, issuing out of the 
 court of Common Pleas at Lancaster, at the suit of an attorney of that 
 court.(/) 
 
 An attorney may also ivaive his privilege, either, when plaintiff, by suing 
 as a common person,((/) or, when defendant, by not claiming it in due time, 
 or in a proper manner ;(//) And it seems that an attorney waives his privi- 
 lege, by entering into a bail bond, on process issuing out of a different court ; 
 as he must be sued in the court out of which the process issued. («) AYhere 
 an attorney of the Common Pleas is in the actual custody of the marshal, he 
 may be sued in the King's Bench as a prisoner, by third persons :(/:) But 
 where an attorney of the Common Pleas puts in bail, to an action depend- 
 ing in the King's Bench, he does not thereby lose his privilege ; but may 
 plead it in that action, or in any other brought against him by the hye: 
 for it would be absurd, that he who founds his action on that of another, 
 
 {mm) 1 Durnf. & East, 25. {nn) Ante, 76. 
 
 \oo) 2 Brownl. 266. 2 Str. 837. 1 Barnard, K. B. 182, 228, S. C. 1 Blac. Rep. 19. Barnes, 
 44. 2 Blac. Rep. 1325. 
 
 (/)) 4 Bac. Abr. 227, and see 9 Price, 16. 
 
 (a) 2 Str. 1141. 1 Blac. Rep. 19. 2 Blac. Rep. 1085. 6 Durnf. & East, 524. 
 
 (b) 6 Durnf. & East, 524. s'Durnf. & East, 395. Barnes, 53. Ante, 81. 
 
 (c) Beck V. Letciri, T. 56 Geo. III. K. B. 4 Dowl. & Ryl. 73, per Bayley, J. (d) Ante, 81. 
 (e) Wameu-right v. Smith, M. 7 Geo. IV. 1 Younge & J. 200, {b). 
 
 ( /) Hopkins V. Fcrrand, 1 Younge & J. 204, (a). 
 
 (,/) 2 Str. 837. 1 Barnard, 228, S. C, and see 1 Bos. & Pul. G29. 2 Bos. & Pul. 29. 
 
 (h) 2 Blac. Rep. 1085. 
 
 (i) Barnes, 117, and see 3 Wils. 348. 2 Blac. Rep. 838, S. C. 1 H. Blac. 631. 
 
 (k) 1 Str. 191. 4 Barn. & Aid. 88.
 
 33 OF THE PRIVILEGES AND 
 
 should be in a better condition than the original plaintiff.(?) Yet where an 
 attorney, after having put in bail, waives his privilege, by pleading in 
 cliief in one action, it is construed to be a waiver of privilege, in all other 
 actions brought against him by the bye, during the same term.(/) And if 
 the defendant plead his privilege, after he has waived it, the plaintiff in his 
 replication must show the waiver, and rely upon the estoppel.(wz) It is 
 likewise settled, that an attorney shall not be allowed his pri- 
 [ *84 ] vilege, as against the king ',{ii) or where he sues or *is sued en 
 auter droit, as executor or administrator; (a) or jointly with his 
 wife,(^) or other person who is not privileged :(c) or where there would other- 
 wise be a failure or defect of justice, as where an appeal is brought in the 
 King's Bench, a real action in the Common Pleas, or a foreign attach- 
 ment in the sheriff's court of London, against an attorney of a different 
 court.((^) But an attorney sued by hill, jointly with a person having priv- 
 ilege of parliament, does not lose his privilege. (e) 
 
 As an attorney is entitled to many privileges, so he is subject to some 
 disabilities and restrictions. By the statute 1 Hen. V. c. 4. " no under- 
 sheriff, sheriff's clerk, receiver, or sheriff's bailiff, shall be attorney in the 
 king's courts, enuring the time that he is in office:" which statute is enforced 
 by rules of court,(/) declaring that no under-sheriff, or bailiff of sheriffs or 
 liberties, be admitted, during such their employment, to practise as attor- 
 neys, under pain of expulsion from the employment of an attorney, and 
 not to be re-admitted." And by the statute 22 Geo. II. c. 46, § 14, " no 
 clerk of the peace or his deputy, nor any under-sheriff or his deputy, shall 
 act as a solicitor, attorney or agent, or sue out any process, at any general 
 or quarter sessions of the peace, to be held for any place where he shall 
 execute his office, upon pain of forfeiting ^i^?/ pounds." By rule of 3Iich. 
 1654, § 1, "no attorney can be lessee in ejectment; or bail for a defend- 
 ant, in any action depending in either court."(^) By statute 5 Geo. II. c. 
 18, § 2, " no attorney or solicitor shall be capable to continue or be a justice 
 of the peace, in England or Wales, during such time as he shall continue 
 in the business or practice of an attorney or solicitor."(7i) By other acts 
 of parliament,(z) " no attorney or solicitor, or person practising as such, 
 can be a commissioner of the land tax, without possessing one hundred 
 pounds a year." And it was usual to except attorneys, who had embezzled 
 their clients' money, out of the insolvent debtors' acts.(/;) 
 
 Also, by the statute 12 Geo. II. c. 113, {II) " no attorney or solicitor, who 
 
 {I) 27 Hen. VI. 6, a. 31 Hen. VI. 10. Carth. 377. 1 Salk. 1, 2. 1 Ld. Raym. 135, S. C. 12 
 Mod. 102,112,535. 1 Str. 191. 
 
 (m) 1 Ld. Raym. 136. 
 
 [n) 1 Ld. Raym. 27. But actions qui tarn are not considered as the king's actions. T. 
 Raym. 275. 1 Lutw. 196. 3 Lev. 398, S. C. 1 Salk. 30. 2 Salk. 543. 3 Salk. 282. Comb. 319, 
 12 Mod. 74,S.C. 1 Blac. Rep.373. Cowp.367. Barnes, 48. 
 
 {a) Hob. 177. 1 Salk. 2. 1 Ld. Raym. 533, S. C. 
 
 (6) Bro. Abr. tit. Bill, pi. 2. Dyer, 377, {a). 1 Taunt. 254. 
 
 (c) 2 Rol. Abr. 274. 2 Salk. 544. 12 Mod. 163, 4. Pratt v. Salt, H. 8 Geo. IL cited in 4 Bac. 
 Abr. 223. 
 
 (d) 1 Wms. Saund. 5 Ed. 67. 8 Durnf. & East, 417. 
 
 (e) 4 Maule & Sel. 585. (/) R. M. 1654, § 1, K. B. & C. P. 
 (ff) See also Doug. 466. 
 
 (h) But see 3 Taunt. 166, where it was holden, that an attorney, who was a justice of the 
 peace for a borough, if sued by orifjinal, for an act done in his office as magistrate, might 
 plead his privilege in abatement. 
 
 (t) See the statute 30 Geo. II. c. 3, § 87, &c. 
 
 {/(■) But it seems that an attorney did not come within this exception, unless he were in 
 custody for money recovered by him as an attorney. 2 Blac. Rep. 798. {II) g 9.
 
 DUTIES OF ATTORNEYS. 84 
 
 shall be a 2>risoner in any gaol or prison, or witliin the limits, rules or liber- 
 t es thereof, shall, during his confinement, in his own name, or in the name 
 of any other attorney or solicitor, sue out any -writ or process, or coritmence 
 or jyroseciite any action or suit, in any courts of law or equity ; and all pro- 
 ceedings in such actions or suits, shall be void and of none efi'cct; 
 And such attorney or solicitor, so commencing or *prosecuting [ *85 ] 
 any action or suit as aforesaid, shall be struck off the roll, and 
 incapacitated from acting as an attorney or solicitor for the future ; And any 
 attorney or solicitor, permitting or empowering any such attorney or solici- 
 tor as aforesaid, to commence or prosecute any action or suit in his name, 
 shall be punished in like manner. Provided nevertheless, that nothing in 
 the said act contained, shall extend, or be construed to extend, to prevent 
 any attorney or solicitor so confined as aforesaid, from carrying on or 
 transacting any suit or suits, commenced before the confinement of such 
 attorney or solicitor as aforesaid. "(a) This statute has been held to relate 
 only to the j^'t'osecuting, and not to the defending of suits :{h) And an 
 attorney, when in prison, may sue by attachment of privilege, for a debt 
 of his own.(6') So where, after an action commenced by an attorney, he 
 became a prisoner, and then the bail-bond was assigned, and he being still 
 a prisoner, commenced an action on the bail-bond, this was holden to be a 
 continuance of the original suit, commenced before the attorney became a 
 prisoner. (tf) But an attorney entering a plaint, and suing out process in 
 the county court, whilst he is a prisoner in gaol, is within the meaning of 
 the above statute, and liable to be struck off the roll.(e) 
 
 The principal duties of an attorney or agent are care, skill, and inte- 
 grity :[a] And, if he be not deficient in any of these essential requisites, 
 
 (a) I 12. (6) Barnes, 263. Willes, 288, {b). S. C. 
 
 (c) 7 Durnf. & East, 671. 2 Maule & Sel. 605. (f/) Barnes, 46. 
 
 {e) 1 Barn. & Cres. 254. 2 Dowl. & Ryl. 406, S. G. 
 
 [a] " An attorney impliedly undertakes, and is bound to use skill and diligence in the 
 management of the business in which he is employed by his client. It would indeed, be 
 very difficult to define the exact limit by which the skill and diligence which an aitorney 
 undertakes to furnish in the conduct of a cause is bounded, or to trace precisely the divid- 
 ing line between that reasonable skill and diligence which appears to satisfy his undertak- 
 ing, and that crassa ncijligcntia, or lata cu/pa, mentioned in some of the cases for which he is 
 undoubtedly responsible. The cases, however, appear to establish, that an attorney is 
 liable for the consequences of ignorance or non-observance of the rules of practice of the 
 court ; for want of care in the preparation of a cause for trial, or of attendance thereon, with 
 bis witness, and for the^mis-nianagement of so much of the conduct of a cause as is usually 
 and ordinarily allotted to his department of the profession. But, on the other hand, he is 
 not answerable for error, in judgment upon points of new occurrence, or of nice and doubtful 
 construction, or of such as are usually entrusted to men iu the higher branch of the profes- 
 sion of the law. 
 
 '' Bcaides the ordinary proceedings by action for any breach of duty, and by indictment 
 for any crime, there is a mode of proceeding against attorneys by an application to the sum- 
 mary jurisdiction of the court, which jurisdiction is exercised according to law and con- 
 science and not by any technical rules. The court will, in general, compel the attorney" 
 specially to perform his duty if practicable, and will punish him for its breach. The mode 
 of punishment (where the court interferes summarily) is either by fine, attachment, or, in 
 very gross cases, where enough is shown to prove that the attorney is unfit to be a member 
 of the profession, by striking him off the roll, and, if struck off by one court, he will not 
 afterwards be admitted in any other. In some cases, the court think it sufficient to make 
 him piiy the costs incurred by the parties, by reason of his misconduct; as, where an 
 attorney put in bail which he knew to be insufficient, and gave notice of their justification 
 the court ordered him to pay the costs of opposing them. It may be added, that the court 
 will thus interfere, though the attorney may have ceased being such, if he were an attorney
 
 85 OF THE DISABILITIES, AND 
 
 he is not responsible for any error or mistake, arising in the exercise of 
 his profession. To use the words of Lord 3fansfield, in the case of Pitt 
 
 at the time the crime or misconduct complained of took place ; for this purpose the maxim 
 being, " once an attorney, always an attorney." 
 
 "The court will, in general, interfere in this summary way and strike an attorney off the 
 roll or otherwise punish him for gross misconduct, not only in cases where the misconduct 
 has arisen in the course of a suit, or other regular and ordinary business of an attorney, 
 but where it has arisen in any other matter so connected with his professional character 
 as to afford a fair presumption that he was employed in, or intrusted with it in consequence 
 of that character." 1 Archb. Pract. p. 67, 115, 117, 8 Lond. Ed. 
 
 An attorney is liable only for gross negligence or gross ignorance in the performance of 
 his professional duties; and this is a question of fact to be determined by the jury, and is 
 sometimes to be ascertained by the evidence of those who are conversant with, and skilled 
 in, the same kind of business ; Pennin(/ton v. Yell, 6 Eng. 212. Holmes v. Peck, 1 Rhode 
 Island, 242 ; and it is a fair presumption that an attorney acts according to the instructions of 
 his client, unless in a case of such gross negligence, that a violation may be inferred, lb. 
 Cox v. Sullivan, 7 Geo. Rep. 144. Garrison v. Willcoxsen, 11 Ibid. 184. Nisbit v. Laioson, 1 
 Kelly, 275. Wilson v. Coffin, 2 Cush. 316, Wilsonx. Russ, 7 Shep. 421. Mardis\. Shackle- 
 ford, 4 Ala. 493. Uoey v. diartin, Riley, 156. Warren v. Grisivold, 8 Wend. 665. Gallagher 
 V. Thompson, Wright, 466. Evans v. Wairous, 2 Porter, 209. 
 
 The employment of an attorney to conduct a cause is a personal trust and confidence 
 which cannot be delegated to another but by consent of the person interested. Hitchcock v. 
 M'Gehce, 7 Port. 556. Johnson v. Cunningham, 1 Ala. 249. But, if made, the party interested 
 may make it binding by his assent with a full knowledge of the facts. Or if he does not dis- 
 sent on seasonable notice. But where notice was not given until three years after the 
 delegation was made, silence will not be construed a ratification. 76. 
 
 And the attorney is entitled to the benefit of the rule that every one shall be presumed 
 to have discharged his legal and moral obligations until the contrary shall be made to 
 appear. Pennington v. Yell, 6 Eng. 212. And even then the extent of the damages must 
 also be affirmatively shown; as where the amount of a note is alleged to have been lost 
 by his negligence, it must be shown that it was a subsisting debt against the maker, and 
 also that he was solvent. lb. And unless the latter be shown, he would be liable only for 
 nominal damages ; and under no circumstances would be liable for more than the actual 
 damages that the client has sustained by his negligence, lb. Cox v. Sullivan, 7 Geo. Rep. 
 144. When an attorney undertakes the collection of a debt, it becomes his duty to sue out 
 all processes, both mesne and final, necessary to effect that object; and not only the first 
 execution but all such as may become necessary, lb. Dearborn v. Dearborn, 15 Mass. 316. 
 Crooker v. Hutchinson, 2 Chip. 117. 1 Verm. 73, S. C. Eccles v. Stevenson, 3 Bibb. 517. But 
 he is not bound to institute new collateral suits without special instructions, such as actions 
 against the sheriff and clerk for the failure of their duty. lb. It would seem that he should 
 pursue bail, however, and those who may have become bound with the defendant, in the 
 progress of the suit, either before or after judgment, lb. But he is not bound to attend in 
 person to the levy of an execution, or to search out for property, out of which to make the 
 debt; this is the business of the sheriff; nor is he liable for any of the short comings of 
 that officer, lb. And as to all professional duties, he will always be justified in ceasing to 
 proceed with his client's cause, unless specially instructed to go on, whenever he shall be 
 bona fide influenced to this course by a prudent regard for the interest of his client. lb. 
 Gleason v. Clark, 9 Cow. 57. Castro v. Bennett, 2 Johns. 296. Benton v. Craig, 2 Miss. 198. 
 
 It has been held that money collected by an attorney for his client, must be demanded, 
 or a direction to remit given and neglected, before a suit can be brought therefor ; but 
 where the attorney denies his liabilitj' to pay, and sets up a claim against his client, 
 exceeding the amount collected, this amounts to a waiver of a demand. Walradt v. May- 
 nard, 3 Barb. Sup. Ct. R. 584. Krause v. Dorrance, 10 Barr, 462. And where two attorneys 
 collect and transmit their clients' funds in depreciated bank paper, which the clients refuse 
 to receive, and send back with an offer to return them, and a request to make up the 
 difference, and the attorneys decline to do any thing about it, the clients have a right to sell 
 the paper, and recover the deficiency from the attorneys. West y. Ball, \2 Ma.. 34,Q. One 
 attorney confided a note to another for collection, and took his receipt therefor, but with- 
 out giving instructions with respect to the ownership. After the money was collected, 
 it was remitted to the payee of the note, whose name, however, was indorsed on the note. 
 Held, that this remittance (the payee not being the owner,) did not discharge the collecting 
 attorney from liability to his immediate principal ; and that the action of the latter, for the 
 money, would not be defeated by proofs that he was himself the agent of the indorsee, 
 unless the indorsee had asserted his right to the money as against his agent. Lewia v. 
 Peck, 10 Ala. 142.
 
 DUTIES OF ATTORNEYS. 8 
 
 V. Yaldcn^if) " that part of the profession which is carried on by attor- 
 neys is liberal and reputable, as -well as useful to the public, when they 
 conduct themselves with honour and integrity; and they ought to be pro- 
 tected, where they act to the best of their skill and knowledge : but every 
 man is liable to error :" and his lordship added, *' he should be very sorry, 
 that it should be taken for granted, that an attorney is answerable for 
 every error or mistake, and liable to be punished for it, by being charged 
 with the debt sued for. A counsel may mistake, as well as an attorney; 
 yet no one will say that a counsel who has been mistaken, shall be charged 
 with the debt. The advice of a counsel is indeed honorary, and he does 
 
 (/■) 4 Bur. 2061, and sco 4 Barn. & Aid. 202. 3 Barn & Cres. 738. 5 Dowl. k Ryl. 635, 
 S. U. 1 Ry. & Mo. 317. 2 Car. & P. 113, S. C. 
 
 It is the duty of an attorney to pay over to his client the money collected for him ; and 
 if he has any doubt whether the debts collected belonged to his client, all that he has any 
 right to asli, is indemnity, on paying over the money. 3/arvin v. ELUvood, 11 Paige, 365. 
 Where the evidence of a debt then due is left with an attorney, who gives a general receipt 
 for it, it will be presumed that he received it for the purpose of collection ; and if an 
 action be brought against him for his negligence, by which the debt was lost, it is incum- 
 bent on him to show that he received it specially, and ior some other purpose. Smedes 
 V. ElmendorJ\ 3 Johns. 185. An attorney gave a receipt for certain notes for collection, and 
 after his death an action was brought against his executors for moneys had and received, 
 and the receipt was the only evidence relied on to charge the testator's estate. Held, that 
 this evidence was insufficient, and that the plaintiff was bound to prove the actual receipt 
 of money or other payment, or a discharge by the attorney on account of the nutes. Kuhn 
 V. Ilunt, 2 Brevard, 164. An attorney at law who has collected money for his client, will, if 
 he deliver it to a third person to carry to his client, without authority or directions from 
 the client so to do, be liable to his client for the sum thus collected, if the same be stolen 
 from such third person while on his way with the monej', even though such person were 
 trustworthy, and took the same care of the money that he did of his own. Grayson v. 
 Wilkinson, 5 Smedes & Marsh. 268. An attorney who has collected money for his client, 
 is bound to notify him within a reasonable time that he has it in his hands ; and if he does 
 so the client has no cause of action against the attorney to recover the money until after 
 demand and refusal. Dmton v. Embury, 5 Eng. 228; Cummins v. McLain, 2 Pike, 402; 
 Mardis v. Shackleford, 4 Ala. 493 ; Rathbun v. Ingalls, 7 Wend. 320 ; Tcnjhr v. Bates, 5 Cow. 
 376 ; Feryuson^s Case, 6 Cow. 596 ; Staples v. Staples, 4 Greenl. 533 ; Taylor v. Armisted, 3 
 Call. 290; Contra, Coffin v. Coffin, 7 Greenl. 298. But if the attorney does not notify his 
 client that he has collected funds on his account within a reasonable time, he will be liable 
 to an action without special demand. lb. An attorney at law, who undertakes the collection 
 of a debt, and by gross negligence, puts it into such a situation, as to embarrass the 
 creditor in obtaining payment, and to render the debt of less value, — as where an attorney 
 takes the debtor's note for the debt to himself, secured by a mortgage, contrary to the 
 creditor's directions, — is liable to his employer in an action on the case, though the 
 debtor always has been and still is able to pay the debt. Wilson v. Coffin, 2 Cush. 316. 
 If an attorney, who has commenced a suit which is alleged to be malicious, knew that 
 there was no cause of action, dishonestly, and for some sinister view, for some ill purpose, 
 or for some purpose of his own, which the law calls malicious, causes a party to be arrested 
 and imprisoned, he will be liable therefor. Burnap v. Mash, 13 111. 535. When a person 
 places a note in the hands of an attorney for collection, and takes from him a receipt for 
 it in his own name, but does not claim it as his own, nor any lien upon it, and the note 
 itself is payable to a third person, and not indorsed, a payment by an attorney of the 
 proceeds of the note to the payee, will discharge him from all liability to the person who 
 placed the note in his hands. I'eck v. Wallace, 19 Ala. 219. When an attorney died twelve 
 days before the return day of an execution, in a case where real estate has been attached by 
 the original writ, without having levied the attachment, and the attachment not being 
 Bubsequently levied, was lost; it was held, that the attorney was not lialile for damages for 
 the loss of the attachment. Holmes v. Beck, 1 Rhode Island, 242. When an attorney takes 
 the responsibility of dismissing a suit on receiving in payment claims on other parties, he 
 renders himself liable for the amount of the claim on which the action dismissed was 
 founded, unless he proves that a judgment on that claim would have been of no value. 
 Coopwood V. Baldwin^ 25 Miss. 129.
 
 85 OF THE DISABILITIES, AND 
 
 not demand a fee for it ; the attorney may demand a compensation ; but 
 neither of them ought to be charged with the debt for a mistake. Not 
 only counsel, but judges may differ, or doubt, or take time to consider : 
 therefore an attorney ought not to be liable, in cases of reasonable doubt." 
 But in ordinary cases, if an attorney be deficient in skill or care, by which 
 a loss arises to his client, he is liable to a special action on the case for 
 
 damages.(</)[A] And the court, in some instances, will order an 
 [ *86 ] attorney to *pay costs to his own client, for neglect ;{aa) or to the 
 
 opposite party, for vexatious and improper conduct. (55) So, if 
 an attorney obtain a rule nisi, upon suggestions which turn out to be 
 groundless, the court, in discharging the rule, will make him pay the costs 
 of the application. (c(?) And if a rule be made upon an attorney, for the 
 delivery of writings, or payment of costs, &c., and it be not obeyed, the 
 courts will enforce it by attachment : which is also the regular mode of 
 proceeding against an attorney, for the non-performance of his under- 
 taking to put in ha.i\,{dd) &c. It is not usual, however, for the court to 
 interfere in a summary way, for a mere breach of promise, where there is 
 
 (ff) 2 Wils. 325. 8 Moore, 340. 1 Bing. 347, S. C. 
 
 (aa) Say. Rep. 50, 172. 3 Taunt. 484, and see 4 Moore, 171. 
 
 (bb) 2 Bur. 654, and see Hul. Costs, 2 Ed. 485, &c. 4 Durnf. & East, 371.(6) 3 Taunt. 
 492. 1 Chit. Rep. 44, 80. 5 Barn. & Aid. 533. 1 Dowl. & Ryl. 142, S. C. 3 Bing. 423. 
 
 (cc) 4 Taunt. 191. 
 
 {dd] R. M. 1654, ^ 10, K. B. R. M. 1654, § 13, C. P. 6 Mod. 42, 86. 1 Durnf. & East, 
 422, and see Cowp. 845. 4 Taunt. 881. 5 Barn. & Aid. 482. 1 Barn. & Cres. 160. 2 Dowl. 
 & Rjl. 307, S. C. 3 Barn. & Ores. 597. 5 Dowl. & Ryl. 389, S. C. 3 Bing. 70. 10 Moore, 
 360, S. C. but see 8 Moore, 208. 
 
 [a] Perhaps, whenever an attorney disobeys the lawful instructions of his client, and a 
 loss ensues, he is responsible for that loss to its actual extent. Gilbert v. Williams, 8 Mass. 
 51. But he is not liable in damages, where he acts honestly, and to the best of his ability. 
 Lynch v. Commonwealth, 16 S. & R. 368. See remarks in this case per Huston, J., p. 369, 
 It has been held that the negligence of the attorney of the defendant is not a sufficient cause 
 for setting aside a judgment against him. Foster v. Jones, 1 M'Cord, 116. But irregularities 
 which arise from the neglect of attorneys will be corrected in the discretion of the Court. 
 See page 161, note [a]. And a party who suffers injury by an attorney's appearing for him 
 without authority, has a remedy by action. Field v. Gibbs, Peters, C. C. 155. Smith v. 
 Bowditch, 7 Pick, 138. Whenever a sworn attorney of the court enters his appearance for 
 a party, the latter is bound by any admission made by him, in writing, though out of court, 
 concerning the facts in the cause, until the appearance is withdrawn, or the party revokes 
 the attorney's authority and gives notice of the revocation. Until the appearance is with- 
 drawn or the authority revoked, and the revocation notified, the party cannot give evi- 
 dence, on the trial of the cause, that the attorney had no authority in fact. Lewis v. Sumner, 
 13 Met. 269. 
 
 Extent op Liability. — An attorney who may be chargeable for negligence, is liable 
 only to the extent of the injury his client has received. Suydam v. Vance, 2 M'Lean, 99. 
 As, if he is employed to defend a suit, and fail to do so, he is liable to the party injured, to 
 the extent of the damages actually suffered ; if he can show that the defence he was 
 employed to make was not a good one, he would be liable, at most, only to nominal 
 damages. Grayson v, Wilkinson, 5 Smedes & Marsh. 268. See preceding note. An attor- 
 ney is not chargeable with interest on the moneys of his principal, unless he is in default, 
 or has employed the money for the purpose of gain to himself. Williams v. Storrs, 6 Johns, 
 Ch. 353, Roots v. Stone, 2 Leigh, 680. Though where he is chargeable with negligence, 
 his contract is violated, and an action lies immediately, though, probably, in that event, 
 only nominal damages could be proved or recovered; on the other hand, the proof of 
 actual damage may extend to facts growing out of the injury, even up to the day of the 
 verdict. Wilcox v. Flummer, 4 Pet. 172. Stevens v. White, 2 Wash. 203. Palmer v. Ashley, 
 3 Pike, 75. And although liable for the debt lost by his negligence, he is not of course 
 liable for the loss of the evidence of the debt; and in a suit against him for such a loss, 
 he may show that the plaintiff had another remedy, which he has successfully pursued. 
 Huntington v. Rummill, 3 Day, 390.
 
 OF ATTORNEYS. 86 
 
 nothing criminal •,{c) or on account of negligence or unskilfulness.(/) 
 except it be very gross ;{g) or for the misconduct of an attorney, inde- 
 pendently of his profession. (7t) 
 
 It was formerly tlie duty of attorneys to appear personally, in the King's 
 Bench, on or before the fourteenth day of Michaelmas term, and the 
 seventh day of every other term -.{i) and they are required, when called 
 upon, to attend the court on motions,(/c) the judges on summonses, and 
 the master on appointments. (?) And, on every appointment to be made 
 by the master, the party on whom the same shall be served, shall attend 
 such appointment, without waiting for a second ; or in default thereof, the 
 master shall proceed ex i)arte on the first appointment. (??i) 
 
 When an attorney once appears, or undertakes to be attorney for another, 
 he shall not be permitted to withdraw himself ;(«) and it is said to be his 
 duty to proceed in the suit, although his client neglect to bring him 
 money :[a] and therefore if, on that account, he neglect to proceed, accord- 
 ing to the practice of the court, whereby judgment of iionp7-os is signed 
 against the plaintiff, the court will make a rule upon the attorney to pay 
 the costs of such judgment, together with the costs of the application. (o) 
 It is even said to have been determined, in the Common Pleas, that an 
 attorney having quitted his client before trial, could not bring an action 
 for his bill.(|>) So, in Chancery, it has been holden, that a solicitor pro- 
 ceeding to a certain length in a cause, shall not leave it there, 
 but shall go *on :(a) And, in that court, a solicitor having de- [ *87 ] 
 clined to act for his client, has no lien for his costs upon a fund 
 in court. (6) 
 
 When ivritings come to an attorney's hands, in the way of his business 
 as an attorney, the court on motion will make a rule upon him, to deliver 
 them back to the party,(c) on payment of what is due to him ;(t^) and par- 
 ticularly when he has given an undertaking to re-deliver them -.[ee) And an 
 attorney, when ordered to deliver up the papers of his client, must deliver 
 up the drafts and copies of deeds, for which he has charged and been paid, 
 as well as the deeds themselves. 7 Barn. & Cres. 528. 1 Man. & Ryl. 
 306, S. C. But when they come to his hands in any other manner, or on 
 any other account, the party must resort to his action. (^) And accord- 
 ingly, in a late case,((/^) the court refused to proceed summarily against a 
 
 (f) 2 Wils. 371, and see 2 Moore, 665. 1 Bing. 102, 105. 
 
 (/) 4 Bur. 2060. 2 Blac. Rep. 780. 1 Chit. Rep. 051, but see 3 Atk. 568. 1 Chit. Rep. 
 651, 2. [a). [g) Say. Rep. 50, 109. 
 
 (/() But see 4 Barn. & Aid. 47. 2 Chit. Rep. 68. 1 Bing. 91. 
 
 (t) K. M. 1054, I 1. R. T. 14 Car. II. reg. 2, K. B. R. M. 15 Eliz. g 1. R. M. 1054, § 1 
 R. E. 12 Jac. I. I 4. R. H. 14 & 15 Car. II. reg. 2, C. P. 
 
 {k) R. E. 1656. R. E. 14 Car. II. K. B. (/) R. H. 14 & 15 Car. II. reg. 1, K. B. 
 
 (m) R. H. 32 Geo. III. K. B. 4 Durnf. & East, 580. (n) 1 Sid. 31. 
 
 h) Say. Rep. 173, but see Man. Ex. Pr. 585, 6. \p) 14 Ves. 272, 3. 
 
 (a) 14 Ves. 190. (6) Id. 271, and see 1 Swanst. 1, 3 Swanst. 93. 
 
 (c) 1 Salk. 87. 1 Chit. Rep. 98. 
 
 (d) Say. Rep. 1 Ken. 129, S. C. and see 6 Ves. 425, in Chan. 
 
 [ee) 1 Str. 621. 8 Mod. 339, S. C. {ff) 1 Salk. 87. 
 
 {gg) 6 East, 404. 2 Smith R. 409, S. C. 
 
 [a] Neither will an attorney be allowed, during the pendency of a cause, to extort from 
 his client unreasonable compensation for his services, though after the cauje is ended the 
 court will not interfere in respect to any compensation which the client may make. I'hillipt 
 V. Overton, 4 Hay. 291. Lecatt y. Sallee, 3 Porter, 115. BM v. SmiCk, 1 Dana, 580. Hose 
 y. Mynait, 7 Yerg. 30. 
 
 Vol. I.— 7
 
 87 OF THE MISBEHAVIOUR OF ATTORNEYS, ETC. 
 
 ste'^vard, who "was an attorney, to compel him to account before the master, 
 for receipts and payments in respect of a mortgaged estate, and to pay the 
 balance to his employer, and deliver up on oath all deeds, writings, &c., 
 relative to the estate ; this being the proper subject of a bill in equity, and 
 not a case for a mandmnus, to compel a steward of a manor to deliver up 
 court rolls, &c. So the court would not compel an attorney, upon a sum- 
 mary application, to deliver up, on payment of his demand, a lease put into 
 his hands, for the purpose of making an assignment of it ; there being no 
 cause in court, nor any criminal conduct imputed to him in respect of it :(A) 
 Nor will they make an order on an attorney, to deliver up a deed, which 
 he holds as party and trustee. (z) And where an attorney had deeds, &c., 
 in his custody, of two co-defendants, the court of Common Pleas would not 
 refer it to the prothonotary, to ascertain which of them he should deliver 
 over to one defendant, on his paying the attorney's debt and costs. (A;) 
 When something, however, is to be done, for which a mandamus would 
 lie, as the giving up of court rolls, &c., the court will entertain a summary 
 jurisdiction over an attorney, in obliging him to deliver them up, on satis- 
 faction of his lien '.{I) And if a third person appear to be interested therein, 
 the court will take a security, from the person to whom they are delivered, 
 to produce them on demand, for the inspection of such third person. (?) 
 And where the employment of an attorney is so connected with his pro- 
 fessional character, as to afford a presumption that his employment was in 
 consequence of that character, the court will interfere in a summary way, to 
 compel him faithfully to execute the trust reposed in him : Therefore, where 
 an attorney was employed by A. to collect and get in the effects due to him 
 as administrator of another person, the court compelled the attorney to ren- 
 der an account to the executors of A., of the moneys, &c., received by him, 
 although he had never been employed by A. or his executors, to conduct 
 
 any suit, in law or equity, on his or their behalf. (w) The court 
 [ *88 ] has also, we have *seen,(a) a summary jurisdiction over matters 
 
 in difference between attorneys and their clerks. 
 For the reformation and punishment of abuses in general, there is an old 
 rule of court,(6) which has, however, fallen into disuse, that a jury of able 
 and credible officers, clerks, and attorneys, shall be impanelled once in three 
 years, and sworn to inquire ; 1. Of the points usually inquirable by the writ, 
 viz : falsities, contempts, misprisions, and offences : 2. Of such who have 
 been admitted attorneys or clerks, and are notoriously unfit; their names to 
 be presented to the court, and they to be punished or removed, as the case 
 shall require : 3. Of new or exacted fees,(c) and of those that have taken 
 them, under whatsoever pretence; and to prepare and present a table of the 
 due and just fees, that the same may be fixed and continue in every office; 
 and likewise for the Marshalsea and Fleet prisons : And that some persona 
 
 (h) 8 East, 237. (0 5 Taunt. 364. 
 
 (k) 7 Taunt. 391. 1 Moore, 99. S. C. 
 
 {I) 3 Durnf. & East, 275, and see 2 Blac. Rep. 912. 5 Taunt. 206. 6 Taunt. 105. 
 
 [m) 4 Barn. & Aid. 47, and see 2 Chit. Rep. 68. 7 Moore, 437. 1 Bing. 91,S.C. 
 
 [a) Ante, 68. 
 
 (6) R.M.I 654, ^ 3,K. B. &C. P.,and see R. E. 9 Eliz. C. P., which contains the writ to sum- 
 mon the jury, and lord chief justice Dyer's charge thereon. 
 
 (c) As to the fees of attorneys and officers of the court, see R. T. 35 H. VI. | 5, 6, 7, 8, R. M. 
 6 & 7 Eliz. g 1,2. R.M. 15 Eliz. § 5, 6, 11, 12, 13. R. H. 14 J'ac. I. rc^. 2, ? 1. R.M. 17/ac.I. 
 C. P. See also stat. 3 Geo. IV. c. 69, to enable the judges of the several courts of record at 
 Westminister, to make regulations respecting the fees of the officers, clerlis, and ministers of 
 the said courts. 3 Dowl. & Ryl. 602.
 
 OF TUE MISBEHAVIOUR OF ATTORNEYS, ETC. 88 
 
 be enjoined and sworn to give evidence, viz. some clerks of the courts, and 
 some attorneys in every county, not excluding others. 
 
 When an attorney is charged by affidavit, Avith any fraud or malpractice 
 in his profession, contrary to the obvious rules of justice and common 
 honesty, the court, on motion, will order him to answer the matters of the 
 affidavit ;[a] and, in general, if he positively deny the malpractices imputed 
 to him, they will dismiss the complaint ; but otherwise they will grant an 
 attachment. (c?) And where an attorney, required to answer the matters of 
 an affidavit, swore in his exculpation to an incredible story, the court of 
 King's Bench granted an attachment against him, though he positively de- 
 nied the malpractices with which he was charged. (c) And where an attor- 
 ney had behaved himself in such a manner, as to afford reasonable ground 
 for thinking that he had misconducted himself in his professional character, 
 although it turned out, upon investigation, that there was no sufficient ground 
 for imputing actual misconduct to him, the court would not give him his 
 costs of the application. (/) But the court will not call upon an attorney 
 summarily, to answer the matters of an affidavit, charging him with an in- 
 dictable offence ; but will leave the parties complaining to prosecute for the 
 same.(<7) I^ bas been doubted, whether the affirmation of a Quaker is 
 admissible, to call upon an attorney of this court, to answer the matters of 
 an affidavit :(A) and the true distinction, to be collected from all the cases 
 upon the subject, seems to be this ; that if the object of the 
 *suit or proceeding be to recover a debt, or to give to a party any [ *89 ] 
 legal civil right, the affirmation of a Quaker is admissible ; and 
 actions on penal statutes are to be considered as actions for debts ; but that 
 where the object is not to give to the party any legal civil right, but to 
 punish a person who has done something wrong, the affirmation of a 
 Quaker is not admissible. (a) In the Common Pleas, if an attorney do 
 any thing wrong, quatenus an attorney, in an inferior court, the court will 
 oblige him to answer the complaint. (?>) 
 
 When an attorney has been fraudulently admitted,(c) or convicted (after 
 his admission,) of fe\ony,{d) or other offence which renders him unfit to be 
 continued an attorney, (cc) or has knowingly suffered his name to be made use 
 of by an unqualified person, (^) or acted as agent for such person, (^') orhaa 
 signed a fictitious name to a demurrer, as and for the signature of a barris- 
 
 (d) 1 Chit. Rep. 186, and see Bac. Abr. tit. .4«ornej/,n. Append. Chap. III. ? 19. 
 
 (c) 6 Durnf. & East, 701. ( f) 3 Dowl. & Ryl. 22G. 
 
 (g) 1 King. 102. 7 Moore, 424, S. C. 1 Ring. 142. (//) 1 Do-svl. & Ryl. 121. 
 
 (a) 1 Dowl. & Ryl. 124, per liaijleij J. 
 
 (b) 2 Wils. 382, and see 3 Dowl. &. Ryl. G02. 
 
 (c) 2 Blac. Rep. 091. Antc,i)7. (d) Cowp. 829. 
 (ee) 6 East, 143, and see 1 Chit. Rep. 557, in notis. [ff) Ante, 73, 4. 
 
 [a] Attorneys and solicitors are public ofBcers, and are under the government ot the seve- 
 ral courts, in regard to their behaviour to their clients. Mcrritt v. Lambert, 10 Paige, 352, 
 affirmed, Wallis v. Touhtt,2 Den. 607. And may be punished for uttering slanderous words. 
 Kiiu/ V. Wlicclrr, 7 Cow. 725. It seems that proceedings on motion against an attorney for 
 monej' collected, is no bar to a recovery in an action on the case for damages. Corpund v. 
 Balcvin, 25 .Miss. 129. The removal of a solicitor from his office, as solicitor of the court of 
 chancery, for malpractice, dejirivcs him of the power to practise as solicitor, attorney, or 
 counsel, in any other court. .Matter of F'^ter.wii, 3 Paige, C. R. 510. And an attorney may 
 be removed from office, or suspended from practice in the Common Pleas by that court, on 
 good cause shown ; but it is said that ignorance of the law is not a good cause. Bryant'i 
 Case, 4 Foster, 149.
 
 89 
 
 OF KE-ADMITTING ATTORNEYS. 
 
 ter (aq) ov otherwise grossly misbehaved himself,(7(7i) the court will order him 
 to be struck off the roll. If an attorney practise, after he has been convicted 
 of foro-ery, perjury, subornation of perjury, or common barratry, he is liable 
 to be transported, (z) And where an attorney had been struck off the roll 
 of the court of King's Bench, on the report of the master, for misconduct, 
 the court of Common Pleas on motion, supported by an affidavit of the mas- 
 ter's report, struck him off the roll of the latter court. (A;) But, in a subse- 
 quent case, the rule for striking him off the roll was refused ; the contents of 
 the afi&davits, on which the court of King's Bench acted, not having been 
 stated, and there being no proof or allegation that the attorney had been 
 struck off for a misdemeanor. (?) And striking an attorney off the roll is 
 not always understood to be a perpetual disability ; for the court have in 
 some instances permitted him to be restored, considering the punishment 
 in the light of a suspension only,(m) 
 
 An attorney may also be struck off the roll at his own instance, as for the 
 purpose of being called to the bar,(w) &c. : and if he be afterwards desirous 
 of being restored, he must, if called to the bar, first apply to the inn of 
 court where he "was called, to be debarred :(o) But an attorney cannot be 
 struck off the roll at his own instance, though he has never practised, 
 without an affidavit that no proceedings are pending against him.(^9) The 
 mode of re-admitting an attorney, who has been struck off the roll at his 
 own instance, is pretty much the same with that of re-admitting him, 
 
 when he has not taken out his certificate, which has been already 
 [ *90 ] *treated of.(«) In general, he must satisfy the court that he 
 
 ought to be restored •,(h) and, on one occasion, (c) they required 
 the like notice to be stuck up, and entered at the judge's chambers, as 
 upon an original admission : The court will also make him consent to 
 take no advantage of his privilege, in any action then depending. (<i) But 
 the statute 37 Geo. III. c. 90, § 31, being confined to attorneys who have 
 neglected to take out their certificates, does not apply to those who have 
 been struck off the roll at their own instance ; and of course the latter 
 may be re-admitted, without paying any fine or arrears of duty.(e) 
 
 Igg) 4 Dowl. & Ryl. 738. 
 
 (hh) Potter's case, H. 26 Geo. III. K. B. Priddle's case, E. 27 Geo. III. K. B. 
 (i) Stat. 12 Geo. I.e. 29, § 4. (A;) 1 Brod. & Bing. 522. 4 Moore, 319, S. C. 
 
 (l) 3 Brod. & Bing. 257. 7 Moore, 64, S. C. Ante, 67. 
 
 (m) 1 Blac. Rep. 222. The like was done by the court, in Trin. 37 Geo. III. K. B. ^ 
 (n) Append. Chap. III. § 21,2. 
 (o) Doug. 114. 
 
 (p) 1 Chit. Rep. 557, in notis, and see id. 692. 6 Ves. 11. 8 Ves. 33. Append. Chap. III. 
 2 21 («) ^«^^J ^9. 
 
 lb) Ex parte Samhridge, T. 25 Geo. III. K. B., and see 1 Chit. Rep. 692. 
 (c) Ex parte raughan,K 45 Geo. III. K. B. Ante, 79. (d) Doug. 114. Barnes, 42. 
 
 (e) 2 Barn. & Aid. 315, (a).
 
 OF PROSECUTION, ETC. *91 
 
 ♦CHAPTER IV. 
 
 Of the Means of commencing personal Actions, in the King's Bench, 
 Common Pleas, and Exchequer ; and the Prosecution and Defence 
 of them in Person, or by Attorney: and 0/ Paupers, and Infants. 
 
 The means of commencing personal actions, in the court of King's 
 Bench, conformable to its jurisdiction, (aa) are — 
 
 I. Bj Original Writ ; 
 
 1. Against common Persons. 
 
 2. Against Peers of the Realm, and Members of the House 
 of Commons. 
 
 3. Against Corporations, and Hiindredors. 
 II. By Bill of Middlesex, or Latitat. 
 
 III. By Attachment of Privilege, at the suit of Attorneys, and Officers 
 
 of the Court. 
 
 IV. By Bill; 
 
 1. Against Members of the House of Commons. 
 
 2. Against Attorneys, and Officers of the Court. 
 
 3. Against Prisoners, in custody of the Marshal, or Sheriff, 
 &c. 
 
 In the Common Pleas, the means of commencing personal actions, are 
 first, by original writ, issuing out of Chancery ; which is either a special 
 original, adapted to the nature of the action, or a common original, in 
 trespass quare clausum f regit : The former, though it may be had in any 
 case, is only necessary in the first instance against peers, corporations, 
 and hiindredors ; the latter, not requiring personal service, is sometimes 
 used, when the defendant keeps out of the way, so that he cannot be 
 arrested, or personally served with process : Secondly, by capias quare 
 clausum fregit, founded on a supposed original, which is the common 
 mode of commencing actions in this court, and answers to the bill of 
 Middlesex or latitat in the King's Bench: Thirdly, by attachment of 
 privilege, at the suit of attorneys and officers of the court : Fourthly, by 
 bill, which is twofold ; first, against attorneys and officers ; and secondly, 
 against members of the house of commons. (6) It has been said, that if a 
 man be in the Fleet, a plaintiff may have a bill of debt against 
 him, in the same manner as, in *the King's Bench, against a man [ *02 ] 
 in custody of the marshal ;(a) though Fitzherbert adds, that it 
 was not usual. In practice, actions against prisoners in custody of the 
 warden of the Fleet, are commenced in the same manner as those against 
 other persons, by original writ. 
 
 In the Exchequer, the means of commencing personal actions are first, 
 by venire facias ad respondendum,{bb) which is in nature of an original 
 
 {aa) Ante, 37. 
 
 (6) 2 Ld. Raym. 1442, per Strange, arg., and see the case of Dawkins v. Burridje, id. ibid. 2 
 Str. 734, S. C. Ante, 38. 
 
 (a) Fitz. Abr. tit. Bill, 18, 3 H. 6,26, and see 3 Bos. & Pul. 12, (a). 
 {bb) Append. Chap. VIIL g 76, &c.
 
 g2 OF THE PROSECUTION, ETC., 
 
 •writ ' and ^vas the process used at common law, against persons having 
 privileo-e of parliament :(c) Secondly, "hy subpoena ad res])ondendum,{d) 
 which is a process directed to the defendant, anologous to the subjycena in 
 Chancery, or on the equity side of the Exchequer: Thirdly, by quo 
 minus capias,{e) which answers to the bill of Middlesex or latitat in the 
 King's Bench, and capias quare clausum fregit in the Common Pleas : 
 Fourthly, by venire faeias,{f) or capias of p>rivilege,{g) at the suit of 
 attorncr/s and officers of the court : and lastly, by hill, which is threefold ; 
 first, against attorneys and officers ;{h) secondly, against members of the 
 house of commons,(i) on the statute 12 & 13 W. III. c. 3, § 2 ; and 
 thirdly, against p>riso7iers,{k) in custody of the sheriff, &c., or warden of 
 the Fleet.{l) In an inferior court, it is no ground of error, upon a judg- 
 ment after verdict, that the plaint was levied before the cause of action 
 accrued :{m) But it seems that a custom to issue a summons and attach- 
 ment at the same time, is bad in law.(7^) 
 
 In the prosecution and defence of personal actions, the parties must 
 appear in perso7i, or by attoryiey : or, in case of infancy, by prochein amy 
 or guardian. 
 
 At common law, the plaintiff and defendant must, in general, have 
 appeared in person : and could not have appeared by attorney, without 
 the king's special warrant, by writ or letters patent. (o) But a corporation 
 aggregate, not being capable of a personal appearance, could only have 
 appeared hj attorney, appointed under their common seal.(/:)) And now, 
 by the statute of Westm. 2, (13 Edw. I.) c. 10, a general liberty is given 
 
 to the parties, of appearing by attorney.(^) Yet there are cer- 
 [ *93 ] tain persons, such *as feme coverts,{a) and idiots,(b) who, for 
 
 want of legal discretion, are incapable of appointing an attor- 
 ney ; and must therefore appear in person : And any one else, if he think 
 proper, may still appear and prosecute or defend his suit, in the same 
 manner ;(c6') which is usually done by attorneys and prisoners. A plaintiff 
 
 (c) Man. Ex. Pr. 32. 
 
 (d) Append. Chap. VIII. g 93, &c. 
 
 (e) Id. § 110, 11. And, for the entry of a quo minus, with the sheriff's retarn of non est in- 
 ventus, and award of alias, see id. ^ 112. 
 
 (/) Append. Chap. XIV. § 15. {g) Id. § 16. 
 
 {h) Id. I 29, 30. (e) Post, Chap. VI., and see Man. Ex. Pr. Chap. V. 
 
 (k) Append. Chap. XV. | 23, 4. 
 
 (l) See further, as to the means of commencing personal actions in the Exchequer, Steph. 
 PI. 53, 4; 59,60. 
 
 (m) 3 Barn. & Aid. 605, but see Doug. 61. 
 
 (n) 3 Barn. & Cres.772. 5 Dowl. & Ryl. 719, S. C. 
 
 (o) Co. Lit. 128, a. 2 Inst. 249, 378. F. N. B. 25. 1 Mod. 244. 2 Mod. 83, S. C, and see 
 Steph. PI. Append, ix. x. 
 
 (p) Bro. Abr. tit. Corporation, 28. Co. Lit. 66, b. Com. Dig. tit. Pleader, 2 B. 2. But see 
 the Mayor of T/ietford's case, 1 Salk. 192, wherein it was laid down by Holt, Ch. J., that 
 though a corporation cannot do an act in pais, without their common seal, yet they may do 
 an act upon record : and that is the case of the city of London, every year, who make an 
 attorney by warrant of attorney in the King's Bench, without either sealing or signing : the 
 reason is, because they are estopped by the record, to say it is not their act. And see Man. 
 Ex. Pr. 3. 
 
 (?) Gilb. C. P.32,3. 2 Inst. 376, F. N. B. 25. Ante, 60. (a) 3 Taunt. 261. 
 
 {b) Co. Lit. 135, b, 2 Inst. 390, F. N. B. 27, but see 2 Wms. Saund. 5 Ed, 335, where an idiot 
 appeared by her friend, and assigned for error, that being an idiot, she had previously ap- 
 peared and defended the action by attorney : And note, in Co. Lit. 135, b, it is said, that the 
 suit by idiots, &c., must be in their name, but shall be followed by others. Lunatics, it is 
 said, if under age, must appear by guardian : if of full age, by attorney. 4 Co. 124, b, and 
 Bee Bac. Abr. tit. Idiots and Lunatics, G. 2 Wms. Saund. 5 Ed. 333, (4). 
 
 (cc) Say. Rep. 217.
 
 BT ATTORNEY. 93 
 
 may sue, in the Common Pleas, upon a penal statute, in Lis O'wu name, 
 without an attorney; and putting '-'• plaintiff ' s attorney" after his name, in 
 the notice on the process, is no irregularity, being only in compliance 
 with the 5 Geo. 11. c. 27, § ^.{d) 
 
 Attorneys were anciently appointed in court, when actually present :(e) 
 but they are now usually appointed out of court, by ivarrant of attor- 
 ney ;(/) which should regularly be in writing; but an authority hy parol 
 is said to be sufficient to support a judgment ;(_^) and even if an attorney 
 appear without warrant, it is a good appearance as to the court, though he 
 is liable to an action. (7t) So, after an order of nisi ])r ins had been made to 
 refer a cause to arbitration, with the consent of the defendant's counsel and 
 attorney the court of Common Pleas would not set it aside, on an affidavit 
 by the defendant, expressly denying his authority to refer. (i) And where 
 an authority was given to an attorney, to protect the defendant from arrests, 
 and before it was countermanded, the attorney gave an undertaking to put 
 in bail for the defendant, the court would not set aside the proceedings, on 
 behalf of the latter, although he disclaimed the authority of the attorney. (/c) 
 It seems, however, that when an action is brought by an attorney, without 
 proper authority, the court will set aside the proceedings; for otherwise the 
 defendant might be twice charged. (Z) And where an attorney appears 
 without warrant, the court will set aside a judgment entered against the 
 defendant, if the attorney be not responsible ; for otherwise the defend- 
 ant could have no remedy against him.(w) 
 
 The warrant of attorney continues in force until the judgment, and for a 
 year and a day afterwards, in order to have execution, &c.(w) unless it be 
 sooner countermanded by the order of the principal, or determined by the 
 death of the attorney. And a defendant, having appeared to the action by 
 one attorney, cannot, in the same cause, make any application to the court 
 by another, without having obtained an order for changing his attorney.(o) 
 But a warrant of attorney for the plaintiff, in the action against 
 the *principal, cannot extend to a scire facias against the bail,(a) [ *94 ] 
 or to revive the judgment,(5)but there must be a new warrant of 
 attorney ; because this is a new cause, and different record. And, as a scire 
 facias is a new action, it may be sued out by a new attorney, without leave 
 of the court for changing the attorney, or giving notice that the old attorney 
 is changed. (e) So the defendant in the original action need not obtain a 
 judge's order to change his former attorney, upon bringing a writ of 
 error.(cZ) And the plaintiff, in the Common Pleas, may sue out execution 
 by a different attorney from the attorney in the cause, without obtaining 
 an order of court for changing the attorney. (g) 
 
 When an attorney having been retained to defend a cause, has undertaken 
 to appear, the defendant is not allowed to countermand the appearance, after 
 
 (d) 2 H. Blac. 600. (c) 1 Wils. 39. 
 (/) Steph. n. 32. Append.. Chap. IV. g 1, 2. 
 
 (y) 2 Keb. 190. 1 Lil. Pr. 134, 137. (A)lKeb.89. 
 
 (i) 3 Taunt. 48G, and see 1 Salk. 86. 1 Chit. Rep. 142. 
 
 (k) 1 Chit. Rep. 193. 
 
 (l) 1 Durnf. & East, 62. 1 Chit. Rep. 194. (m) 1 Salk. 88. 6 Mod. IG, S. C. 
 
 (n) 2 Inst. 378. Gilb. Exec. 92, 3. Run. Eject. 2 EJ. 428. 2 Bos. & Pul. 357, (6j. 
 
 (o) 1 Barn. & Cres. G54. 
 
 (a) 1 Salk. 89. 2 Salk. 603. 2 Ld. Raym. 1252, 3, S. C. 
 
 (b) Cro. Eliz. 177. 2 Ld. Raym. 1043. 
 
 (c) Say. Rep. 218. (d) 7 Durnf. & East, 337. 
 
 (e) 2 Bos.& Pul. 357.
 
 94 or THE PROSECUTION, ETC., 
 
 his rctainer.(/) But, after appearance, he may change his attorney by rule 
 of court, or order of a judge, on payment of what is due to him.{g) For 
 this purpose, a summons should be taken out, and judge's order obtained 
 thereon ;(/i) a copy of which order should be served on the opposite attor- 
 ney : and it is not necessary, on changing an attorney, to file a new war- 
 va.nt.{i) When an attorney is thus changed, the attorney newly coming in 
 is bound to take notice at his peril, of the rules to which the former attor- 
 ney was liable :{k) And till an order is obtained, the opposite party and his 
 attorney are justified in considering the former attorney as being still em- 
 ployed ; and are not bound to take notice of any proceedings in the name of 
 another attorney: Therefore, payment to the plaintiff's late attorney, 
 changed without leave of the court, has been held to be good :{l) and notice 
 of justifying bail,(w) or a plea put in,(w) by a new attorney, without any 
 order for changing the attorney in the cause, is irregular ; and the plaintiff 
 is not bound to accept such notice or plea. But the sheriff or his bail may 
 put in and justify bail above, by their own attorney. (o) And where the 
 defendant is a prisoner, notice of justification may be given by a new attor- 
 ney, without an order for changing the attorney before employed. (^;) So, 
 where a plea had been put in by a new attorney, without any order for 
 changing the attorney, it was holden by the court of Common Pleas, that 
 the plaintiff waived the irregularity, by taking the plea out of the office, 
 and keeping it.(^) And a party called upon to show cause, may 
 [ *95 ] oppose the rule in person, after an order has been obtained *for 
 changing the attorney, although a copy of it has not been served 
 on the opposite party.(aa) If an attorney die, pending the suit, his warrant 
 is determined :(bb) and by stat. 4 Hen. IV. c. 18, the justices shall make 
 another in his place: In such case, it is necessary to give notice to the op- 
 site party, of the appointment of a new attorney, before any proceedings 
 can be taken by him •,{c) and if the party who employed him, having notice 
 of his death, will not appoint another attorney, his adversary may proceed 
 in the action. (c?) 
 
 At common law, the warrants of attorney might have been filed, and 
 entered of record, at any time before judgment :(e) but there are several 
 acts of parliament,(/) requiring it to be done sooner, under severe penal- 
 ties. By the last of these acts it is provided, that " the attorney for the 
 plaintiff shall file his warrant of attorney, with the proper officer, the same 
 term he declares ; and the attorney for the defendant, the same term he 
 appears, under the penalties inflicted by former laws." Upon this act of 
 parliament, the court of King's Bench made a vu\e,{g) " that the defend- 
 ant's attorney, at the time of his appearance, shall give the plaintiff's 
 
 (/) R. M. 1654, ^ 10, K. B. R. M. 1654, § 13, C. P., and see 1 Chit. Rep. 193. Ante, 93. 
 
 (V) 1 Lil. P. R. 134, 143. 8 Mod. 306. 12 Mod. 440. 
 
 (h) Append. Chap. IV, § 6, 7. (i) 1 Taunt. 44. 
 
 (k) R. M. 1654, § 10, K. B. R. M. 1654, | 13, C. P. (l) 1 Blac. Rep. 8. 
 
 (m) 2Blac.Rep. 1323. Doug. 217. 6 Taunt. 532. 2 Marsh. 257, S. C. 7 Taunt. 48. 2 Marsh. 
 365, 6, S. C. 
 
 (w) 6 East, 549, but see 13 Ves. 161, 195, in Chan. 
 
 (o) 7 Taunt. 48. 2 Marsh. 365, 6, S. C. 1 Chit. Rep. 81. 2 Barn. & Aid. 604. 1 Chit. Rep. 
 329, S. C. (p) 1 Chit. Rep. 291. 
 
 (g) 2 New Rep. C. P. 509. (aa) 4 Taunt. 669. 
 
 (bb) 1 Lil. P. R. 141. 
 
 (c) 1 Taunt. 342. (d) 1 Lil. P. R. 137. Sty. P. R. 13. 2 Keb. 275. 
 
 (e) 41 Edw. in. 1, b, but see 1 Wils. 39. 
 
 (/) 18 Hen. VI. c. 9. 32 Hen. VIH. c. 30, ? 2, 3. 18 Eliz. c. 14, | 3. 4 & 5 Ann, c. 16, § 3. 
 
 (g) R. M. 5 Ann, 2 K.B., and see R. H, 2 & 3 Jac. II. C. P.
 
 BY ATTORNEY. 95 
 
 attorney, the warrant of attorney for the defendant ; and at the time of 
 delivering the copy of the declaration, or taking it out of the office, when 
 filed, shall pay /owr pence fur the said warrant : which warrant of attorney 
 the plaintiff's attorney shall file, with the oflicer appointed for filing it, at 
 the same time he files, or ought to file, the warrant of attorney for the 
 plaintiff. And if the defendant's attorney refuse to pay the same, the 
 plaintiff's attorney may sign judgment." Notwithstanding these regula- 
 tions, however, it has been determined, that the warrants of attorney may 
 he filed, so as to support the proceedings, at any time pendente lite., or 
 before final judgment ; though the attorney may be fined, for not filing 
 them in due time. (A) And the plaintiff, in the King's Bench, cannot now 
 sign judgment, for the defendant's refusing to pay/ow pence for the 
 warrant of attorney, when a copy of the declaration is delivered to \\\xn.{i) 
 
 It was anciently the course of the King's Bench, to enter the warrants 
 of attorney on a particular roll, kept for that purpose -.{k) but this course 
 was altered in the time of Wright, Ch. J., who caused them to be entered 
 on the top of the issue ro\\,{l) as the practice is at this day. In the Com- 
 mon Pleas, they are still entered by the clerk of the warrants, on distinct 
 rolls,(wi) which are filed in the bundle of common rolls in that court : 
 And it is a rule, that " the clerk of the treasury shall not sign 
 or seal any *record of nisi prius, unless the same be first signed [ *96 ] 
 or stamped by the clerk of the warrants, or his deputy ; nor 
 shall the exigenter receive anj pluries capias, in order to make an exigent 
 or proclamation thereon, before the same is so signed or stamped :"(«) 
 And no judgment whatever, (except final judgments upon posteas and 
 writs of inquiry, and nonprosses,) shall be signed by any of the prothono- 
 taries, unless the stamp of the clerk of the warrants be first impressed on 
 the paper, whereon such judgment is to be signed, whereby it may appear 
 that warrants of attorney are duly filed. (5) The ivant of a warrant of 
 attorney is aided, after verdict, by the statutes of jeofails :{cc) and by the 
 statute of 8 Hen. VI. c. 12, § 2, a misprision of a clerk in the warrant 
 may be amended, in aflSrmance of the judgment. ((^) 
 
 The warrant of attorney was formerly subject to a stamp duty :{e) And 
 it was enacted, by the statute 25 Geo. III. c. 80, § 13, that " no attorney 
 should sue out any writ or process, or commence, prosecute, or defend 
 any action, unless he should have delivered to the officer, or his deputy, 
 appointed to sign or issue the first process for the plaintiff, or to enter, 
 file or record the bail or appearance for the defendant, a memorandum, 
 or minute of his warrant, duly stamped with a five shilling stamp : con- 
 taining the names of the parties, the court, and the attorney, and where 
 a prsecipe was required, (except for an original, the nature and denomi- 
 nation of the process, and the return of it ;(/) which memorandiim or 
 
 (^) Dyer, 180, 225. Cro. Jac. 277. March, 121. 8 Mod. 77. 1 Str. 526. 2 Str. 807. 2 Ld. 
 Raym. 1533, 4. Fitzgib. 191. 1 Wils. 39, 183. 
 
 (?) 4 Durnf. & East, 370. (A-) 1 Salk. 88. 
 
 \l) Id. ibid. R. E. 4 Jac. II. K. B. 
 
 (m) Append. Chap. XXX. § 50. (a) R. H. 2 & 3 Jac. II. C. P. 
 
 {b) R. M. 5 Geo. II. C. P., and see R. T. 35 Hen. VI. § 4- R- H. 14 & 15 Car. II. reg. 2, C. P. 
 
 {cc) 32 Hen. VIII. c. 30, § 1. 18 Eliz. c. 14, § 1, and see 1 Wils. 85. 
 
 [d) Douf^. 114. And see further, as to the warrant of attorney, and when it shall be en- 
 tered or filed, Com. Dig. tit. At/ornei/, B. 7, 8. 
 
 (e) 25 Geo. III. c. 80, g 1. 44 Geo. III. c. 98, Sched. A. 48 Geo. III. c. 149, Sched. Part II. 
 2 III. 55 Geo. III. c. 184, Sched. Part II. ^ III. 
 
 (/) Append. Chap. IV. § 3, 4. Fost, Chap. XII.
 
 96 OF THE PKOSECUTION, ETC. 
 
 minute the said oflScer or his deputy should receive, and forthwith enter 
 or file of record, and sign thereon the day of delivering it." A similar 
 memorandum or minute was required, by the same act, previous to entering 
 up judgment on a cognovit actionem, or warrant of attorney.(^) But the 
 stamp duty on warrants of attorney being repealed, by the statute 5 Geo. 
 IV. c. 41, the filing of a memorandu7n, or minute of the warrant, seems 
 to bo no longer necessary. 
 
 Attorneys residing in the country frequently employ agents in town, to 
 prosecute and defend suits ; on the other hand, attorneys in town some- 
 times employ agents in the country to superintend the execution of writs, 
 &c. And an attorney employing an agent to do business for his client, is 
 primd facie liable to the agent for his bill, although the latter knew the 
 business to be done for the client ; but to whom the credit was given, is a 
 question for the jury.(7i) When country attorneys are concerned as 
 principals, declarations, pleas, and other proceedings should not be deli- 
 vered and carried on in the country, but by the agents in 
 [ *97 ] town ;(^) to whom all ^notices in the cause should likewise be 
 given -.[a] And if the agent of the plaintiff's attorney give the 
 agent for the defendant time to plead, the country attorney cannot sign 
 judgment till that time be expired.(6) In the King's Bench, notice of 
 trial or inquiry,((;) or a countermand or continuance of notice of inquiry,(d'(^) 
 must be given in town; but a countermand of notice of trial may be given 
 in the country.(ee) In the Common Pleas, it seems that notices of trials 
 and countermands, and notices of executing writs of inquiry and counter- 
 mands, may be given either to the attorney in the country, or to the agent 
 in town ; but of those things which are to be done only in town, notice 
 must be to the agent : and all notices where the party has a known 
 attorney, must be given to that attorney or his agent, and not to the party 
 himself.(^) Payment to the attorney is payment to the principal ;(^^)[a] 
 
 {g) Id. I 5. 
 
 (A) 2 Barn. & Ores. 11. 3 Dowl. & Ryl. 195, S. C. 
 
 {i) Imp. K. B. 10 Ed. 46. Imp. C. P. 7 Ed. 38, 187, and see Barnes, 311. Pr. Reg. 124, S. C. 
 Cas. Pr. C.P. 94, 101, 109. Pr. Reg. 280, 81. Barnes, 251. Cas. Pr. C. P. 123, S. C. 
 ; {a) 1 Durnf. & East, 711. 3 East, 569. 
 
 (6) In the Common Pleas, if an appearance be entered in the name of an agent to the de- 
 fendant's attorney, judgment cannot be signed, though the plea be delivered in the name of 
 the latter. 3 Bos. & Pul. 111. 
 
 (c) 3 East, 568. 
 
 {dd) Imp. K. B. 10 Ed. 415, and see Lee's Prac. Die. 2 Ed. 29, 30. 
 ^ (ee) 2 Str. 1073. Cas. Ump. Hardw. 369, S. C. Imp. K. B. 10 Ed. 46. 
 
 Iff) Barnes, 306. {gg) 1 Blac. Rep. 8. 
 
 [a] Authority op Attorney. — The plaintiif s attorney, as such merely, has no authority 
 to discharge the defendant from a ca. sa. without satisfaction. Jackson v. Barthtt, 8 Johns. 
 361. Kellogg v. Gilbert^ 10 Johns. 220. Simonton v. Baraell, 21 Wend. 362. But he may direct 
 the sheriff to suspend proceeding under an execution, pending a negotiation with the de- 
 fendant on a compromise. Corning v. Southland, 3 Hill, 552. Neither is it his duty to direct 
 or control the sheriff in the discharge of his duty under the execution ; and if he does so, 
 and is sued, he is not entitled to double costs under the statute. Ray v. Birdege, 5 Denio, 
 619. ^ Although he may, under his general authority to collect a note, receive payment of 
 part in money, and the residue in a new note for two or three days of a person of undoubted 
 responsibility. Livingston v. Radcliff, 6 Barb. 201. It may however be stated as the result 
 of the cases, that his power is confined to the prosecution of a suit, and the incidents pro- 
 perly connected therewith ; it does not extend to compromising and discharging his client's 
 cause of action, unless specially authorized, without receiving his full claim. Vail Y.Jack- 
 son, 15 Verm. 314. Briggs v. Georgia, 10 Ih. 68. A client has no right to control his attorney 
 in the due and orderly conduct of a suit; and it is the attorney's duty to do what he haa 
 no doubt the court would order to be done, though his client instruct him otherwise. Anon. 
 1 Wend. lOS.
 
 OF PAUPERS. 97 
 
 but it is otherwise of payment to an agent, employed by the plaintiff's 
 attorney.(/i) And where the plaintiff's attorney was indebted to the 
 plaintiff, in a greater sum than the amount of the attorney's costs in the 
 cause, the court of Common Pleas held, that the agent, to whom the plain- 
 tiff's attorney was indebted on a general account, in a sum greater than 
 the amount of such costs, could not, as against the plaintiff, retain out of 
 the sum recovered by the latter, more than the charge for agency in that 
 particular cause. (2) 
 
 "When the plaintiff is a jMtcper, and will swear that he is not worth /ye 
 pounds, after all his debts are paid, except his Avearing apparel, and the 
 subject matter of the action, (A;) he may be admitted to sue in formdimu- 
 peris.\_\'] But the defendant in a civil action is never allowed to defend it as 
 a pauper.(Z) It was formerly a rule,(??t) that none could be admitted to 
 sue in formd imwperis, out of court ; but now, if a plaintiff will make affi- 
 davit,{n) that he is not worth five pounds, &c., he may, upon 2^etition{o) 
 to the chief justice, (supported in the King's Bench,) by counsel's opi- 
 nion(p) of his cause of action, be admitted out of court ;{^) which 
 admission may be *either at the commencement of the suit, or [ *98 ] 
 afterwards iJendente lite:[a) and upon his being so admitted, an 
 attorney and counsel shall be assigned him, pursuant to the statute 11 
 Hen. VII. c. 12 ; and he shall be permitted to carry on the proceedings 
 gratis, without using stamps,(6) or paying fees to the officers of the court 
 unless he obtain a verdict for more than five pounds, and then the officers 
 shall be paid their court fees, and for passing the record, &c. But the 
 opinion of counsel, or a certificate under his hand, that he thinks the 
 party has merits, is necessary, as well as an affidavit that he is not worth 
 five pounds, before the court will permit a person to sue in formd pau- 
 peris.{c) It seems, that an action for penalties is not within the statute 
 11 Hen. VII. c. 12 :(c^) And if it appear that the plaintiff has no meri- 
 torious cause of action, the court will discharge an order, authorizing him 
 to sue in formd pauperis ;{d) though a judge's order for that purpose must 
 be made a rule of court, before the court will entertain a motion to dis- 
 charge it.(cZ) 
 
 A pauper is not liable to pay costs to the defendant, if he be non-suited, 
 or have a verdict against him : for, by the statute 23 Hen. VIII. c. 15,(c) 
 which gives costs to the defendant upon a nonsuit or verdict, it is provided 
 that " every poor person, being plaintiff in any action of debt,'' &c., " who, 
 
 (/i) Doug. 623, 4, and see Paley's law of Principal & Agent, 182, (/). 
 
 (j) 1 Bing. 20. 7 Moore, 249, S. C. And see 6 Price, 203. 2 Dowl. & Rjl. C, accord. 6 
 Dowl. & Ryl. 384. 
 
 (/f) Pv. H. 3 & 4 Jac. II. rcg. 1, {a). K. B. Hul. Costs, 2 Ed. 222 ; but see 1 Lil. P. R. 633, 
 •where the sum is said to be ten pounds. 
 
 (/) Hul. Costs, 2 Ed. 228, 9. Barnes, 328. (m) R. H. 3 & 4 Jac. II. rcfj. 1. K. B. 
 
 (n) Append. Chap. IV. g 9. (o) /</. g 8- (i?) ■^'^- § 10- 
 
 {q) R. II. 3 & 4 Jac. II. reg. l,(ff). K. B. For the form of judge's order, for admitting the 
 plaintiff to sue in furma pauperis, see Append. Chap. IV. ? 15. 
 
 (a) Say. Costs, 90. 3 Wils. 24, and see Com. Dig. tit. Formd rauperis. M'Clel. & Y. 282. 
 
 (b) Stat. 5 Wm. & M. c. 21, ^ 14, &c., and see the statutes 44 Geo. III. c. 98, g 19. 48 
 Geo. III. c. 149. Sched. Part il. ^ V. 55 Geo. III. c. 184. Sched. Part II. § V. 
 
 (c) aoodlillc V. Mmio, II. 25 Geo.' III. K. B. 
 
 (d) 1 Younge & Jerv. 10. (c) ? 2. 
 
 [a] See 1 Broom's Pract. 290. 2 Archb. Pract. 1121, 8 Ed.
 
 98 OF INFANTS. 
 
 at the commencement of his suit, shall be admitted, by the discretion of 
 the judge or judges where the action is pursued, to have his process and 
 counsel of charity, without paying money or fee for the same, shall not 
 be compelled to pay any costs by virtue of that statute, but shall offer other 
 punishment, as by the discretion of the justices before whom the suit shall 
 depend, shall be thought reasonable." It has been said, that if a pauper 
 be nonsuited, he shall pay costs, or be whipped ;(/) but this punishment 
 does not appear to have been ever inflicted. (^) If the pauper give notice 
 of trial, and do not proceed, or be otherwise guilty of improper conduct, 
 the court will order him to be dispaupered ;(A) but until this be done, they 
 will not make any rule about costs. (^) And unless the pauper's conduct 
 appear to have been vexatious, the court will not stay the proceedings in 
 a second action, until the costs are paid of a nonsuit in a prior one, for 
 the same cause ;{Jc) nor, if the pauper should succeed in the second action, 
 
 will they deduct the costs of the first, out of those recovered in 
 [ *99 ] the second. (Z) In a second ejectment by a *pauper, the court 
 
 refused to grant a rule for staying the proceedings, until the 
 costs were paid of a prior ejectment for the same cause :{a) but it was 
 admitted, that he would not in such second action be allowed to sue in 
 formd pauperis. {a) And where an order was made pendente lite, admit- 
 ting the plaintiff to prosecute his action in forma pauperis, and an appli- 
 cation by the defendant for security for, and taxation of the costs previ- 
 ously incurred, was not made till nearly two years afterwards ; the court 
 of Exchequer refused the application, and allowed a retrospective opera- 
 tion to the order.(i) If a pauper be admitted to defend a suit in Chancery, 
 in forma pauperis, his solicitor can only recover of him money actually 
 paid out of pocket, for the defence of the suit.(c) And though a pauper 
 be not liable to pay costs, yet he is entitled to receive them from his ad- 
 versary, (c?) 
 
 An infant, or person under the age of twenty-one years, not being capable 
 of appointing an attorney, must sue by his prochein amy qx guardian,{e\k\ 
 unless where he sues as co-executor with others, in which case it is holden 
 that the executors of full age may appoint an attorney for themselves and 
 the infant, as they make together but one representative. (^)[b] And 
 
 (/)1 Sid. 261- 2 Salk. 506. Y Mod. 114. [g) Id. ibid. 
 
 (h) 2 Lil. Pr. 633. 2 Salk. 506. 1 Str. 420. 2 Str. 983, 1122. 3 Wils. 24. 1 Bos. & 
 Pul. 40. 6 East, 505. 2 Smith R. 676, S. C. 
 
 (i) 2 Str. 878, 983. 3 Wils. 24. 1 Bos. & Pul. 40. 6 East, 505. 2 Smith R. 676, S. C, 
 but S€e Gas. Pr. C. P. 47. Pr. Reg. 405, S. C. 1 Str. 420, semb. contra. 
 
 (k) 2 Str. 878, 1121. 3 Wils. 24. Mutton v. Colboys,E. 35 Geo. III. K. B., but see 2 
 Durnf. & East, 511, 
 
 {I) 2 Str. 891. 
 
 (a) Goodtitle v. Mayo, H. 29 Geo. III. K. B., and see 2 Str. 1121. 
 
 \b) M'Clel. & Y. 282. (c) 1 Car. & P. 533. 
 
 {d) 1 Bos. & Pul. 39. 
 
 (e) Co. Lit. 135, b. 2 Inst. 261, 390, F. N. B. 27, 2 Wms. Saund., 5 Ed. 117,/. (1). 
 
 Iff) 2 Wms. Saund. 5 Ed. 212, 13, (6). But see Com. Dig. tit. Pleader, 2 C. I., where it 
 is said, that if several sue jointly, and some are within age, and some of full age, and all 
 appear by attorney, it is no error ; for those of full age may make an attorney for all. The 
 authorities cited, however, do not support this doctrine. 
 
 [a] See page 101, note [d]. 
 
 [b] See 2 Troub. & Haley's Pr. 512, 3d Ed.
 
 OF INFANTS. 99 
 
 hence, he cannot be an informer upon a penal statute ',{g()) for, Ly the 18 
 Eliz. c. 5, § 1, " every informer upon a penal statute must exhibit his suit in 
 proper jjerson, and pursue the same only by himself or his attorney." An 
 infant defendant must in all cases appear and defend by r/uardian, even 
 where he is sued as co-executor with others :(7iA) And common bail cannot be 
 filed for him under the statute, though he be sued jointly with other defend- 
 ants. (/) If he appear by attorney, it is error ;(/c)[a] though if an infant 
 jylaintiff VLi>i[)OdiV by attorney, it is cured by the statutes of jeofails. (?) It 
 also seems, that in an action against baron and feme, the feme being under 
 age, she ought to appear by guardian. (?«) 
 
 To constitute ajjroc7/e/?i ami/ or guardian, the person intended, who is 
 usually some near relation, should come with the infant before a judge at 
 his chambers; or else a petition{n) should be presented to the 
 judge on *behalf of the infant, stating the nature of the action, [ *100 ] 
 and, if for the defendant, that he is advised and believes he has 
 good defence thereto ; and praying, in respect of his infancy, that the 
 person intended may be assigned him, as his 'prochein amy or guardian, to 
 prosecute or defend the action. This petition should be accompanied with 
 an agreement, [a) signifying the assent of the intended prochein amy or 
 guardian, and an affidavit,{b) made by some third person, that the petition 
 and agreement were duly signed. On being applied to in either of these 
 ways, the judge will grant his fiat ;{c) upon which a rule or order should be 
 drawn up, with the clerk of the rules, in the King's Bench, for the admis- 
 sion of the 2Jfoeliein amy or guardian. (cZ) In the Common Pleas, the order 
 for the admission is made by the judge, and entered by the prothonotaries 
 on their remembrance roll : which admission is either special, to prosecute 
 or defend a particular action, or general, to prosecute or defend all actions 
 whatsoever ;(e) though it is said, that, by the practice of the King's Bench, 
 a special admission of a guardian, to appear in one cause, will serve for 
 others. (/) The infant's father is usually appointed his prochein amy : 
 but where the father, being a necessary witness for the infant, cannot be 
 appointed, the court of King's Bench, on motion, will appoint some other 
 person, with the father's consent.(^) 
 
 The rule or order for the admission of a prochein amy, should be ob- 
 tained before declaration, and a copy thereof annexed to it ; or the defend- 
 ant is not compellable to plead :(/i) and the attorney for the plaintiff, if 
 required, must give notice to the defendant's attorney, of the place of 
 abode of i\iQ prochein amy.[ii) In like manner, the rule or order for the 
 admission of a guardian should be obtained before plea, and a copy of it 
 annexed thereto ; for if an infant defendant appear by attorney, though 
 it be in consequence of common process, with a notice requiring him to 
 
 {(jg) Say. Rep. 51. {hh) 2 Str. 784. 
 
 (t) niiffh V. Minster <\ others, T. 28 Geo. III. K. B. 
 
 [k) 8 Co. 58, b. 9 Co. 30, b. 2 Wms. Saund., 5 Ed. 212, (4, 5.) Barnes, 413, 418. 2 
 Wills. 50. 
 
 II) 21 Jac. I. c. 13. 4 & 5 Ann, c. 16. (m) 1 D'Anv. Abr. 602. 
 
 (n) Append. Chap. IV. g 11, 12. (a) Append. Chap. IV. § 13. 
 
 (6)M §14. (c) /(/. § 16. (d)Id.^n,\8, 
 
 (e) 1 Str. 304. Append. Chap. IV. § 19. (/) 1 Str. 305. 
 
 (ff) 1 Dowl. & Ryl. 13. (A) Sty. P. R. 264. (h) 1 Wils. 246. 
 
 [a] See accord Sheppard v. Ilibbard, 19 Wend. 96. }V}iiie v. Albertson, 3 Dev. 241. 
 Hamilton v. Foster, 1 Brevard, 464. Bedell v. Lewis, 4 J. J. Marshall, 452. Nicholson v. 
 Wilson, 13 Geo. Rep. 467.
 
 100 
 
 OF INFANTS. 
 
 appear in that manner, the plaintiff may obtain an order for striking out 
 the appearance, and that the defendant appear by guardian within a cer- 
 tain time, being usually four or six days ; or, in default thereof, that the 
 plaintiff may be at liberty to name a guardian, to appear and defend for 
 him:(A;/t)[A] And a similar order may be obtained, -where the defendant 
 neglects to appear at dX\.{lT) If a prochein amy or guardian be changed, 
 pending an action, the fact ought to be stated by an entry on the 
 record. (mm)[B] 
 
 An infant plaintiff cannot be compelled to give security for costs, on 
 the ground of the insolvency of his prochein amy :{n) and the latter alone 
 is liable to the payment of costs ;(o)[c] and if he refuse to pay 
 [ *101 ] them on demand, *he may be proceeded against by attach- 
 ment, (a) Yet, where an infant plaintiff was taken in execution 
 for costs, the court refused to discharge him on motion. (5) And it has 
 been adjudged, that costs are payable by an infant defejidant. {c)[p] 
 
 (kk) Barnes, 413, 418. T Taunt. 488. 1 Moore, 250, S. C, and see 2 Chit. Rep. 22, (a). 
 3 Bing. 609. 
 
 {11} 2 Str. 1076. 2 Wils. 50. [mm) 4 Taunt. 765. 
 
 («) 1 Marsh. 4, and see 2 Chit. Rep. 359. 
 
 (o) Cro. Eliz. 33. 1 Str. 548. 2 Str. 708. And the prochein amy is prima facie liable to 
 the plaintiff's attorney for his costs, as well as to the defendant. 2 Esp. Rep. 473. 
 
 (a) Cas. Pr. C. P. 32. Willes, 190. Barnes, 128. Pr. Reg. 102, S. C. 
 
 (6) 2 Str. 1217. 13 East, 6, and see Barnes, 183. 1 Bos. & Pul. 480. 
 
 (c) Dyer, 104. 1 Bulst. 189. 2 Str. 1217. 
 
 [a] See 2 Troub. & Haley's Pract. 513, 3d Ed. 
 
 [b] See Shuiilesmiih'y. Hughes, 6 Rich. 329. 
 
 [ c] Where an infant suing by his prochein ami recovers a judgment, which is reversed, 
 the judgment and costs shall be against the prochein ami. Yerger v. Stone, 7 Monr. 119. 
 
 [d] An infant may bring an action on a contract, but he must sue by guardian, or next 
 friend. 3PGiffin v. Stout, Coxe, 92. Doe v. Brown, 8 Blackf. 443, or he will be nonsuited, 
 at the trial. 3I'Daniel v. Nicholson, 2 Rep. Con. Ct. 344. In Connecticut, in an action by 
 a minor, an express admission of a prochein ami to prosecute seems to be unnecessary ; the 
 admission of the p)i'ochein ami named in the writ being implied, until disallowed. Judson v. 
 Blanchard, 3 Conn. 579. It is not the province of the court to appoint a guardian or next 
 friend to sue for, but only to defend an infant party. Priest v. Hamilton, 2 Tyler, 49. Nor 
 can an infant appear or plead by attorney. Jeffrey v. Robideaux, 3 Mis. 33. Clarky. Turner, 
 1 Root, 200. Mockcy v. Grey, 2 Johns. 192. And as defendant he must appear by guardian. 
 Knapp V. Crosby, 1 Mass. 479. Miles v. Boyden, 3 Pick. 213. Alderman v. Tirrell, 8 Johns. 
 418. Bedell v. Leicis, 4 J. J. Marsh. 562. Comstock v. Carr, 6 Wend. 526. Meredith v. 
 Sanders, 2 Bibb, 101. There should be no judgment by default, unless there is a guardian 
 ad litem. Chalfant v. 3Ionroe, 3 Dana, 35. Young v. Whitaker, 1 A. K. Marshall, 398. Eow- 
 land V. Cook, lb. 453. If an infant defendant does not appear upon service of tile summons, 
 the plaintiff may have a rule to assign a guardian and enter an appearance. Judson v. 
 Storer, 2 South. 544. The power of a next friend commences with the suit, and he can 
 therefore maintain a suit for such causes of action only as may be prosecuted without a 
 previous special demand, unless the defendant has waived the necessity of a demand. Miles 
 V. Boyden, 3 Pick. 213. Brown v. Hull, 16 Verm. 673. The next friend and guardian will 
 be admitted by the court without any other record than a recital in the count. Clark v. 
 Gihnanton, 12 New Hamp. 515. A prochein ami is one admitted by the court to prosecute 
 for an infant, because otherwise the infant might be prejudiced by the refusal or neglect of 
 his guardian. He is but a species of attorney, who may prosecute a right for an infant, but 
 can do nothing to operate to his injury, and therefore cannot release or compromise a suit 
 prosecuted on behalf of a minor. Isaacs v. Boyd, 5 Port. 388. The suit of an infant may 
 be dismissed without the consent of the prochei?! ami. The court may control him, as well 
 as a guardian ad litem, and shcRild permit or direct what is most for the interest of the 
 infant. Longnecker v. Greenwade, 5 Dana, 516. A judgment irregularly obtained against an 
 infant, is erroneous, and may be set aside, after he has attained full age, on motion and rule ; 
 the fact of infancy must be tried in such case per pais, and not by inspection. Haigler v. 
 
 Way, 2 Rich. 324. It seems, however, that the court is not bound to set aside the judgment, 
 after the infant has attained full age, but may consider lapse of time, the conduct of the
 
 OF THE ORIGINAL WRIT. '*102 
 
 ♦CHAPTER V. 
 
 Of the Original Writ ; and Process thereon, previous to the Capias, 
 in the King's Bench and Common Pleas. 
 
 An original writ is a mandatory letter from the king in Chancery, sealed 
 with his great seal \{aa) and, in the King's Bench, may be the means of 
 commencing all personal actions, against every person not being an attor- 
 ney or officer of the court, or a prisoner in the actual custody of the mar- 
 shal. Formerly, indeed, it was not usual to proceed in the King's Bench, 
 by original writ, in dehty detinue, or other action of a mere civil na- 
 ture :[hh) but the modern practice is different ',[cc) and, in Lord MansfieUV s 
 time, where the defendant pleaded to the jurisdiction, in an action of debt 
 commenced by original writ, the court gave judgment on demurrer for the 
 plaintiff: and declared, that if such a plea should come before them again, 
 they would inquire by whom it was signed.(c:?) On the other hand, an 
 original writ seems to have been formerly the only way of proceeding 
 against peers, and members of the house of commons ;(c') as it is still, 
 against the former,(/) and also against corporations, or hundredors,{g) 
 on the statute 7 & 8 Geo. IV. c. 31 ; or where, by reason of the defend- 
 ant's being abroad, or keeping out of the way, he cannot be arrested or 
 served with process. 
 
 Another benefit attending this mode of proceeding in the King's Bench 
 is, that after judgment in an action by original, a writ of error will not lie in 
 the Exchequer chamber, where it is often brought for the mere purpose of 
 delay, but only in parliament. (7i) The reason is, that at common law, no 
 writ of error lay, except in Parliament, from the judgment of this court; 
 and the statute(/) which gave a writ of error in the Exchequer chamber, 
 only extends to such actions as are first commenced in the King's Bench : 
 therefore, though a writ of error will lie in the Exchequer chamber, on a 
 judgment by bill, which originates in the King's Bench, yet it is otherwise 
 where the judgment is upon an original v^v'ii, which issues out of Chancery, 
 where the action in that case is first commenced.(A;) 
 
 *But, in order to save the great and unnecessary expense of 
 suing forth s/jeceaZ writs in small and trifling suits, it was enacted [*103 ] 
 
 {aa) Finch, L. 237. 3 Blac. Com. 273. Steph. PI. 5. 
 
 {bb) 4 Inst. 76. Trye, 55, 77, and see Lord Uale's Treatise, in 1 Harg. Law tracts, 360, 
 362, 364. 2 Blac. Rep. 850. 3 Blac. Com. 42. 
 
 {cc) Cas. temp. Hardw. 317. 
 
 {d) See also the statute 13 Car. II. stat. 2, c. 2, § 6, which speaks of actions of debt, &c., 
 depending by original writ in the King's Bench, as well as in the Common Picas. 
 
 (e) Trye, y, 13. Lil. Ent. 21. 2 H. Blac. 267, 299. 
 
 (/) 3 Maule & Sel. 88. {g) Trye, 11. Barnes, 415. 
 
 \h) 1 Sid. 424. Trye, 6. 2 H. Blac. 304. {i) 27'Kliz. c. 8. 
 
 {k) Run. Eject. 205, 6. Gilb. K. B. 319. 
 
 defendant, and other circumstances as confirm'.ng the judgment, or rendering the inter- 
 ference of the court improper, lb. The proper practice, in such cases, appears to be, on 
 affidavit of the defendant's infancy, to order a rule to show cause, on the return of which the 
 judgmeut may be set aside, or an issue made up to try the fact of infancy, or such other 
 material fact as the case may present, lb.
 
 103 OF THE ORIGINAL WRIT. 
 
 bj the Statute 5 Geo. II. c. 27, § 5, that " no special writ or process 
 should be issued out of any superior court, where the cause of action 
 should not amount to the sum of ten pounds or upwards."(a) And, 
 by the statute 7 & 8 Geo. IV. c. 71,(5) " where the cause of action in any 
 court shall not amount to the sum of tioenty pounds, exclusive of any costs, 
 charges and expenses, that may have been incurred, recovered or become 
 chargeable, in or about the suing for or recovering the same, or any part 
 thereof, no special writ or writs, nor any process specially therein express- 
 ing the cause or causes of action, shall be sued forth or issued from any 
 court, in order to compel any person or persons to appear thereon in such 
 court; and all proceedings and judgments that shall be had on any such 
 writ or process, shall be, and are thereby declared to be void and of no 
 effect :" But a bailable writ is not necessarily a special writ, within the 
 meaning of the above statutes.((?) It is also a rule of the Court of King's 
 Bench,(c?) that " in all actions in which the plaintiff shall proceed against 
 the defendant by special original writ, and shall recover less than the sum 
 0^ fifty pounds, he shall not, on taxing costs, be allowed any more or other 
 costs, than he would have been entitled to, in case he had proceeded by 
 hill ; except in such actions, in which he could not proceed by bill, or in 
 which any defendant shall be actually outlawed." But the costs of a 
 special original were allowed, in an action brought on a bond, the penalty 
 of which was more than fifty pounds, though the sum found due was only 
 twenty pounds. (g) 
 
 Original writs are calculated for the eomynencement or removal of 
 actions. (/) And they are either de cursu, or magistralia :{g) the former 
 were framed in the king's court, before the division of it by magna 
 charta,{h) Sind are to be found in the register of original writs :(^) the 
 latter were made out by the masters in chancery, pursuant to the statute 
 of Westm. 2, (13 Edw. I.) c. 24, by which it is enacted, that "whenever 
 it shall happen in Chancery, that in one case a writ is found, and not in a 
 similar case, falling under the same law, and requiring the like remedy, 
 the clerks of the Chancery shall agree in making a writ, or refer' the 
 plaintiffs to the next parliament." Of the register of original writs, upon 
 which Fitzherbert's natura brevium is a comment, it has been said,(M) 
 that every man who is injured will be sure to find in it a method of relief, 
 exactly adapted to his own case, described in the compass of a few lines, 
 and yet without the omission of any material circumstance. So that the 
 wise and equitable provision of the statute Westm. 2, for framing new 
 writs when wanted, is almost rendered useless by the very great 
 [ *104 ] perfection *of the ancient forms. And indeed, says the learned 
 commentator,(a) " I know not whether it is a greater credit to 
 our laws, to have such a provision contained in them, or not to have occa- 
 sion, or at least very rarely, to use it." 
 
 {a) 3 Bur. 1484. 
 
 (6) I 1, and see stat. 51 Geo. III. c. 124, g 1, continued by 57 Geo. III. c. 101. 
 (c) 1 Barn. & Aid. 393. (f/) R. M. 23 Geo. III. K. B. 
 
 \e) 2 Chit. Rep. 148. (/) Trye, 1, 12, 93. 
 
 (£r) Gilb. K. B. 312. 1 Inst. 54, b. 73, b. 2 Inst. 407, 670. 7 Co. 4, a. 8 Co. 48, 9. 
 (/i) Chap. 11. 
 
 {i) 1 Inst. 16, b. 54, b. 73, b. Gilb. C. P. 4, 5. 3 Blac. Com. 183. 
 [kk) 3 Blac. Com. 183, 4. 
 
 (ff) 3 Blac. Com. 184, and see 1 Madd. Chan. 5, &c. as to the Chancellor's common law 
 authority in ordering original writs to be made out by the cursitors.
 
 OF THE ORIGINAL WRIT. 104 
 
 In actions of account, covenant, debt, annuity, and detinue, tlie original 
 writ is called a prsecipe ;(h) by which the defendant has an option given 
 him, either to do what he is required, or show cause to the contrary : but 
 in assumpsit, and actions for wrongs, it is called a pone, or si te fecerit 
 securum ;{c) by which the defendant is pcremptorihj required to show cause 
 in the first instance. In point of form, the original writ is special or 
 general, nominatum vel innominatum :{d) The former contains the time, 
 place, and other circumstances of the demand, very particularly; the 
 latter, only a general complaint, without expressing the particulars, as 
 the writ of trespass quarc clausum f regit, &c. 
 
 In the Common Pleas, we have seen,(e) an original writ is either a 
 special original, adapted to the nature of the action, or a common original 
 in trespass quare clausum /regit ;{f) and there is a rule in that court,(^) 
 that " no attorney shall deliver or receive any declaration, without an 
 original, proper to the cause of action, being first sued forth to warrant 
 the same :" which rule is now disused. A special original, however, is, 
 in that court, seldom issued in the first instance, except in cases where it 
 is absolutely necessary, as in proceeding against p>eers, corporations, and 
 hundredors, who are not subject to a capias ; but the usual mode of com- 
 mencing actions in this court, is by issuing out a writ of cajnas quare 
 clausum f regit, which is founded on a supposed original, and answers to 
 the bill of Middlesex or latitat in the King's Bench. (A) Before the statute 
 19 Hen. VII. c. 9, a practice had been introduced, of commencing an 
 action in the Common Pleas, by bringing an original writ of trespass 
 quare clausum f regit, 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.(e) 
 This practice appears to have been formerly discountenanced by the 
 court ',[k) but was afterwards revived, and may still in strictness be resorted 
 to, in cases where the defendant keeps out of the way, so that he cannot 
 be arrested upon, or served with process against his person. 
 
 The original writ(?) is issued by the tursitor, who is so called from the 
 writs de cursu ; and where no capias lies, as against peers or members of 
 the house of commons, or against corporations, or hundredors on 
 the statute *7 & 8 Geo. IV. c. 31, it is necessarily the first pro- [ *105 ] 
 ceeding in the cause. And where a copzas lies, but the defendant 
 absconds or keeps out of the way, so that he cannot be arrested or served 
 with process against his person, it is usual to sue out an original writ, in 
 order to proceed to outlaivry. But in all other cases, the practice is for 
 the plaintiff's attorney to make out a. jjrsecipe{a) for an original writ, and 
 deliver it to the filacer, who thereupon issues the capias in the first 
 instance, keeping the praecipe as instructions for the original, which is not 
 in fact issued, unless it become necessary, in consequence of a writ of error 
 after a judgment by default. (6) There being no cursitor for, an original 
 
 (b) Append. Chap. V. ? 2, 4. (c) Id. § 10, and see Finch, L. 257. 
 
 (d) 1 Bac. Abr. 29. Gilb. C. P. 3. (e) Ante, 91. 
 
 ( f) Append. Chap. V. g 12. {g) R. M. 30 Car. II. C. P. and see R. T. 1649, C. P. 
 
 (h) Ante, 91. [i) 3 Bhic. Cora. 281. 
 
 h) R. H. 2 Car. I. § 1. C. P. {/) 
 
 (a) Append. Chap. V. g 1, 3, 9, 11. 
 
 (b) And see further, as to the prcecipe for an original writ, 1 Chit. PI. 4 Ed. 220. Steph. 
 PI. 26, 7. 
 
 Vol. l— 8
 
 105 
 
 OF THE ORIGINAL WRIT. 
 
 Avrit cannot be issued into a county palatine ; but when the cause of action, 
 beino- of a transitory nature, arises therein, an original writ may be issued 
 into another county ; and the defendant, if he reside in a county palatine, 
 may be brought into court on a testatum capias; and if he afterwards 
 move to change the venue into the county palatine, the court will make him 
 undertake not to assign for error the want of an original, (c) It is also a 
 rule, in the common pleas, that when a judge's order is granted for time to 
 plead, in an action laid in a county palatine, the defendant shall be bound 
 not to assign the want of an original as error. (c?) On suing out the original 
 writ or capias, where the plaintiff's demand exceeds /orf^ pounds, Q.jine 
 is payable to the king, by way of composition for the liberty of suing in his 
 court ;[e) which fine is estimate<l according to the amount of the demand, 
 being six sillings and eight pence for every hundred marks, or ten shillings 
 for every hundred pounds. (/) The original writ should be directed to the 
 sheriff, or sheriffs, of the county where the action is brought, and intended 
 to be tried ; and it should be tested or witnessed in the king's name, at 
 Westminster, or wherever else the chancery is holden;(^) and as that 
 court is supposed to be always open, it may be tested in vacation, as well as 
 in term-time :(7i) but a private seal is frequently necessary for passing it 
 in vacation. 
 
 The terms are those times or seasons of the year, which are set apart for 
 the dispatch of business, in the superior courts of common law. The his- 
 tory of these terms is given by '^'w Henry Spelman,{i) who has clearly and 
 learnedly shown, that they were gradually formed from the canonical con- 
 stitutions of the church ; being indeed no other than those leisure seasons of 
 the year, which were not occupied by the great festivals or fasts, or which 
 were not liable to the general avocations of rural business. There 
 [ *106 ] *Sive four term in the year; which are called, from some festival 
 or saint's day preceding their commencement, the terms of Saint 
 Hilary, of Easter, of the Holy Trinity, and of Saint Michael. Hilary 
 term begins on the octave of Saint Hilary, or the eighth day inclusive after 
 the feast day of that saint, which falling on the 13th of January, the octave 
 therefore, or first day of Hilary term is the 20th of January ; and it ends on 
 the 12th of February following, unless it happen on a Sunday, and then on 
 the 13th of February.(aa) Easter term begins in fifteen days of Easter, 
 being the Sunday fortnight after that festival , and ends on Monday before 
 Whitsunday. Trinity term, which was abridged by the statute 32 Hen. 
 YIII. c. 21, begins on the morrow of the Holy Trinity, being the Monday 
 next after Trinity Sunday ; and ends on the Wednesday three weeks after, 
 unless it happen on the 24th of June, and then on the day following. 
 
 (c) 1 Sel. Pr. 2 Ed. 251. Marsden v. Bell, H. 28 Geo. III. C. P. Imp. C. P. 7 Ed. 218. 1 
 Taunt. 120. 13 Price, 52. 
 
 {d) 1 Moore, 311, 12. (c) Gilb. C. P. 7. 
 
 (/) Trye, 58, 9, R. H. 6 W. & M. K. B. Append. Chap. V. § 13. A fee of Gs. 8d. is also 
 payable to the king, on every writ of recordari, pone, accedas ad curiam, (except of cattle and 
 chattels,) attaint, conspiracy, false judgment, and dedimus potestatem. Same rule, [a). 
 
 (ff) Finch. L. 237. 3 Blac. Com. 274. 
 
 (h) Trye, 59, 60. Sty. Rep. 402. 3 Keb. 214. And see further, as to the tetie of original 
 writs, 1 Madd. Chan. 15. 
 
 (i) Jan. Ang. I. 2, § 9, and see 3 Blac. Com. 275. 
 
 {aa) In Hilary term, the first day of full term, is the 23d of January, if not Sunday; and if 
 Sunday, the next day after : and this term always begins that day eiyht weeks, on which 
 Michaelmas term ended, and ends fourteen weeks after Michaelmas term began. Man. Excheq. 
 Append. 2.
 
 OF THE ORIGINAL WRIT. lOG 
 
 Michaelmas term, which was abridged by the statute IG Car. I. c. 6, and 
 still further by the 24 Geo. II. c. 4.S, begins (five weeks after Micliaelmas 
 day,) on the morrow of All Souls, being the 3d of November, and ends on 
 the 28th of November following, if not a Sundajj, otherwise on the 20th. 
 Of these terms it may bo observed, that Michaebnas and Ililary ^xq fixed 
 terms, and invariably begin on the same date of the year ; but Easter and 
 Trinity terms are moveable, their commenceraent being regulated by the 
 feast of Easter. After Jlilary and Trinity terms, the judges go \\\Q\r cir- 
 cuits^ for the trial of causes wherein issues have been previously joined ; 
 and hence they are called issuable terms. 
 
 In each of these terms, there are stated days, called general or common 
 return days ; of these there arefoicr in each term, except Easter, which has 
 fire. In Ililary term, the general or common return days are, in eight days 
 of Saint Ililary, in fifteen days of Saint Ililary, on the morrow of the Puri- 
 fication, and in eight days of the Purification. In Easter term, they are, in 
 fifteendaysof Easter, in three weeks after Easter, in one month after Easter, 
 in five weeks from Easter day, and on the morrow of the Ascension. In 
 Trinity term, they are, on the morrow of the Holy Trinity, in eight days 
 of the Holy Trinity, in fifteen days of the Holy Trinity, and in three weeks 
 after the Holy Trinity. And in 3Iichaclmas term, they are, on the mor- 
 row of All Souls, on the morrow of St. Martin, in eight days of St. Martin, 
 and in fifteen days of St. Martin. (5) Some of these return days happen on 
 a Sunday: and anciently, when writs were formed, courts of justice did 
 actually sit on that day ; but that practice having been long disused, it is not 
 holden that an appearance cannot be entered, nor any judicial act done, or 
 supposed to be done by the court, till the 3Ionday.[c) 
 
 *Ononeorother of these return days, all orz'^maZ writs, and pro- [ *107 ] 
 cess thereon, must be made returnable; in the King's Bench, ubi- 
 cunque, &c., or wheresoever the king shall then be in England,{a) or, in 
 the Common Pleas, before the king's justices at Westminster. The first 
 general return day of the term is usually called the essoin day of that 
 term ; and formerly, when essoins were allowed in personal actions, if 
 the defendant did not appear, or cast an essoin on that day, the plain- 
 tifi", on the next day, might have entered an exception, and obtained an 
 order that his ession should not be received ;(5^) and from this excep- 
 tion, so taken and entered, the second day after the return of the writ 
 was called the day of exception. The third day, the sheriiT returned 
 his writs into court, which were delivered to the custos brevium and 
 thence this day was called the day of retorno brevium; and then it 
 was that the court was seised of the cause, by possession of the 
 writ. The fourth day was called the appeara7ice day, or dies amo- 
 ri8,{cc) which was the day given, ex gratid curicc, for the defendant's 
 appearance : and this, which is denominated the quarto die post, is now the 
 first day mfull term, on which the court sits for the dispatch of business, 
 except in Trinity term, when the court, by act of parliament, docs not sit 
 till the fifth day. The first and last days of every term are days of ap- 
 pearance. 
 
 The original writ should always be tested after the cause of action ac- 
 
 [b) For a table of the Terms and Returns, see Append. Chap. V. § 32. 
 
 (c) Regist. 19. "W. Jon. 156. 2 Salk. G27. 6 Mod. 250. 3 I3ur. 1596. 1 Blac. Rep. 49G, 
 526, S. U. 
 
 (a) Trye, 2, and see 1 Chit. Rep. 323. {bb) Gilb. C. P. 13. (cc) Co, Lit. 135, a.
 
 107 
 
 OF THE ORIGINAL WRIT. 
 
 crucd ;((Z) except in the court of Common Pleas at Lancaster, where by 
 Stat. 39 & 40 Geo. III. c. 105, the parties are allowed to declare upon, 
 plead and give evidence of any cause of action, or any matter or thing in 
 bar or preclusion of any personal suit or action, or any other matters or 
 thin<TS, provided the same shall have accrued or happened prior to the 
 day of the actual signing and issuing of the writ of capias ad responden- 
 dum or other process first actually issued forth in such suit or action ; not- 
 withstanding the same shall not have accrued prior to the teste and return 
 of the original writ, whereupon such suit or action shall either really or by 
 fiction of law be grounded. And there must, in general, he fifteen days at 
 least between the teste and return of the original writ;(e) the law requiring 
 that distance of time between the service and return : though if there be 
 less, it will be aided by the defendant's appearing, and pleading in chief :(/) 
 and, by the statute 24 Geo. II. c. 48, § 5, "all writs and process, having 
 day from the quarto die p>ost of the morrow of the Ascension, to the mor- 
 row of the holy Trinity ^ shall be good and eflFectual in law, notwithstanding 
 there be wot fifteen days between the teste and return of the said writs. "(^) 
 In proceeding to outlawry, if the instructions be carried to the cursitor 
 within the first week of a term, (A) or even after that time, and the cause 
 of action arose early enough, he will, for the sake of expedition, make the 
 
 original returnable on the first or any other return of the pre- 
 [ *108 ] ceding *term ; otherwise, it is usually made returnable in the 
 
 same or the next term; or, as it does not afi"ect the liberty of the 
 defendant, it may be made returnable at the distance of two or three 
 terms, (a) 
 
 The want of an original writ is aided, after verdict, by the 18 Eliz. c. 14, 
 but not after judgment by default, or confession ;(5) or upon demurrer, or 
 nul tiel record. And it has been holden, that an original writ which is bad 
 in substance, or a good one which warrants not the declaration, is not 
 aided by this statute. (c) Where the original however differs from the 
 declaration, and is not between the same parties,(c?c?) in the same county,(ee) 
 of the same term,(^) or for the same cause of action, (^/f/) the court, on a 
 writ of error, will j^^inidfiacie intend that it is not the original upon which 
 the action was brought; and where it is certified to be the same, if the 
 defendant in error come in upon the scire facias ad audiendum crrores, and 
 allege for diminution that it was not the original upon which he declared, 
 the court will grant a new certiorai'i; and if, upon such w^rit, there appear 
 to be a good original, the plaintifi" in error will not be sufi'ered to make any 
 allegation to the contrary.(7i) 
 When all the proceedings are of the same term, an original writ of that 
 
 {d) 2 Bur. 967, and see 2 Ken. Chan. Cas. 24, as to ante-dating original writs. 
 
 {e) 2 Inst. 567. Booth on real actions, 5 Gilb. C. P. 9. 3 Blac. Com. 275. 
 
 (/) 1 Salk. 63. 1 Ld. Raym. 671, S. C. {g) And see stat. 16 Car. I. c. 6, g 7. 
 
 (A) Trye, 60, and see Barnes, 322. (a) Dyer, 175. {b) Stat. 4 Ann. c. 16, § 2. 
 
 (c) 5 Co. 37, b. Cro. Eliz. 722. Telv. 108. Cro. Jac. 185. Cro. Car. 282. 1 Lev. 69. 
 1 Sid. 84. 2 Ld. Raym. 1209 ; but see the stat. 5 Geo. I. c. 13, by which any defect or 
 fault, either in form or substance, in the original writ, or any variance therefrom, is aided 
 after verdict. 
 
 {dd) Cro. Eliz. 204. Hob. 251. 
 
 {ee) Cro. Jac. 654, 5, 675. Palm. 428. 2 Rol. Rep. 382, but see Cro. Jac. 479, contra. 
 
 iff) Cro. Car. 272, 327. 3 Mod. 136. 
 
 (5r(7) 10 Mod. 318. 11 Mo. 382. 
 
 {h) Cro. Jac. 597. Palm. 428. 11 Mod. 382, and see Run. Eject. 2 Ed. 142, 3.
 
 OF PROCESS BY ORIGINAL. 108 
 
 term will warrant tliGm;(/) and the cursitor will make it out, as a matter 
 of course, at any time before the essoin day of the ensuing term. But an 
 original writ of the term wherein final judgment, is given, will not warrant 
 the judgment, if it appear upon record, that there have been proceedings 
 of a preceding term. (A:) And it is a rule in Chancery, that no cursitor 
 shall make original writs of any return past, unless he receive instructions 
 within the term wherein they are to be returnable, or at furthest on or 
 before the ession day of the next succeeding term, without warrant from 
 the lord chancellor, or master of the rolls. (^) 
 
 If the defendant therefore bring a writ of error, after judgment by de- 
 fault, &c. it is usual for the plaintiff to present a j^etition to the master of 
 the rolls, setting forth the proceedings in the action, and the bringing of 
 the writ of error, and that the petitioner hath not sued out an original writ 
 to warrant the judgment, which he is advised is necessary ; and that the 
 time for applying for the same in ordinary course being expired, the cursi- 
 tor cannot make it out, without an order for that purpose.(??i) On this 
 petition, the master of the rolls will grant his Jiat ;{n) upon 
 which an order[o) *is drawn up, agreeably to the prayer of the [ *109 ] 
 petition, that the cursitor of the county where the venue is laid, 
 do issue out an original writ, with a proper return ; and that the petitioner 
 pay the plaintiif in error his costs, if he do not proceed further, after 
 having had notice of the order. 
 
 rAn original writ was not amendable at common law, in the case of a 
 common person. (a) But it may be ammended, by the statute 8 Hen. VI. c. 
 12, for the misjjrision of the clerk, in not following his instructions, or on 
 account of his nescience, or want of skill, in matters of form, though not in 
 substance. (5)[a] When the cursitor or his clerk has been'guilty of a mistake, 
 in making out the original variant from the praecipe, which is the warrant 
 for the original, the practice of the office is to set it right as a matter of 
 course, and re-seal the writ ;{c) Or the amendment may be made on motion^ 
 or by 2^etitio7i to the master of the rolls ',{d) and it seems that before the 
 return of the wu-it, the motion should be made in Chancery,(e) but after- 
 wards, in the court where the writ is returnable. (/) 
 
 The first process, or proceeding upon the original writ, in actions of 
 account, covenant, debt, annuity, and detinue, is a summons, {g) or warning 
 to appear according to the exigency of the writ; wdiich is made out by the 
 plaintifi"'s attorney for the sheriff, and delivered by one of his officers to 
 the defendant, or left at the usual place of his abode. 
 
 The defendant being summoned, was formerly allowed to cast an 
 
 (i) 1 Keb. 327. {k) 1 Wils. 181. 
 
 \l) Lord Clarendon' 3 Orders in Chancery. 
 
 \m) Law and Prac. of Error, 29, 30, and see 1 P. Wms. 411, 12, 13. 3 P. Wms. 314. 
 Append. Chap. V. ? 33. 
 
 (n) Append. Chap. V. § 34. (o) Id. § 35. 
 
 (a) 8 Co. 156, b. 1 Salk. 49. 1 Ld. Ravm. 5G4, S. C. 
 
 (6) 8 Co. 159. Gilb. C. P. 117. Barnes, 9, 10, 16, 22. {c) 3 Atk. 599. 
 
 {d) 2 Wils. 395. 6 Durnf. & East, 544. 7 Durnf. & East, 300. Append. Chap. V. 
 §36, 37. 
 
 (e) 3 Atk. 596, and see 1 Madd. Chan. 16, 17. 
 
 (/) Barnes, 10, 16, 22. {g) Finch. L. 305, 352. 
 
 [a] See post, p. 161 Note [a].
 
 IQg OF PROCESS BY ORIGINAL. 
 
 essoin,{h) or send an excuse by his servant for not appearing; and that 
 bein"" done, it was the plaintiff's duty to adjourn it to some day, appointed 
 by the court, in the next term ;(e) if he did not, he "was liable to be non- 
 prossed. But no essoin was ever allowed in personal actions, on the return 
 of a capias ;{Jc) nor even on a summons, where the defendant was seen in 
 court, or appeared by attorney :(?) and as a corporation aggregate could 
 not appear in any other manner, they were not entitled to an essoin. (m) 
 At this day, the defendant being in general at liberty to appear by at- 
 torney, no essoin is allowed in any personal action whatsoever, even when 
 a peer or member of parliament is defendant.(w) When an essoin is cast, 
 and neither quashed nor adjourned to a particular day, the plaintiff, in 
 the King's Bench, may declare the first day of the next term, and the 
 
 defendant is not entitled to an imparlance.(o) 
 [ *110 ] *If the defendant appear, on or before the quarto die post of 
 
 the return of the original, he should cause an appearance to be 
 entered with the filacer, who is so called from the files of the custos hre- 
 viu7n, which are warrants for him to continue the process. (a) If he made 
 default, and the sheriff returned that he was summoned, (5) the practice 
 formerly was, for the filacer to issue an attachment ;{c) which was a judi- 
 cial writ, commanding the sheriff to put the defendant by gages and safe 
 pledges ; that is, to take certain of his goods, which were forfeited if he 
 did not appear, or to make him find personal pledges or sureties, who were 
 amerced in case of his non-appearance :(t^) And this is still the first and 
 immediate proceeding upon the original in trespass vi et armis,{e) &c., 
 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 previous warning. But it seems that, in an inferior court, a 
 custom to issue a summons and attachment at the same time, is bad in 
 law.(/) Upon process of attachment, it seems that the sheriff may either 
 summon the defendant, or take gages for his appearance at the retui'n of 
 it.(^) But a sheriff's officer cannot justify entering the defendant's house, 
 under an original writ of trespass quare clausum fregit, and continuing 
 there till the defendant paid him a sum of money, as and by way of surety 
 for his appearance. (7i7/.) The sheriff's return to the attachment is, either 
 that he has attached the defendant, (^V) or that he has nothing by which 
 he can be attached : in the latter case, the plaintiff may have a testatum 
 pone, or attachment.(M) If the defendant, being attached, still neglected 
 to appear, the plaintiff might formerly have proceeded, in all cases, to 
 compel his appearance by distringas,{ll) or distress infinite ; which was a 
 process commanding the sheriff to distrain the defendant by all his lands 
 and chattels, and to answer for the issues{mm) or profits of the same. 
 
 (h) 2 Inst. 125, b. 137. (i) Cro. Eliz. 367. Gilb. C. P. 13. 
 
 (k) 2 Str. 1194. (l) 2 Wils. 165. 
 
 (m) Bro. Abr. tit. Corporation, 28, Cas. Pr. C. P. 8. Argent v. Dean & Chapter of St. 
 PauFs, E. 23 Geo. III. K. B. cited in 2 Durnf. & East, 16, and 16 East, 8, in notis. 
 
 (n) See 2 Durnf. & East, 16. 16 East, 7, (a). 
 
 (o) 2 Durnf. & East, 16. Crookson v. Lord Lonsdale, B. 29 Geo. III. K. B. cited in 16 East, 
 7, (a), and see 1 Moore & P. 2, as to the adjournment of an essoin, on a writ of right. 
 
 (a) Gilb. C. 14, Trye, in pre/. (b) Append. Chap. V. § 7. (c) Id. | 20. 
 
 (d) Gilb. Dist. 18, &c. Run. Eject. 2 Ed. 136. 3 Blac. Com. 280. (e) Finch, L. 355. 
 
 (/) 3 Barn. & Cres. 772. 5 Dowl. & Ryl. 719, S. C. 
 
 Iff) Bro. Abr. tit. Attachment, pi. 9, and see Dalt. Sher. Chap. 32, p. 154, &c. 
 
 (hh) 6 Durnf. & East, 137. {ii) Append. Chap. V. § 21. 
 
 (kk) Id. ? 22. (11) Id. § 23, 4. 
 
 (mm) Finch, L. 352. Stat. Westm. 2, c. 39. 2 Inst. 453. 5 Mod. 117.
 
 OF PROCESS BY ORKJINAL. 110 
 
 In the King's Bench, the sheriff, on the first distringas, usually re- 
 turned issues to the amount of forty shillings : and this was so much of 
 course, that no more could have been levied by the sheriff in the first in- 
 stance ; and therefore the levying of the whole debt at once, on a testatum 
 distringas, has been deemed irregular :(«) And where the defendant was 
 called in the writ by a wrong name, the sheriff was holden not to be jus- 
 tified in taking his goods under it.(o) If the defendant did not appear," 
 before or on the quarto die iiott of the return of the first dis- 
 tringas, the plaintiff sued *out an alias distringas, {a) and there- [ *111 ] 
 upon moved the court to increase the issues ; a proceeding that 
 seems to have come in lieu of the writ of averment.{h) In general, if the 
 debt were small, the court would order issues to be returned at once to 
 the amount of it ; but otherwise, on the defendant's non-appearance, the 
 plaintiff sued out a pluries,{c) or testatum{d) distringas, and moved the 
 court a second time, and so toties quoties, until issues were returned to 
 the amount of the debt. When that was done, the plaintiff applied to the 
 court, for a rule for sale of the issues,(c) under the statute 10 Geo. III. c. 
 50, § 3, which enacts, that " the court out of which the writ proceeds, may 
 order the issues, levied from time to time, to be sold, and the money aris- 
 ing thereby to be applied, to pay such costs to the plaintiff, as the said 
 court shall think just, under all the circumstances, to order ; and the sur- 
 plus to be retained, until the defendant shall have appeared, or other pur- 
 pose of the writ be answered:" which statute was construed to extend to 
 all writs of distringas, and not to be confined to such as concerned privi- 
 lege of parliament only.(/) And the costs of a distringas, &c., were 
 directed to be taxed, and that the sheriff should sell the issues to pay such 
 costs, though the defendant had appeared after the issues were levied, but 
 before they were sold.fr/) 
 
 The process upon an original writ of trespass qnare clausum fregit, in 
 the Common Pleas, was similar to that in the King's Bench. And, for expe- 
 diting the proceedings, writs of distringas, in the Common Pleas, might 
 have been made returnable on any day in term,(7i) and need not have had 
 fifteen days between the teste and return ;(z') and it was arule,(/c) that upon 
 all writs of distringas, returnable the last day of term, the plaintiff should 
 be at liberty, at the rising of the court, to move to increase issues on the 
 alias or pluries distringas, to be issued thereupon on the following day, in 
 case no appearance should have then been entered ; and also that in like 
 cases, where a distringas should be returnable on the last day of term, and 
 issues thereupon levied, the plaintiff should be at liberty, at the rising of the 
 court, to move for leave to sell such issues, to pay the costs of such dis- 
 tringas or distringases." Where the debt was small, the court of Common 
 Pleas usually ordered the issues to be increased to the full amount of it, on 
 the second or alias distringas ; but if it were large, they would order 40/. 
 or 501. to be levied on the second, and the remainder on the third or jjIu- 
 
 (w)4 East, 162. 
 
 (o) 6 Duruf. & East, 234, and see 8 East, 328. 2 Campb. 270. 3 Campb. 108. 2 Taunt. 
 399. 1 Marsh. 75. 1 Moore, 105. 1 Barn. & Aid. 647. 1 Chit. Rep. 282. 2 Chit. Rep. 
 357. 6 Price, 34. 8 Moore, 300, 301. 1 Bing. 316, S. C. 
 
 (a) Append. Chap. VI. g 5. (6) Thu. Drev. 144, 5. 
 
 (c) Append. Chap. VI. | 5. 
 
 {d) Id. § 6. 4 East, 162. («) Append. Chap. VI. I 7, 8, 9. 
 
 (/) 5 Bur. 2726, 7. (g) 2 Chit. Rep. 36. (/.) Imp. C. P. 7 Ed. 593. 
 
 (t) Id. ibid, in viarg. {k) R. T. 38 Geo. III. C. P. 1 Dos. & Pul. 312.
 
 2J^;j OP PROCESS BY ORIGINAL. 
 
 ries distringas ;{l) and it was in the discretion of the court, to put the 
 defendant under terms of pleading instanter, and taking short notice of 
 trial, when he moved to have the issues levied upon several distringases 
 restored to him on his appearance, according to the stat. 10 Geo. III. c. 
 
 50, § 4.(m) 
 [ *112 ] *When a defendant resided ahroad, and no person here had an 
 authority to appear for him, his goods could not, it seems, have 
 been taken under a writ of distri^igas, issuing out of the court of Common 
 Pleas, to compel his appearance. (a) So, where a plaintiff sued a defend- 
 ant who was out of the country, for a debt contracted here by his wife in 
 his absence, and proceeded by distringas, that court ordered the writ to be 
 set aside, and the issues levied under it to be restored. (J) And in another 
 case,((?) they set aside a distringas, executed upon the goods of the wife 
 of a surgeon in the navy, serving on a foreign station, the debt not being 
 contracted in the wife's trade. But where the defendant quitted the king- 
 dom before the action commenced, leaving another in possession of his 
 house and goods, and the plaintiff, having served a summons to appear at 
 the house, distrained the defendant's goods to compel an appearance, the 
 court held it to be regular. (c^Z) So where the defendant, residing abroad, 
 carried on trade in England, a plaintiff might have proceeded, notwith- 
 standing his absence, to compel an appearance hy distriyigas ; particularly 
 if the plaintiff did not know, at the time of giving credit, that the defend- 
 ant was out of the realm. (c) And where three partners (two of whom 
 resided abroad, and one in England,) were sued for a partnership debt, 
 and the partner resident in Engla^id appeared to the action, but refused 
 to appear for the partners who resided abroad, the sheriff, under a distrin- 
 gas issuing out of the Common Pleas against the two partners, might have 
 taken partnership effects, though paid for by the partner resident in Eng- 
 land alone, to whom the partnership was largely indebted ; and the court 
 would not have relieved him from such dis tress. (/) But where an action 
 had been commenced against two partners, one of whom resided abroad, 
 and the other, who was resident here, appeared for himself only, the court 
 of Common Pleas set aside a distringas and subsequent proceedings there- 
 on, against the latter defendant, and ordered the issues levied upon his 
 separate property to be restored : So that where there are no partnership 
 effects, there is no other mode of proceeding in such case, than by outlaw- 
 ing the defendant who is abroad.((/) 
 
 The method of proceeding by summons, attachment, and distress infi- 
 nite, is not affected by the statutes for preventing frivolous and vexatious 
 arrests ;(7i) which only relate to process against the person. And as no 
 capias lay, it was the only method of proceeding against peers of the realm, 
 corporations,[i) and hundredors on the statutes of hue and cry,(Z^) &c., as 
 it is now on the statute 7 & 8 Geo. IV. c. 31. But this method of pro- 
 ceeding being found extremely dilatory and expensive, as well as 
 [ *113 ] oppressive to the *defendant, particularly when he resided abroad, 
 
 (l) Imp. G. P. 4 Ed. p. 61 7, 18. [m) 1 Bos. & Pul. 81. 
 
 (a) Webster v. M'Narnara, T. 32 Geo. III. C. P. Imp. C. P. 7 Ed. 594. 
 
 (6) 1 Taunt. 485. (c) 3 Taunt. 146. {d) 1 Bos. & Pul. 200. 
 
 (e) 1 Taunt. 487. (/) 3 Bos. & Pul. 254, and see 5 Price, 522. 
 
 [g) 4 Taunt. 299. 
 
 {h) 12 Geo. I. c. 29, ? 1, 2. 5 Geo. II. c. 27. Barnes, 407, 8, 9, and see the preamble to 
 
 e second section of the statute 51 Geo. III. c. 124, which is now expired. 
 
 [i) Com. Dig. tit. Pleader, 2 B. 2, 6 Mod. 183. {k) 3 Keb. 126.
 
 OF PROCESS BY ORIGINAL. llg 
 
 a rule of court was made in the Common Pleas,(rta) calculated to pre- 
 vent surprise on the defendant; whereby it was ordered, that "in every 
 action to be commenced by original writ of quare clausum fregit, there 
 should be written or printed, under the summons to be served by the 
 sheriff's officer on such writ, a notice similar to tliat required on other ser- 
 viceable process, of the intent and meaning of such service ; and that 
 upon every distringas, to be issued in default of the defendant's appear- 
 ance to such quare clausum frcgit, there should, at the time of the execu- 
 tion of such distringas, be served by the sheriff's officer on the defendant, 
 if he could be met with, or if not, left at his dwelling house or place where 
 such distringas should be executed, a written or printed notice, apprising 
 him of the cause of the distress, and that in default of his appearance at 
 the return of the writ, he would be liable to be distrained upon for such 
 further sum as the court should order." 
 
 At length, it Avas enacted by the statute 7 k 8 Geo. IV. c. 71, (W) that 
 " in all cases where the plaintiff or plaintiffs shall proceed by original or 
 other writ, and summons or attachment thereupon, or by sulijcena and 
 attachment thereupon, in any action at law, against any person or persons 
 not having privilege of parliament, no writ of distringas shall issue for 
 default of appearance ; but the defendant or defendants shall be served 
 personally with the summons or attachment, at the foot of which shall be 
 written a notice, informing the defendant or defendants of the intent and 
 meaning of such service, to the effect following. "(<?) 
 
 ' C. D. \naming the defendant']. You are served with this process, at 
 the suit of A. B. [jiaming the plaintiff or plaijitiffs,'] to the intent that 
 
 you may appear by your attorney, in his majesty's court of at 
 
 Westminster, at the return hereof, being the day of ,{d) 
 
 in order to your defence in this action : And take notice, that in default 
 of your appearance, the said A. B. will cause an appearance to be entered 
 for you, and proceed thereon, as if you had yourself appeared by your 
 attorney.' 
 
 " But in case it shall be made appear to the satisfaction of the court, 
 or, in the vacation, of any judge of the court from which such process shall 
 issue, or into which the same shall be returnable, that the defendant or de- 
 fendants could not be personally served with such summons or attachment,(^) 
 and that such process had been duly executed at the dwelling house or place 
 of abode of such defendant or defendants, that then it shall and may 
 be lawful for the plaintiff or plaintiffs, by leave of the *court,(a) or [ *114 ] 
 order of such judge as aforesaid,(a) to sue out a writ of distrin- 
 gas,{h) to compel the appearance of such defendant or defendants; and that 
 at the time of the execution of such writ of distringas, there shall be served 
 on the defendant or defendants, by the officer executing such writ, if he she 
 
 [aa) R. H. 49 Geo. III. C. P. 1 Taunt. 204, 505, and see id. 59. 
 
 [bb) I 5, and see stat. 51 Geo. III. c. 124, ? 2, continued bj 57 Geo. III. c. 101, but which 
 had expired before the passing of the T & 8 Geo. IV. c 71. 
 
 (f) Append. Chap. V. ? 14. 
 
 \d) Tlicse blanks must be filled up with the day of the month when the process is return- 
 able; it having been holden, that notice to appear at the return of the writ, being "from 
 Easter day in one month," is bad. 4 Taunt. 751. 
 
 (c) Append. Chap. V. ^ 17. And for the forms of returns to the original, on the above 
 statute, see id. g 15, 16. 
 
 (fll For the form of the rule of court, and judge's/a< in vacation, see Append. Chap. V. ^ 
 18,19. 
 
 (5) Append. Chap. V. 23, 24.
 
 114 
 
 OF PROCESS BY ORIGIXAL. 
 
 or they can be met with; and if he she or they cannot then be met with, 
 there shall be left at his her or their dwelling house, or other place where 
 such distringas shall be executed, a written notice in the following 
 form :"(c) 
 
 'In the court of [specifying the court in which the suit shall 
 
 he depending.'] Between A. B. plaintiff, and C. D. defendant, [riaming the 
 parties.'} Take notice, that I have this day distrained upon your goods 
 and chattels, for the sum of forty shillings, in consequence of your not hav- 
 ing appeared by your attorney in the said court, at the return of a writ of 
 
 , returnable there on the day of ; and that in 
 
 default of your appearing to the present writ of distringas, at the return 
 
 thereof, being the day of , the said A. B. will cause an 
 
 appearance to be entered for you, and proceed thereon, as if you had your- 
 self appeared by your attorney.' E. F. 
 
 l^The name of the sheriff's officer.'] 
 ' To C. D. the above-named defendant.' 
 
 " And if such defendant or defendants shall not appear at the return of 
 such original or other writ, or of such distringas, as the case may be, or 
 within eight days after the return thereof, in such case it shall and may be 
 lawful to and for the plaintiff or plaintiffs, upon affidavit being made and 
 filed in the proper court, of the personal service of such summons or attach- 
 ment, (t/) and notice written on the foot thereof as aforesaid, or of the due 
 execution of such distringas,{e) and of the service of such notice as is 
 thereby directed on the execution of such distringas, as the case may be, to 
 enter a common appearance for the defendant or defendants, and to proceed 
 thereon, as if such defendant or defendants had entered his her or their ap- 
 pearance, any law or usage to the contrary notwithstanding ; and that such 
 affidavit or affidavits may be made before any judge or commissioner of the 
 court, out of or into which such writs shall issue or be returnable, authorized 
 to take affidavits in such court, or else before the proper officer for entering 
 common appearances in such court, or his lawful deputy; and which affida- 
 vit is thereby directed to be filed gratis.'' 
 
 The provisions of this statute extend to the process by subpoena and 
 attachment, and also, as it seems, to the process by distringas in the Ex- 
 chequer, as well as in the other superior courts at 'Westminster ;(/) 
 [ *115 ] And the *court of Common Pleas will not grant a distringas 
 against a defendant who has gone abroad, without proof of his 
 having absented himself with intent to avoid the process, (a) To ground a 
 motion for a distringas on the above statute, an affidavit must be made by 
 the sheriff's officer, or person employed to serve the venire, stating that he 
 has endeavored to serve it on the defendant personally, for which purpose 
 he has made three several applications at least at his dwelling house or place 
 of abode, the last of which was on the return day of the writ, when he left 
 the summons, or copy of the venire, with one of the defendant's family, 
 or the person with whom he lodged ; but that he could not be personally 
 met with, and that deponent believes the defendant kept out of the way, to 
 
 (c) Id. § 25. {d) Id. I 29. 
 
 (e) Id. g 30, 31. And for the forms of return to the distringas, on the above statute, see 
 id. § 26, 7, 8. 
 
 (/) 5 Taunt. 71, (a), but see 3 Price, 263. Id. 266, n. 5 Price, 522, 639. Post, Chap. 
 VlII. by which it seems, that the ancient practice of issuing writs oi distrinc/as, after service 
 of the venire facias, in the Exchequer, still continues. 
 
 (a) 5 Taunt. 703. 1 Marsh. 292, S. C.
 
 OF THE PROCEEDINGS, ETC., 115 
 
 avoid being served, (J) with his reason for such belief .-(c) and tlie affidavit 
 must set forth the tenor of the summons, (tZ) and notice subscribed to the 
 process, in hocc verha.{e) This clause of the statute, however, does not 
 extend to the process by attachment on a justifies, in a county palatine ;(/) 
 nor to persons having privilege of parliament, the proceedings against whom 
 will be considered in the following chapter. And the method of proceeding 
 by summons or attachment and distrimjas, subject to the restrictions of the 
 statute, may still be used against other persons, where they keep out of the 
 way, so that they cannot be arrested, or served with process. 
 
 CHAPTER VI. [ *116 ] 
 
 Of the Proceedings in Actions against Peers of the Realm, and 
 Members of the House of Commons ; and against Corporations, and 
 IIundredors. 
 
 At common law, it seems that peers of the realm, and members of the 
 house of commons, not being subject to a capias, could only have been sued 
 hy original vivit. But now, by statute 12 & 13 W. III. c. 3, § 2,(a) "any 
 person or persons having cause of action against any knight, citizen or 
 burgess of the house of commons, or any other person entitled to privilege 
 of parliament, may prosecute such knight, &c. in his majesty's court of 
 King's Bench, Common Pleas, or Exchequer, by summons and distress 
 infinite, or by original hill and summons, attachment, and distress infinite ; 
 which the said respective courts are empowered to issue against them, or 
 any of them, until he or they shall enter a common appearance, or file 
 common bail to the plaintiff's action, according to the course of each re- 
 spective court." 
 
 And, for preventing inconveniences arising from merchants, and other 
 persons within the description of the statutes relating to bankrupts, being 
 entitled to privilege of parliament, and becoming insolvent, it is enacted, by 
 the statute 6 Geo. IV. c. 1(3,(56) that " if any trader, liable to become bank- 
 rupt, having privilege of parliament, shall commit any of the acts of bank- 
 ruptcy therein mentioned, a commission of bankrupt may issue against 
 him; and the commissioners, and all other persons acting under such com- 
 mission, may proceed thereon, in like manner as against other bankrupts; 
 but such person shall not be subject to be arrested or imprisoned, during the 
 time of such privilege, except in cases thereby made felony. And if any 
 creditor or creditors of any such trader, having privilege of parliament, to 
 such amount as is thereinafter declared requisite to support a commission, 
 shall file an afiidavit or aflBdavits, in any court of record at Westminster, 
 that such debt or debts is or are justly due to him or them respectively, and 
 
 [b) 4 Taunt. 156, and see 8 Taunt. 57, 171. 
 
 (c) 5 Taunt. 620. 1 Marsh. 267, S. C, and see id. 268, {a). 5 Taunt. 853. 8 Taunt. 67, 
 171. M 693. 3 Moore, 23, S. C. 
 
 {d) 4 Taunt. 619. (e) 5 Taunt. 853. (/) Td. 69. 
 
 (a) For the history of this statute, and the alterations it underwent in the House of Lords, 
 see 2 H. Blac. 273, 4, 300, &c. 
 {bh) I 9, and see stat. 4 Geo. III. c. 33. 45 Geo. III. c. 124, g 1.
 
 IIQ OF THE PROCEEDINGS 
 
 that such debtor, as he or thej verily believe, is such trader as aforesaid, 
 and shall sue out of the same court a summons, or an Original bill and 
 summons, against such trader, and serve him with a copy of such summons, 
 
 if such trader shall not, within one calendar month after personal 
 [ *117 ] service of such summons, pay, *secure, or compound for such 
 
 debt or debts, to the satisfaction of such creditor or creditors, or 
 enter into a bond with such sum, and with two sufficient sureties, as any 
 of the judges of the court out of which such summons shall issue shall ap- 
 prove of, to pay such sum as shall be recovered in such action or actions, 
 together with such costs as shall be given in the same, and within one 
 calendar month next after personal service of such summons, cause an 
 appearance or appearances to be entered to such action or actions, in the 
 proper court or courts in which the same shall have been brought, every 
 such trader shall be deemed to have committed an act of bankruptcy, from 
 the time of the service of such summons : and any creditor or creditors of 
 such trader, to such amount as aforesaid, may sue out a commission against 
 him, and proceed thereon, in like manner as against other bankrupts. "(a) 
 This clause appears to have been taken from a similar one in the statute 
 4 Geo. III. c. 33 ; upon which it was holden, that a bond given under 
 the latter statute, is analogous to a recognizance of bail in error : and 
 therefore, where a member of parliament had given a bond, with two sure- 
 ties conditioned for payment of the sum to be recovered in the action, and 
 before trial became bankrupt, the court refused to order the bond to be 
 delivered up to be cancelled.(^) 
 
 By a subsequent clause, in the statute 6 Geo. IV. c. 16,(c) it was 
 enacted, that " if any decree or order shall have been pronounced in any 
 cause depending in any court of equity, or any order made in any matter 
 of bankruptcy, or lunacy, against any such trader having privilege of par- 
 liament, ordering such trader to pay any sum of money, and such trader 
 shall disobey, the same having been duly served upon him, the person or 
 persons entitled to receive such sum, under such decree or order, or 
 interested in enforcing the payment thereof, pursuant to such decree or 
 order, may apply to the court by which the same shall have been pro- 
 nounced, to fix a peremptory day for the payment of such money, which 
 shall accordingly be fixed by an order for that purpose ; and if such 
 trader, being personally served with such last mentioned order, eight 
 days before the date therein appointed for payment of such money, shall 
 neglect to pay the same, he shall be deemed to have committed an act of 
 bankruptcy, from the time of the service thereof; and any such creditor 
 or creditors as aforesaid may sue out a commission against him, and 
 proceed thereon, in like manner as against other bankrupts." 
 
 Since the making of the statute 12 & 13 W. III. c. 3, § 2, members of 
 the house of commons may be sued by bill and summons, &c., as well as 
 by original writ.(fZ) And if a person having privilege of parliament be in 
 the King's Bench prison, a declaration may be filed against him, as being 
 in the custody of the marshal ; and no summons need be issued. (e) 
 [ *118 ] There *are also two cases, in which it has been determined, that 
 
 («) § 10. 
 
 (b) 3 Barn. & Aid. 273. 1 Chit. Rep. 731, S. C, and see 5 Barn. & Aid. 250. 
 
 (c) ? 11, and see stat. 47 Geo. 111. sess. 2, c. 40. 
 
 (d) 2 Ld. Raym. 1442. 2 Str. 734, S. C. But this mode of proceeding is not allowed, as 
 against unprivileged persons. Whitworlh v. Richardson, E. 23 Geo. III. K. B. 
 
 (e) 5 Durnf. & East, 361.
 
 AGAINST PEERS, ETC. 118 
 
 a iieer of the realm may be sued in' the King's Bench, by hill and 
 summons,(a) &c. But in a subsequent case,(i) it was the opinion of 
 the judges, on a question referred to them in the house of lords, that these 
 cases were not to be considered as decisive authorities on the subject ; 
 though, after pleading in chief, it was too late for the defendant to object 
 to the jurisdiction of the court. (c) It seems therefore that, notwithstand- 
 ing the above statute, the only regular mode of proceeding against a peer, 
 is by original writ.(ti) And if a peer be sued jointly with others, by bill 
 of 3Iiddh'sex, the court will set aside the proceedings, as against the 
 peer.((;) But the motion for this purpose must be made as soon as may 
 be, and before interlocutory judgment.(/) And if an Irish peer be sued 
 by bill, the court of Common Pleas will not set aside the proceedings on 
 motion ; but leave him to plead his privilege in abatement. (^) It was 
 formerly doubted, whether a member of the house of commons was entitled 
 to his privilege, when sued with a common person ;(/i) but it is now settled, 
 that his privilege shall be allowed hira.(?) And where an action is brought 
 against a peer or member of the house of commons, jointly with other 
 persons, the original writ or bill should be against all the defendants ; 
 upon which the peer or member should be summoned, and a cajjias issued 
 against the others. 
 
 The original writ against a peer, or member of the house of commons, 
 is the same as against other persons ;{k) only that when it is issued against 
 a peer, the sheriif is commanded to summon him by good summoncrs ; and 
 after describing the defendant by his proper title, these words are added, 
 " having privilec/e of peerage," or, against a member of the house of com- 
 mons, ^^ having privilege of parliament." And it is said, that a peer or 
 peeress cannot be attached, but should be brought in by summons :{l) 
 Yet, where a declaration in case against an earl, stated him to have been 
 summoned to answer, instead of attached, it was holden to be bad, on 
 special demurrer.(m) In proceeding by original vfnt,{n) against a peer or 
 member of the house of commons, the original should issue into that county 
 where the defendant lives ; and a sum))ions is made out thereon by the 
 plaintiff's attorney, and delivered to the sheriff, who serves it on the de- 
 fendant personally, or by leaving it at his dwelling house, or last place of 
 abode. (o) And where, upon process, by original writ, against a member 
 of the house of commons, the summons omitted to describe him as having 
 privilege of parliament, and the notice at the foot stated, that in default of 
 his appearance, on the return day of the writ, the plaintiff would 
 cause *an appearance to be entered for him; the court held, that [ *119 ] 
 the summons was sufficient. (««) Before or on the quarto die post 
 of the return of the original, the defendant either appears or makes default ; 
 for he cannot cast an essoin. (W) If he make default, the plaintiff may sue 
 
 (a) Say. Rep. 63, 4. Cowp. 844. 
 
 (b) 2 H. Blue. 267, 299, and sec 3 Bos. & Pul. 7, 9, (b). 12, (a). 
 
 (c) See also Bro. Abr. lit. liill, pi. 6, and liesponder, pi. 30. 
 
 (rf) 2 II. Blac. 267, 299. Lil. Ent. 21. (e) 3 Maule & Sel. 88. 
 
 (/) Lady Napier's case, T. 21 Geo. III. K. B. 
 
 (g) 7 Taunt. 679. 1 Moore, 410, S. C. (A) 1 Taunt. 256. 
 
 (i) 4 Maulc & Sel. 585. (k) Append. Chap. V. g I, &c. 
 
 (I.) 1 Str. 225. (m) 2 Chit. Rep. 638, 9! 
 
 (n) For the form of & prcvcipe for an original writ in debt, or case, against a peer, or mem- 
 ber of the house of commons, see Append. Chap. VI. g 1, 2, 3. 
 (o) 2 Cromp. 3 Ed. 138. 
 {aa) 5 JIaule k Sel. 221. {bb) Ante, 109.
 
 219 OF THE PROCEEDINGS 
 
 out a testatum summons,(<?(?) or (which is more usual,) a distrmgas,{dd) and 
 after that, (if necessary,) an alias or pluries distringas ;{e) upon which he 
 may move to increase and sell the issues, as was formerly usual in other 
 cases :(/) Or, upon an affidavit of the personal service of the summons, 
 he may proceed against members of the house of commons, by entering 
 an appearance, in the manner pointed out by the statute 45 Geo. III. c. 
 124, § 3.( (/) If the sheriiF return upon the distringas, ^c, that the de- 
 fendant hath nothing by which he can be distrained, the plaintiff may have 
 a testatum distringas into another county. (A) And after a summons and 
 distringas had issued against a privileged defendant, in the county where 
 the action was brought, but in which he did not reside, and of which pro- 
 cess he had no notice, and returns were made of non est inventus and 
 7UiUa bona, it was holden, that a testatum distringas might regularly issue 
 into the county in which he resided and had property, without any new 
 summons in such county. (^) 
 
 The distringas and other subsequent process upon the original, state 
 the cause of action at large(^) and must be made returnable, in the King's 
 Bench, on a general return-day, ubicunque, or ivheresoever the king shall 
 then be in England ; or, in the Common Pleas, before the king's justices 
 at Westminster. Each succeeding writ must be tested on the quarto die 
 post of the return of the preceding one ; and there must be fifteen days 
 at least between the teste and return. (Z) 
 
 If the defendant appear upon any of these writs, he should enter his 
 appearance with the filacer ; and when the purpose of the writ is thus 
 answered, the issues, (if any have been levied,) are directed to be returned; 
 or if sold, what shall remain of the money arising by such sale is to be 
 repaid to the party distrained upon.(w) But the plaintiff in such case is 
 entitled to his costs : And where he had obtained rules for selling the 
 issues levied upon a distringas, alias, and pluries, and also a rule for an 
 attachment against the sheriff, but the defendant appeared before any 
 issues had been actually levied, the court ordered, that upon payment of 
 the costs of issuing the writs, the rules should be discharged ; being of 
 opinion, that these costs were not to abide the event of the- suit, but were 
 to be paid to the plaintiff immediately and at all events, whether he should 
 finally succeed in the suit or not.(w) 
 
 [ *120 ] *The bill against a member of the house of commons, is a com- 
 plaint in writing, describing the defendant as having privilege of 
 parliament ;[a) and concludes with a prayer by the plaintiff, or process to 
 be made to him, according to the form of the statute, &c. This bill is filed, 
 in the King's Bench, with the clerk of the declarations, in the King's 
 Bench office : And if the bill be filed in vacation, for a cause of action 
 
 (cc) Append. Chap. VI. ? 20. 
 
 {dd) Trye, 9. Append. Chap. VI. § 4. 
 
 (e) Append. Chap. VI. § 5. 
 
 If) Ante, \1(},U. Append. Chap. VI. ^ 7, 8, 9. [g] Post, 120, 21. 
 
 (A) Trye, 10, 127. Append. Chap. VI. § 6. {i) 4 East, 162. 
 
 (A) Trye, 127. Append. Chap. VI. | 4, &c. 
 
 {l) But see the statutes 16 Car. I. c. 6, I 7. 24 Geo. II. c. 48, I 5. Ante. 107. 
 
 (to) Stat. 10 Geo. III. c. 50, I 4. («) 5 Bur. 2725. 
 
 (a) Say. Rep. 64, and see Append. Chap. VI. g 12, 13, 14, 15. Ante, 118.
 
 AGAINST PEERS, ETC. 120 
 
 arising after the term, there should be a special mcmorandiim, stating the 
 day of bringing the bill into the office of the clerk of the declarations. 
 In the Common Pleas, the bill is filed with the filacer of the county where 
 the venue is laid: In the Exchequer, it is filed with the master. And the 
 first process thereon, in all the courts, is a writ of summons ;{h) which is 
 a judicial writ, issuing out of the King's Bench or filacer's office, or office 
 of pleas in the Exchequer, on a proper p'a?c2j;e,(f) and directed to the 
 sheriff of the county where the venue is laid, commanding him to summon 
 the defendant : Or, if the defendant reside in a different county, the plain- 
 tiff may sue out a writ of testatum summons into that county.((Z) Upon 
 one or other of these writs the defendant should be sunmioned, in like 
 manner as upon an original ; and if he do not appear, Avithin four days 
 after the return of it, is subject to the process of attachment and distrin- 
 gaSj{e) &c. If he appear, his appearance should be entered, in the King's 
 Bench, with the clerk of the common bails ; in the Common Pleas, with 
 the filacer of the county into Avhich the summons issued ; or, in the Exche- 
 quer, in the appearance book in the office of pleas. 
 
 The writ of summons, and other subsequent process upon the bill, differ 
 from the process by original, in the following particulars : first, that they 
 do not state the cause of action at large, but only require the defendant 
 to answer the plaintiff generally, in a plea of trespass on the case, (accord- 
 ing to the plea,) to his damage of, ^-c, as he can reasonably shoiv that 
 thereof he ought to ansiver ;{f) secondly, that they are tested on the very 
 return, and not on the quarto die post of the return of each other; thirdly, 
 that they are made returnable on days certain, and not on general return 
 days ; and fourthly, that there need not be fifteeii days between the teste 
 and return of them. 
 
 The mode of proceeding by distringas, against members of the house of 
 commons, being found extremely dilatory and expensive, it was enacted by 
 the statute 45 Geo. III. c. 124, § 3, that " when any summons, or origi- 
 nal bill and summons, shall be sued out against any person having privi- 
 lege of parliament, and no such affidavit shall be made and filed as therein 
 is mentioned, if the defendant or defendants shall not appear at the return 
 of the summons, or within eight days after such return, the plaintiff or 
 plaintiffs, upon affidavit being made and filed in the proper court, of the 
 personal service of such summons, which affidavit shall be *filed 
 gratis, may enter an appearance or appearances for the defend- [ *121 ] 
 ant or defendants, and proceed thereon, as if such defendant or 
 defendants had entered his or their appearance." 
 
 The defendant having appeared, or the plaintiff appeared for him accord- 
 ing to the above statute, the plaintiff proceeds to declare against him. (a) 
 The time allowed for declaring against a peer of the realm, or member of 
 the house of commons, is the same as in other cases. But in assigning 
 the breach in assumpsit, against a peer of the realm, the plaintiff must not 
 charge the defendant with contriving and fraudulently intending, craftily 
 
 (b) Imp. K. B. 10 Ed. 515, 16. 8 Mod. 228, and see Append. Chap. VI. ? 17, 18, ID. 
 
 (c) Append. Chap. VI. I 16, 21. (cf) Id. § 20, and see 4 East, 162. 
 (e) Id. § 22, &c. (/) 2 Cromp. 3 Ed. 138. Trye, 127. 
 (a) For the form of a note of appearance for, and beginnint; of a declaration by original 
 
 against a peer, or member of the liouse of commons, see Append. Chap. VI. g 10, II, and 
 for the beginning of a declaration by bill, against a member of the house of commons, aftcu" 
 appearance, in C. P. sec id. I 27, and for the entry of a bill and process against a member, 
 to save the statute, in K. B. see id. g 28.
 
 121 
 
 OF THE PROCEEDINGS 
 
 and suit illy to deceive and defraud him; for the house of lords have 
 ailjud'TCcl it a very high contempt and misdemeanor, to charge a member 
 of their house with any species of fraud or deceit.(i6) 
 
 All farther proceedings against peers of the realm, and members of the 
 house of commons, are the same as against other persons ;(c) only it should 
 be remembered, that as no capias lies against them, they cannot be taken 
 in execution, unless where the judgment is obtained upon a statute staple, 
 or statute merchant, or upon the statute of Acton Bur7iel,{d) in which 
 case a capias lies, even against peers of the realm. 
 
 In proceeding against a Corporation, the process should be served on 
 the Mayor, or other head officer ;(e) and if the defendants do not appear, 
 before or on the quarto die post of the return of the original, by an attor- 
 ney regularly appointed, (for they cannot appear in person, )(/) the next 
 process is a distringas, which should go against them in their public capa- 
 city :{g) and under this process, the sheriiF may distrain the lands and 
 goods, which constitute the common stock of the corporation. (7i) If they 
 have neither lands nor goods, there is no way to compel them to appear, 
 at law or in equity,(^) but only in parliament ;{k) for it is a rule, that for 
 a public concern, the sheriff cannot distrain any private person, who is a 
 member of the corporation. (?)[a] 
 
 (bb) 2 Cromp. 3 Ed. 141. 
 
 (c) 8 Mod. 229. (d) 11 Edw. I. 
 
 (e) Sty. Rep. 367. Prac. in Chan. 131. 1 Chan. Cas. 206. (/) Ante, 92. 
 
 Iff) 1 Vent. 351, (A) Skin. 27, and see 1 Bot. 143, pi. 178. 
 
 (j) Id. 1 Vern. 122. Skin. 84, S. C. 2 Vern. 394. Prec. in Chan. 129, S. C. 
 
 (/c) 1 Chan. Cas. 204. 
 
 [1) Bro. Abr. tit. Trespass, 135. 1 Vent. 351. Cowp. 85. Sty. Rep. 367, contra; and see 
 1 Lev. 237. Finch. Rep. 83, 4, S. 0. And for the form of a note of appearance for, and 
 beginning of a declaration against a corporation, see Append. Chap. VI. § 29, 30. 
 
 [a] Actions against corporations must be instituted by summons in the name which is 
 given to them in their several charters. But a foreign attachment lies against a corpora- 
 tion incorporated by the laws of another state, to attach its property in this state ; but on 
 giving bail for the payment of the debt, interest and costs, that may be recovered by the 
 plaintiff, the court will permit it to appear, and on motion will dissolve the attachment. 2 
 Troub. & Haley, Pract. 459, 3d ed. 
 
 It is said in the English books that no precedent of an original writ, in the common law 
 sense of that term, has ever been known in practice to be issued against a corporation, and 
 it is laid down as an universal rule, that the process must be by summons, and cannot be 
 by attachment. Bro. Abr. tit. " Corporation," pi. 43. 2 Impey's C. B. Pract. 675, note. Com. 
 Dig. tit. "Pleader," 2 B. 2. 1 Bac. Abr. tit. "Corporation," 507. 2 Sell. Pract. tit. "Cor- 
 poration," 148. Ang. & Ames on Corp. ^ 637, note, 4th ed. 
 
 It has also been held, and at common law it is not to be disputed, that the service of the 
 summons on the chief officer must also be within the jurisdiction of the sovereignty where 
 the artificial body exists. McQueen v. The Manufacturing Company, 16 Johns. Rep. 6. Nash 
 V. The Rector, S^c, 1 Miles, Rep. 78, per Pettit, P. J. Dawson v. Campbell, 2 Id. 171. Combs v. 
 I'he Bank of Keniuchy, 3 Penn. L. Jour. 38, per Kennedy, J. Lehigh Coimty v. Kleckner, 5 
 Watts & Serg. 187, per Rogers, J. Brohst v. The Bank of Penn., 5 Id. 380, per Sergeant, J. 
 Bank of Virginia v. Adams, 1 Parsons Sel. Eq. Cas. 534, per King, P. J. Bank of Augusta 
 V. Earle, 13 Peters, S. C. Rep. 588. Peckhamy. Haverhill, 16 Pick. 286. This principle of 
 the common law has been much broken in upon by statutory enactment in this country. 
 Pennsylvania seems to have departed widely h'om the common law. By the act of June 
 16, 1836, I 41, Purd. Dig. p. 49, 7 Ed. p. 168, 8 Ed., Dunlp. 470, it is provided that any cor- 
 poration shall answer upon a writ of summons (except counties and townships), and that 
 service shall be sufiicient, if made on the president or other principal officer, or on the 
 cashier, treasurer, secretary, or chief clerk ; and by § 42, lb. it is further provided, that in 
 actions occasioned by trespass done by a corporation, if none of the officers shall reside in
 
 AGAINST CORPORATIONS. 121 
 
 *The statutes of hue and cry,{a) riot,(b) and hlack,{ec) acts, and [ *122 ] 
 various other statutes,((;?o?) on which the hundred were formerly 
 
 (a) 13 Edw. I. St. 2, c. 1, 2. 28 Edw. III. c. 11. 27 Eliz. c. 13. 8 Geo. II. c. 16. 22 Geo* 
 II. c. 24. For the proceedings in general on these statutes, see 2 Wnis. Saund. 6 Ed. 374, (1,) 
 to 377, b. (12,) 423, (1,) ; and for the evidence In support of actions thereon, Peake Evid. 5 
 Ed. 295, &c., 2 Phil. Evid. 6 Ed. 209, &c. 
 
 (6) 1 Geo. I. St. 2, c. 5, § 4 & 6. For the proceedings in general on this act, see 2 Wms. 
 Sauud. 5 Edw. 377, 6, to 378, 6 ; for the form of a declaration thereon, 2 Chit. PI. 4 Ed. 832 ; 
 for the evidence in support of it, 2 Phil. Evid. G Ed. 216 ; and for cases deleriniiied thereon, 
 Doug. G99. 5 Durnf. & East, 14, 341. 7 Durnf. & East, 49G. 1 East, 615, 630. 1 Price, 
 343. Holt Ni. Pri. 201, 203, (n). 1 Barn. & Aid. 487. 2 Chit. PI. 4 Ed. 832, (a), and Moore 
 Dig. tit. Riot. 
 
 (cc) 9 Geo. I. c. 22. For the proceedings in general on this act, see 2 Wms. Saund. 5 Ed. 
 378, 6, c, J, e ; for the forms of declarations thereon, 2 Chit. PI. 4 Ed. 828, 830 ; and for 
 cases determined on this act, 1 Durnf. & East, 71 ; 2 Durnf. & East, 255. 3 East, 400, 457. 
 8 East, 173. 3 Moore, 319. 1 Brod. & Bing. 64, S. C. 1 Barn. & Cres. 304. 2 Dowl. & 
 Ryl. 439, S. C. 2 Barn. & Cres. 254. 3 Dowl. & Ryl. 489, S. C. 6 Dowl. <fc Ilyl. 10. 4 
 Barn. & Cres. 167. 6 Dowl. & Rvl. 247, S. C. 4 Burn. & Cres. 913. 2 Chit. PI. 4 Ed. 
 828, (a). Pratt Dig. tit. JJlack Act. 
 
 (dd) 1 Geo. I. St. 2, c. 48. 6 Geo. I. c. 16. 8 Geo. II. c. 20. 10 Geo. II. c. 32, (except 
 § l«i)- 11 Geo. II. c. 22, ^ 5, to the end. 13 Geo. II. c. 21. 14 Geo. II. c. 6. 22 Geo. II. 
 c. 46, I 34. 29 Geo. II. c. 36, ^ 6, 7, 8, 9. 9 Geo. III. c. 29. 36 Geo. III. c. 9, g 3, to the 
 end. 41 Geo. III. c. 24, {U. K.) 52 Geo. III. c. 130. 56 Geo. III. c. 125. 57 Geo. III. c. 19, 
 ^ 38, and 3 Geo. IV. c. 33. And for cases determined on, 6 Geo. I. c. 16, see 11 East, 349 ; 
 on 52 Geo. III. c. 130, | 2. 1 Barn. & Aid. 146; on 57 Geo. III. c. 19, I 33. 2 Stark. Ni. 
 Pri. 504. 3 Dowl. & Ryl. 96. 3 Barn. & Cres. 147. 4 Dowl. & Ryl. 778, S. C. ; and on 3 
 Geo. IV. c. 33. 4 Barn. & Cres. 913. 
 
 the county in which such trespass was done, the writ may be served upon any officer or 
 agent, at any office or place of business within the county, or it may be served upon any of 
 tha officers in anj' county or place where they may be found, which is almost a transcript 
 of the act. This act of 1817, in these particulars, has been held to extend to domestic cor- 
 porations only. Bushel v. The Com. Ins. Co., 15 S. & R. 1 83, opinion per Duncan, J., recognized 
 in Nash v. The Rector, &c., 1 Miles, 82, per Pettit, J. Dawson v. Cainpbell, 2 Id. 170. Combs 
 V. The Bank of Kentucky, 3 Penn. L. J. 58. By the theory of the law, and by the various 
 statutory provisions, it is clear that the corporation can act only by its own principal offi- 
 cers ; that its responsibilities and rights are thrown upon them, and that they cannot be 
 legally called upon to answer through the medium of their inferior officers. Brobst v. The 
 Bank of Fennsyloania, 5 W. & S. 381. Such appears to have been the law prior to the act 
 of March 21, i8l9, P. L. 216. Purd. Dig. 1187, 7 Ed. Dunlp. 1149. Purd. 169, 8 Ed. By 
 this act it is provided, that in actions brought against any foreign corporation every judgment 
 shall be final, unless on appeal, bail absolute shall be given, and that process may be served 
 " upon any officer, agent, or engineer of such corporation, either personally or by copy, or 
 by leaving a certified copy at the office, depot, or usual place of business of said corpora- 
 tion." Under this act somo cases have already arisen. Kennard v. The Railroad, before 
 the District of Philadelphia, March 4, 1850, is an important one. In this case the sheriff 
 made the following return: "Served by leaving a true and attested copy of the within writ 
 with an agent of the defendants, and by leaving a certified copy in the office attached to 
 the depot." In point of fact, as appeared by the affidavits, the service was made on an 
 agent, and at a depot of a different corporation. The counsel for the defendant moved to 
 set aside the return of service of the writ on this ground. But the court were of opinion 
 that they could not go beyond the face of the return, and the return was held good. The 
 following is the opinion of the court, per Sharswood, J. : — 
 
 " This was a rule to show cause why the service of process should not be set aside. It is 
 an action against the New Jersey Railroad Company, in which the summons was served by 
 leaving a certified copy at the office attached to the depot. It is important in practice to 
 show for what causes a court will set aside the service of a writ by the sherilT. It would 
 seem, according to principles laid down, that the court should not go beyond the face of 
 the return, nor admit extraneous evidence. 
 
 " In Klecknerv. County, 6 \Vh. 66, where the return was, that the writ was served upon two 
 of the commissioners of the county, and the motion was to set aside the service of the writ, 
 as not having been legal, evidence was taken in the court below to show that the persons 
 served were not commissioners. The service of the summons was set aside; but the Su- 
 preme Court reversed the judgment, holding that the court below erred in setting aside the 
 writ. In Combs v. Bink of Kentucky, 3 Pa. Law Journal, 58, the defendant was a foreign 
 corporation, which certainly was an extraneous fact. In the case before us, that extraneous 
 
 Vol. I.--9
 
 122 
 
 OF THE TROCEEDINGS 
 
 liable for damages arising from malicious injuries to property,[A] having 
 been repealed by the statute 7 & 8 Geo. IV. c. 27, the remedies against 
 
 fact docs not impeach, but support the writ. We think that the sheriflTs service of a writ 
 should not be set aside, unless from something on the face of it. This does not interfere 
 with the practice long used in this and other courts, to open a judgment by default, and let 
 the partj'talie defence upon the merits. We must take it as true, in point of fact, that the 
 summons was served upon an agent of the company ; that it was left at a depot ; that it was 
 left with a competent person, and that the depot was the depot of the defendants. The re- 
 turn is, in the language of the act of March 21, 1849, (Pamph. L. 216, Brightley's Sup. 
 1849, 124,) which enacts, that in the commencement of any suit or action against any such 
 foreign corporation, process may be served upon any officer, agent, or engineer of such cor- 
 poration, either personally or by copy, or by leaving a certified copy at the office, depot, or 
 usual place of business of said corporation; and such service shall be good and valid in law 
 to all intents and purposes. We discharge this rule." 
 
 In a still later case before the same court, ration v. The Ins. Co. September, 1852, upon a 
 rule taken to set aside the service of the writ, the same ground was stated and sustained 
 by the court. The return in this case was: " Served a true and attested copy of the within 
 writ personally on Alfred Edwards, an agent of the within named defendants, and made 
 known to him the contents thereof." Edwards, it was agreed, was an agent of the defen- 
 dants in New York, and was one of the directors, but it was agreed that he was not an agent 
 in Pennsylvania, because he had not complied with the provisions of the act of Jan. 24, 
 1849. Purd. Dig. 1349. The following is the opinion of the court, September 18, 1852, per 
 ShaTsioood, P. J. : — 
 
 " This motion is, why the return of service should not be set aside. The service itself is an 
 act in pais — it is with the record only that we have to do. This court has more than once 
 decided that upon this motion the parties are concluded by the facts stated in the sherifTs 
 return, although where a judgment has been taken by default, and an appeal is made to 
 the discretion of the court to open the judgment and let the defendant into a defence, they 
 will allow him in that case to contradict the sheritf's return bj' parol evidence, and show 
 that in point of fact he had no actual notice of the suit. The difference between that case 
 and the one now before the court is very palpable. 
 
 "In Klechner v. The County of Lehigh, (6 Whart. 66,) in which the sheriff returned that he 
 served the writ on two persons said to be commissioners of the county, and the court below 
 had heard evidence as to whether the parties were commissioners, the Supreme Court said, 
 ' As the return must be considered absolute and conclusive between the parties to the 
 action, the court erred in setting aside the service of the writ by the introduction of extra- 
 neous proofs.' The authority of this case is conclusive, as the order of the court upon this 
 motion would undoubtedly be examined on writ of error. 
 
 " It remains then to consider the return in this case ; ' Served,' &c. It is not denied that 
 the defendants are a foreign corporation. By the 3d section of the act 21 March, 1849, it is 
 provided that, 'in the commencement of any suit or action against a foreign corporation, 
 process may be served upon any officer, agent, or engineer, of such corporation, either per- 
 sonally or by copy, or by leaving a certified copy at the office, depot, or usual place of busi- 
 ness of said corporation ; and such service shall be good and valid in law to all intents and 
 purposes.' It is unnecessary to inquire here what is meant by the word ' agent.' The 
 sheriff, by returning that he has served on Edwards, an agent, has certainly assumed that 
 he is such an agent as is contemplated by the act. Rule discharged." 
 
 It would thus seem to be well settled, that the sheriffs return is conclusive and not tra- 
 versable : the only remedy the defendant has is by an action for a false return. Salkill v. 
 Le Sig. Howard, 2 Rolle, R. 128. Palmer \. Potter, Cro. Eliz. 512. Madox v. You7ig, Hob. 209. 
 Steward v. Floyd, 12 Mod. 311. Hawkins v. Mildmay, Cro. Eliz. V30. Wordall v. Smith, 1 
 Camp. 332. Slayion v. Chester, 4 Mass. 478. Bott v. Burnell, 9 Id. 96. Bean v. Parker, 17 
 Id. 591. Bank of GaUipolis v. Donagan, 12 Ohio, 220. Palmer v. Crane, 8 Miss. 619. 
 Humphries v. Lawson, 2 Eng. (Ark. Rep.) 341. It is even said by Sewell on Sheriff, p. 387, 
 that the court will not try on affidavits whether a return by the sheriff to a writ is false, 
 even though a strong case is made out showing fraud and collusion, but the party must 
 resort to his remedy by action. See Anony. Lofft. 371. Shaw v. Simpson, 1 Ld. Raym. 184. 
 Ooulot V. De Crony, 2 Dowl. P. C. 86. 1 Cr. & M. 772. Barber v. Mitchell, 2 Dowl. 
 P. C. 574. 
 
 There has been much statutory change in this country as to service of process on corpo- 
 rations, both foreign and domestic. Perhaps the enactments in New York, Pennsylvania, 
 and Ohio may be considered as general exponents of the legislation. See 2 Troub. & Haley's 
 Pract. 458, by Wharton, 3d Ed. Purd. Dig. p. 108, tit. Corporations, Brightly's Ed. 1853. 
 Curwen's Laws of Ohio, p. 1171, 1174. Blatchford's Gen. Stat. p. 506, 507. It is for this 
 
 [a] See next page.
 
 AGAINST CORPORATIONS. 122 
 
 the hundred for damages occasioned hy persons riotously and tumultu- 
 ously assembling, for which alone tlie hundred are now liable, were 
 amended, and consolidated into one act, by the 7 & 8 Geo. IV. c. 31 ; 
 which commenced on the first day of Juljj^ 1827. (e) By the latter 
 8tatute,(/) " if any church or chapel, or any chapel for the religious Avor- 
 ship of persons dissenting from the united church of England and Ireland, 
 duly registered or recorded, or any house, stable, coach-house, outhouse, 
 warehouse, office, shop, mill, malt-house, hop-oast, barn or granery, or 
 any building or erection used in carrying on any trade or manufacture, or 
 branch thereof, or any machinery, whether fixed or moveable, prepared 
 for or employed in any manufacture, or in any branch thereof, or any 
 steam engine, or other engine, for sinking, draining, or working any mine, 
 or any staith, building, or erection used in conducting the business of any 
 mine, or any bridge, wagon-way, or trunk for conveying minerals from 
 any mine, shall be feloniously demolished, pulled down, or destroyed; 
 wholly or in part, by any persons riotously and tumultously assembled 
 
 {e) I- 1. (/) \ 2. 
 
 reason that the Pennsylvania legislation has been so fully considered in this note, and the 
 points adjudicated so fully stated. 
 
 " The ancient doctrine was, tliat the action of assumpsit could not be supported against a 
 corpoi-ation, unless in the case of promissory notes, and other contracts sanctioned by par- 
 ticular legislative provisions. And as late as 1799, in a case in the Supreme Court of 
 Pennsylvania, the question arose upon a special verdict whether an action of indebitatus 
 assumpsit, upon an implied promise, could be maintained against an incorporated turnpike 
 company, as a corporation could only contract by deed under the corporate seal; and the 
 court held that, on the ground stated, the company was not liable to be sued in that form 
 of action. But it having since become well settled, by the more recent decisions of the 
 courts of the United States, that corporations may act by parol, it has resulted, as a matter 
 of course, that assumpsit will lie against a corporation ; and such is now the established 
 doctrine in this country. The Supreme Court of Massachusetts, a number of years since, 
 decided that assumpsit would lie against a corporation, where there is an express promise 
 by an agent of the corporation, or a duty arising from some act or request of such agent 
 within the authority of the corporation. And in a very late case, in the same State, it was 
 held, that either an action of debt or of assumpsit may be maintained upon an implied 
 promise, for labour done and materials found, under a special contract, which has not been 
 performed on the part of a corporation. In a case in the Supreme Court of the United 
 States, an attempt was made to distinguish between express and implied promises, as to the 
 liability of corporations to be sued in assumpsit; but the distinction was disregarded, and 
 the court went the whole length of giving the same remedies against incorporated compa- 
 nies, in matter of contract, as against individuals. The old cases are there reviewed, show- 
 ing that the law has been progressively altering, with respect to the validity of act? done 
 by corporations not under their seal. The court observe, upon the English authorities re- 
 ferred to, that, as soon as it was settled that a regularly appointed agent of a corporation 
 could contract in its name without a seal, it was impossible to maintain any longer that a 
 corporation was not liable upon promises ; otlierwise there would be no remedy against the 
 coporation ; and the court concluded by s.aying, that it is a sound rule of law, that when- 
 ever a corporation is acting within the scope of the legitimate purposes of the corporation, 
 all parol contracts made by its authorized agents are express promises of the corporation ; 
 and all duties imposed upon them by law, and all benefits conferred at their request, raise 
 implied promises, for the enforcement of which an action will lie. In the Supreme Court 
 of New York, also, Mr. Chief Justice Thompson held expressly that assumpsit will lie against 
 a corporation on an implied promise. In this case a turnpike comp.any covenanted to pay 
 money, and a part had been paid ; assumpsit, the court held, would lie on the implied pro- 
 mise "to pay the balance. And in another case in New York, it was held, that assumpsit 
 would lie against the corporation on the implied promise to pay the amount of damages 
 assessed by a jury, for the land of the plaintiff taken by the corporation. The same is the 
 general rule in Pennsylvania and in New Jersey, and, we believe, throughout the country. 
 And in an action of assumpsit against a corporation, it makes no difference whether the 
 agent who makes the contract in behalf of the corporation was appointed under seal or by 
 vote." Angell & Ames on Corp. § 37D, and cases there cited, 4th Ed. 
 [a] See Purd. Dig. p. COO, Ed. 1853.
 
 122 OF THE PROCEEDINGS 
 
 torrcilieVj in every such case the inhabitants of the hundred, wapentake, 
 ward, or other district in the nature of a hundred, by whatever name it 
 shall be denominated, in which any of the said offences shall be 
 [ *123 ] committed, shall be liable to yield full *compensation to the per- 
 son or persons damnified by the offence ; not only for the dam- 
 age so done to any of the subjects thereinbefore enumerated, but also for 
 any damage which may at the same time be done by any such offenders, 
 to any fixture, furniture, or goods whatever, in any such church, chapel, 
 house, or other buildings or erections aforesaid." 
 
 "Provided always, that no action or summary proceeding, as therein- 
 after mentioned, shall be maintainable by virtue of that act, for the dam- 
 age caused by any of the said offences, unless the person or persons 
 damnified, or such of them as shall have knowledge of the circumstances 
 of the offence, or the servant or servants who had the care of the property 
 damaged, shall, within seven days after the commission of the offence, go 
 before some justice of the peace, residing near, and having jurisdiction 
 over the place where the offence shall have been committed ; and shall 
 state upon oath, before such justice, the names of the offenders, if known, 
 and shall submit to the exam^ination of such justice, touching the circum- 
 stances of the offence, and become bound by recognizance before him, to 
 prosecute the offenders, when apprehended : Provided also, that no per- 
 son shall be enabled to bring any such action, unless he shall commence 
 the same within three calendar months after the commission of the 
 offence, "(a) 
 
 The service of process, and mode of proceeding to judgment, in an 
 action against the hundred, on this statute, are regulated by § 4, which 
 enacts, that " no process for appearance, in any action to be brought 
 by virtue of that act, against any hundred or other like district, shall 
 be served on any inhabitant thereof, except on the high constable, or 
 some one of the high constables, if there be more than one ; who shall, 
 within seveii days after such service, give notice thereof to two justices 
 of the peace of the county, riding or division, in which such hundred 
 or district shall be situate, residing in or acting for the hundred or 
 district ; and such high constable is thereby empowered to cause to 
 be entered an appearance in the said action, and also to defend the 
 same, on behalf of the inhabitants of the hundred or district, as he shall 
 be advised ; or, instead of defending the same, it shall be lawful for him, 
 with the consent and approbation of such justices, to suffer judgment 
 to go by default ; and the person upon whom, as high constable, the pro- 
 cess in the action shall be served, shall, notwithstanding the expiration of 
 his office, continue to act, for all the purposes of that act, until the 
 termination of all proceedings in, and consequent upon such action ; but 
 if such person shall die before such termination, the succeeding high 
 constable shall act in his stead." 
 
 And "wherever the plaintiff in any such action shall recover judgment, 
 
 whether after verdict or by default, or otherwise, no writ of execution 
 
 shall be executed on any inhabitant of the hundred, or other like 
 
 [ *12-i ] *district, nor on such high constable ; but the sheriff, upon the 
 
 receipt of the writ of execution, shall (on payment of the fee of 
 
 Jive shillings, and no more,) make his warrant to the treasurer of the 
 
 (a) I 3.
 
 AGAINST CORPORATIONS. 124 
 
 county, riding or division, in -which such hundred or other like district 
 shall be situate, commanding him to pay to the plaintiff, the sum by the 
 said writ directed to be levied ; and such treasurer is thereby required to 
 pay the same, as also any other sum ordered to be paid by him by virtue 
 of that act, out of any public money which shall then be in his hands, or 
 shall come into his hands before the next general or quarter sessions of 
 the peace for the said county, riding or division ; and if there be not 
 sufficient money for that purpose, before such sessions, he shall give notice 
 thereof to the justices of the peace at such sessions, who shall proceed in 
 the manner thereinafter mentioned. "(a) 
 
 For the purpose of indemnifying the high constable and county trea- 
 surer, it is enacted, that, " if such high constable of the hundred, or other 
 district sued, shall produce and prove before any two justices of the peace 
 of the county, riding or division, residing in or acting for such hundred 
 or district, an account of the just and necessary expenses, which he shall 
 have incurred in consequence of any such action as aforesaid, such justices 
 shall make an order for the payment thereof, upon the treasurer of the 
 county, riding or division, in which such hundred or district shall be 
 situate ; and if, in any such action, judgment shall be given against the 
 plaintiff, the high constable shall, in like manner, be reimbursed for the 
 just and necessary expenses by him incurred in consequence of such 
 action, over and above the taxed costs to be paid by the plaintiff in such 
 case ; and if it shall be proved to any two such justices, that the plaintiff in 
 the action is insolvent, so that the high constable can have no relief as to 
 such taxed costs, such justices shall make an order upon the treasurer of 
 the county, riding or division, as aforesaid, for the payment of the amount 
 of such taxed costs : And the justices of the peace, at the next general 
 or quarter sessions of the peace to be holden for any such county, riding 
 or division, or any adjournment thereof, shall direct such sura or sums of 
 money as shall have been paid, or ordered to be paid, by the treasurer, by vir- 
 tue of any such warrant or order as thereinbefore mentioned, to be raised on 
 the hundred, or other like district, against the inhabitants of which any such 
 action shall have been brought, over and above the general rate to be paid 
 by such hundred or district, in common with the rest of the county, riding 
 or division, under the acts relating to county rates ; and such sum or sums 
 shall be raised, in the manner directed by those acts, and shall be forthwith 
 paid over to the treasurer. "(5) 
 
 It being deemed expedient to provide a summarj/ mode of proceeding, 
 where the damage is of small amount ; the costs of an action in 
 such case *greatly exceeding, in many instances, the amount of [ *125 ] 
 the damage ; it is enacted by the statute 7 & 8 Geo. IV. c. 31, (a) 
 that " it shall not be lawful for any person to commence any action, 
 against the inhabitants of any hundred, or other like district, where the 
 damage alleged to have been sustained, by reason of any of the offences 
 in that act mentioned, shall not exceed the sum of tJiirti/ pounds: but the 
 party damnified shall, within acven days after the commission of the offence, 
 give a notice in writing of his claim for compensation, according to the 
 
 (a) ? G. 
 
 (ft) !jt 7. And for the mode of rcimbnrscraont, in liberties, &c., not witliin any linndred, 
 but contributibg to the county rate, nnd in counties of cities, aud liberties, &c., not contri- 
 buting thereto, see g 14, 15. 
 
 (a) ^ 8, 9, 10, and see stat. 3 Geo. IV. c. 33,
 
 125 OF THE PROCEEDINGS, ETC. 
 
 form of the schedule thereunto annexed, to the high constable, or some 
 one of the high constables, if there be more than one, of the hundred, or 
 other like district, in -which the offence shall have been committed : and 
 such high constable shall, within seve7i days after the receipt of the notice, 
 exhibit the same to some two justices of the peace of the county, riding or 
 division, in which such hundred or district shall be situate, residing in or 
 acting for such hundred or district ; and they shall thereupon appoint 
 a special petty session of all the justices of the peace of the county, 
 riding or division, acting for such hundred or district, to be holden within 
 not less than tiuenty, nor more than thirty days next after the exhibition 
 of such notice, for the purpose of hearing and determining any claim 
 which may be then and there brought before them, on account of any such 
 damage ; and such high constable shall, within three days after such 
 appointment, give notice in writing to the claimant, of the day and hour, 
 and place appointed for holding such petty session, and shall, within ten 
 days, give the like notice to all the justices acting for such hundred or 
 district ; and the claimant is thereby required to cause a notice in writing, 
 in the form in the schedule thereunto annexed, to be placed on the church 
 or chapel door, or other conspicuous part of the parish, township or place, 
 in which such damage shall have been sustained, on two Sundays preceding 
 the day of holding such petty session. 
 
 " And it shall be lawful for the justices, not being less than tivo, at such 
 petty session, or any adjournment thereof, to hear and examine upon oath 
 or affirmation, the claimant, and any of the inhabitants of the hundred, or 
 other like district, and their several witnesses, concerning any such offence, 
 and the damage sustained thereby ; and thereupon the said justices, or the 
 major part of them, if they shall find that the claimant has sustained any 
 damage, by means of any such offence, shall make an order for payment 
 of the amount of such damage to him, together with his reasonable costs 
 and charges, and also an order for payment of the costs and charges, if 
 any, of the high constable, or inhabitants ; and shall direct such order or 
 orders to the treasurer of the county, riding or division, in which such 
 hundred or district shall be situate, who shall pay the same to the party 
 or parties therein named, and shall be reimbursed for the same, in the 
 manner thereinbefore directed. And if any high constable shall refuse or 
 
 neglect to exhibit or give such notice as is required in any of the 
 [ *126 ] cases aforesaid, it shall be lawful for the party *damnified to sue 
 
 him for the amount of the damage sustained, such amount to be 
 recovered by an action on the case, together with full costs of suit." 
 
 Where any of the offences, for which compensation is granted by virtue 
 of that act, are committed in the county of a city or town, or in any such 
 liberty, franchise, city, town or place, as either does not contribute at all to 
 the payment of any county rate, or contributes thereto, but not as being 
 part of any hundred, or other like district ; it is enacted that " the inhab- 
 itants thereof shall be liable to yield compensation, in the same manner, 
 and under the same conditions and restrictions in all respects, as the 
 inhabitants of the hundred ; and every thing in that act in any wise relat- 
 ing to a hundred, or to the inhabitants thereof, shall equally apply to 
 every county of a city or town, and to every such liberty, franchise, city, 
 town and place, and to the inhabitants thereof; and where the justices of 
 the peace of the county, riding or division, are excluded from holding 
 jurisdiction in any such liberty, franchise, city, town or place, in every
 
 OF THE CAPIAS BY ORIGINAL. 126 
 
 such case, all the powers, authorities and duties by that act to or imposed 
 on such justices, shall be exercised and performed by the justices of the 
 peace of the liberiy, franchise city, town or place, in which such offence 
 shall be committed ; and where the offence shall be committed in a county 
 of a city or town, all the like powers, authorities and duties, shall be exer- 
 cised and performed by the justices of the peace of such county of a city 
 or town ; And in every action to be brouj^ht, or summary claim to be pre- 
 ferred, under that act, against the inhabitants of a county of a city or 
 town, or of any such liberty, franchise, city, town or place, the process for 
 appearance in the action, and the notice required in the case of the claim, 
 shall be served upon some one peace officer of such county, libertj', fran- 
 chise, city, town or place : And all matters which by that act the high 
 constable of a hundred is authorised or required to do, in either of such 
 cases, shall be done by the peace officer so served, who shall have the same 
 powers, rights and remedies, as such high constable has, by virtue of that 
 act, and shall be subject to the same liabilities ; and shall, notwithstanding 
 the expiration of his office, continue to act, for all the purposes of that act, 
 until the termination of all proceedings in, and consequent upon such 
 action or claim ; but if he shall die before such termination, his successor 
 shall act in his stead. "(a) 
 
 In following up a writ of execution to its consummation, under the stat- 
 ute of hue and cry, 8 Creo. II. c. 16, which the subsequent statute of 19 
 Geo. II. c. 34, § 6, refers to, and adopts as the mode of proceeding in case 
 of a penalty recovered by the executor of a revenue officer killed in pur- 
 suit of smugglers, against the inhabitants of the hundred, (or of a Latlie^ 
 in Kent,) and which latter statute is not repealed by 7 & 8 Geo. IV. c. 27, 
 it is sufficient for the sheriff, to whom the writ had been delivered, 
 to return, even after the expiration of sixty days given him 
 by the *act to return the writ, that he had delivered it to the [ *127 ] 
 justices of the peace of the hundred, <f(?. who are charged with the 
 duty of directing the levy on the inhabitants, and that they had done no- 
 thing upon it ; and the court of King's Bench will not thereupon attach 
 the sheriff, for not returning the writ, but the next proceeding is against 
 the magistrates, to oblige them to do their duty.(aa) 
 
 ♦CHAPTER VII. [ *128 ] 
 
 Of the Capias hy Original, and Process of Outlawry, in the King's 
 Bench, and Common Pleas. 
 
 At common law, the defendant was not liable to be arrested, upon mesne 
 process, for civil injuries unacompanied with force. (a) This immunity of 
 the defendant's person, in case of peaceable though fraudulent injuries, 
 producing great contempt of the law in indigent wrongdoers, a capias was 
 allowed to arrest the person, in actions of account, though no breach of the 
 peace were suggested, by the statutes oi Marlbridge, (o2 Hen. III.) c. 23, 
 
 (a) I 12. {aa) 13 East, 544. (a) 3 Co. 12.
 
 128 OF THE CAPIAS BY ORIGINAL. 
 
 and Westm. 2. (13 Ed. I.) c. 11, in actions of debt and detinue, by statute 
 25 Edw. III. Stat. 5, c. 17, and in all actions on the case, by statute 19 
 Hen. VII. c. 9.(Z») _ _ «... 
 
 In ordinary cases therefore, if the sheriff return, on the original writ, or 
 process of attachment, that the defendant has nothing by which he can be 
 summoned or attached, a capias may be sued out, in order to arrest his per- 
 son. (c) And where a capias lies, it is now generally issued in the first 
 instance, without previously suing out the original ;(cZ) in like manner as in 
 Chancery, it was usual to issue the subpoena, without first bringing in the 
 bill.(c^) The capias is a judicial writ, issued by the filacer, and directed to 
 the sheriff or sheriffs of the same county as the original ; commanding them 
 to take the defendant, if he be found in their bailiwick, and safely keep him, 
 so that they may have his body in court, at the return of the writ, to answer 
 the plaintiff in the action : and it is usually called a special capias ad respon- 
 dendum.iyf) If the sheriffs return to this writ, that the defendant is not 
 found in their bailiwick, the plaintiff may have an alias or pluries capias, 
 directed to the same sheriffs, commanding them, as before, or as oftentimes 
 they have been commanded, to take the defendant,(^) &c.: or he may have 
 a testatum capias, directed to the sheriffs of a different county, (and after- 
 wards, if necessary, an alias or pluries testatum capias,) suggesting that the 
 defendant lurks and wanders in that county,(7i) In any of these writs, if 
 the defendant be within a liberty, it is usual to insert a clause of non 07nit- 
 tas ;[i) which clause may be inserted in the first process: So that, under 
 particular circumstances, it may be necessary for the plaintiff to have 
 [ *129 ] recourse to an alias or pluries testatum, 7ion omittas, *capias ad 
 respondendum, which is the most special writ of any against the 
 defendant's person ; and commands the sheriffs, as before, or as oftentimes 
 they have been commanded, not to omit by reason of any liberty, but 
 to take the defendant, &c. it being testified that he lurks and wanders in 
 their county. As an original writ cannot be issued,(aa) so there cannot 
 be a capias, into a county palatine ; but on an an original sued out in an- 
 other county, a testatum capias may be issued into a county palatine,(Z'5) for 
 bringing in the defendant. In the courts of great sessions in Wales, by a 
 late act of parliament,(c) writs may issue from one county to another. 
 
 In a personal action, brqjight by two or more executors, there may be 
 summons and severance ; that is, if one or more of them will not join with 
 the rest in prosecuting the action, the court will issue a writ of summons 
 ad sequendum simul,{d) and upon their non-appearance at the return of it, 
 will give judgment of severance,(e!) so as to enable the rest to proceed 
 without them. 
 
 The process upon the original should be tested in the name of the chief 
 justice, or senior judge of the court, if there be no chief justice. The capias 
 should regularly be tested in term-time but not on a Sunday or other 
 dies nonjuridicus: And where the plaintiff means to proceed to outlawry, 
 the capias should be tested on the quarto die post of the return of the 
 original,(/) the alias on the quarto die post of the return of the capias, 
 
 (b) 3 Blac. Cora. 281. 
 
 (c) Cora. Dig. tit. Pleader, 2 W. 2 Gilb. C. P. 14. 3 Blac. Com. 279, &c. Steph. PL 25. 
 
 (d) Ante, 104. (e) Trye, 59. (/") Append. Chap. VII. g 1. 
 iff) Id. ^ 3. [h) Id. I 4. (i) Id. I 6. 
 
 {aa) Ante, 105. ibb) Append. Chap. VII. ? 5. 
 
 (c) Stat. 5 Geo. IV. c. 106, ^ 13. '(d) Append. Chap. VII. ^ 7. 
 
 (e) Id. I 8, and see Bac. Abr. tit. Summons and Severance, F. (/) Trye, 191.
 
 OF THE CAPIAS BY ORIGINAL. liI9 
 
 and the phit'ies on the quarto die post of the return of the aUas;{g) and 
 there must ho fifteen days at least between the teste and return of each 
 ■\vrit.(/i) In the Common Pleas it is said, that suing out the capias, alias, 
 and pluries tO(^et\icv, is regular, and warranted by constant practice. (/) And 
 unless the plaintiff mean to proceed to outlawry, the capias may he tested 
 before the original, and even before the cause of action accrued, provided it 
 be actually taken out afterwards ; and it is not necessary, in other cases, that 
 the alias or pluries should be tested on the quarto die j)ost of the return 
 of the preceding writ:(/.") for as the mesne ])roccss never appears on the 
 record, no error can be assigned therein ;(/j and the defendant cannot have 
 oyer of it, so as to plead in abatement. (?//) These several writs must be 
 made returnable like the original, in the King's Bench, on a general return 
 day,(n) ubicunque, or wheresoever the king shall then be in Unijland, or, 
 in the Common Pleas, before the king's justices at Westminster, 
 in the same, *or the next term ; for where a Avhole term intervenes, [ *loO ] 
 between the teste and return of the capias it is null and void :(a) 
 and a testatum capias, by original, made returnable at Westminster, instead 
 of ^^ tvheresoever, &c." is irregular.(i) 
 
 The process by original may in general be amended, as well as the pro- 
 cess by hill. Thus, leave has been given to amend a special capias, in one 
 of the defendant's names, in order that an application might be made to the 
 master of the rolls, to procure a new original. (w) So a special capias, omit- 
 ting the christian names of two of the defendants, was amended by inserting 
 them, though there was nothing to amend by, on payment of costs. (cZcZ) If 
 there be less i\i^\x fifteen days between the teste and return of process by 
 original, it may be amended in the Common Pleas -.{ee) And where a capias 
 is made returnable on a day certain, instead of a general return day, that 
 court will allow it to be amended, even after a rule nisi obtained to quash 
 the writ for irregularity, on payment of costs. (/) So, Avhere an attachment 
 of privilege was returnable after the essoin day, and before the quarto die 
 post, instead of being returnable on a day certain in full term, an amend- 
 ment was allowed, on payment of costs. (^) But the courts will not in 
 general allow an amendment of process, to the prejudice of the bail. (A) 
 
 When the defendant absconds, or keeps out of the way, so that he cannot 
 be arrested or served with process, the plaintiff, on the return of non est 
 inventus to the p)luries capias, may have a writ of exigi facias and pro- 
 ceed to outlawry :{i) Or, if there be several defendants in a joint action, and 
 
 {g) Wright and another v. , T. 44 Geo. TIT. K. B. 
 
 (A) Trj'e, 60. 2 Wils. 117. 1 H. Blac. 222, but see ibe statutes 16 Car. I. c. 6, ? 7. 24 
 Geo. IT. c. 48, g 5. Ante, 107. 
 
 (/) Barnes, 322. (/r) Wright and another v. , T. 44 Geo. III. K. B. 
 
 (/) 3 Wils. 454. 
 
 (w) Per Cur. E. 18 Geo. III. 2 Cromp. 3 Ed. 37, 8 ; and see 1 Bos. & Pul. 342, 3. 
 
 («) And a testatum capias in the Common Pleas, having been made returnable on a day 
 certain, instead of a general return day, was held irregular. 2 New Rep. C. P. 133, and see 
 5 Taunt. 853. 1 Marsh 399, S. C. 
 
 {a) 2 Blac. Pop. 845. 3 Wils. 341, S. C. [h] 1 Chit. Rep. 323. 
 
 (cc) 7 Durnf. k East, 299 ; and see 1 Bos. & Pul. 481. 2 Bos. & Pul. 109. 
 
 ((/(/) 2 Smith R. 392. 
 
 (rf) 3 Wils. 454. 2 Blac. Rep. 918, S. C. 1 H. Blac. 291. 1 Bos. & Pul. 342. 
 
 (/) 5 Taunt. 853. 1 Marsh. 399, S C. and see I Moore & P. 28. 
 
 (v) 6 Moore, 113. 3 Brod. & Bing. 25, S. C. 
 
 (/() 2 New Rep. C. P. 135. Wood and others v. Uindlcy, 57 Geo. III. K. B. 1 Chit. Rep. 
 323, and see id. 374. 1 Moore & P. 28. 
 
 (j) 3 Blac. Com. 283. GUb. C. P. 15.
 
 130 OF OUTLAWRY. 
 
 one of them abscond or keep out of the way, the plaintiff may have a writ 
 of cxigi facias against that defendant ;(Z") and must proceed to outlawry 
 ao-ainst him, before he can go on against the others. (Z) In declaring against 
 A. upon a joint contract by A. and B. it is not enough to allege that B. was 
 in dice manner outlawed, without adding that he was outlawed in that 
 suit.{m) And where, in a joint action against two, it appeared that one of the 
 defendants had been outlawed upon different process from that by which the 
 other was brought into court, and no connexion was shown between the 
 several writs of capias against each, as referable to the same original ; as 
 where one was outlawed upon process by original, tested the 10th April, 
 returnable on the first return of Easter term, and continued regularly down 
 to the time of the outlawry, and the other was arrested on a special testa- 
 tum capias, issued on the 24th April in Hilary vacation, to which bail 
 was put in, and the plaintiff declared against him alone, *alleg- 
 [ *131 ] ing the outlawry of the other defendant in the same suit ; the 
 court of King's Bench set aside the declaration for irregular- 
 ity.(a) But an allegation that a co-defendant was by due course of law 
 outlawed, at the suit of the plaintiff, in this plea and suit, is sufficient with- 
 out a prout patet per recordum.{h) 
 
 Outlawry, in civil actions, is putting a man out of the protection of the 
 law, so that he is incapable of suing for the redress of injuries, and may be 
 imprisoned : and he forfeits thereby all his goods and chattels, and the pro- 
 fits of his lands ; his personal chattels, immediately upon the outlawry, 
 and his chattels real, and the profits of his lands, when found by inquisi- 
 tion. (c) So penal were the consequences of an outlawry, that until some 
 time after the conquest, no man could have been outlawed except for 
 felony, the punishment whereof was death : But in Bractons t\me,{d) and 
 somewhat earlier, process of outlawry was ordained to lie in all actions 
 vi et armis : and since, by a variety of statutes, (the same as introduced 
 the capias,) process of outlawry lies in accou7it, debt, detinue and divers 
 other common or civil actions.(c) 
 
 If the defendant be a woman, the proceeding is called a waiver; for as 
 women were not sworn to the law, by taking the oath of allegiance in the 
 leet, (as men anciently were, when of the age of ttvelve years or upwards,) 
 they could not properly be outlaived, or put out of the law, but were said 
 to be ivaived, that is derelictse, left out, or not regarded.(/) And for the 
 same reason, an infant cannot be outlawed under the age of twelve 
 years.((/) 
 
 Outlawry is either upon mesne process before, or upon fiyial process 
 after judgment. (/i) Upon mesne process, the plaintiff cannot proceed to 
 outlawry, unless the action were commenced by original writ ;(z) nor can 
 the defendant be outlawed after judgment, unless the action were so com- 
 menced : therefore, where the defendant was outlawed after judgment, in 
 an action commenced by hill of privilege, it was holden that process of 
 
 {k) Trye, 155. 
 
 (Z)lStr. 473. 1 Wils. 78. 2 Str. 1269. 1 Blac. Rep. 20. 4 Bro. Pari. Cas, 604, S. C. 
 
 (m) 3 East, 144, but see Co. Lit. 128, 6. 352, b. 
 
 (a) 15 East, 1. {b) 7 East, 50. 
 
 (c) 1 Salk. 395. 1 M'Clel. & Y. 196. 
 
 \(l) Bract, lib. y. p. 425. 
 
 (e) Co. Lit. 128, b. Trye, 72 Gilb. C. P. 15, Fort, 37. 
 
 (/) Lit. § 186. Co. Lit. 122, b. Trye, 66. (ff) Co. Lit. 128, a. 
 
 {k) Trye, 77. 1 Moore & P. 28. (i) 1 Sid. 159.
 
 OF OUTLAWRY. 131 
 
 outlawry did not lie, as tlicre was no capias in the original action. (A-) 
 After judgment, the plaintiff may have an exigi facias, and proceed to 
 outlawry, upon the return of noii est inventus to a writ of capias ad satis- 
 faciendum, without an alias or j)^uries ;{l) because the defendant, having 
 been already in court before judgment, and having conusance of the debt, 
 ought to pay it on the first suing out of the capias, and his not perform- 
 ing the judgment is a contumacy, for which he is put out of the king's 
 protection. And no writ of j}7-oclamation is required upon an exigent 
 after judgment, but only upon mesne process. (w) In the Common Pleas, 
 the defendant may *be outlawed on a common original, in tres- 
 pass qitare ckiusum fregit, or on a special original, adapted to [ *132 ] 
 the nature of the action. ((/) But, in the Exchequer, the defen- 
 dant cannot be outlawed ; as the plaintiff cannot proceed therein, by origi- 
 nal writ.(i) 
 
 The Avrit of exigi facias is a judicial writ, made out by the filacer, as 
 clerk of the exigents,{c) in the King's Bench, or by the exigenter in the 
 Common Pleas, and directed to the sheriff of the county where the action 
 is laid;(tZ) commanding him to cause the defendant to be required from 
 county court to county court, or from husting to husting, if in London, (e) 
 that is, at five successive(ff) county courts or hustings, until he be out- 
 lawed, if he do not appear, and if he appear, to take him,(^^) kc. This 
 writ should be tested on the ciuarto die post of the return of the pliiries 
 capias before, or of the capias after judgment : and if there be not five 
 county courts between the teste and return of it, there issues, upon the 
 sheriff's return thereto,(7i7i) an exigent de novo, with a clause (whence it 
 is called an allocatur exigent,) directing the sheriff to alloiv the several 
 county courts, at which the defendant has been already required. (zV) The 
 writ of exigent upon an outlawry, must be in the hands of the sheriff, at 
 the time the defendant is demanded ; and therefore, where a sheriff re- 
 turned to a writ of exigent and allocatur exigent, that he had demanded 
 a defendant at the hustings, \x\ion five several days, on three of which the 
 writs could not by possibility have been in his hands, the court held that 
 the returns were irregular. (/f^) In the Common Pleas, no exigenter shall 
 receive any pluries capias, in order to make an exigent or proclamation 
 thereon, before the same is signed or stamped by the clerk of the war- 
 rants, or his deputy, to the end it may thereby appear that the warrants 
 of attorney therein are duly filed :(^) and therefore the practice in this 
 court is, to take the p>lurics, when returned by the sheriff, with a warrant 
 of attorney, to the clerk of the warrants, who will mark it, on being paid 
 for filing the warrant. (w) 
 
 In addition to the exigent, a writ oi proclamation{n) was introduced by 
 
 [k) 1 Leon. 320, Cro. Eliz. 216. [l) Gilb. C. P. 17. Trye, 77, 124. 
 
 \m) Cro. Jac. 67G, 7. (a) Barnes, 320, 324. 
 
 {b) 1 Price, 309. Ante, 38. (c) Trye, in pref. 
 
 {d) Filz. Abr. tit. Exigent, 26. Bro. Abr. tit. Exigent ij- Capias, 19, Dyer, 295, but sec 3 
 Bac. Abr. 7G9. Gilb. C. P. 15, Cromp. Inirod. 3 Ed. xcv. semb contra. 
 
 (e) In London, the hustings are holden once every fortnight ; on which account the action 
 is generally laid there, when the plaintiff intends to proceed to outlawry. Trye, GO. 3 
 Lev. 245. (/) Plowd. 371. 
 
 [gg] Trye, 112, and see Append. Chap. VH. ? 9. {hh) Id. ^ 10. 
 
 tii) Trye, 114. East. Ent. 189, 355, and see Append. Chap. TIL I 11. 
 
 (kk) 3" Dowl. & Ryl. 55. 
 
 (/) R. H. 2 & 3 Jac. II. C. P. and see R. H. 14 & 15 Car. II. rcg. 2, C. P. Ante, 96. 
 
 (m) Imp. C. P. 7 Ed. 566, 7. 
 
 (ra) Gilb. C. P. 19. Trye, 113. Thei. Brev. 88, and see Append. Chap. VII. § 12.
 
 132 OF OUTLAWRY. 
 
 the statute 6 Hen. VIII. c. 4, which, except in London or Middlesex^ 
 required it to be directed to the sheriif of the county of which the defen- 
 dant was called or described in the original, for there he was supposed to 
 dwell ; and if he did not in fact dwell there, he might have avoided the 
 
 outlawry, by the statute of additions :(o) And where the exigent 
 [ *133 ] was *directed into London or Middlesex, and the defendant 
 
 called therein "late oi London or 3Iiddlesex," but did not dwell 
 there, the writ of proclamation was required to be directed to the sheriff 
 of the county where the defendant was dwelling at the time of the exigent 
 awarded, or if the king's writ did not run there, to the sheriff of the next 
 adjoining county. But the writ of proclamation is at present governed 
 by the statute 31 Eliz. c. 3, § 1, which enacts, that " in every action per- 
 sonal, wherein any writ of exigent shall be awarded out of any court, a 
 writ of proclamation shall be awarded and made out of the said court, 
 having day of teste and return as the said writ of exigent shall have, 
 directed and delivered of record to the sheriff of the county where the de- 
 fendant, at the time of the exigent so awarded, shall be dwelling ; which 
 writ of proclamation shall contain the effect of the same action : And 
 that the sheriff of the county, unto whom any such writ of proclamation 
 shall be delivered, shall make three proclamations, one in the open county 
 court, another at the general quarter sessions of the peace, in those parts 
 where the defendant at the time of the exigent awarded shall be dwelling, 
 and the third, one month at the least before the quinto exactus by virtue 
 of the said writ of exigent, at or near the most usual door of the chuvch 
 or chapel of that town or parish where the defendant shall be so dwell- 
 ing ; and if the defendant shall be dwelling out of any parish, then in such 
 place as aforesaid, of the next adjoining parish in the same county, and 
 upon a Sunday, immediately after divine service, and sermon (if there be 
 one), and if there be no sermon, then forthwith after divine service : And 
 that all outlawries had and pronounced, whereupon no writs of proclama- 
 tions shall be awarded and returned according to the form of this statute, 
 shall be utterly void and of none effect. "(a) This writ should have the 
 same teste and return as the exigent ; and if the defendant reside in a 
 different county from that into which the exigent issued, the writ is called 
 a foreign proclamation. (J) The sheriff's return to this writ is, that he 
 has caused the defendant to be proclaimed ; and that either generally, 
 according to the effect of the statute,(c) or specially, setting forth the 
 time and places when and where the proclamations were made.(c?) But 
 where the proclamations returned by the sheriff could not by possibility 
 have been made between the day of issuing the writ and the day of the 
 return, inasmuch as there was no county court or general quarter sessions of 
 the peace held, at which the defendant could have been proclaimed, while 
 the writ was running, the court seemed to think that the proceedings were 
 irregular.(g) When the exigent and writ of proclamation are returned, they 
 should be taken to the filacer, in the King's Bench ; but, in the Common 
 Pleas, the exigent is taken to the clerk of the outlawries, and the writ of 
 proclamation filed with the exigenter. 
 
 (o) Dyer, 214. 
 
 (a) This act of parliament is enforced by the court rules of M. 1654, § G, K. B. and M. 
 1654, § 9, C. P. 
 
 {b) Append. Chap. YII. I 13. (c) Id. I 14. {d) Id. \ 15. 
 
 (e) 3 Dowl. & Ryl. 55.
 
 OF OUTLAWRY. 133 
 
 *Upon the defendant's being put in exiijcnt, he is cither taken 
 by the sheriff, appears voluntarily, or makes default. If he be [ *134 ] 
 taken, he either remains in custody of the sheriff, or gives bail, 
 &c. as upon a common arrest. Formerly, if the defendant had appeared 
 voluntarily, at any time before the return of the exif/cnt,[a) or quarto die 
 post of the return in the Common Pleas,(a) he might have obtained a writ 
 of super sedea8,{h) from the filacer, as clerk of the 8upcr8edeases[c) in the 
 King's Bench, or from the exigcnter in the Common Pleas, on entering a 
 common appearance of the terra in which the exigent issued. ((/) In tlie 
 Common I'leas, the supersedeas is itself an appearance, if delivered to the 
 sheriff" before the quarto die j^ost of the return of the exigent :{ee) And, in 
 that court, after the return of the exigent, but whilst it remained in the 
 8heriff"s hands, and before the defendant was returned outlawed, the court 
 made a rule, that a supersedeas to the exigent should be allowed, on pay- 
 ment of costs.(/) This practice of granting a supersedeas still continues, in 
 cases which do not require special bail. But upon a question agitated some 
 years ago, in the court of King's Bench, whether, in a case originally re- 
 quiring special bail, if the defendant stand out to an exigent,{g) he can 
 come in and appear to the exigent, without putting in special bail, it was 
 ruled by the court, that there ought to be special bail. " It would be very 
 unreasonable, they said, that the defendant should gain an advantage, by 
 standing out till process of outlawry : He certainly ought not to be in a bet- 
 ter condition then, than if he had appeared at first:" And accordingly the 
 direction given was, that the filacer should not issue a supersedeas, till the 
 defendant had put in special bail.(/i) So, in the Common Pleas, it is a rule, 
 that "where the defendant shall abscond to avoid being arrested, and can- 
 not be arrested, although the plaintiff shall bona fide have used his best en- 
 deavors for that purpose, a supersedeas shall not be issued, to stay the 
 proceedings to an outlawry, unless the defendant shall have first put in spe- 
 cial bail ; and that the writ of supersedeas thereupon issued, in case special 
 bail shall not afterwards be perfected according to the course of the court, 
 where special bail is required upon arrests, shall be void, and of no effect to 
 stay the plaintiff's proceeding to the outlawry : but the same may be gone 
 on with, from the time of such default, as if no appearance had been entered 
 or special bail filed, and shall not be deemed irregular or erroneous, by 
 means of such interruption of the proceedings, by putting in, and not after- 
 ter wards perfecting special bail as aforesaid, "(t) 
 
 *If the defendant be neither arrested nor appear, but make [ *135 ] 
 default, at five successive county courts or hustings, he is out- 
 lawed if a man, or if a woman she is ivaived, by the judgment of the 
 coroners, or of the recorder in London :{a) and the judgment of outlawry 
 being returned by the sherifl'upon the exigent, the filacer, who acts as clerk 
 
 (a) Cas. P. R. C. P. 28. 
 
 (b) Append. Chap. VII. §10, and for the sheriffs return thereto, see id. g 17. 
 
 (c) Trye, in prtf. (rf) Id. 67, 8 Gilb. C. P. lU. Fort. 39. Barnes, 326. 
 (ce) Barnes, 319. 
 
 (/) Id. 323, and see R. M. 17 Car. II. R. E. 24 Car. II. ref/. 1. R. T. 2. Jac. II. C. P. 
 
 {g) The question, as stated by Sir Jamet Burrow, was whether the <iefendiint, standing 
 out to an outlawry, can come in and appear to the oM^/ditri/, without pultint; in sfiecial bail: 
 but upon inquiry, it appears to have been, as stated above, upon the exigent, before outlawry. 
 
 {h) 3 Bur. 1020. 
 
 {i) R. K. 21 Geo. III. C. P. And see further, as to bail on process of outlawry, Petersd. 
 Part I. Chap. XVIII. 
 
 (a) Co. Lit. 288, b. Gilb. C. P. 15, 10, and see Append. Chap. VII. g 10.
 
 135 
 
 OP OUTLAWRY. 
 
 of the outlaiories in the King's Bench,(6) will make out a writ of capias 
 utlaqatum, which is cither general or 8pecial,{c) and may be issued into 
 any county, without a testatum ;{d) nor is there any occasion, upon an out- 
 lawry rt/ie/" judgment, to revive the judgment by scire facias, after a year 
 and a day.(e) But, in the Common Pleas, a writ of cajnas utlagatum can- 
 not be sued out and tested after the death of the defendant. (/) And 
 where the judgment of outlawry was entered after the plaintiff's death, the 
 court held, that a capias utlagatum could not regularly be issued, without 
 reviving the judgment.((/) 
 
 By the general writ of capias utlagatum. the sheriff is commanded, 
 "that he do not omit, by reason of any liberty of his county, but that he 
 take the defendant, if he be found in his bailiwick, and him safely keep, so 
 that he may have his body in court, on a general return day, wheresoever, 
 &c. in the King's Bench, or, in the Common Pleas, before the king's jus- 
 tices at Westminster, to do and receive what the court shall consider of 
 him."{h) The defendant being taken by the sheriff on this writ, either 
 gives bail to appear and reverse the outlawry ; or remains in custody, until 
 he actually reverse it, or obtain a charter of pardon, or be relieved under 
 an insolvent act.(i) 
 
 At common law, the defendant could not have been bailed, when taken 
 by the sheriff on a capias utlagatum ;{k) and this case is particularly ex- 
 cepted out of the statutes 23 Hen. VI. c. 9, and 13 Car. II. stat. 2, c. 2, § 
 4, by the latter of which statutes it is expressly declared, that " no sheriff, 
 &c. shall discharge any person or persons, taken upon any writ of capias 
 utlagatum, out of custody, without a lawful supersedeas first had and re- 
 ceived for the same."(?) But now, by statute 4 & 5 W. & M. c. 18, § 4, 5, 
 "if any person, outlawed in the court of King's Bench, other than for trea- 
 son and felony, shall be taken and arrested, upon any capias utlagatum 
 out of the said court, the sheriff making the arrest may, in all cases where 
 special hail is not required hy the said court, take an attorney's engage- 
 ment under his hand, to appear for the defendant, and reverse the outlawry ; 
 and may thereupon discharge the defendant from such arrest : and, in those 
 cases where special hail is required hy the said court, the said 
 [ *136 ] sheriff shall and may take security of the *defendant by bond, 
 with one or more sufficient surety or sureties, in the penalty of 
 double the sum for which special bail is required, and no more, for his appear- 
 ance by attorney in court, at the return of the writ, and to do and perform 
 such things as shall be required by the same court ; and after such bond 
 taken, may discharge the defendant, from the said arrest : Or, in case the de- 
 fendant shall not be able to give security as aforesaid, hefore the return of 
 the writ, he shall and may be discharged, whenever he shall find sufficient 
 security to the sheriff, for his appearance by attorney in the said court, at 
 some return in the ensuing term, to reverse the outlawry, and to do and 
 perform such other thing and things as shall be required by the said 
 court."(a) This statute has been construed not to extend to criminal 
 
 (6) Trye, in pref. {c) Id. 65, 6. 6 Gilb. C. P. 16. 
 
 {d) 1 Vent 33. Gilb. C. P. 17. (e) Cro. Eliz. 706. 5 Mod. 203. Gilb. C. P. 71. 
 
 (/) Gas. Pr. C. P. 36. [g) Barnes, 325, and see id. 323. 
 
 (A) Trye, 115, and see Append. Chap. VII. § 18, 19. (?) 4 Bur. 2119, 2127. 
 
 \k) Trye, 73. 3 Bur. 1484. 4 Bur. 2540. 
 
 \l) And see R. H. 2 Car. I. § 5. M. 1654, § 9. H. 15 & 16 Car. II. M. 17 Car. II. T. 2 
 Jac. II. C. P. 
 
 {a) See R. H. 2 Car. I. ^ 3, C. P.
 
 OF OUTLAWRY. 136 
 
 cases ; at least to misdemeanors, after conviction :{b) And even in civil 
 cases, the defendant cannot be bailed, -where lie was not bailable upon the 
 process to outlawry ;(6') for it was the design of the statute to put him in 
 the same condition as if he had not been outlawed : and therefore he is 
 not bailable, when taken upon an outlawry after judgment. Neither, upon 
 this statute, will the court on motion restore goods taken upon a special 
 capias utlai^fatum ;{d) but they will of course be restored, upon the rever- 
 sal of the outlawry. (f') A bankrupt having been arrested after outlawry, 
 and a levy made on his goods by the sheriflf, under a special writ of capias 
 utlayatum^ the court of King's Bench would not relieve him on motion, 
 in a summary way, from such arrest and levy, excei)t upon the terms of 
 appearing to the action, and putting in and perfecting special bail ; 
 although the plaintiff had also proved her debt under the commission, and 
 received a dividend, after which she commencod her action for the bal- 
 ance.!/) And it seems, that bankruptcy and certificate are no grounds 
 for discharging a pirisoner in custody on a capiias utla()atum.{g) 
 
 When there is no affidavit of a bailable cause of action, the sheriff is 
 authorized, by the statute, to discharge the defendant, on an attorney's 
 undertaking to appear and reverse the outlawry : But where an affidavit 
 has been made, he ought not to be discharged, without giving the security 
 required by the statute ; which is not a common bail bond, but a bond, 
 with one or more sufficient surety or sureties, for appearance by attorney 
 at the return of the writ, and to do and perform such things as shall be 
 required by the court ;{h) that is, to put in and perfect bail to a new action, 
 plead within a limited time, put the plaintiff in the same condition, and 
 such like matters. (?') And it is not necessary that the affidavit should be 
 made before the outlawry,(A:) nor the sum sworn to indorsed on the capias 
 utlagatum ;{l) but it is sufficient, if there be an affidavit before 
 the *defendant is discharged: the court having determined, that [ *137 ] 
 process of outlawry is not within the statutes for preventing frivo- 
 lous and vexatious arrests.(rtrt) 
 
 By the special writ of capias utlagatum, the sheriff is commanded, not 
 only to take the defendant, as by the general writ, but also " to inquire, 
 by the oath of honest and lawful men of his county, what goods and chat- 
 tels, lands and tenements, he hath, or had on the day of his outlawry, or 
 at any time afterwards ; and by their oath to extend and appraise the 
 same, according to their true value ; and to take them into the king's 
 hands, and safely keep them, so that he may answer to the king for the 
 true value and issues of the same; making known what he shall do there- 
 upon to the court, on the return-day. "(W) Upon this writ, the sheriff is 
 to impanel a jury, who are to make inquiry of the goods and chattels of 
 the defendant, including his debts{c) or choses in action, and also of his 
 leasehold and freehold lands and tenements ; to appraise the goods, and 
 to extend or value the lands, &c. But they have nothing to do with his 
 
 {b) 4 Dur. 2539. 
 
 (c) Id. 25-tO. (<f) 2 "Wils. 127. Per Cut. M. 20 Geo. III. K. B. 
 
 (f) Carth. 459. 1 Ld. Raym. 349, S. C. (/") H East, 53G. 
 
 (g) 3 Taunt. 141. (A) 3 Bur. 1483. («) 4 Bur. 2540. 
 {k) 2 Str. ins, 9. 1 Wilg. 3 S. C. Fort, 39, S P. (/) 3 Bur. 1482. 
 {aa) Fownes v. Allen, M. 10, Geo. II. cited in 3 Bur. 1483. Barnes, 322. 
 
 \bb) Trye, 116, 16. Off. Brcv. 35. Thca. JJrev. 69, &c. Lil. Eat. 552, and see Append. 
 Chap. Vll. g 20. 
 
 (c) 4 Co. 95. Lane, 23. Lutw. 329, 1513. Gilb. C. P. 200, but see 2 Rol. Abr. 80C, 1. 
 52. Sav. 40.
 
 137 
 
 OF OUTLAWRY. 
 
 copyholds, {tl) or trust propcrfi/.{e) Witnesses may be subpoenaed to attend 
 the execution of the inciuirj ; and when made, the sheriff is to take pos- 
 session of the goods and chattels of the defendant, and of the leasehold 
 tenements in his own occupation :(/) But he must not oust, or disturb the 
 possession of his tenants ;(//) and can only take the issues or profits of his 
 freehold tenements. [h) The inquisition should set forth, with corivenient 
 certaint)/, the appraised value of the goods ; the particulars of the debts ; 
 of what lands, &c., the defendant is seised or possessed, the different par- 
 cels, in whose tenure, and of what annual value, beyond reprizes. (2) But 
 the inquisition, being merely an ofEce of instruction or information, does 
 not require so much certainty as an office of intituling .{k) And if the 
 lands, &c., be undervalued, there may be a melius inquirendum. (I) 
 
 When the special writ of capias utlagatum is returned, it should be 
 delivered, with the inquisition annexed, to the filacer, as clerk of the exi- 
 gents and outlaivries[m) in the King's Bench, or to the clerk of the out- 
 lawries in the Common Pleas, and afterwards filed in the office of the cus- 
 tos brevium ;{n) whence a transcript is sent into the Exchequer. (0) Out of 
 this latter court there issues a veiiditioni exponas, to sell the goods,[p) a 
 scire facias, to recover the debts,(^) and a levari facias, to levy 
 [ *138 ] the issues *and profits ; under which latter writ, the sheriff may 
 take not only the rent and moveables of the party outlawed, but 
 also the cattle of a stranger, levant and couchant on the lands extended.(a) 
 In aid of these writs, a bill may be exhibited in the Exchequer, against 
 the outlaw, to compel a discovery of his real and personal estate, &c., 
 either by the plaintiff, to enable him to take out execution, or by the attor- 
 ney general, on behalf of the crown. (5) And it is said to be the course 
 of that court, upon an outlawry, to prefer an information, in the nature 
 of a trover and conversion, against him that hath the goods of the party 
 outlawed, (cc) 
 
 The money raised by the sherifi", under these writs, belongs to the crown ; 
 but the plaintiff may have it paid to him, in satisfaction of his debt and 
 costs, by applying to the court of Exchequer, or lords of the treasury : and 
 he may also, upon petition{dd) to the lords of the treasury, obtain a lease 
 or grant, under the Exchequer seal, of the king's right to \q\j the profits.(ee) 
 If the money raised by the sheriff do not exceed the sum of fifty pounds, 
 the court of Exchequer, on motion, will order it to be paid to the plaintiff. 
 But if it exceed that sum, the plaintiff must petition for it to the lords of 
 the treasury ; stating the amount of his debt, a short abstract of the pro- 
 ceedings, with the expenses he has been put to, and praying, in respect 
 thereof, that the attorney -general may be authorized to consent, on behalf 
 
 {d) Parker, 190. 
 
 (e) Cro. Jac. 513. Sty. Rep. 41. Bunb. 92, but see the statute of frauds, 29 Car. II. c. 
 3, § 10, though it rather seems that trust property is not extendible by this statute, on a 
 capias utlagatum.. Lee's Prac. Die. 2 Ed. 315, n. and see Hardr. 466, 7, 488. 
 
 (/) 9 Hen. VI. 20, 21. {g) Id. 21 Hen. VII. 7. 
 
 (/;) Id. Plowd. 441. Hardr. 106, 176. Bunb. 103, 105. (*) Append. Chap. VII. | 21, 22. 
 
 \k) 2 Salk. 469. Bunb. 103. [1) Hardr. 106, but see 2 Salt 469. 
 
 (to) Trye, in pref. 
 
 in) Id. ibid. & p. 88, 9. 3 Durnf. & East, 578, 9. (o) Gilb. 0. P. 16. 
 
 {p) Append. Chap. VII. ^ 23, and for the return thereto, see id. g 24. 
 
 {q) Gilb. C. P. 16, 1 Lutw. 330. 
 
 [a] I Ld. Raym. 305, and the cases there cited, in the last edition. 
 
 (6) Hardr. 22. [cc) 1 Mod. 90. {dd) Append. Chap. VII. ^ 25. 
 
 (eej 9 Hen. VI. 20. 2 Rol. Abr. 818. Hardr. 106, 422. T. Raym. 17. Gilb. C. P. 17.
 
 OF OUTLAWRY. 138 
 
 of the crown, that tho money remaining in the sheriff's hands may he paid 
 over to the petitioner.(/) This petition is referred, by the h^rds of the 
 treasury, to their solicitor ;(r/) who shouhl be furnished with a certificate of 
 the proceedings from the clerk in court,(/<) and an ajjldavit,[l) sworn before 
 a baron, of the amount of the debt and costs ; whereupon he will make 
 his rcpo)-t,{Jc) which should be filed with the clerk of the treasury. A 
 warrant is then issued, under the king's sign manual, for the attorney- 
 general to give his consent to an order, pursuant to the prayer of the 
 petition :(/) upon which a motion is made in the court of Exchequer ; and, 
 the attorney-general consenting, an order is framed accordingly. (;;<) This 
 order must be engrossed, and put under seal, Avith a suhp'cna[n) annexed 
 to perform it ; and the sheriff being served therewith, must pay over the 
 money, or will be liable to an attachraent.(o) 
 
 Having thus shown the consequences of an outlawry, I shall proceed to 
 consider the mode of reversing it, where the party outlawed comes in gratisy 
 or in consequence of an arrest upon the capias utlagatum. There are 
 two ways of reversing an outlawry ; 1st, by tvrit of error,{p) 
 returnable *coram nobis,{a) or vobis •,{b) 2dly, by motion^ founded [ *139 ] 
 on a plea, averment,(c) or suggestion, of some matter apparent, 
 as in respect of a supersedeas, omission of process, variance, or other 
 matter apparent on the record ; and y^t, in these cases, some have holdcn, 
 that in another term, the defendant is driven to his writ of error. But 
 for any matter of fact, as death, imprisonment, service of the king, &;c., 
 he is driven to his writ of error, unless it be in the case of felony, and 
 there mfavorem vitve he may plead it. And there is an old rule of court, 
 in the Common Pleas, that a writ of error shall not be allowed, nor any 
 record removed, or writ of de non molcstando or supersedeas granted, 
 before some manifest error be shown to the court, in term time, or in vaca- 
 tion to some of the justices, and by them allowed. (tZ) It seems, however, 
 to be discretionary in the courts to relieve by motion, or put the parties 
 to a writ of error ; and of late years they have gone further than hereto- 
 fore upon motion, the more effectually to expedite justice, save expense, 
 and preserve the credit and character of the defendant. 
 
 It was not formerly usual for the courts to reverse an outlawry upon 
 motion, for error in fact ; the defendant being put to his writ of error for 
 reversing it.(^) But now, where it appears by affidavit, that he was 
 imprisoned,(^(/) or beyond sea,(/Ji) at the time of the exeV/t'wi! awarded, the 
 courts, for avoiding circuity, will reverse the outlawry upon motion. So, 
 it was reversed by the court of Common Pleas, although it was sworn, that 
 the defendant went beyond sea, in order to avoid the process. (u') And 
 where, on error to reverse an outlawry, the error assigned was, that before 
 
 ( f) Append. Chap. VII. g 26, 7. (.y) Id. ^ 28. (A) M. ? 29. (t) Id. g 30. 
 
 (k) Id. I 31. {I) Id. § 32. (in) Id. \ 33. (n) Id. \ 34. 
 
 (o) Imp. K. B. 10 Ed. 537. 2 Cromp. 3 Y:<1. 42. 
 
 Ip) Co. Lit. 259, b. Trye, 73. Fort. 38. 2 Keu. 304. Append. Chap. LXIV. \ 4, 5, 6. And 
 for the forms of assignments of error, and other proceedings, on a writ of error, coram nobis, 
 see id. g GO, &c., 122. 
 
 (a) Trye, 74. Append. Chap. LXIV. § 4. (b) Append. Chap. XLIV. § 5, 6. 
 
 (c) Trye, 69, 118. T/trs. Brcv. 60, and see Append. Chap. VII. ^ 35. 
 
 {d) R. T. 24 Eliz. § 4, C. P. (c) Barnes, 324, 5. 
 
 (/) Carth.459. 1 Ld. Ilaym. 340, S. C. 2Str.ll78. 1 Wils. 3, S. C. Barnes, 319, 20 ; 325. 
 12 East, 622. (yy) 3 Taunt. 141. 
 
 {hh) 4 Taunt. 691. 1 M.iule k Scl. 409, and sec Bariius, 325. 
 
 (i() 4 Taunt. 691, but see 2 Car. & P. 125, 129, (a), 132. 
 
 Vol. I.— 10
 
 139 
 
 OF OUTLAWRY. 
 
 and at the time of awarding and issuing the exigi facias, the plaintiff in 
 error was in parts beyond the seas, and the defendant pleaded, that before 
 the awardin"" and issuing of the exigi facias, the plaintiff in error, of his 
 fraud and covin, and in order to defeat the defendant in error of the means 
 of recovering his just debt, and for the purpose of avoiding the outlawry 
 when the same should be pronounced, voluntarily left the realm of Eng- 
 land, and went into parts beyond the seas, and, of such his fraud and 
 covin, did voluntarily stay and remain in parts beyond the seas, until after 
 the awarding of the exigi facias, and pronouncing of the outlawry, where- 
 upon issue was joined, and found for the defendant in error ; the court of 
 King's Bench held, that this plea was not an answer to the assignment of 
 error, and that judgment of reversal of the outlawry should be entered for 
 the plaintiff in error, 7ion obstante veredicto.{k) But, in a late case,(Z) 
 
 the court refused to set aside an outlawry upon motion for 
 [ *140 ] irregularity, against one of several defendants, who was a 
 
 foreigner, and resided abroad, *before he had appeared. On a 
 writ of error to reverse an outlawry, issue being joined on an assignment 
 that the outlaw was beyond sea, at the time of suing out the writ of 
 exigent, and thence until the time of pronouncing the outlawry, and the 
 plaintiff in error having proved the previous proceedings, and that the 
 outlaw was abroad at the time of. suing out the exigent, the court of 
 Common Pleas held this to be sufficient, without proving the time when 
 the judgment of outlawry Avas pronounced, or that the defendant was then 
 abroad. (a) But where the defendant was described in an original writ, as 
 T. B. of C. in the county of N., and, upon a writ of error brought to 
 reverse the outlawry, the error assigned was, that T. B. was not, before 
 or at the time of issuing the original writ, of or conversant in C. aforesaid, 
 and that there was not any town, hamlet or place, of the name of C. in 
 that county ; to which the plaintiff pleaded, that he prosecuted his Avrit, 
 with intent to declare upon a bond made by the defendant, by which he 
 was described as T. B. of C. in the county of N. ; the court held, that this 
 was an estoppel, and affirmed the judgment of outlawry.(5) 
 
 At common law, the party outlawed must have appeared in person, in 
 order to reverse an outlawry ; it not being deemed sufficient for him to 
 appear by dtto7-ney .{c) But now, by statute 4 & 5 W. & M. c. 18, § 3, for 
 the more speedy and easy reversing of outlawries in the court of King's 
 Bench, " no person outlawed therein, for any cause matter or thing whatso- 
 ever, treason and felony only excepted, shall be compelled to come or appear 
 in person in the said court, To reverse such outlawry ; but shall or may 
 appear by attorney, and reverse the same without bail, in all cases except 
 where sjjecial bail shall be ordered by the said court." An attorney there- 
 fore, making an affidavit to support a motion to set aside an outlawry, against 
 
 (k) 5 Barn. & Ores. 314. 8 Dowl. & Ryl. 208, S. C. 1 Moore & P. 135, (6). 
 
 {1} 2 Moore, 567. 8 Taunt. 516, S. C. 
 
 (a) 5 Taunt. 309. 1 Marsh. 58, S. C, and see 2 Car. & P. 125. Ry. & Mo. 329, S. C. 
 
 (6) 5 Barn. & Aid. 682. 1 Dowl. & Ryl. 328, S. C. 
 
 (c) Cro. Jac. 462. Trye, 11, 2. 2 Salk. 496. In the case of French v. Moore, M. 45 Geo. 
 III. K. B., it was determined, that the defendant must appear, before he can move to reverse 
 an outlawry : And this case was recognized by the court, in that of Summer vil v. Watkins, 14 
 East, 536, and see 2 Moore, 567, accord. But in the case of Graham v. Henry, 1 Barn. & Aid. 
 132, the court held, that the defendant need not appear, before he moves to reverse an out- 
 lawry : for until it be reversed, no writ exists, to which he can appear.
 
 OF OUTLAWRY. 140 
 
 a defendant who has not appeared, must show that he is authorized to act 
 for the defendant. ((/(?) 
 
 Before the allowance of a writ of error, or reversing an outlawry, by 
 plea or otherwise, /o?' ivant of p)'oclamations, the statute of £lizabeth,{ee) 
 requires, " that tlie defendant in the original action shall put in bail, not 
 only to appear and answer the plaintiff in u new action, to be commenced 
 for the cause mentioned in the fonnov,{ ff) but also to satisfy 
 the condemnation, *if the plaintiff shall begin his suit before the [ *141 ] 
 end of two terms next after allowing the writ of error, or other- 
 wise avoiding the said outlawry."(«) On reversing the outlawry, for any 
 other error in law besides the want of proclamations, it was long unsettled, 
 whether the defenant should be obliged to put in special bail. In the 
 earlier cases upon this subject, it was determined that he should :(i) But 
 there are cases to the contrary, in the time of Ilolt, Ch. J. ;(c') and in one 
 of them(f?) it is said, that if the party outlawed come in gratis, upon the 
 return of the exigent, &c. he may be admitted by motion to reverse the 
 outlawry, for any other cause than want of proclamations, without put- 
 ting in bail ; but if he come in by cein corjnis, he shall not be admitted 
 to reverse it without appearing in person, as in such case he was obliged. 
 to do at common law, or putting in bail with the sheriff for his appearance 
 upon the return of cepi corpus, and for doing what the court shall order. 
 In two subsequent cases(c) however, special bail was put in, upon revers- 
 ing the outlawry, for errors in laAv, though it does not appear but that 
 the party came in gratis. At length, in the case of Serecold v. Hamp- 
 son,[f) the court, upon considering the words of the 4 & 5 W. & M. c. 
 18 § 3, which empowers the outlaw to appear by attorney, and says, " the 
 outlawry shall be reversed without bail, in all cases except where special 
 bail shall be ordered by the court," declared they were of opinion, they 
 had a discretionary power to require it or not ; and that the want of an 
 affidavit before the outlawry was no objection, ((/) because that is only 
 requisite to warrant an arrest: and though the 31 Eliz. c. 3, § 3, be the 
 only act that expressly requires bail, it is not to be thence inferred, that 
 in other cases it ought not be insisted on ; for that act makes a new error, 
 and the bail upon it is absolutely to pay the condemnation money. And 
 accordingly, it is now settled, that on reversing an outlawry, for any other 
 error in law besides the want of proclamations, bail is common or special, 
 in like manner as upon the arrest. 
 
 Where special bail is required, it need not be put in before the allow- 
 ance of the writ of error ; but it is well enough, if put in at any time 
 before the reversal.(7i) And in a late case it was determined, that upon 
 
 [dd) 3 Dowl. & Ryl. 55, and see 3 Barn. & Cres. T36. D Dowl. & Ryl. G25, S. C, accord. 
 
 (ec) 31 Eliz. c. 3, § 3. 2 Salk. 496. 
 
 [ff) The reason seems to be, that the process is determined l)y the outlawry ; and conse- 
 quently the plaintiff cannot declare upon it, but must bring a new action, Cro. Eliz. 707, 
 but see March, !), i^ vide post, Chap. XVII. 
 
 (a) R. M. 12 Geo. I. 0. P. accord. And see 3 Barn. & Cres. 529. 5 Dowl. & Ryl. 302, S. C, 
 but see 2 Barn. & Cres. 353. 3 Dowl. & Ryl. 575, S. C. 
 
 (6) Lit. Rep. 301. Garth. 459. 1 Ld. Raym. 349, S. C. Gilb. C. P. 19. 
 
 (c) 12 Mod. 545. 1 Ld. Raym. G05, S. C. 2 Salk. 496. (d) 1 Salk. 496. 
 
 (c) WM^ Watton^ E. 12 Geo. L cited in 1 Wils 4. Marlxn .j- Duckclt, 2 Str. 951. 2 Bar- 
 nard, K. B. 298, S. C. 
 
 (/) 2 Str. 1178, 9. 1 Wils. 3, S. C., and for a fuller note of this case, see 12 East, 624, in 
 noiis. {if) -'!'«'«. 136, 7. 
 
 (A) 1 Ld. Raym. 603. 2 Str. 951. 2 Barnard, K. B. 293, S. C.
 
 141 
 
 OF OUTLAWRY. 
 
 a writ of error prosecuted bj the defendant in persoyi, to reverse an out- 
 lawry, in a civil action, for a common law error, the recognizance of bail 
 is to be taken in the common alternative form, to pay the condemnation 
 money or render the principal, and not absolutely to pay the condemna- 
 tion money,(z') as in the case of reversing an outlawry upon the 
 [ *142 ] statute 31Eliz. *c. 3, for want of proclamations. (a) And though 
 in that case it was said, that if a party ask of the court to inter- 
 fere by motion, where he has no right to their interference, but only upon 
 error brought, they may impose upon him what terms they think just, 
 yet in a subsequent case, the court of King's Bench, upon motion, reversed 
 the outlawry of the defendant in a civil suit, on account of his being 
 beyond sea at the time of the exigent awarded, upon his putting in bail in 
 the alternative, and paying all costs, including any which might have been 
 incurred in the court of Exchequer,(J) So, in the Common Pleas, where 
 the defendant is of right entitled to reverse the outlawry on error brought, 
 the court in general will relieve him on motion, without imposing any 
 other terms than payment of costs, and putting in special bail, when 
 necessary, or rendering the defendant :(c) And the recognizance of bail 
 in that court, which is in the alternative, to pay the condemnation money 
 or render the defendant, as in the King's Bench, may be taken in the 
 original cause. (c) Where an outlawry was reversed, on account of the 
 third proclamation not having been made one month at least before the 
 quinto exactiis, the Court of King's Bench, supposing the want of due 
 proclamation to be only an irregularity, directed special bail to be put in 
 to the action, in the common form.(fZ) But where the third prodarnation 
 was made at the door of the church of the parish of which the defendant 
 was described to be in the writ, and in the bond upon which the action 
 was brought, but where he did not reside at the time when the proclama- 
 tion was made ; the court reversed the outlawry, as for want of proclama- 
 tions, and ordered bail to be taken to pay the condemnation money.(g) In 
 a joint action against two defendants, one of them, being in Ireland was 
 sued to outlawry ; and judgment being had against the other, the court, 
 on motion to reverse the outlawry, made the rule absolute, on putting in 
 bail, and consenting to give judgment, which they said was necessary in 
 a joint action, on account of the original. (/) 
 
 In the Common Pleas, when a defendant is outlawed on a common origi- 
 nal in trespass quare clausumf regit, he has a right to reverse it at his own 
 expense, on entering a common appearance, and payment of costs :{g) But 
 special bail is required, on reversing an outlawry, where the sum in the 
 original amounts to twenty pounds or upwards. (7i) And in that court, no 
 outlawry shall be reversed, after the death of the plaintiff in the 
 [ *143 ] action, *without the defendant's appearance, and putting in special 
 bail, if required, to the executor or administrator of the plaintiff ; 
 
 (i) 12 East, 622. 4 Taunt. 691, accord. [a) Ante, 140, 141. 
 
 (6) 1 Jlaule & Sel. 409. 1 Barn. & Aid. 131, accord, but see 12 Mod. 545, per Holt, Ch. J. 
 2 Salk. 49G. 1 Ld. Raym. 349. Garth. 459. Phillips v. Warburton, M. 26 Geo. III. Berwick 
 T. Parkin, E. 31 Geo. III. K. B. Imp. K. B. 10 Ed. 546. 8 East, 527, and see R. M. 1654, § 13, 
 R. H. 2 Car. I. § 2, C. P. Gas. Pr. G. P. 29. Barnes, 326. (c) 4 Taunt. 691. 
 
 {d) 2 Barn. &'Cre3. 353. 3 Dowl. & Ryl. 575, S. C. 
 
 (c) 3 Barn. & Ores. 529. 5 Dowl. & Ryl. 302, S. C. 
 
 ( f) Per. Car. H. 22 Geo. III. K. B. {g) Barnes, 324. 
 
 (h) R. H. 2 Car. I. § 2. R. M. 17 Cir. It. C. P. Stat. 7 & 8 Geo. lY. c. 71, but see R. T. 2 Jac. 
 II. 0. P., by which special bail was formerly required where the sum amounted to ten 
 pounds or upwards.
 
 OF OUTLAWRY. 143 
 
 or to liushand and •\\ifc, "vn here the Avifc wliilst a feme pole, sued the defendant 
 to an outlawry before marriage : provided the plaintiff's attorney do, within 
 fourteen days after notice given to him of the defendant's intention to 
 reverse the outlawry, deliver to the prothonotary the name of the plain- 
 tiff's executor or administrator. («) In general, an outlawry can only be 
 reversed upon payment of costs : But if the process has been abused, and 
 made subservient to purposes of oppression, as where a man has been out- 
 lawed who was already in prison at the plaintiff's suit,(6) or being at large 
 did not abscond, but appeared publicly, and might have been arrested or 
 served with process,((') the court, on motion, will order the plaintiff to 
 reverse the outlawry at his own expense. So, Avhere the plaintiff had pro- 
 ceeded to outlaw a female, and obtained judgment of waiver, the court set 
 it aside on motion, with costs ; it appearing that she was in prison, during 
 the time the several processes were sued out, and that the plaintiff was 
 aware of that fact, and knew where to find her.(c^) 
 
 In the Common Pleas, the reversal is entered on the same roll where 
 the e.vi(jent is awarded. (e) And, on reversing the outlawry, the defend- 
 ant must pay to plaintiff or his attorney, or leave in court for him, the full 
 and just costs of suit to the exigent : And where the plaintiff, by virtue 
 of such outlawry, hath taken an inquisition, and extended the goods, kc, 
 of the outlaw into the king's hands, and returned the same into the Ex- 
 chequer, such further just and reasonable costs shall be taxed by the pro- 
 thonotary, and likewise paid to the plaintiff or his attorny, or left in court, 
 as the plaintiff hath been at in taking and prosecuting the said inquisition, 
 before any certificate of such reversal shall be made by the clerk of the 
 outlawries. (/) Also, when an outlawry hath been transcribed into the 
 Exchequer, and process made out thereupon, and afterwards such outlawry 
 is reversed, before any judgment shall be entered for removing the king's 
 hands, and the party outlawed restored to his possession, the prosecutor 
 of the outlawry shall be paid such costs as shall be taxed by the remem- 
 brancer or his deputy, for the proceedings in that court.(^) But, with 
 this exception, no defendant who shall appear and reverse an outlawry, 
 shall upon such reversal pay for costs to the plaintiff, any sum of money 
 exceeding the usual costs of the exigent in the Common Pleas, together 
 with the fine to the king upon the original ATrit, if any was paid ; and all 
 further costs shall be respited, until the time of signing judgment for the 
 plaintiff.(/i) 
 
 *When the outlawry is reversed, or the defendant has obtained 
 a charter of pardon, he may be discharged, if in custody, by writ [ *144 ] 
 of supersedeas ;{aa) and his property,(W) if taken into the king's 
 hands, shall be restored to him by writ of amoveas manus, or otherwise, 
 according to the course of the Exchequer.(cc) And when a sheriff's offi- 
 cer, being in possession of the tenant's effects under an outlawry, made a 
 
 (fl) R. T. 2 Jac. II. C. p., and see Barnes, 323, 325. 
 {b) 2 Vent. 46. 2 Salk. 495. 3 Barnes, 321. 
 
 (c) T. Jon. 211. Comb. 19. 12 Mod. 413. 2 Wils. 127, but see Cas. Pr. C. P. 61, 78, 151. 
 Barnes, 320, S.C. M 321, 2, 3. 
 
 (d) 9 Moore, 589. . (e) R. H. 2 Car. I. I 4, C. P. 
 ( /• ) R. T. 2 Joe. II., and see R. M. 1 7 Car. II. C. P. 
 
 {g) R. T. 1 W. & M. Tcg. 1, C. P. Barnes, 324. {h) R. T. 33 Car. II. C. P. 
 
 {aa) 13 Car. II. stat. 2, c. 2, ? 4. Trve, 122, and see Append. Chap. VII. g 36, 7. 
 \bb) As to chattels real, sec Cro. Eliz. 278. 2 Vern. 312. Buub. 105, and as to chattels 
 personal, see 5 Mod. 61. 
 {cc) Trye, 90.
 
 2^^ OF THE BILL OF MIDDLESEX, 
 
 distress for rent, and sold the goods so distrained, and afterwards the out- 
 lawry was reversed ; it was ruled, that the officer was liable to pay the pro- 
 duce of the goods to the landlord, in an action for money had and 
 received. (c?(?) When the defendant has obtained a charter of pardon, he 
 must sue out a scire facias, to give notice thereof to the plaintiff, in order 
 that he may further prosecute his action, if he thinks proper.(e) 
 
 Every outlawry determines upon the death of the party outlawed :(/) 
 and if he was outlawed in a civil suit, the representatives of the outlaw 
 shall have restitution of the land seized, or of the personal effects, if they 
 remain in the sheriff's hands undisposed of: but in criminal cases, out- 
 lawry works an entire forfeiture of the outlaw's estate, both real and per- 
 sonal. In order to reverse an outlawry on death, there must be a certifi- 
 cate from the minister of the parish where the party died or was buried, 
 and likewise an affidavit of his death, by some person who was acquainted 
 with him, and was present at the death or burial ; in which affidavit the 
 party should be described as in the outlawry. But though outlawry deter- 
 mines upon the death of the outlaw, yet, before the king's hands can be 
 amoved from the lands or goods seized, such death must be pleaded, and 
 judgment entered up thereon in the Exchequer, upon the plea being con- 
 fessed by the attorney general. And in like manner, if the outlawry be 
 reversed, (which must be done in the court where the action was originally 
 brought,) for any other reason, a certificate of such reversal from the clerk 
 of the outlawries must be pleaded and confessed, and judgment entered 
 up thereon in the Exchequer, before the king's hands can be amoved. 
 These proceedings are in nature of a suggestion upon the roll, in the court 
 of Exchequer; and the judgment of the barons is, "that his majesty's 
 hands be amoved from the possession of the premises, kc.'\g) The plea 
 in this case may be put in by any person ; for though the judgment be, 
 that he shall be restored to the possession of the premises, yet it gives no 
 title to the lands : but in order to discharge the sheriff, the judgment roll 
 must be carried to the pipe office, that a quietus may be made thereupon. 
 If, after such judgment, any difficulty attends the getting possession, a 
 writ of amoveas manus must be sued out of the Exchequer, directed to the 
 sheriff, who will thereupon deliver possession. (/*) 
 
 [n45] *CHAPTER VIII. 
 
 Of the Bill of Middlesex and Latitat, and subsequent Process 
 thereon, in the King's Bench ; of the Capias quare Clausum fregit, 
 ^c, in the Common Pleas ; aiid of Process in the Exchequer of 
 Pleas. 
 
 A bill of Bliddlesex, or Latitat, is the ordinary mode of commencing 
 actions in the court of King's Bench, against unprivileged persons : And a 
 latitat, being a kind of original in that court,(a) may be issued in the first 
 
 (dd) 7 Durnf. & East, 259. 
 
 (e) Trye, 134, 154, and for the form of this writ, and of the return thereto, see Append. 
 Chap. VILg 39, 40,41. ( /•) Cas.Pr. C. P. 36. Ante, 135. 
 
 (ff) Append. Chap. Vll. | 38. (h) 2 SeL Pr. 2 Ed. 305, &c. 
 
 (a) Carth. 233. 2 Ld. Raym. 883. Cowp. 456.
 
 AND LATITAT, ETC. 145 
 
 instance, without previously suing out a bill of Middlesex.ih) But this 
 mode of commencing actions is not applicable to peers of the realm, corpo- 
 rations, or hundredors on the statute 1 k^ (Jeo. IV. c. 31, v»'ho, not being 
 subject to a capias, must be sued by original writ ; nor to members of the 
 house of commons, who for the same reason must be sued by original writ, 
 or by hill for the real cause of action, stating thcra to have privilege of par- 
 liament. And there is no need of any process for commencing actions 
 against attorneys or officers, who are supposed to be already present in 
 court: nor 'dg^msi prisoners in the actual custody of the marshal. A writ 
 of latitat, issued against a peer, was superseded on motion, grounded on an 
 office copy of the prsecipe, in which the defendant was styled Baron :{e) 
 but the motion for this purpose must be made as soon as may be, and before 
 interlocutory judgment. (J) 
 
 The bill of Bliddlesex, or latitat, is in general considered merely as pro 
 cess to bring the defendant into court. It might therefore formerly have 
 been sued out, though the defendant could not have been arrested upon it, 
 before the cause of action ;(c) and the plaintiff is allowed to give in evidence 
 a cause of action arising after it is sued out, and before the exhibiting of the 
 bill.(/) But in a late case, where the defendant was arrested and held to 
 bail on a bill of Middlesex, for a debt not due at the time of the 
 arrest, the court ordered the bail bond to be delivered up to *be can- [ *146 ] 
 celled, and set aside the bill of dliddlesex, for irregularity.(a) It 
 has been frequently ruled however, that for certain purposes, a bill of 3Iid- 
 dlesex or latitat, out of the King's Bench, may be taken to be in nature of 
 an original writ in the Common Pleas,(J6) and a latitat, even without a bill 
 of 3Iiddlesex, if properly issued and continued on the roll, has been holden 
 to be a good commencement of the suit, to avoid a plea of the statute of 
 limitations,(«?c) or a tender made after suing it out.((Zc^) It was indeed said by 
 Holt, Ch. J. that there is a difference between a civil action, and an action 
 given by a statute ; for in the first case, the suing out a latitat within the 
 time, and continuing it afterwards, will be sufficient ; but in the other case, 
 if the party proceed by hill, he ought to file his bill within time, that it may 
 appear to be upon the record itself.(ee) But, upon a writ of error, all the 
 judges in the Exchequer chamber held, that a latitat is a kind of original 
 in the King's Bench :{ff) And accordingly, in two subsequent cases,(r/^) it 
 was holden to be a good commencement of the suit in a penal action. Hence 
 it appears, that a latitat may be considered, either as the commencement of 
 the action, or only as process to bring the defendant into court, at the elec 
 
 (6) Sty. Rep. 156, 178. 1 Sid. 53, 60. Carth. 233. 2 Ld. Raym. 880. 1 Str. 550. 2 Str. 730. 
 2 Ld. Raym. 1441,S. C. Willes, 258. 2 Bar. 961. 1 Blac. Rep. 215, S. C. 3 Bur. 1241. 1 Blac. 
 Rep.312,S.C. 2 Blac. Rep. 925. Forrest, 110. 9 East, 337, 344. 
 
 (c) 3 East, 127, and see 3 Maule & Sel. 88. 
 
 {d) Lady Napier's case, T. 21 Geo. IIL K. B. Ante, 118. 
 
 (c) Cro. Eliz. 271. Cro. Jac. 561. 1 Vent. 28. 8 Mod. 343. 1 Wils. 142. 2 Bur. 967. Doug. 
 62. 4 East, 75. 
 
 (/) Cowp. 454. 7 Duraf. & East, 4. 4 East, 75, and see 2 Wms. Saund. 5 Ed. 1.(1.) 
 
 (a) 2 Chit. Rep. 11. 
 
 (bb) Sty. Rep. 156. Carth. 233. 2 Ld. Rayra. 883. 1 Wils. 147. Cowp. 456. 
 
 (cc) Ante, 27. 2 Wms. Saund. 5 Ed. 1.(1.) 
 
 (dd) Cro. Car. 264. 1 Wils. 141, but see 3 Bos. & Pul. 330. 
 
 (ee) Carth. 233. 
 
 (Jf ) 2 Ld. Raym. 883. Cowp. 456. 
 
 \gg) Bridges v. Knapton, and Ilardiman v. Whilakcr, cited in 2 Bur. 9o0, 3 Bur. 1213. 
 Cowp. 454. 2 East, 574.
 
 146 OF THE BILL OF MIDDLESEX, 
 
 tion of the plaiutifF.(7/) Though if it be stated as the commencement of the 
 action, to avoid a tender, the defendant may deny that the plaintiff had any 
 cause of action at the time of suing it out,(z) or if it be replied to a plea of 
 the statute of limitations, the defendant, in order to maintain his plea, may 
 aver the real time of suing it out, in opposition to the teste.{k) 
 
 Anciently, it seems, the process in trespass in the King's Bench ■v\as 
 founded on a j)lciint or queritur,{I) entered on the.records of the court : and 
 the first process thereon was a precept in nature of an attachment ;{m) upon 
 which the sheriff returned, either that he had attached the defendant, (w) or 
 that he had nothing by which he could be attached. (o) On the latter return, 
 if the defendant did not appear, there issued into Middlesex, or other county 
 ■where the court sat, a precept in nature of a capias, commanding 
 [ *147 ] *the sheriff of that county to take the defendant, if he should be 
 found in his bailiwick, and safely keep him, so that he might have 
 his body before the king, at a certain time and place therein mentioned, to 
 answer the plaintiff, in a plea of trespass,{a) &c. This precept being now 
 used as the first process in trespass, when the defendant is in 31iddlesex, is 
 therefore called a hill of Middlesex : and it is the proper process, when the 
 defendant resides in that county ; it being holden that a latitat, directed to 
 the sheriff of 3Iiddlesex, is irregular. (5) If the defendant cannot be arrested 
 upon, or served with a copy of this process, the plaintiff may sue out an 
 alias,{c) and after that (if necessary,) a p)luries bill of Middlesex ; command- 
 ing the sheriff, as before or as oftentimes he has been commanded, to take 
 the defendant, &c.(c?) But a term must not intervene between the return of 
 an alias, and the issuing of n.pluries bill of 3Iiddlesex. 1 Man. & Ryl. 317. 
 
 But if the defendant be not in 3Iiddlesex, the plaintiff must sue out a 
 ■writ of latitat,{e) or testatum bill of 3Iiddlesex, directed to the sheriff or 
 sheriffs of the county where he is supposed to be, reciting the former pro- 
 cess and its return, and suggesting that it is sufiiciently testified, the defend- 
 ant lurks and secretes himself in their county. (/) A writ of latitat is 
 considered as a continuance of a bill of 3Iiddlesex. 7 Barn. & Ores. 526, 
 1 Man. & Ryl. 232, 237, S. C. Ante, 27. This writ may be issued in the 
 first instance ;(^) and if it prove ineffectual, the plaintiff may sue out an 
 alias, and after that (if necessary,) a pluries latitat, or, more properly 
 speaking, an alias or pluries capias,{Jih){fov these writs do not contain any 
 testatum, or suggestion of a latitat;) and the jyluries maybe repeated from 
 time to time, till the defendant be arrested, or served with a copy of it : 
 
 (h) Bui. NL Pri. 151. 1 Wils. 146. Fugh v. 3Iartin, H. 24 Geo. III. K. B., and see 8 Durnf. 
 & East, 628. 2 Wms. Saund. 5 Ed. 1. (1.) (/) 1 Wils. 141. 
 
 (k) 2 Bur. 950. 3 Barn. & Cres. .328. 5 Barn. & Cres. 149. 7 Dowl. & Ryl. 129, S. C. 1 
 Barn. & Cres. 406, and see 4 Esj). Eep. 100, 161, as to evidence of the commencement of the 
 action, &c. 
 
 (l) Append. Chap. VIII. I 1. In Trye's/?/.?.//. published in 1684, it is said, that there were 
 several files of these plaints, then remaining in the former upper treasury of the King's 
 Bench ; and the profits arising from them were formerly so considerable, that they were 
 always excepted by the chief justice, out of the grant of the ofiBce of custos brevium. Id. p. 98, 
 100. See also Rich.Pr. K. B. 24. 2 H. Blac. 271, 2. 
 
 {m) Trye, 99. Stat. 8 Eliz. c. 2. Brown's Vade Mecum, 526, and see Append. Chap. VIII. 
 § 2. (n) Append. Chap. VIII. § 3. (o) Id. I 4. 
 
 [a] Append. Chap. VIII. ? 6, 21. {b) 1 Maule & Sel. 442. 
 
 (c) But an alias writ, being founded on the sheriffs return of non est invenhts, cannot be 
 sued out, when the service of the first is complete. IloUoway y. Whallcy, T. 41 Geo. III. K. B. 
 
 {d) Append. Chap. VIII. g 9, 24. (e) Trye, 99. 
 
 {/) Append. Chap. VIII. § 1 1, 28. {g) Ante, 145. 
 
 (M) Append. Chap. VIII. § 19, 31.
 
 AND LATITAT, ETC. 147 
 
 though, according to some books,(n) there must be a nc^v latitat, after four 
 terms from the time of suing out the first. Or, -wlien it is doubtful in Avhat 
 county tlic defemhint is to be found, the plaintifl" may issue several -writs 
 against him into different counties; and the master Mill be justified in 
 allowing the expenses of such writs. (^) In any of these writs, there may 
 be a clause of 7ion omittas, commanding the sheriff, that h« do not omitj 
 on account of any liberty in his county, but that he enter the same, »S:c.(/) 
 And, by the long established and recognized practice of the court, a non 
 omittas writ may be issued in the first instance, without suing out a pre- 
 vious writ, and waiting for the sheriff's return of mandavi lallivo, qui 
 nullum dedit responsum.{m) In actions not bailable, if the plaintiff sue 
 qui tam,{n) or as executor or administrator, or assignee of a bankrupt, &c., 
 the process need not state the special character in which he sues ; nor, in 
 an action against an executor or administrator, &c., the character in which 
 he is sued.(o) 
 
 *A bill of 3Iiddlesex, and notice thereto, describing the defend- [ *148 ] 
 ant as Mr. A., without stating his christian name, is irregular. («) 
 And, in the King's Bench, where the party arrested was described in the 
 process, and affidavit to hold to bail, by the initials of his christian name 
 only, the court ordered the bail bond to be delivered up to be cancelled, 
 and the defendant discharged upon entering a common appearance. (6) 
 And, in that court, where the christian name of the defendant is omitted 
 in a bailable latitat, the court, on motion, will set it aside, for irregularity; 
 but where it is omitted in serviceable process, they will leave the party to 
 his plea in abatement. (e) So, in the Common Pleas, if a defendant be 
 arrested by the initials of his christian name only, and sign a bail bond 
 in a similar manner, the court will discharge him, on entering a common 
 appearance, on his undertaking to bring no action. (c?) So, where the 
 christian name of the defendant was wholly omitted in a latitat, the pro- 
 ceedings were deemed irregular, and set aside on motion :{e) and there is 
 no distinction in this respect, between bailable and serviceable process. (e) 
 But where, by a writ of capias ad respondendum, the sherifl' was directed 
 to take Messrs. C. and D., without mentioning their christian names, and 
 they afterwards signed a bail bond in their christian and surnames, the 
 court held it to be a waiver of the irregularity in the writ.(/) Also, it is 
 a rule, that every subsequent writ should correspond with that which is 
 gone before, in the names of the parties: Therefore, where an action was 
 brought against Bates and another, for an act done by them as justices of 
 the peace, and the latitat against Bates was by the name of William, and 
 the alias by the name of John, the court thought the proceedings irregu- 
 lar, and set them aside, as far as they respected Bates.{ij) But a misno- 
 mer may be cured, by altering the writ, and getting it resealed, before the 
 
 (u) Hans. Introd. 1. Prac. Epit. K. B. 2, Tamen quaere. 
 
 \k) 1 Chit Rep. 544. (/) Append. Chap. YIII. ? 26, 33. 
 
 (m) 9 East, 330. (n) 2 Str. 1232. 2 Blac. Rep. 722. 3 Wils. 141, S. C. 
 
 (o) 6 Moore, GG. 3 Brod. & Ring. 4 S. C. 
 
 (,,) V. Snoii; E. 57 Geo. III. K. B. 1 Chit Rep. 398. {a), and see 4 Moore, 317. 1 
 
 Bred. & Ring. 529, S. C. 
 
 {h) 4 Rarn. & Aid. 536, and sec 2 Dowl. & Ryl. 73, 237. (r) 6 Rarn. & Cres. 165. 
 
 (d) 6 Moore, 2G4, and see 3 Ring. 296. 10 Moore, 322, S. C. accord. 1 Moore and P. 24, 
 but see 2 Ros. & Pul. 466, contra. 
 
 (e) 1 Chit. Rep. 397. 
 
 (/) 4 Moore, 317. 1 Brod. & Bing. 529, S. C. but see 6 Moore, 264. 3 Bing. 296. 
 {g) 3 Durnf. & East, 660.
 
 j^g OF THE BILL OF MIDDLESEX, 
 
 return :(70 And where process is sued out against four defendants, one 
 of whom is misnamed, it may be served upon the three whose names are 
 right, and if the name of the other be afterwards altered, and the writ 
 rcscalcd, it is good against B].\.{i) 
 
 The phnintiffwas formerly allowed to join four defendants, for separate 
 causes of action, in one writ ; and to declare against them severally.(^) 
 And this is still allowed, in the Common Pleas, where the process is not 
 bailable. (Z) But in the King's Bench, by a late rule of court,(m) "in all 
 
 actions by bill, the mesne process shall contain the name of the 
 [ *149 ] defendant, *or (if more than one,) of all the defendants in that 
 
 action; and shall not contain the name or names of the defend- 
 ant or defendants in any other action." "Where the process is bailable, a 
 plaintiff cannot, in either court, join several defendants in one writ, for 
 distinct causes of action :(«) And if the plaintiff hold two defendants to 
 bail on a joint writ, and declare against them severally, the court will set 
 aside the declaration and subsequent proceedings for irregularity. (ft) Bail- 
 able process however may, it seems, be taken out against some defend- 
 ants, and serviceable process against others. (c) And, in the Common 
 Pleas, where an action is brought against more tha.n four defendants, and 
 two writs are sued out, it does not seem to be necessary to name all the 
 defendants in each writ.(c) 
 
 The bill of 3Iiddlesex, and other process into that county are issued out 
 of the bill of Middlesex office, and signed by the clerk, but not sealed. 
 The latitat, and other process thereon, are issued and signed by the signer 
 of the writs in the King's Bench office, and afterwards sealed at the seal 
 office. The clerk, according to ancient orders, was upon the signing of 
 every writ of alias and pluries capias, and of every non omittas, to sub- 
 scribe under the same, the term when the latitat was sued forth ; and no 
 such writ could be signed in term time, before a note was delivered in, 
 subscribed with the term when the latitat was sued forth, for the entering 
 of the same ; and in vacation time, the clerks were to enter every such 
 writ, before it was signed. ((i) At the time of issuing the bill of Middle- 
 sex, or latitat, ^'c, the plaintiff's attorney should deliver to the officer a 
 pr8ecipe,{e) or note of instructions : And it is usual to make the affidavit 
 of the cause of action at the same time, before the officer or his deputy. 
 In point of form, the bill of Middlesex and latitat, cj-c, are common or 
 special. Before the making of the statute 13 Car. II. stat. 2, c. 2, a defend- 
 ant might have been arrested and holden to bail for any sum of money, upon 
 a common bill of Middlesex or latitat, &c., not expressing the particular 
 cause of action. It consequently happened, that he was freqently arrested, 
 and holden to bail or imprisoned, for a large sum of money, when perhaps 
 
 (h) 1 Chit. Rep. 321. 
 
 (i) Per. Cur. M. 55 Geo. III. K. B. 1 Chit. Rep. 398, («), and see 6 Barn. & Aid. 111. 2 
 Dowl. &Ryl. 211,S. C. 
 
 (k) Com. Rep. 74. 4 Dumf. & East, 696, and see Yardley v. Burgess, T. 32 Geo. III. K. 
 B. 4 Durnf. & East, 697. 1 Maule & Sel. 55. 
 
 {I) 1 Bos. & Pul. 19, 49. {m) R. E. 8 Geo. IV. K. B. 6 Barn. & Cres. 639. 
 
 (a) Holland v. Johnson, 4 Durnf. & East, 695. Holland v. Richards, T. 32 Geo. III. K. B. 
 4 Durnf. & East, 697. 1 Bos. & Pul. 19, 49. 
 
 {b) 4 East, 589. 1 Maule & Sel. 55. 1 Bos. & Pul. 49. 2 New Rep. C. P. 82. 1 Marsh. 
 274, and see 5 Durnf. & East, 722. 
 
 (c) 1 Bing. 48, 68. 7 Moore, 301, 362, S. C. 
 
 (d)^. T. 1656, reg. 1, K. B. 
 
 (fi) 1 Chit. Rep. 186. Append. Chap. VIII. § 5, 8, 10, 18, 20, 23, 25, 27, 30, 32, 34.
 
 AND LATITAT, ETC. 149 
 
 there was no real plaintiff, or little or no cause of action. (/) To remedy 
 this mischief, it was enacted, that "no person arrested Ly any sheriff, &c., by 
 force or colour of any bailable "writ, bill or process, issuing out of the King's 
 Bench wherein the certainty and true cause of action is not expressed parti- 
 cularly, shall be compelled to give security for his appearance in any 
 penalty or sum of money, exceeding the sum of fori// pounds(^) This 
 statute, says Mr. Justice BIacIcston(',{Ji) (without any such intention in the 
 makers, (had like to have ousted the King's Bench of all its 
 jurisdiction over civil injuries without force ; for as the *bill of [ *150 ] 
 Middlesex was framed only for actions of frcs]yiss, a defendant 
 could not be arrested and holden to bail thereupon, for breaches of civil 
 contracts. But notwithstanding this statute, the defendant might still be 
 arrested, and holden to bail upon a common bill of INIiddlesex, or latitat, &c. 
 for any sum not exceeding /or^y pounds :(«) And where it was for a larger 
 sum, a method was devised, to preserve the jurisdiction of the court, and at 
 the same time to authorize an arrest, by inserting in the process an ac ctiam, 
 or special clause beginning with these words, shortly describing the true 
 cause of acition, in addition to the general complaint of trespass. (6) And a 
 rule of court was made upon this statute, that no attorney should make any 
 precept or w'rit, with a clause of ac etiain, &c. against any heir, executor or 
 administrator ; nor in any case where, by the course of the court, special 
 bail was not required. (c) 
 
 In trespass therefore, and other cases, where the defendant cither cannot, 
 or is not meant to be arrested, and held to specialbail, the process in general 
 is in the common form, requiring the defendant to answer the plaintiff, in a 
 plea of trespass. This description of the plea, however, though it was here- 
 tofore material, (cZ) is now considered as mere matter of form : Therefore, 
 where a motion was made to stay the proceedings on a bill of Middlesex, 
 which was in deht only, and not in trespass, with an ac etiam in debt, the 
 court ordered the bill to be amended, by inserting the plea of trespass.ie) 
 In a subsequent case,(/) where the bill of Middlesex was to answer the 
 plaintiff in a plea of debt, instead oftresp)ass, and also to a bill to be exhi- 
 bited in a plea of trespass upon the case, the court refused to grant a rule 
 for setting aside, on the authority of a case, which was read from the mas- 
 ter's note book, exactly in point. (^^) And a bill of Middlesex, requiring 
 the defendant to appear before 2(S, is good.(7J() 
 
 "When the cause of action is of a bailable nature, and it is intended to 
 arrest the defendant, and hold him to special bail, for a larger sum than 40Z. 
 there should be a clause of ac etiam in the process : and in such case, an 
 omission in the ac etiam part of the writ, of the sum for which the defend- 
 ant is arrested, (z) or that it was due on promises, (/c) is irregular, and he can- 
 not be holden to special bail thereon. There are also some cases, in which 
 the cause of action must be expressed in the process, though the defendant 
 
 (/) See the preamble to the statute. 
 
 Iff) Stat. 13 Car. II. stat. 2, c. 2, § 2, and seo 2 East, 305, 6. 
 
 (h) 3 Blac. Com. 287. (a) 1 11. Blac. 310. 
 
 (b) Trye, 102, 3, and see N. H. 2 Geo. II. ? II. K. B. 2 Wils. 392. 2 East, 307. 2 Wms. 
 Saund. 5 Ed. 52. (1.) Append. Chap. VIII. "g 36, &c. 
 
 (<■) R. M. 15 Car. II. rcff. 2, K. B. [d) 2 Str. 1072. 
 
 (e) 1 Blac. Rep. 462. (/) 2 Durnf. & East, 513. 
 
 (fff/) M. 20 Geo. III. K. B. The same application was also refused in II. 24 Geo. III. K. 
 B. 2 Durnf. & East, 513, (</), and see 2 Wms. Saund. 5 Ed. 52. (1.) 2 Chit. Rep. 1G(5. 
 
 {hh) Per. Cur. U. 43 Geo. III. K. B. (t) 2 East, 305. (A) 1 Chit. Rep. 171.
 
 150 OP THE BILL OF MIDDLESEX, 
 
 be not arrested, and held to special bail: Thus, in an action on the lottery 
 act, the amount of the penalties sued for must be specified in the first pro- 
 cess ; even though the defendant be not holden to bail thereon. (?) And 
 where a writ is sued out upon a recognizance of bail, it is necessary 
 [ *151 ] *by rule of court,(a) that after the words "m aplea of trespass," 
 there should be inserted the following clause, '■^ and also toahillof 
 the said plamtiff, against the said defendant^ in a plea of debt upon 
 recognizance^ according to the custom of our court before us, to he exhi- 
 bited:" otherwise the defendant or his attorney is not bound to accept of a 
 declaration in debt, upon such recognizance. An ac etiam writ is holden 
 to be a good continuance of common process, so as to avoid a plea of the 
 statute of limitations.(5) 
 
 The bill of Middlesex, being merely a precep)t,{c) has no direction or 
 teste. But the writ of latitat, and other subsequent process, should be 
 directed to the sherifi" or sheriffs of the county, where the defendant is sup- 
 posed to reside ;{d) or, if one of the sheriffs is a party, to the other ;(e) or if 
 both sherifis are parties to the coroner;[f) and if he also be a party, to 
 elisors named by the master in the King's Bench, (^) or prothonotaries in 
 the Common Picas. (A) And a latitat cannot be directed to the sheriff of 
 Middlesex ; for if this were allowed, a bill of Middlesex might never be 
 issued.(z') But where the copy of a latitat was directed to the sheriff, and 
 not, as it ought to have been, to the sheriffs of London, it was not deemed 
 irregular. (yt) 
 
 It was formerly holden, that a writ of latitat, &c. did not run into 
 Wales,{l) or the counties palatine :{m) but a different practice now pre- 
 vails ;(yO which practice is recognized as ioWales, by the statutes 13 Geo. 
 III. c. 51, § 1, 2,(o) and 5 Geo. IV. c. 106, § 21. ; and, without respect to the 
 counties palatine, the true meaning of the expression breve domiyii regis 
 non currit, &c. is said to be, that the court cannot write directly to the 
 sheriff, as they do in other cases. (p) In a county palatine therefore, the 
 process should be directed to the proper officer ; as in Durham, to the 
 Bishop, or his chancellor ; in Cheshire, to the Ohamberlain, or his deputy ; 
 and in Lancashire, to the Chancellor or his deputy :{q) And an alias 
 capias, directed to the sheriffs of the city of Chester instead of the cham- 
 berlain of the county palatine, directing him to issue his mandate to the she- 
 riffs, is irregular, and maybe set aside at the instance of the defendant. (r) 
 In these cases, the mandatory part of the writ is different from the common 
 
 (/) 4 Durnf. & East, 349, 577. G Durnf. & East, 617. 2 H. Blac. 601. 
 
 {a) R. E. 15 Geo. II. reg. 1, K. B. This rule applies to the form of the latitat, and other 
 subsequent process. In a bill of Middlesex, the form is, "m a plea, ^-c, according to the cus- 
 tom of (he court of the lord the king, before the king himself, to be exhibited." 
 
 (b) 4 Barn. & Cres. 625. 7 Dowl."& Ryl. 25, S. C. 
 
 (c) Trye, 97. 2 Sid. 129. 2 Str. 1069. 9 East, 340. 
 
 (d) Append. Chap. VIII. § 12, 13. (e) 5 Maule & Sel. 144. 
 
 (/) Append. Chap. VIII. 2 14, 1 Blac. Rep. 506. v. Philips, E. 42 Geo. III. K. 
 
 B. S. P. 
 
 (g) 3 East, 141. (h) 2 Blac. Rep. 911, 1218, but see 10 Moore, 266. 
 
 (0 1 Maule & Sel. 442. (k) Per. Cur. E. 21 Geo. III. K. B. (I) 1 Wils. 19.3. 
 
 {m) T. Raym. 206. 1 Lev. 256, 291. 2 Wms. Saund. 5Ed. 193, S. C. See also Hetl. 18. 
 Cro. Jac. 484. 2 Bulst. 54, 156. 
 
 (n) Doug. 213. (o) Id. innotis. 
 
 (p) 2 Str. 1089. Andr. 191, S.C. See also R. T. 21 Car. I. K. B. 6 Durnf. & East. 71. 
 1 Moore, 514. Harg. Tracts, 417, &c. 
 
 (?) Append. Chap. VIIL g 15. 
 
 (r) 3 Moore, 237. 1 Bred. & Bing. 12, S. C. 1 Chit. Rep. 374.
 
 AND LATITAT, ETC. • 151 
 
 form ;(«) and If the officer, to whom it is directed, refuse to receive 
 it, he is liable *to an attachment. (aa) In the Cinque ports^ the [ *152 ] 
 process is directed to the Conatahle of Dover castle, his deputy or 
 lieutenant ;(66) and in Berwick upon Tweed, to the mayor and bailiffs of 
 Bertvick,(c) In the isle of IJl^, the process out of the courts at Westmin- 
 ster goes in the first instance to the sheriff of CamhridijcKhire, who there- 
 upon issues his mandate to the bailiff of the franchise. ((i) And, in like 
 manner, where the defendant resides in the borou<^h of SouthtvarJc, the 
 process is directed to the sherift' of the county of Surrey^ who issues his 
 mandate thereupon to the bailiff of the borough, and not to the bailiff in 
 the first instance. (e) 
 
 The latitat, and other subsequent process, should be tested in the name 
 of the chief justice, or senior judge of the court, if there be no chief jus- 
 tice ; and this proccss,(/) as well as the capias in the Common ricas,Q/) 
 may be tested before the cause of action. If it be sued out in term time, 
 it is usually tested on the first day of that term; though it may be tested 
 of the preceding one :{h) If sued out in vacation, it should be tested on 
 the last day of the preceding term ;(/) for if tested in vacation, it is alto- 
 gether void:(^) And in all continued writs, the alias must be tested the 
 day the former was returnable. (0 A bill of Middlesex may be stated in 
 pleading to have been sued out in vacation,(w) so as it be not alleged that 
 the court was then holden at Westminster :{n) and it may be stated to have 
 been sued out of the court of Westminster^ on a day between the ession 
 day, and the quarto die post ; for though the courts do not actually sit on 
 the essoin day, yet in law it is considered as the first day of the term.(o) 
 And this, and every other process by bill, must be made returnable on a 
 particular return day, or day certain, in full term;(p) as on Mondau or 
 some other day of the week, next after the preceding general return ; and 
 it may be made returnable on a general return, in full term, by specifying 
 the day of the week on which it falls, as on Monday in fifteen days of Saint 
 Hilary, &Lc.{q) But it must not be returnable on a dies non juridicus ; as 
 on a Sunday, the feast of the Purification in Hilary term,(r) Ascension 
 day in Easter term,(.s) or Midsummer day (if it happen) in Trinity term, 
 unless it be on the Friday next after Trinity Sunday, in which 
 case it is dies juridicus *by the 32 Hen. VIII. c. 21. (a) And [ 153 ] 
 Monday next after the Morrow of the Holy Trinity is not a good 
 
 («) Append. Chap. VIII. § 35. [aa) 2 Str. 1089, and sec I Moore, 514. 
 
 ibb) Append. Chap. VIII. § 16. 
 
 (c) Id. ^ 17. {d) 3 East, 128. 
 
 (e) U East, 289. and see 1 Chit. Rep. 374. (i). (/) 2 Bur. 9G7. 
 
 (</) 1 Bos. & Pul. 343. 2 Bos. & Pul. 235. (A) 5 Taunt. 064. 
 
 (e) 3 Keb. 214. T. Jon. 149. 1 Ventr. 363. 2 Bur. 962. 
 
 {k) 2 Bur. 954, 967. 5 Bur. 2588. 2 Blac. Rep. G83 S. C. 
 
 (l) 2 Salk. 699. [m) 15 East, 378. 
 
 («) 2 Ld. Ilayin. 1557. and see 3 Durnf. & East, 184. 15 East, 378. but see 2 Brod. k 
 Bing. 659. 
 
 (o) 3 Durnf. & East, 183. {p) 1 Str. 399. 
 
 (q) Append. Chap. V. § 2G. (r) 4 Barn. & Aid. 2S8. and see 8 Dowl. k Ryl. 450. 
 
 (s) I Chit. Rep. 400. In this case, a bill of Middlesex returnable " on Thnrsdii/ next after 
 Evster day," which was the day of the Ascension, was holden to be irregular; and that the 
 objection could not be waived by the defendant: but as he had promised to take no adv.an- 
 tao-e the court set aside the proceedings without costs, and on the terms of no action being 
 brought. „, _ 
 
 (a) 2 Inst. 264, 5. Cro. Jac. 16. 2 Bulst. 242. 7 Mod. 17. 6 Mod. 252. 1 Blac. Rep. 
 529. and see R. T. 35 Geo. III. K. B.
 
 ^gg ^ OF THE CAPIAS QUAE.E CLAUSUM FREGIT, ETC. 
 
 return for the first Monday in Trinity term ; but the return for that day 
 should be Monday next after eigltt days of the Holy Trinity. (Z>) It should 
 also be observed, that as there are more than seven days between the mor- 
 row of All Souls, and the morrow of St. Martin, in Michaelmas term, the 
 day before the morrow of Saint Martin, being the 11th of November, is 
 not the day of the week next after the morrow of All Souls ; and therefore, 
 on this day, the bill of Middlesex, or other process, should be made re- 
 turnable on Monday (or other day of the week, being) the feast of Saint 
 Martin. There is no necessity for any particular number of days between 
 the teste and return of a latitat, or other process by hill: even one was 
 formerly deemed sufficient ;(c) and it may be now sued out on the very 
 return day.(c^) 
 
 The ordinary mode of commencing actions, in the court of Common 
 Pleas, is by writ of capias quare clausum fi'egit ; which is founded on a 
 supposed original, and answers to the bill of Middlesex or latitat in the 
 King's Bench.(e) The writ is holden to be a good commencement of the 
 suit, so as to avoid a plea of the statute of limitations ;(/) and in point of 
 form, it is common or special. Where the cause of action is not bailable, 
 it is in the common form, commanding the sheriff to take the defendant, 
 &c. to answer the plaintijQf, of a plea wherefore, with force and arms, the 
 close of the plaintiff, at, cfc. he broke ; and other wrongs to him did, to the 
 great damage of the p>laintiff, and against the peace, ^c.[g) And the de- 
 fendant may be arrested, and holden to special bail, upon a common writ 
 of capias quare clausum frcgit in the Common Pleas, for any sum not 
 exceeding 40/.(A) But in general, where the cause of action is of a baila- 
 ble nature, an ac etiam is inserted in the process, or special clause begin- 
 ning with these words, as in the bill of Middlesex or latitat in the King's 
 Bench, shortly describing the real cause of action. (z) It is not necessary 
 however, in this court, that a clause of ac etiam should be inserted on the 
 jjrsecipe, or instructions for the wnt:{k) nor that the filacer's name should 
 be added to a common capias.{l) The writ of capias quare clausum f regit 
 should be tested in term time, and returnable before the king's justices at 
 Westminster, on a general return day : And as it is founded on a supposed 
 original, there should regularly be fifteen days between the teste 
 [ *154 ] and return. *If there were not so many, the court would for- 
 merly have set aside the proceedings for irregularity, with 
 costs :(a) but afterwards, they permitted this defect to be amended :(5) and 
 now, the amendment being a matter of course, it seems the court will not 
 set aside the process for irregularity on this ground. (cc) 
 
 If the defendant, in a bailable action, cannot be taken on the first writ, 
 
 (b) 5 East, 291. 1 Smith R. 425, S. C. and see 1 Chit. Rep. 323. (a). 
 
 (c) 2 Str. 917. 2 Barnardist. K. B. 60, S. C. 
 
 (f?J 4 Durnf. & East, 610. butsee 2 Ld. Raym. 772. 2 Salk. 421. 7 Mod. 12 S. G. 
 
 (e) Ante, 91, 104. 
 
 (/) 2Ld. Raym. 880. Willes, 258. 2 Blac. Rep. 925. 3 "Wils. 465, S. 0. 
 
 iff) Append. Chap. VIII. § 52. (h) 1 H. Blac. 301. Ante, 150. 
 
 (i) Append. Chap. VIII. g 54. And for the forms of ac etiams, in C. P. see id. § 62, 3, &c. 
 
 [k) 2 Taunt. 161, but see Barnes, 117, contra. 
 
 {I) Cas. Pr. C. P. 106. 1 H. Blac. 120. and see 2 Chit. Rep. 239, 356. 
 
 (a) Barnes, 409,420, 427. 2 Wils. 117, S. C. 1 H. Blac. 222. 
 
 (6) 3 Wils. 454. 2 Blac. Rep. 918, S. C. (cc) I H. Blac. 291. 1 Bos. & Pul. 342
 
 OF PROCESS'IN THE EXCHEQUER OBlPL'EAS'. ^ . % 154 
 
 .5^,,, ^jjjj. EXcllEQUER OBlrL^A^.^ . % 
 
 before It is returnable, the plaintiff may have one or more writs of capias 
 hjj continuance, in order to arrest him in the same county; and need not 
 sue out an alias or pluries cai)iat<.{dd) And if a capias by continuance be 
 tested on the same day as the original caijias, a new original capias may 
 be sued out to warrant it, though such new original bear teste before the 
 cause of action accrued. (e) It was formerly necessary, where the defend- 
 ant resided in a different county from that in which tlic plaintifl" meant to 
 lay the venue, to sue out a capias into the latter county, and then a testa- 
 tum into the other ;(/) fur the plaintiff lost his bail, if he dcchired in any 
 other count}'' than tliat in which the capias issued, as is still the case by 
 original in the King's Bench :(^)but a rule having been made in the Com- 
 mon Pleas,(/f) that "where the defendant is arrested by virtue of a capias 
 ad respondendum in any county, and bail is put in thereupon, the plaintiff 
 may declare in a different county, without its being deemed a waiver of 
 the bail," it is now usual to sue out a capias at once, into the county in 
 which the defendant resides; and where he cannot be found in that county, 
 the plaintiff's attorney may sue out a capias, or testatum,(i) into another. 
 AVhere the jfirst capias issued on an affidavit of debt sworn before and filed 
 witli the filacer, if a second capias issue, there must be a new affidavit of 
 debt, sworn before and filed with the filacer of the second county ;(/i:) the 
 statute(/) re([uiring, that the affidavit should be sworn before the officer 
 Avho issues the process, or his deputy: but where a testatum capias issues, 
 a new affidavit is unnecessary :(m) And an original cap)ias cannot regularly 
 issue into a county palatine ;(w) but the defendant maybe arrested therein 
 on a testatum capias. In any of the foregoing writs, if the defendant 
 reside within a liberty, there may be clause of nan omittas,{o) empowering 
 him to enter it. These writs are issued, on a T^ro^tcv proecipc{p) or note 
 of instructions, and signed by the filacer; after which they arc sealed; 
 and, in bailable cases, it is usual at the same time to make an affidavit of 
 the cause of action, before the filacer or his deputy. 
 
 *A writ cannot be altered, after it is issued, without re-sealing [ *155 ] 
 it ;(rt) but a mistake therein may be cured, by altering the writ, 
 and getting it re-sealed, before its return :{h) And, in the King's Bench, 
 the return day may be altered, and postponed from time to time, on re- 
 sealing the writ ; provided a term do not intervene between the teste and 
 day on which it is ultimately made returnable.(c) 
 
 In the Exchequer of Pleas, the first process used for bringing the dcfend- 
 
 {dd) Imp. C. P. 7 Ed. 92. The capias by continuance is in the same form as the first capias ; 
 for which see Append. Chap. VIH. ^ 52, 54. 
 
 (e) 1 lios. & Pul. 342. 
 
 (/) For the form of a testatum capias, in C. P. see Append Chap. VIII. § 58, and for the 
 like writ, into a county palatine, see id. ^ G2. 
 
 (ff) 3 Lev. 235. R. E. 2 Geo. II. [a). K. B. 
 
 (A) R. II. 22 Geo. III. C. P. 1 Moore, 515. (t) 2 Bos. & Pul. 516. 
 
 (k) 2 .Moore, 192. 8 Taunt. 242, S. C. 1 Maule & Sel. 230. 3 Biug. 39. 10 Moore, 318, 
 S. C. accord, but see 2 Taunt. IGl, semb. contra. 
 
 (l) 12 Geo. I. C.29, p. 
 
 (m) 2 Taunt. 164, 166, and see 7 Barn. & Cres. 526. 1 Man. & Ryl. 232, S. C. Post, 
 179, 80. 
 
 (n) 1 Moore, 514. (o) Append. Chap. VIII. § 60. 
 
 {p) Id. I 51,53, 56, 57,59. 61. 
 
 (a) 1 Chit. Rep. 319. (6) /(/. 321, 398. (a). Ante, 148. 
 
 (cj 1 Barn, k Ores. HI. 2 Dowl. & Ryl. 211. S. C.
 
 155 
 
 ^A^^<'^oi^^i^^ 
 
 ant into court, in ordinary cases, is a venire facias, subpoena, ov quo minus 
 capias, ad respondendum. The venire facias, we have seen,(t?) is in nature 
 of an original writ ; and was the process used at common law, against per- 
 sons having privilege of parliament. This process is issued, on a proper 
 prcvcipe,[e) and directed to the sheriff; commanding him to cause the 
 defendant to come before the barons of the Exchequer at Westminster, on 
 a day in term, to answer the plaintiif of a plea of trespass on the case, [or 
 as the nature of the action may be,) whereby he is the less able to satisfy 
 his majesty, the debts which he owes him at his Exchequer, &c.(/) On 
 this writ, the practice, before the statute 51 Geo. III. c. 12-t, § 2, was for 
 the sheriff, to whom it was delivered, to make out a warrant or summons[g) 
 to his officer, who thereupon summoned the defendant, by delivering to 
 him a copy of the summons, or leaving it for him, in his absence, at his 
 dwelling house, or place of abode; and, upon the sheriff's return of the 
 names of the summoners,(/i) if the defendant did not appear, a distringas[i) 
 issued, on a ^x o^er prsecipe,{k) against his lands and chattels, upon which 
 the sheriff returned issues to the amount of 40s. ;(?) and after that, if 
 necessary, an alias or pluries distringas :{m) And it was a rule, that when 
 issues were returned upon any writ of distringas, the plaintiff might im- 
 mediately after the return thereof, apply by motion for increasing issues, 
 upon further process to be issued between the parties ; which issues were 
 increased from time to time, at the discretion of the court.(w) But the 
 process by venire facias and distringas, in the Exchequer, is now regu- 
 lated by the statute 7 & 8 Geo. IV. c. 71, § 5.(o) And though, when the 
 defendant is abroad, the plaintiff is not allowed to issue a distringas, as a 
 preliminary step to entering an appearance for him according to the sta- 
 tute, so that he may proceed thereon to final judgment, as if the defend- 
 ant himself had appeared ;(p) yet in other cases, he may still 
 [ *156 ] proceed by distringas, on *service of the venire facias, for the 
 purpose of compelling an appearance, as he might have done 
 before the act.(a) The present mode of proceeding on that statute, is by 
 serving the defendant personally, if possible, with a copy of the veriire ; 
 or, if he cannot be met with, by leaving such copy at his dwelling house, 
 or usual place of abode, (6) with some adult member of his family there, or 
 the person with whom he lodges : and service of the venire on the wife of 
 the defendant, at his dwelling house, has been deemed good service, (c) 
 So, where a copy of the writ was left with a servant of the defendant's 
 brother, who was also his partner, and a co-defendant in the action, at 
 whose house the servant acknowledged he had resided, this was considered 
 as good service, although the party at the time was out of the kingdom :{d) 
 
 (d) Ante, 92. 
 
 (fi) Append. Chap. VIII. ? 76. ( A) Id. ? 77. (g) Id. I 80. 
 
 (A) M § 81, 2. («") Id. I 84. (k) Id. §'83. [1) Id. § 88. 
 
 (m) Id. I 85. And for the form of a sheriff's warrant oa a writ of distringas, &c. see id. 
 §87. 
 
 (ra) R. T. 26 & 27 Geo. II. | 6, in Scac. Man. Ex. Append. 212. 5 Price. 639, n. and see 
 Forrest, 29. 5 Price, 522, 3, in notis. Id. 639, as to the manner in which the court exer- 
 cise their discretion in increasing issues on writs o( distringas. 
 
 (o) Ante, 114, and see 5 Taunt. 71. [a). 
 
 (p) 3 Price, 263. And see id. 266, n. 5 Price, 522, 639, ante, 114, (/), by which it 
 seems, that the ancient practice of issuing writs oi distringas in the Exchequer, on default of 
 appearance on the venire facias, still continues. 
 
 (a) 3 Price, 263. but see 2 Price, 12. 5 Taunt. 703. 1 Marsh. 292, S. C. 
 
 (b) 3 Price, 266. (c) 2 Price, 4. 
 {d) 3 Price, 176. and see Bunb. 107. Forrest, 29. 3 Price, 266, 7.
 
 IN THE EXCHEQUER OF PLEAS. 156 
 
 but delivering a copy of the writ at the counting house of the defendant, is 
 not sufficient, (ee) unless it be given to a partner, or some accredited person 
 there. (^) To ground a motion for a diatrlngas, on the above statute, an 
 affidavit must be made in this court, similar to that in the King's Bench and 
 Common Pleas •,{ii) and the subsequent proceedings are the same as in 
 those courts. 
 
 The suhprrna ad respondendum is a process directed to the defendant ; 
 commanding him to appear before the barons of the Exchequer at West- 
 minster^ immediately after service thereof in term, or, if sued out in vaca- 
 tion, on a day in the next term, to answer the king under the penalty of 
 100^., concerning certain articles then and there, on his majesty's behalf, 
 to be objected against him. (A) This process, we have seen,(j) is analagous 
 to the suhpccna in Chancery, or on the equity side of the Exchequer : and 
 may be issued out of the oHice of Pleas ; and it is not necessary that such 
 process should be signed by the chief secondary, or a sworn clerk in the 
 office of the king's remembrancer.(^) A copy of the writ, or label,[l) spe- 
 cifying the day of appearance, is made out thereon, and served on the 
 defemhint. But it is not the practice, as in Chanceri/, to serve asubjuvna, 
 by leaving the body of the writ with the defendant, where there is but 
 one : It is sufficient, if a copy or label be left, and the original produced, 
 and shown to him.(m) If the defendant do not appear within /our days 
 after the return of it, an affidavit{n) is made of the service ; upon which 
 there issues an attaehment^{o) and afterwards, if necessary, a distringas, 
 on the statute 7 & 8 Geo. IV. c. 71, § 5. Previously to that statute there 
 issued, on the defendant's non-appearance to the attachment, an 
 alias or *p)luries aftacJwient, with a clause of piroclamation ;{a) [ *157 ] 
 and, on the return of non est znventus,{b) if he still made default, 
 a commission of rebellion,{c) for taking him into custody by a serjeant at 
 arms : but now, as the statute 7 & 8 Geo. IV. c. 71, § 5, extends to pro- 
 cess by subpoena and attachment, the mode of proceeding to compel an 
 appearance, is regulated by that statute. (c?) And, by a late rule of court,(ce) 
 '"'■ prvecipes for all subpoenas and attachments that are issued in the office 
 of pleas, with the names of the parties therein, the returns of such writs, 
 the dates when they are issued, and the names of the attorneys or side 
 clerks issuing the same, shall be given to the officer who signs such writs 
 as require the name of the clerk of the pleas to be set thereto, on issuing 
 ^\xc\\ subpoenas and attachments,(/) and on the issuing of all attachments 
 for want of appearance, the affidavits of service(^_^) of the sid^p'vnas upon 
 which such attachments are issued, shall be filed on a file to be kept for 
 that purpose in the said office." 
 
 (ee) 2 Price, 9. (/) 3 Price, 266. 
 
 Iff) Ante, 115; and see Man. Ex. Append, p. 15. 
 
 (h) Append. Cliap. VIII. § 94. (t) Ante, 92. 
 
 (k) 9 Price, 385 ; but see R. H. 19 Jac. I. R. M. 36 Car. II. Exoheq. contra; which rules 
 were considered in the above case as obsolete. 
 
 (l) Append. Chap. VIII. § 96. 
 
 (m) 6 Price, 34. And as to the service of a tubpoena, on the Equity side of the court of 
 Exchequer, see 1 Yonn. & J. 570. 
 
 (n) Append. Chap. VIII. ? 97, 8. (o) Id. ? 100, Ac. 
 
 (a) Append. Chap. VIII. ^ 104. [h) Id. ^ 105. 
 
 (c) Id. I 107. And for the form of the returns thereto, see id. § 108, 9. 
 
 (d) Ante, 113, &c. 
 
 lee) R. E. 45 Geo. III. m Scac. Man. Ex. Append. 226. 8 Price, 506. 
 (/•) Append. Chap. VIII. g 93, 99, 103, 106. 
 [gg) Id. I 97, 8. 
 
 Vol. I.— II
 
 Igy ON PROCESS, ETC. 
 
 The quo minus capias, which answers to the bill of 3Iiddlesex or latitat 
 in the King's Bench, and capias quare, clausum fregit in the Common 
 Pleas,(/;/i) is a process directed to the sheriff; commanding him to take 
 the defendant, and safely keep him, so that he may have his body before 
 the barons of the Exchequer at Westminster, on a day in term, to answer 
 the plaintifl' of a plea of traspass, whereby he is the less able, &c.(n) This 
 process, as well as the venire facias and distringas, is issued, on a proper 
 prcecipe,{k) and always contains a clause of non omittas ;[l) and it must 
 be tested in term-time, in the name of the chief baron or senior baron of 
 the court, if there be no chief baron. If sued out in term-time, it is 
 usually tested as in the other courts, on the first day of that term ; or, if 
 sued out in vacation, on the last day of the preceding one : and it may be 
 made returnable on any day in term, not being a Sunday, or other dies 
 nonjuridicus, as the feast of the Purification, &c. If, as is commonly the 
 case, the writ be made returnable on a general return, it is described 
 accordingly, as in process by original writ ; or, if on any other day, it is 
 
 usual to state the day of the month, as " on the day of 
 
 instant, [or next coming:") and it may be made returnable, by the day of 
 the month, on any day except a dies non juridicus.{m) Writs of venire 
 facias, distringas, and quo minus, &c. are signed with the name of the 
 clerk of the pleas ; but suhijoenas, and process of contempt thereon, are 
 not signable, but issued under the seal of the court, and subscribed, " By 
 the Barons. "(w) 
 
 In suing out process, in the Exchequer of Pleas, the attorneys and side 
 
 clerks, by whom the business of the court is transacted,(o) act 
 [ *158 ] either as ^principals, immediately employed by the parties, or 
 
 as agents to attorneys so employed, and admitted in either of the 
 other courts at Westminster, who as such are solicitors on the plea side of 
 this court. When an attorney of the Exchequer acts as principal, his 
 name only is written, opposite to that of the clerk of the pleas, at the foot 
 of a signable process, as attorney for the plaintiff; but when he is only an 
 agent, the name of the solicitor for whom he acts is first written thus, " E. 
 F. Solicitor," and then his own name, and afterwards that of the clerk of 
 the pleas. When a clerk in court acts as principal, his name is written 
 thus, " G. H. Clerk in Court," and then the initial of the name of the 
 attorney in whose division he is : but when he is only an agent, the name 
 of the solicitor is first written, and then his own name, without stating 
 him to be a clerk in court ; afterwards, the initial of the attorney's name ; 
 and lastly, the name of the clerk of the pleas. If the process be not 
 signable, the attorneys name or initial is indorsed thereon, instead of being 
 written at the foot of it. (a) 
 
 {hh) Ante, 82. (tt) Append. Chap. VIII. § 111. 
 
 \k) Id. I 76, 83, 110. 
 
 {I) Id. § 77, 84, 111. (ct) 1 M'Clel. & Y. 483, 495, 6. 
 
 In) Append. Chap. VIII. § 94, 102, 104, 107. (o) Ante, 58. 
 
 (a) Append. Chap. VIII. § 95, 101 ; and see 2 Chit. Rep. 84. For writs and process ia 
 general, in the court of Exchequer of Pleas, see Man. Ex. Pr. Chap. III. ; for the venire facias 
 ad retpo7idendum, and subsequent process of distringas, Id. Chap. IV. Append. Chap. VIII. 
 § 77, &c. 84, &c. ; for the subpoena ad respondeiidum, and subsequent process, Man. Ex. Pr. 
 Chap. VI. Append. Chap. VIII. § 94, &c. ; and for the quo minus, &c. Man. Ex. Pr. Chap. 
 VIII. IX. X. Append. Chap. VIII. g 111, &c.
 
 OF INDORSEMENTS. ETC. 158 
 
 It will here be proper to take notice of some things that are required by 
 act of parliament, to be set down, subscribed to, or indorsed upon the pro- 
 cess, in the different courts. And first, by the statutes 5 & G W. & M. c. 21, 
 § 4, and 9 k 10 W. III. c. 25, § 42, made for preventing abuses committed 
 by arresting persons, without any writ or legal process to justify the same, 
 and by that means evading the stamp duties thereon ; the ofhcer, who shall 
 sign any writ or process, to arrest any person or persons before judgment, 
 shall, at the signing thereof, set down upon such writ or process, the day and 
 year of his signing the same."(^) And by a subsequent statute,(c) made for 
 the like purposes, "every warrant, issuing upon any such writ or writs, shall 
 have the same day and year plainly and distinctly set down thereon, as shall 
 be so set down on the writ itself." The indorsement of the date, however, 
 is said to be no part of the writ: and therefore, if the teste be right, the 
 courts will not set aside the proceedings, for a mistake of the indorsement.(f?) 
 But where, in an action against an attorney for negligence, in not proceeding 
 to judgment and execution in due time, the bill of Middlesex against the ori- 
 ginal defendant (having no teste,) was stated, under a videlicet, to 
 have issued *on the 24th of January 1785, returnable on Monday [ *159 ]; 
 next after fifteen days of St. Hilary in the same year, which was 
 really the fact, but by a mistake of the indorsement, it appeared in evidence 
 to have issued on the 24th of January 1784, the plaintiff was nonsuited ; and 
 on a motion for a new trial, the court were of opinion, that the time of pro- 
 ceeding against the original defendant depending on the return of the writ, 
 the return became material, and therefore the variance was fatal. (a) 
 
 By the statute 12 Geo. I. c. 29, § 2, the sum specified in the affidavit of 
 the cause of action, is required to be indorsed on the back of the writ or 
 process for holding the defendant to special bail. This part of the statute, 
 however, is merely directory to the sheriff; and does not avoid the process, 
 when the sum sworn to is not indorsed upon \%.{bh) And where the demand is 
 made up of several items, it is sufficient to indorse the total of them on the 
 writ.(cc) 
 
 A further regulation was made by the statute 2 Geo. II. c. 23, § 22, which 
 enacts, that "every writ and process, for arresting the body, and every writ 
 of execution, or some label annexed to such writ or process, and every war- 
 rant that shall be made out thereon, shall, before the service or execution 
 thereof, be subscribed or indorsed with the name of the attorney, clerk in 
 court, or solicitor, written in a common legible hand, by whom such writ, 
 &c. respectively shall be sued forth ',{dd) and where such attorney, &c. shall 
 not be the person immediately retained or employed by the plaintiff, then 
 also with the name of the attorney, &c. so immediately retained or em- 
 ployed, to be subscribed or indorsed and written in like manner. And that 
 every co/'^ of any writ or process, that shall be served upon any defendant, 
 shall, before the service thereof, be in like manner subscribed or indorsed, 
 
 (6) Append. Chap. VII. g 2. Chap. VIII. § 7, 22, 29, 55, 95, 101. 
 
 (c) 6 Geo. I. c. 21, g 54. 
 
 [d) 1 Wilg. 91. And the indorsement by the officer, on the back of a writ of summons of 
 four knights, to make election of the grand assize, on a writ of right, that " the four knights 
 were duly iworn," which was not true, was holdun to be no part of the return, so as to make 
 the sheriif^answurable for the contents of such indorsement, in an action for a false return. 
 3 Moore, 249. 1 Brod. & Biug. 17, S. C. 
 
 {a) 1 Durnf. & East, G5G. 
 
 (66) 1 Bur. 330. Barnes, 414. 1 11. Blac. 76. 4 Bing. 63 ; but see 2 New Rep. C. P. 202. 
 iemb. contra, 
 {cc) 4 Biug. 63. {dd) Append. Chap. VIII. § 22, 29, 55.
 
 jf^g OF IRREGULARITY IN PROCESS. 
 
 with tlie name of the attorney or solicitor who shall be iinmediately re- 
 tained or employed by the plaintiff." And, by a late rule of the court of 
 Kin<'''s Bench, (e) "the attorney concerned for the plaintiff in the cause, or 
 his agent, shall, upon all bailable mesne process, and every writ of attach- 
 ment, indorse the place of abode and addition of the party against whom 
 the writ issued, or such other description of him, as such attorney or agent 
 may be able to give." 
 
 But, by the statute 12 Geo. II. c. 13, § i, " the not subscribing or indorsing 
 the name of the attorney, &c. on any warrant that shall be made out upon 
 any writ, &c. shall not vitiate the same ; but such writ, &c. and all proceed- 
 ings thereon, shall be as valid and effectual, notwithstanding such omission, 
 as if the preceding act had not been made; provided the writ, whereon such 
 warrant is made out, be regularly subscribed or indorsed, according 
 [ *160 ] to the act."(/) Since the making of this statute, *though the 
 omission of the attorney's name upon the warrant, which is the 
 act of the sheriff, will not vitiate the proceedings, (a) yet if it be not sub- 
 scribed to or indorsed on the writ, or copy[h) they may be set aside for 
 irregularity. 
 
 Lastly, by the statute 7 & 8 Geo. IV. c. 71, § 8, reciting that arrests of 
 the person had in many instances been made under writs sued out by per- 
 sons not being attorneys or solicitors, and whose places of residence were 
 unknown, which practice had been found to be productive of oppression 
 and vexation ; it is enacted, that " no sheriff, under-sheriff, or other officer, 
 having the execution of process, shall grant any warrant for the arrest of, or 
 shall arrest the person of any defendant, upon any writ or process issued by 
 any plaintiff in his own person, unless the same writ shall, at or before the 
 time of granting such warrant, or of making such arrest, be delivered to such 
 sheriff, under-sheriff, or other officer having the execution of process, by 
 some attorney of one of the courts of record at Westminster, or of the 
 courts of Great Sessions in Wales, or of the courts of the counties palatine 
 of Lancaster or Durham, or of the court out of which the said writ shall 
 have issued, or by the clerk of such attorney, or an agent authorized by such 
 attorney in writing; and unless the said writ shall be indorsed by such attor- 
 ney or his clerk, or such agent as aforesaid, in the presence of such sheriff, 
 under-sheriff, or other officer having the execution of process, with the name 
 and place of abode of such attorney." And, by § 9, "all warrants granted, 
 and all arrests of the person made, contrary to the provisions of that act, 
 shall be altogether illegal and void. Provided always, that nothing therein 
 contained, shall extend to any writ or process sued out by any attorney, 
 solicitor, clerk of court, or other officer of any court, having authority to 
 sue out process in his own name." 
 
 If there be no process,((?) or if it be defective in point of form,(c?) or in 
 its direction,(^) teste,(^) or return,(^) or the attorney's name be not indorsed 
 
 (e) R. H. 2 & 3 Geo. IV. K. B. 5 Barn. & Aid. 560. 2 Chit. Rep. 377. 1 Dowl. & Ryl. 47 1. 
 (/) See R. T. 1 Geo. II. [b). K. B. 1 Chit. Rep. 611, (a). 
 
 (a) Pr. Reg. 441, 2. Barnes, 414, S. C. 
 
 (b) Barnes, 415. Wright ^ another v. Willes, M. 21 Geo. III. K. B. Per Cur. T. 29 Geo. 
 III. K. B., but see Pr. Reg. 440, 41. Cas. Pr. C. P. 102. Barnes, 407, S. C. 
 
 (c) 2 Chit. Rep. 237. {d) 3 Durnf. & East, 660. 
 (e) 2 Ken. 287. 1 Blac. Rep. 506. Barnes, 422. 
 
 (if ) 2 Bur. 954, 967. 5 Bur. 2588. 2 Blac. Rep. 683, S. C. Barnes, 407, 8, 9, 420. 
 {g) 1 Str. 399.
 
 OF ENTERING PROCESS ON THE ROLL. ICO 
 
 upon it,(/t) the defendant may move the court to set aside the proceedings 
 for irregularity. And a writ, liaving a wrong return, will not be aided, by 
 a correct day being mentioned in the notice to appear.(i) But he cannot 
 take advantage of any error or defect in the process, after he has appeared to 
 it,(/c) or taken the declaration out of the o(Tice,(/)or obtained time to put in 
 bail to the action ;(?«) for it is the universal practice of the courts, 
 that the *application to set aside proceedings for irregularity [ *1(J1 ] 
 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 after- 
 wards revert back and object to it.{b) In the Common Pleas, the court 
 will not quash a writ, on the ground of its having been served in a wrong 
 county. (e) And it is said, that a mistake in the process is cured by the 
 plaintiff's entering an appearance, which has always been looked upon as 
 effectual for that purpose, as if the defendant had entered the appear- 
 ance ;{d) bnt the plaintiff cannot, by entering an appearance, cure the 
 want of service of a copy of the process,(e) or a defect in the notice sub- 
 scribed thercto.(/) It is also said, that no advantage can be taken of the 
 irregularity of process, without having it returned, and before the court. (^7) 
 And where the irregularity complained of is not in the process, but in the 
 notice to appear thereto,(7i/i) or in the service of it,{ii) the rule should be to 
 set aside such service, and not the process itself.(M)[A] 
 
 The courts will in general amend the process, where there is any thing 
 to amend by:(Z/)[B] and it has been amended in the name of the defend- 
 
 (A) Wright and another v. ^YiUcs, M. 21 Geo. III. K. B. Per Cur. T. 29 Geo. III. K. B. 
 Barnes, 415. 
 
 (»■) 2 Chit. Rep. 356. and see 4 Barn. & Aid. 288. 
 
 \k) 1 Str. 155. Barnes, 163, 167, 415. 1 Bos. & Pul. 250, 344. 
 
 (/) Cas. temp. Hardw. 242. 2 Str. 1072, 3. Wright ij- another v. Willes, M. 21 Geo. III. K. 
 B. Barnes, 416. 1 H. Blac. 222, 3 C. P. 
 
 (m) G Barn. & Cres. 76. 9 Dowl. & Ilyl. 124, S. C. 
 
 \a) 3 Durnf. & East, 7. 1 East, 334, 5. 8 Dowl. & Ryl. 450. 9 Price, 637. 
 
 [b] 1 East, 77, and see 3 Uunif. & East, 10. 5 Durnf. & East, 254, 464. 1 East, 330. 2 
 Smith, R. 391. 1 Chit. Rep. 333. 2 Chit. Rep. 236. 8 Dowl. & Ryl. 450, K. B. 1 U. Blac. 
 251. 1 Bos. & Pul. 250, 344. 1 Taunt. 59. 2 Taunt. 244. 4 Taunt. 545. 6 Taunt. 6. 
 
 1 Marsh. 403, S. C. 6 Taunt. 185. 1 Moore, 209, C. P. 9 Price, 637, Excheq. 
 
 (c) I Marsh. 9. 
 
 (rf) Prac. Reg. 347, 8. Scd qucere ? as from later decisions it seems, that in the Common 
 Pleas, the defendant is not bound to apply to the court, for an irregularity in process, until 
 the plaintiff has taken some step, by which he shows that he means to proceed upon it. 6 
 Taunt. 5. 1 Marsh. 403, S. C, and see 5 Taunt. 664. 6 Taunt. 191, 2. 1 Marsh. 551, S. C. 
 
 2 Chit. Rep. 236. 7 Moore, 461. 1 Bing. 122, S. C. 
 
 (e) Barnes, 406. (/) Prac. Reg. 347. 2 Price, 9. 
 
 Iff) 3 Wils. 58, but see 5 Taunt. 854, where it was said by Mr. Sergeant Best, arguendo 
 that the practice was uniform, to make these motions before the writ was returned. 
 (hh) 9 East, 528. 5 Taunt. 652, (a). 1 Chit. Rep. 384. 
 (h) 5 Taunt. 644. 1 Bing. 65. (kk) I Chit. Rep. 616, (a). 
 
 (11) 1 Durnf. & East, 782. 
 
 [a] Where the delayer irregularity in the cause has proceeded from the gross negligence 
 or ignorance of the solicitor, the court will, in its discretion, relieve the client against the 
 consequences of the delay or irregularity. Pratt v. Adam.t, 7 Paige, C. R. 615. The costs 
 of an irregularity arising from the gross ignorance or negligence of the solicitor, will be 
 charged upon the solicitor personally. ( Walworth, Ch.) Kane v. Van Vranken, 6 Paige, C. 
 R. 62. 
 
 [b] In this country amendments have been much regulated by statutes, and great liber- 
 ality has been allowed. Thus in Pennsylvania, the pleadings may be amended at any stage 
 of the proceedings before or on the trial; and mistakes in the names of the parties may be 
 corrected even after judgment by confession. Purd. Dig. p. 38, Brightly's Ed. 1853. In
 
 IQl OF ENTERING PROCESS ON THE ROLL. 
 
 ant, where he was a prisoner in custody under it.{mm) But the court of 
 Kinf^'s Bench would not grant a rule for amending the writ, under which 
 
 (mm) Per Cur. M. 48 Geo. III. K. B., and see 7 Durnf. & East, 698. 
 
 Ohio, like liberality is allowed. See Curwen's Laws, p. 1183, 1184. And in New York. 
 Bee Blatcbford's Gen. Stat. p. 240. Massachusetts Rev. Stat. ch. 100, § 22, p. 608. 
 
 The power to grant amendments is a discretionary power in the court, and in general, 
 will not be interfered with on writ of error. Caldwell v. M^Kee, 8 Missouri, 334. Lansing v. 
 Birge, 2 Scam. 375. Green v. Robinson, 3 How. Miss. 105. Quiett v. Boon, 5 Iredell, 9. 
 Perley v. Broion, 12 N. Hamp. 493. Dyott v. Com., 5 Whart. 67. Archer v. Stamps, 4 Sm. 
 & Marsh. 352. Neioall v. Hussey, 6 Shep. 249. Glasscock v. Glasscock, 8 Missouri, 577. 
 They are almost universally allowed, where they do not surprise, hinder, or delay the 
 opposite party. They may be allowed even after a mis-trial. Uester v. Haygood, 3 Hill, S. 
 C. 195. Cayce v. Ragsdale, 2 Benn. Miss. Rep. 32. 
 
 Every court of record has power over its own records and proceedings, as long as they 
 remain incomplete, and until final judgment is rendered ; and until that time it is the estab- 
 lished practice in such courts to regard all actions, whether on the docket of the existing or 
 a former terra, as within the jurisdiction and control of the court. Woodcock v. Parker, 35 
 Maine, (5 Red.) 138. Killein v. Sistrunch, 7 Geo. 281. Barefield\. Bryan, B, Geo. 463. 
 Bagley v. Wood, 12 Ired. 90. Until the expiration of the term, the court has authority to 
 amend, reverse, or annul its judgments, as well upon material as immaterial points, upon 
 the merits as well as upon matters of form ; so that it is not error to allow a judgment to 
 be amended, after a motion to set it aside has been overruled and notice of appeal entered. 
 Wood V. Wheeler, 7 Texas, 13. And these amendments may be made of their own motion 
 or on the suggestion of any parly interested, and without notice to any one, and they are 
 the exclusive judges of the necessity and propriety of amending. Balch v. Shaw, 7 
 Cush. 282. 
 
 Where there is no statute on the subject, amendment is a matter of mere discretion ; and 
 the exercise of that discretion cannot be impeached or controlled by bill of exceptions or 
 error. Wyman v. Dorr, 3 Greenl. 183. Clapp v. Balch, lb. 219. ilandeville v. Wilson, 5 
 Cranch, 15 Walden -v. Craig, d Wheat, biQ Chirac v. Peinicker, 11 Wheat, 302. Bailey v. 
 Musgrave, 2 S. & R. 29. Benner Y.Fry, I Bin. 369. Stephens y. Watts, 2 Wash. 203. llarine 
 Insurance Co. v. Hodgson, 6 Cranch, 206. United States v. Biiford, 3 Pet. 12. 3Ierriam v. 
 Langdon, 10 Conn. 460. Brown v. WCune, 5 Sandf. 224. Phincle v. Vaughan, 12 Barb. 215. 
 Green v. Cole, 13 Ired. 421. Bean v. Moore, 2 Chand. Mis. Rep. 44. Austin v. Jordan, 5 
 Texas, 130. King v. The Bank, 4 Eng. 185. Wilson v. Johnson, 1 Green's Iowa Rep. 167. 
 Saunders v. Smith, 3 Kelly, 121. Graves v. Fulton, 7 How. Miss. 592. And the amend- 
 ments may be made at any stage of the proceedings, provided the opposite party be not 
 put in a worse situation. Beard v. Young, 2 Overt, 54. Cooper v. Jones, 4 Sandf. S. C. 
 699. Cariwright v. Chabert, 3 Texas, 261. 
 
 Mere clerical errors may always be amended, even in criminal cases. Sharffv, Common- 
 wealth, 2 Binn. 514. Keans v. Rankin, 2 Bibb. 88. Anon. 1 Gallis, 22. State v. Seaborn, 
 4 Dev. 319. Vandyke v. Dare, 1 Bailey, 65. State v. Williams, 2 M'Cord, 301. Young v. 
 State, 6 Ham. 435. Toomer v. Parkey, 1 Rep. Const. Ct. 323. Jackson v. Anderson, 4: Wend. 
 474. 
 
 It may be stated, as a general rule, that any mere clerical error is amendable. Smith y. 
 The Bank, 5 Ala. 26. Mitchell v. Sparkes, 1 Scam, 122. Galloway v. M^Geihens, 5 Ired. 12. 
 Dearing v. Smith, 4 Ala. 432. Jordan v. The Bank, 5 lb. 284. Hawley v. Bales, 19 Wend. 
 632. ^Tziem V. Po«s, 5 Blackf. 534. TFoorfs v. G^rfm, Wright, 503. Scale y. Siu an, d V oxter, 
 163. Smith v. Strode, lb. 446. Furness v. Ellis, 2 Brock, 14. Cherry v. Woodard, 1 Ired. 
 438. Otez v. Rodgers, 4 Ibid. 534. M'Call v. Trevor, 4 Blackf. 496. Johnson v. JVash, 5 
 Washb. Verm. 40. Sheppard v. M'Clay, 12 Ala. 561. Silner v. Butterfield, 2 Carter Ind. 
 Rep. 24. Austin v. Jordan, 5 Texas, 130. Thus where the inferior court of Georgia had 
 passed an order requiring the clerk to issue a fi. fa. against the treasurer of a county, but the 
 clerk failed to record such order, it was held, that it was competent for the inferior court, 
 after the fi. fa. has been issued, to place the order on the minutes, nunc pro tunc. Foster v. 
 The Justices, <5'c., 9 Geo. 185. So where a seal was omitted from a citation, the clerk of the 
 court was allowed to amend it, by affixing a seal. Cartturight v. Chabert, 3 Texas, 261. It 
 rests in the discretion of the court. Clark v. Ilellen, 1 Ired. 421. Purcell v. MFarland^ 
 1 Ired. 34. A writ of error may be amended by afiBxing a seal to it. Loite v. Morris, 13 
 Geo. 147. The People v. Steuben Co., 5 Wend. 103. But see where leave was refused, Ilall 
 V. Jones, 9 Pick, 446. Bailey v. Smith, 3 Fairf. 196. Stayton v. Neivcomb, 1 Eng. 451. And 
 in Maine it has been held, that an original writ without a seal cannot be amended. Bailey 
 V. Sinith, 3 Fairf. 196. Tibbetis v. Shaw, 19 Maine, 204. Wethcrill v. Randall, 30 Id. 168. 
 
 An error in the test of a writ may be amended. Nash v. Brophy, 13 Metcf. 218 ; Baker v. 
 Smith, 4 Yeates, 185; Shoemaker v. Knorr, 1 DalL 197; Ross v. Luther, 4 Cow. 158; Z>e-
 
 OF ENTERING PROCESS ON TUE ROLL. 161 
 
 the defendant had been arrested by a wrong name, after actions of false 
 imprisonment had been brought for such arrest. (n) So, an amendment 
 cannot be made of mesne process, by adding the name of another person 
 as plaintiff.(o) A writ returnable on a dies non is altogether void, and 
 cannot be amended by the court.(jiO And the courts, we have seen,(^) 
 will not in general allow a writ to be amended, to the prejudice of the 
 bail. [a] 
 
 Before or immediately after the end of every term, the sheriff is required, 
 by an old rule,(r) to deliver and return into court, all writs of 
 latitat^ *and writs thereupon issuing out of the King's Bench. [ *1G2 ] 
 And where a writ is sued out to avoid the statute of limitations, 
 it should regularly be entered on a roll, and docketed, with the slieriff's 
 return thereto, and contbiuances to the time of declaring.(aa) The writ 
 should be entered on a roll of that term wherein it was returnable ; and, 
 in the King's Bench, it is entered in hxc verba : after which tlie roll pro- 
 ceeds with an entry of the plaintiff's appearance, the sheriff's return of 
 non est inventus^ and continuances of the process from term to terra, by 
 viceeomes non misit breve, to the term of the declaration. In the Common 
 
 I 
 
 (n) Anon. M. 41 Geo. IIL K. B. (o) 1 Chit. Rep. 369. 
 
 \p) 4 Barn. & Aid. 288, but see 6 Moore, 113. 3 Brod. & Bing. 25, S. C. 
 (q) Ante, 130. (r) R. E. 6 Jac. I. K. B. 
 
 (aa) 2 Wms. Saund. 5 Ed. 1, (1). 8 Moore, 189. Append. Chap. VIIL J 48, 9, 50, 75, 
 112, and see Append. Chap. VL I 28. Chap. XIV. § 7. 
 
 moss V. Camp, 5 How. Miss. 516; Converse v. The Bank, 3 Shep. 431 ; Ripley v. WarTtn, 2 
 Pick. 592 ; or, in the ad dammim, Cragen v. Warfield, 13 Metcf. 218 ; Foulkcs v. Webber, 8 
 Humph. 530; Converse v. The Bank, 3 Shep. 431; M'Lcllan v. Crifton, 6 Greenl. 307; Clark 
 V. Herring, 5 Binn. 33; Daniehon v. Andrnos, 1 Pick. 156; Gregg v. Gier, 4 M'Lean, 208; 
 Gertn v. Wright, 8 Sni. & Marsh. 360 ; Clayton v. Liserman, 7 Ired. 92. Bnt where it in- 
 volves the question of jurisdiction it cannot ; Hart v. Moloney, 2 New Hamp. 322. In the date 
 of the writ it may ; Anderson v. The Bank, 5 Geo. 821 ; Jackson y. Bowling, 5 Eng. 578 ; M'Lar- 
 ren v. Thruman, 3 lb. 313 ; Harness v. M-'Cormick, 5 Pike, C63 ; or in the names of the par- 
 ties, Wilcox V. Hawkins, 1 Hawks. 84 ; Wilson v. King, 6 Yerg. 493 ; Burnham v. Savings 
 Bank, 5 New Hamp. 573 ; Sherman v. The Conn. Bridge, 11 Mass. 338 ; Ballard v. The Nan. 
 Bank, 5 Id. 99 ; Bank v. Lacey, 1 Monr. 7 ; Anderson v. Brock, 3 Greenl. 243 ; Kincaid v. 
 Howe, 10 Mass. 203 ; M'Clurev. Burton, 1 Car. Law Reps. 472; Acquitta v. Cromwell, 1 Calf. 
 191 ; Heath v. Lent, Id. 410 ; 3faztvell v. Haven, 8 Geo. 61 ; Cauthorn v. Knight, 11 Ala. 579 ; 
 Coburn V. Ware, 12 Shep. Maine Rep. 330 ; Woodson v. Laiv, 7 Geo. 105 ; Porter v. Goodman, 
 
 I Cow. 413; Cox v. The Macon Railroad, 12 Geo. 270; Winsor v. Lombard, 18 Pick. 57; 
 Thayer v. Hollis, 3 Metcf. 309 ; or in a wrong addition or place, Gooch v. Bryant, 1 Shep. 386 ; 
 Kimball V. Wilkins, 2 Cush. 555; or in the signature of the clerk or his deputy, Whitury v. 
 Beebe, 7 Eng. 421; Farmers' Loan v. Carrcll, 2 Comst. 55C; Fcpoon v. Jenkins, Coleman's 
 Cases, 55 ; or the clerk's omission to enter defendant's appearance, Worrell v. 3['Henry, 1 
 Mann. Mich. Rep. 227 ; or irregularities in jury process, Livingston v. Rodgers, 1 Caines, 
 587 ; Beach v. The Bank, 7 Cow. 509 ; Whittier v. Varncy, 10 New Hamp. 291 ; or in the 
 record. The State v. King, 5 Ired. 203 ; Colby v. Moody, 1 App. Maine Rep. Ill ; in re Lime- 
 rick Petitioners, 6 Shep. 183 ; Simpson v. Bank, 2 Speers. 41 ; Sivency v. Dclany, 1 Barr 
 Peon. 320; or in the amount of the judgment, Walker v. Walker, 3 Harring. 502; Dearing 
 V. Smith, 4 Ala. 432 ; Hunt v. Grant, 19 Wend. 96; or in the name of the county in which 
 the alleged taking in replevin is laid, Judson v. Adams, 8 Cush. 556 ; or in the name of the 
 court, Anthony v. Humphries, G Eng. 663 ; or of the state, Harris v. Jtnks, 2 Scam. 475 ; or 
 mistake in the date, Parkman v. Crisby, 16 Pick. 297. But before any amendment can be 
 allowed there must be something to amend by. Ellis y. L'wbanks, 3 Scam. 190; Bird v. 
 Hood, 6 Black. 260 ; Beck v. Williams, 5 lb. 374 ; Jackson v. Fletcher, 1 Morris, 230 ; Beall 
 V. Fox, 4 Geo. 403 ; Nimmon v. Worthington, 1 Carter, Ind. Rep. 376 ; Sickles t. Overton^ 3 
 Barr, 325; Ellison v. The State, 8 Ala. 273 ; Fllis v. Brown, 1 Pike, 82 ; Lake v. Morse, 11 
 111. 587 ; Wright v. Hale, 2 Cush. 486 ; Smelt v. Wetherbce, R. M. Charl. 537; Dean v. Swift, 
 
 II Verm. 331. See post, p. 696 ; Vol. II. p. 922, for a fuller discussion of the law of amend- 
 ments and statutes of jeofails. 
 
 [a] See 1 Broom's Pract., p. C52, ct seq.
 
 2(52 OF THE EVIDENCE OF PROCESS. 
 
 Pleas the roll merely contains a recital of the writ, with an entry of the 
 plaintiff's appearance, and sheriff's return, &c. And when the proceed- 
 in o-s are thus entered, the roll is docketed(J) with the clerk of the judg- 
 ments in the King's Bench, or prothonotaries in the Common Pleas, and 
 afterwards filed in the treasury of the court. In replying to a plea of the 
 statute of limitations, except by original,{c) the plaintiff should show that 
 the cause was regularly continued, by vicecomes non misit breve, from the 
 return of the writ to the time of declaring.(cf) And where three latitats 
 were sued out at different times, for the same cause of action, and the 
 defendant appeared upon the second, and signed a 7ion pros for not declar- 
 ing, the court ordered the continuances subsequently entered upon the 
 first, to be struck out ; being of opinion, that the first latitat was made an 
 end of by the second ; and if it were not so, the practice of the court is 
 clear and well known, that the continuances must be by alias and pluries, 
 and not by original writs of latitat.[e) But the continuances need not 
 appear in pleading, to have been by alias and pluries writs :(/) And in 
 general, the continuances are mere matter of form, and may be entered 
 at any time.{g) It has even been holden, that they may be made by the 
 attorneys in their chambers. (A) And, in order to save the statute of limi- 
 tations, it is sufficient that the writ be sued out, and the return indorsed 
 upon it, in time ; it not being necessary that the writ should be delivered 
 out of the sheriff's office as returned.(z') 
 
 In penal and other actions, which are limited by statute to be commenced 
 within a certain time, it is necessary for the plaintiff to produce the writ 
 at the trial, or an examined copy of it, if filed, in order to show that the 
 action was commenced in due time, unless it appear to have been so com- 
 menced, on the face of the record of nisi prius. And, in the Common 
 
 Pleas, the production of a capias ad respondendum, sued out in 
 [ *163 ] time, *is deemed suflScient for that purpose. (a) But if the writ 
 
 was not sued out till after the time prescribed, though by rela- 
 tion it would be within the time, the plaintiff will be nonsuited. (65) If 
 there be only one writ, the plaintiff may give it in evidence, without 
 showing it to be returned.(cc) And if the declaration appear, on the 
 face of the record, to have been delivered or filed within the time 
 allowed by the rules of the court for declaring, it is sufficiently con- 
 nected with the writ ;{dd) if not other evidence is necessary to connect 
 them. And, in the Common Pleas, if the issue be made up of a 
 term subsequent to that allowed by the rules of the court for declar- 
 ing, the plaintiff must show that the declaration was delivered or filed 
 
 (b) Append. Chap. VIII. § 49, 113. (c) Sty. Rep. 373, 401. 1 Wils. 167, 8. 
 
 (d) 1 Show. 366. 2 Salk. 420, S. 0. 1 Lutw. 260. 1 Ld. Raym. 435, S. C, and see 3 
 Durnf. & East, 662. 3 Bos. & Pul. 334, 5. 
 
 (e) Benson v. Kinff, H. 25 Geo. III. K. B. 
 
 (/) 4 Barn. & Ores. 625. 7 Dowl. & Ryl. 25, S. C. 
 
 Iff) Bates, qui tarn v. Jenkinso?i, E. 24 Geo. III. K. B. 6 Durnf. & East, 257, 618, S. C, 
 cited. 7 Durnf. & East, 618, and see 6 Moore, 525. 3 Brod. & Bing. 212, S. C. 1 Bing. 
 324. 5 Barn. & Cres. 341. 8 Dowl. & Ryl. 270, S. C. A7ite, 27, {i). 
 
 (h) 1 Sid. 53, 60, and see 2 Salk. 590. 2 Wms. Saund. 5 Ed. 1, (1). 
 
 (t) 5 Barn. & Aid. 489, and see 6 Moore, 525. 3 Brod. & Bing. 212, S. C. 1 Bing. 324. 
 5 Barn. & Cres. 341. A7ite, 27, (»). 
 
 (a) 3 Wils. 455. (bb) Bui. Ni. Pri. 195. 
 
 [cc) 7 Durnf. & East, 6. 2 Bos. & Pul. 157, and see 4 Taunt. 555. 6 Taunt. 142, 3. 1 
 Marsh. 498, 9, S. C. 
 
 (dd) 4 Taunt. 555, and see 6 Taunt. 144. 1 Marsh. 499, 500, S. C.
 
 OF THE PROCEEDINGS ON MESNE PROCESS, ETC. 163 
 
 ■within that time.(e) Where there are two writs, the court will presume 
 that the plaintiff proceeded on the last, unless he can connect them, by 
 showing the first to be returned :(/) for until that be done, the court is not 
 in possession of the cause, so as to award an alias or pliiries for bringing 
 the defendant into court. (^) But where the debt was paid after a pluries 
 writ issued, the defendant Avas not allowed to object at the trial, that the 
 latitat was not returned; for at any rate, if the plurics writ had been tho 
 commencement of the action, it was only an irregularity, which though a 
 ground for applying to the court to set aside the proceedings, yet having 
 been once waived, could not afterwards be objected to.{h) AVhere one writ 
 was produced at the trial, and three declarations against the principal and 
 his bail, to show that certain actions had been brought against them, and 
 three allocaturs of the costs taxed in the same actions were also put in and 
 proved; this was deemed sufficient evidence of three actions having been 
 brought, and of the costs having been taxed therein. («) 
 
 To prove the issuing of a writ, in an action against an attorney for prac- 
 tising without a certificate, it is not sufficient to prove the prxcipe by the 
 filacer's book, and to give notice to the party to produce it ; but it should 
 also be shown that, after the return, the treasury was searched, and no 
 such writ found, and that it was in the party's hands, who had notice to 
 produce it.(/i:) 
 
 *C II AFTER IX. [*164 ] 
 
 Of the Proceedings on mesne Process, against the Person 0/ the 
 Defendant ; and of the Service of a Copt of Process, not Bail- 
 able ; and the Notice tQ appear thereto. 
 
 There are two ways of proceeding upon mesne process against the per- 
 son of the defendant, whether the action be commenced by original writ, 
 bill of Middlesex or latitat^ capias quare clausurn fregit, &c. or attach- 
 ment of privilege; first, by service of a copy of the process; and 2dly by 
 arrest. 
 
 Before the making of the statute 12 Geo. I. c. 29, a defendant might 
 have been arrested, upon process against the person, in civil actions, for any 
 sura of money however trifling, or to any amount however considerable, 
 without any affidavit of its being due. To remedy which, it was enacted 
 by the above statute, {amended by the 5 Geo. II. c. 27, made perpetual by 
 the 21 Geo. II. c. 3, and extended to inferior courts by the 19 Geo. III. c. 
 70, § 2,) that " in all cases, where the cause of action shall not amount to 
 the sum of ten pounds or upwards, and, the plaintiff or plaintiffs shall 
 proceed by way of process against the person, he she or they shall not 
 arrest, or cause to be arrested, the body of the defendant or defendants ; but 
 shall serve him her or them personally, within the jurisdiction of the court, 
 
 («) 6 Taunt. 141. 1 Marsh. 497, S. C. 
 
 (/) Bates, qui (am, v. Jenkinson, E. 24 Geo. III. K. B.,pcr Buller, J. 6 Durnf. & East, 617. 
 2 Bos. & Pul. 157. 14 East, 491, and see 6 Taunt. 142, 3. 1 Marsh. 498, 9, R. C. 
 
 (ij) 7 Mod. 3. I Lutw. 260. 1 Ld. Raym. 435, S. C. 2 Ld. Rajm. 883. Willes, 255. 
 (h) 7 East, 536. (j) 11 Price, 235, 250, 270, 71. 
 
 {k) 4 Esp. Rep. 160.
 
 IQJ. OF THE PKOCEEDINGS ON MESNE PROCESS, ETC. 
 
 ■with a copy of the process ; upon which shall be written an English notice 
 to such defendant, of the intent and meaning of such service ; for which 
 no fee or reward shall be demanded or taken : provided nevertheless, that 
 in particular franchises and jurisdictions, the proper officer there shall ex- 
 ecute such process. And that in all cases, where the plaintiff's cause of 
 action shall amount to the sum of ten pounds or upwards, an affidavit shall 
 be made and filed of such cause of action ; which affidavit may be made be- 
 fore any judge or commissioner of the court out of which such process 
 shall issue, authorized to take affidavits in such court, or else before the 
 officer who shall issue such process, or his deputy ; which oath such officer 
 or his deputy are empowered to administer ; and for such affidavit one 
 shilling shall be paid, and no more ; and the sum or sums specified in such 
 affidavit, shall be indorsed on the back of such writ or process :{a) for which 
 sum or sums, so indorsed, the sheriff or other officer, to whom such writ or 
 
 process shall be directed, shall take bail, and for no more." This 
 [ *165 ] part *of the statute, we have seen, (aa) is merely directory to the 
 
 sherifi"; and does not avoid the process, where the sum sworn to 
 is not indorsed upon it. But the statute is express, that the affidavit must 
 be filed, before the writ issues. (&) And " if any writ or process shall issue 
 for the sum of ten pounds or upwards, and no affidavit and indorsement 
 shall be made as aforesaid, the plaintiff or plaintiffs shall not proceed to 
 arrest the body of the defendant or defendants, but shall proceed in like 
 manner as is directed by the statute 12 Geo. I. c. 29, in cases where the 
 cause of action does not amount to the sum of ten pounds or upwards. "[a] 
 And, by a late act of parliament,(c) "no person shall be held to special 
 bail, upon any process issuing out of any court where the cause of action 
 shall not have originally amounted to the sum of tiventy pounds or upwards, 
 over and above and exclusive of any costs, charges or expenses that may 
 have been incurred, recovered or become chargeable, in or about the suing 
 for or recovering the same, or any part thereof: And that in all cases where 
 the cause of action shall not amount to twenty pounds or upwards, exclusive 
 of such costs, charges and expenses as aforesaid, and the plaintiff or plaintiffs 
 shall proceed by the way of process against the person, he she or they shall 
 not arrest, or cause to be arrested, the body of the defendant or defendants ; 
 but shall serve him her or them personally, within the jurisdiction of the 
 court, with a copy of the process and proceedings thereupon, in such manner 
 as by the said act of the twelfth year of the reign of his late majesty king 
 Greorge the first is provided, in cases where the cause of action shall not 
 amount to ten pounds or upwards, in any superior court, or to forty shil- 
 lings or upwards in any inferior court." But the statute 51 Geo. III. c. 
 124, § 1, did not avoid the plaintiff's proceedings and judgment, by reason 
 of his having arrested the defendant for a sum exceeding fifteen pounds, 
 when he recovered less than that sum.(cZ) And where the defendant pleaded, 
 the plaintiff had sued out a writ against him by a wrong name, under 
 
 (a) Append. Chap. VII. § 2. Chap. VIII. I 22, 29, 55. 
 [aa) Ante, 159. (6) 2 Ken. 374. 
 
 (c) 7 & 8 Geo. IV. c. 71, I 1, and see stat. 51 Geo. III. c. 124, § 1, continued by 57 Geo. 
 III. c. 101, but which had expired before the passing of the 7 & 8 Geo. IV. c. 71. 
 {d) 7 Taunt. 435. 1 Moore, 131, S. C. 
 
 [a] This act was said by President Shippcn in Taylor y. Rivers, 1 Dall. 159, never to have 
 been in force in Pennsylvania, but see note p. 180.
 
 OF THE PROCEEDINGS ON iMESNE PROCESS, ETC. 165 
 
 vfKicli he was arrested, and allowed to go at large by the sheriff, and that the 
 writ was afterwards altered, by inserting the real name of the defendant, 
 under which he was again arrested, without any fresh affidavit of debt, as 
 required by the statute, the plea was holden to be bad, on special demurrer : 
 as it did not go the merits of the action, and, if true, the defendant should 
 either have pleaded in abatement, or moved to set aside the proceedings for 
 irregularity.(c') It is curious to remark the changes which the law of arrest 
 has undergone at different periods. Anciently, as no capiaa lay, an arrest 
 was not allowed, except in action of trespass vi et armis : afterwards, an 
 arrest was introduced, with the capias, in other actions : and noAV, by the 
 operation of the before-mentioned statutes, an arrest cannot be had, in the 
 only action wherein it was formerly allowed. 
 
 *These statutes, however, except so far as they prohibit the hold- [ *166 ] 
 ing to bail for causes of action under Uvcnty pounds, arc not directly 
 restrictive of any authority antecedently exercised by the courts, in respect 
 to the holding to bail : but of the act of the plaintiff only.(a) And as the 
 practice of the courts, anterior to the statutes, appears to have been, to 
 receive affidavits sworn out of England, and verified here, for the purpose 
 of making orders thereupon, to hold defendants to special bail :[h) so this 
 practice, not being inconsistent Avith the letter of the statute 12 Geo. I. c. 29, 
 has prevailed ever since : and accordingly it is now settled, that the defend- 
 ant may be arrested, under an order of the court or a judge, upon an affidavit 
 made out of England, and verified here, as well where the affidavit is made 
 abroad, out of his majesty's dominions, before some magistrate or person of 
 competent authority there, as where it is made before a judge or other per- 
 son authorized to take affidavits in Ireland and Scotland.{e) And on similar 
 grounds, though the plaintiff is prohibited by the statutes from arresting the 
 defendant upon his own affidavit only, in an action for general damages, as in 
 assumpsit or covenant to indemnify, kc. or in an action for a tort or tres- 
 pass, yet the court or a judge is not restrained thereby, but may make a 
 special order upon such affidavit, for holding the defendant to special bail.(f?) 
 In trespass for the mesne profits, after a recovery in ejectment, the action is 
 bailable or not, at the discretion of the court or a judge : and when an order 
 fur bail is made, the recognizance is usually taken in tivo years value of the 
 premises ; but this is also discretionary.(e6') 
 
 There are three cases provided for by these statutes ; first, where the cause 
 of action does not amount to twenty pounds ; secondly, where it amounts to 
 <2fe?i<y pounds or upwards, and no affidavit is made thereof: thirdly, where 
 it amounts to twenty pounds or upwards, and there is an affidavit made and 
 filed of the cause of action. (/) In the two first cases, the process against 
 the person is not bailable ;{g) and the defendant cannot be arrested thereon, 
 but must be personally served with a copy of it ; on which there must be 
 
 (e) 5 Moore, 168. {a) 8 East, 370. 
 
 (6) 8 Mod. 322. Harnes, 466, but see 2 Str. 1209. 2 Bur. 655. 
 
 (c) 8 East, 364. And see the statute 55 Geo. III. c. 1 57, for empowering the courts of law 
 and equity in Ireland, to prant commissions for taking affidavits in all parts of Great Jirilain ; 
 Bovara v. Bescsti, M. 24 Geo. III. K. R. Broivn v. I'hrpof, II. 24 Geo. III. K. B. Voght v. 
 FAgin, H. 38 Geo. III. K. B. 1 Chit. Rep. 403. 4 Barn, k Cres. 886, 7 Dowl. & Ryl. 478, 
 S C 
 
 ' (d) Post, 172. {ee) Barnes, 85. 1 Sel. Pr. 2 Ed. 36. Ad. Eject. 2 Ed. 329. 
 
 (/) Prac. Reg. 350. 
 
 (g) This is frequently called common or serviceable process ; though the term common seems 
 more properly confined to the bill of Middlesex or latitat, &c., without the clause of ac 
 etiam.
 
 2(36 OF SERVICE OF PROCESS. 
 
 written an English notice, of the intent and meaning of such service ;(h) 
 which in effect reduces it to a mere summons. {i) This notice (which is 
 only necessary on the copy of the process served, and need not 
 [ *167 ] be on the writ itself,)(Z:;) is required by the statutes, where the cause 
 of action amounts to twenty pounds or upwards, and no aflBdavit *is 
 made thereof, as well as where it does not amount to twenty pounds. (a) 
 And it must be directed to the defendant :{h) for if his name be not prefixed 
 thereto, the process is irregular, and may be quashed on motion. The notice 
 should, it seems, be directed to the defendant by his christian, as well 
 as surname ;{e) and require the defendant to appear at the return of the pro- 
 cess :(c?) and where the process is returnable on a general return day, as in 
 the Common Pleas,(e) or King's Bench by original, (/) or on a quo minus 
 in the Exchequer,(^) it should require him to appear on the return day, 
 though it happen on a Su7iday,{hh) and not on the quarto die post of the 
 return of the process. In the King's Bench, a notice requiring the defend- 
 ant to appear on Friday, instead of Saturday, the sixth of Novemher, is 
 irregular. (u") And so, in the Common Pleas, where a writ was tested on the 
 twelfth of February, returnable in fifteen days of Easter, being the fifth 
 of April, and in the notice to appear, the return day was stated to be the 
 fifth of February, instead of the fifth of April, the court held this to be 
 irregular, and set aside the proceedings. (M) But it is not'necessary that the 
 year should be stated in the notice, in words at length : it being sufficient to 
 set out in figures. (Z) If there be no notice to appear,(??i) when necessary, 
 or the notice be not properly directed,(w) &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 year, will not invalidate it.(o) 
 
 The copy of process, to be served on the defendant,[A] must be a copy 
 of such process as he might have been arrested upon, before the statute 12 
 Geo. I. c. 29 ; and therefore, where the proceedings are by original he 
 should be served with a copy of the capias, and not of the original writ 
 
 (h) Append. Chap. IX. § 1, 2, 3. (i) Cowp. 455. (k) 9 East, 528, 9. 
 
 {a) 1 Durnf. & East, 337. Barnes, 404. Pr. Reg. 349. Cas. Pr. C. P. 100, 143. I Sel. 
 Pr. 2 Ed. 74, 5, but see 1 Wils. 22, co7itra. 
 
 (b) Kelynge, 131. 1 Wils. 104. Doe v. Johnson and another, E. 24 Geo. III. K. B. Barnes, 
 409. 1 H. Blac. 100. 2 Bos. & Pul. 38, and see 1 Chit. Rep. 500. Id. 501, in notis ; but 
 see 2 Chit. Rep. 355, 6. 
 
 (c) V. Snow, E. 57 Geo. III. K. B. 1 Chit. Rep. 398, and see 1 Chit. Rep. 500. Id. 
 
 501, in notis; but see 2 Chit. Rep. 355, 6. 
 
 {d) V. Hanson, T. 42 Geo. III. K. B. Barnes, 293, 4. 2 Bos. & Pul. 340. 2 
 
 Price, 9. 
 
 {fi) Barnes, 293. Cas. Pr. C. P. 92, S. C. 2 Bos. & Pul. 340, but see 1 H. Blac. 630, semb. 
 contra. 
 
 (/) 3 Bur. 1600. {g) 1 Younge & J. 9. 
 
 \hh) Cas. Pr. C. P. 92, 97, 8. Pr. Reg. 346, 7. Barnes, 293, 4, S. C. Notice, H. 7 Geo. II 
 C. P. 3 Bur. 1600. 
 
 {ii) 1 Chit. Rep. 615. (M) 2 Moore, 214. 8 Taunt. 253, S. C. 
 
 {l) 4 Maule & Sel. 335,j3cr Bayley, J. K. B. 1 Marsh. 550, (a), 577. 6 Taunt. 333, C. P. 
 1 Chit. Rep. 385, in notis; 2 Chit. Rep. 356, but see id. 238. 1 Maule & Sel. 119. 5 Taunt. 
 651. 1 Marsh. 272, S. 0. 6 Taunt. 6. 1 Marsh. 403, S. C, contra. 
 
 (m) Cas. Pr. C. P. 100. 2 Str. 1072. 9 East, 528. 
 
 [n) Kelynge, 131. 1 Wils. 104. Barnes, 409. 1 H. Blac. 100. 2 Bos. & Pul. 38. 2 
 Price, 9. 1 Chit. Rep. 500. 
 
 (o) 2 Str. 1233. Barnes, 425. Per Cur. E. 21 Geo. III. K. B. 1 Taunt. 424. 2 Barn. & 
 
 [a] See 1 Archb. Pract., p. 155, 8 Ed.
 
 OF SERVICE OF PROCESS. 167 
 
 of summons or attachment :{p) and a complete copy of the 
 rvhole process must *be served. (aa) But where the defendant is [ *1G8 ] 
 in a county paLatine, he shouhl be served with a copy of the process 
 issuing out of the superior court, and not of the mandate, from the officer 
 to whom it is directed. (^) And, in the Exchequer, a variance in the body 
 of the copy of process, from the writ itself, is fatal, and subversive of the 
 process, and subsequent proceedings. (c) The copy of the process may be 
 served by the sherift" or his officers, (except in particular franchises, having 
 the return of writs,) or by any one else,((?) provided he be able to examine 
 the copy with the original, so as to swear (if necessary,) to the service. In 
 particular franchises and jurisdictions, the proper officer there should exe- 
 cute the process. (c) The court "svill not allow the copy of a Avrit to be 
 amended, so as to make the service good.(/)[A] 
 
 Formerly, a copy of the process must have been served on the defend- 
 ant before the return day ;((/) but now it is holden, that service at any 
 time, even after the rising of the court, 07i the return day, is suffici- 
 ent.(/i)[B] And it may be served at any hour, however late, at night; 
 process not being within the rule of court as to service of notices, &c., 
 before toi o'clock. (t) In the Exchequer, we hjive seen,(/c) service of a 
 writ on Candlemas day, is deemed good service. In the King's Bench, a 
 bill of Middlesex must not be served in London, or elsewhere out of the 
 county of Middlesex ;{l) nor whilst the defendant is attending his cause 
 at the sittings :(7n) And a latitat cannot regularly be served in any other 
 county than that to the sheriff of which it is directed. (/?) So, in the Com- 
 mon Pleas, a capias directed into one county, cannot be regularly served 
 in another, although it happen that the same officer is filacer for both 
 counties :(o) And a capias directed into Kent, cannot be well served in 
 the Cinque ports, [o) or city of Canterbury \pip) But where there is any 
 dispute as to the boundaries of the county, the courts will not determine 
 it on motion :[q) And, in order to set aside the service of a Avrit in a wrong 
 county, there must be a positive affidavit, in the King's Bench, showing 
 that there could be no dispute as to the boundaries. (r) On serv- 
 ing the copy, it is not necessary, though usual, to show *the ori- [ *1C9 ] 
 
 {p) Barnes, 406, 410. 
 
 (rto) Pr. Reg. 354. Barnes, 405, S. C. 
 
 (66) 2 Barnard, K. B. 318, 327, 337, 398. Pr. Reg. 344. Barnes, 406. 
 
 (c) 1 Price, 245, but see 7 Moore, 359. 1 Bing. 65, S. C. 
 
 (d) Pr. Reg. 345. Gas. Pr. C. P. 34, S. C. 
 
 (e) Stat. 5 Geo. II. c. 27, § 3, but see Gas. Pr. G. P. 96. Pr. Reg. 345. Barnes, 404, S. C. 
 (/) Sutherland v. Tubbs, M. 55 Geo. III. K. B. 1 Chit. Rep. 320, (a). 
 
 [ff] Barnes, 415, 424. 
 
 (/() 2 Bur. 812. 1 Durnf. & East, 192. Pr. Reg. 352. 2 Wils. 372. 1 H. Blac. 222. 3 
 Taunt. 404. 8 Taunt.. 127. 1 Moore, 573, S. C. 1 Dowl. & Ryl. 172. 
 
 (t) 2 Ghit. Rep. 357. 1 Dowl. & Ryl. 172, K. B. 7 Moore, 358. 1 Bing. 66, S. C. C. P. 
 
 (k) Ante, 56. 
 
 {I) Doug. 384. 1 Durnf. & East, 187. 1 Esp. Rep. 42. (m) 2 Str. 1094. 
 
 (n) 4 Maulc & Sel. 412. 1 Chit. Rep. 15, (c), 333, (a), but see Doug. 384. 1 Durnf. & East, 
 187. 6 Durnf. & East, 74. 8 Durnf. & East, 235, semb. contra. 
 
 (o) 7 Taunt. 233. 2 Marsh. 550, and see 2 New Rep. G. P. 167. 1 Marsh. 9. 1 Moore, 299. 
 1 Ghit. Rep. 15, (c). (pp) 11 Price, 122. 
 
 (g) 1 Wils. 77. Doug. 384. 1 Durnf. & East, 187. 4 Maule & Sel. 412, and see 11 Price, 122. 
 
 (r) 1 Chit. Rep. 14, and see id. 333. 3 Barn. & Cres. 158. 4 Dowl. & Ryl. 739, S. C. 
 
 [a] See 1 Troub. & Hal. Pract. 230, 3d Ed. 
 
 [b] See Ileberton v. Stockton, 2 Miles, 164. Casher y.Wisnor, 2 Browne, 245. Boyd v. Ser- 
 rill, 4 Pena. Law Jour. 114.
 
 169 
 
 OF SERVICE OF PROCESS. 
 
 o-inal proccss,(rta) unless demanded :(hh) But if a defendant, at the 
 time he is served with a copy of process, in the King's Bench, demand to 
 see the ori,o-inal, and is refused, the service is irregular.((7c) And where 
 the defendant was served with a copy of a capias, and, a quarter of an 
 hour afterwards, demanded to see the original, which was refused by the 
 officer, the court of Common Pleas set aside the service and subsequent 
 proceedings. ((fc?) If the defendant refuse to accept a copy of process, it 
 may be left in his house •,{ee) or, if he lock himself in, it may be put 
 through the crevice of his door;(^) or, in the Common Pleas, it seems 
 that if he keep out of the way, to avoid being served, it may be sent him 
 in a letter by the post :{g) But sending process by the post, in a letter 
 which the defendant refuses to receive, is not good service ; although the 
 refusal may have been wilful, and accompanied with a long avoidance of 
 service. (7i) And where the defendant, on being served with a copy of pro- 
 cess by the name of John, observed his name was Nicholas, upon which 
 the person who served it was about to alter the name, when the defendant 
 said, "never mind; I am the person, and will take care of it;" the court 
 notwithstanding held, that the service was irregular, and set it aside, but 
 without costs, (i) If a latitat has been served by mistake on a wrong per- 
 son, the right person may afterwards be served with an alias capias issued 
 thereon. (A;) 
 
 In a joint action against two or more defendants, each of them must be 
 served with a copy of the process. (^) But, in an action against husband 
 and wife, it is deemed sufficient to serve the husband only.(m) Whenever 
 the defendant would take advantage of a mistake in the copy of process, 
 or notice to appear thereto, he must produce the copy served, and swear 
 that he was served with no other.(w) And where there is no irregularity 
 in the notice to appear to, or service of process, the rule, we have seen,(o) 
 should be to set aside such service, and not the process itself. 
 
 If, upon the service, the defendant speak contemptuous words of the 
 court, or its process, he is liable to an attachment. And where the words 
 are spoken of the court, the attachment issues in the first instance ;(2?) for 
 it would be to no purpose to grant a rule to show cause, which would pro- 
 bably expose the court to further insult.(5') But the court will not grant 
 an attachment, for violent or contemptuous behaviour, after service of the 
 process. (r) It has been doubted, whether, when contemptuous words are 
 sworn to by one person only, the rule should be absolute, or only 
 [ *170 ] to show *cause ;(a) the rule in Qhancei'y requiring two affidavits, 
 to deprive the party of the benefit of showing cause ; and in the 
 King's Bench, the rule is only to show cause, when the words are spoken 
 of its process.{h) 
 
 (aa) 2 Str. 877. Barnes, 302, 422. (bh) Cas. temp. Hardw. 138. 
 
 {cc) 2 Barn. & Ores. 761. 4 Dowl. & Ryl. 317, S. C. {dd) 5 Moore, 162. 
 
 [ec) Barnes, 278. Bates, qui tarn, v. 31addison, M. 23 Geo. III. K. B., and see 7 Dowl. & 
 Ryl. 233. 
 
 (jf) Cas.Pr. C. P. 103. Pr. Reg. 354. Barnes, 405, S. C, and see Barnes, 42. 
 
 (y) 5 Taunt. 186. 1 Marsh, 8, S. C. (h) 3 Bing. 443. 
 
 (i) 1 Chit. Rep. 319. 
 
 {k) 2 Barn. & Cres. 95. 3 Dowl. & Ryl. 254, S. C. (l) Pr. Reg. 351. 
 
 {m) Barnes, 406, 412. Pr. Reg. 351, S. G. (n) Barnes, 298, and see 1 Ken. 374. 
 
 (o) Ante, 161. 
 
 [p) G Mod. 43. 1 Salk. 84. 1 Str. 185. Say. Rep. 47, R. T. 17 Geo. III. K. B. 
 
 (g) 1 Salk. 84. (r) 1 Brod. & Bing. 24. 4 Moore, 147. (a) 2 Str. 10G8. 
 
 (6) Say. Rep. 114. In the case of Adamson v. Gibson, H. 27 Geo. III. K. B., an attachment 
 Aid. 642. 1 Chit. Rep. 384, S. C. Id. 615, {a).
 
 OF THE ARREST, UPON BAILABLE PROCESS. *17l 
 
 •CHAPTER X. 
 
 0/ the Arrest, upon bailable process. 
 
 In treating of the law of arrest, it is propose<l to consider, first, for what 
 cause of action it is allowed ; 2dlj, the affidavit to hold to bail ; 3dly, 
 what persons may, or may not be arrested ; and lastly, by whom ; and 
 under what authority, when, where, and in what manner the arrest may 
 be made. 
 
 When the cause of action amounts to twenty pounds or upwards, and 
 an affidavit thereof is made and filed according to the statutes, the process 
 is bailable ; and the defendant may in general be arrested, and holden to 
 special bail. But where the plaintiff, having a debt due to him under an 
 arrestable sum, procured a promissory note to be indorsed to him by another 
 creditor, for the purpose of holding the defendant to special bail, the court, 
 considering this as a practice to evade the statute, discharged the defend- 
 ant out of custody, on filing common bail. (a) And, by the statute 7 & 8 
 Geo. IV. c. 71,(6) " no sheriff or other officer, within the principality of 
 Wales^ or the counties palatine of Chester, Lancaster or Durham, shall, 
 upon any mesne process issuing out of his majesty's courts of record at 
 Westminster, arrest or hold any person to special bail, unless such process 
 shall be duly marked and indorsed for bail, in a sum not less than Jifty 
 pounds." 
 
 With respect to the cause of action, it ^s a rule, that where there is a 
 certain debt to the amount of tiventy pounds, or damages to that amount 
 which may be reduced to a certainty, as in assumpsit or covenant for the 
 payment of money,(«?) the defendant may be arrested, as a matter of 
 course, on an affidavit shortly stating the cause of action. And he might 
 formerly have been arrested in like manner, in an action of trover{d) or 
 detinue ; for these were considered as being more properly actions of 
 property, than of tort. But where the defendant, being a custom-house 
 officer, was arrested in an action of trover, brought against him for seizing 
 goods, and it appeared by affidavit that there was a reasonable foundation 
 for the seizure, that the goods were deposited in the king's ware- 
 house, and that the *defendant had used due diligence in pro- [ *172 ] 
 ceeding towards a condemnation in the Exchequer, the court 
 ordered common bail to be accepted. («a) And by a late rule,(6J) in all 
 the courts, " no person can be held to special bail, in an action of trover 
 
 was moved for against the defendant's wife and daughter, for treating the process of the 
 court wilh contempt, by throwing it into the street, &c., and the court said, that on a return 
 hj the sheriff, tlie rule for an attachment was absolute in the first instance; but on afBda- 
 vits, the partv must have an opportunity of answering. 
 
 (a) 1 Ken. 371. (6) g 7, and see stat. 11, 12 "W. IIL c. 9, § 2. 2Str. 1102. 
 
 (c) Barnes, 79, 80, 108. But one who became surety for the defendant, before his dis- 
 charge under an insolvent debtor's act, and was afterwards obliged to give a new security 
 by bond and warrant of attorney, &c., for the old debt, cannot hold the defendant to bail 
 thereon by affidavit, as for so much money paid for his use. 3 East, 169. 
 
 {d)6 Mod. 14. Barnes, 80. 2 Str. 1192. 1 Wils. 23, S.C. 1 Wils. 335. Say. Rep. 53, S.C, 
 and see Cowp. 529. Append. Chap. X. g 82, &c. 
 
 (aa) 2 Blac. Rep. 1018. 1 Wils. 335. Say. Rep. 53, S. C.,semb. contra. 
 
 (W) R. H. 48 Geo. III. K. B. C. P., and Excheq. 9 East, 325. 1 Taunt. 203. Man. Ex. Ap- 
 pend. 225. 8 Price, 507. Append. Chap. X. 2 85.
 
 172 
 
 FOR WHAT CAUSE OF ACTION 
 
 or detinue -without an order made for that purpose by the Lord Chief 
 Justice, or one of the judges." 
 
 On the other hand, where the damages are altogether uncertain,{cc) as 
 in assumpsit or covenant to indemnify, &c., or in actions for a tort or 
 trespass,{d) there can be no arrest, without a special order of the court or 
 a judge,(e) on a full affidavit of the circumstances ;(/) for it would be 
 unreasonable that the defendant should be arrested, for what damages the 
 plaintiff fancies he has sustained, and is pleased to swear to. And it is 
 not usual to grant a special order, except where there has been an 
 outrageous battery or mayhem,(^) or the defendant is about to quit the 
 kingdom. An affidavit stating that " the defendant was indebted to the 
 plaintiff in 3000/. and upwards, being the value of certain bars of silver, 
 delivered by the plaintiff or on his account to the defendant, to be by him 
 carried and delivered, and by the defendant undertaken to be carried and 
 delivered, to E. B. at Gfottenburgh in Sweden^ for the use and on account 
 of the plaintiff, but which bars of silver, or any part thereof, the defendant 
 had not carried or delivered to the said E. B. at G. aforesaid, or to any 
 other person, or at any other place, for the use of the plaintiff," was 
 deemed sufficient to hold the defendant to special bail, on a judge's order; 
 although it was objected, that it did not state any debt owing from the 
 defendant to the plaintiff, and that there was no averment that the plaintiff 
 had any property in the silver, or was damnified by the non-delivery of 
 it.(A) 
 
 There are also some cases, where the defendant cannot be arrested, 
 though the action be brought for a sum certain ; and others, where he 
 cannot be arrested for the whole of the legal debt, but only for so much 
 as is equitahly due. Thus, in an action of debt on a penal statute, (z) 
 the defendant cannot be arrested, though it be for a sum certain ; as it 
 is a maxim, that every man shall be presumed innocent of an offence, 
 till he be found guilty : But where an action is brought on a remedial 
 
 statute, as for money won at play,(Z;) or on a statute which 
 [ *173 ] expressly authorises an arrest, as for exporting wool,(Z) double 
 
 value for holding over,(??i) having *unsealed wrought silks,(a) 
 or insuring lottery tickets,(6) &c., the defendant may be arrested. So, 
 in an action of debt upon a recognizance of bail, the defendant cannot 
 be arrested :{c) for besides that the sufficiency of the bail must have 
 been proved, or admitted, previous to their being allowed, there are 
 many things to be inquired into, which may show them not liable ;(c) and 
 it is commonly said, that if the defendant were arrested in such an action, 
 there would be bail in infinitum. And for similar reasons, an arrest is 
 
 {cc) Barnes, 79, 80, 108, 9. 
 
 \d) Id.Gl. Pr. Keg. 63, S. 0. Barnes, 76. Pr. Reg. 66. Cas. Pr. C. P. 149, S. C. 
 
 (e) Append. Chap. X. § 87. (/) Id. § 86, 88. 
 
 [g] R. M. 1654, I 9, K. B. R. M. 1654, | 12, C. P. 
 
 (A) 2 East, 453, but see 2 Bos. & Pul. 282. 1 Chit. Rep, 168, (a). 
 
 (i) Yelv. 53. Gilb. C. P. 37. Barnes, 80. 
 
 [k) 9 Ann, c. 14. 2 Str. 1079. 7 Durnf. & East, 259, but see 2 Wils. 67. The statute is 
 remedial, where the action is brought by the party injured: but penal, where brought by a 
 common informer. Per Nares, J. 2 Blac. Rep. 1227. And for the form of an affidavit to 
 hold to bail on this statute, see Append. Chap. X. g 80. 
 
 {I) 10. 11 W. III. c. 10, 1 20. Com. Rep. 75. 
 
 \m) 4 Geo. II. c. 28, §1.5 Durnf. & East, 364. 
 
 (a) 26 Geo. II. c. 21, ? 8. 3 Bur. 1569. 
 
 \h) 27 Geo. III. c. 1, I 2. Append. Chap. X. § 81. 
 
 (c) Per Buller, J. M. 28 Geo. III. K. B.
 
 AN ARREST IS ALLOWED. 173 
 
 not permitted in an action of clelt upon a hail{dd) or replevin{ee) bond ; 
 whether the action be brouglit in tiie name of the shcriff,(^) or his 
 assignee. But, after judgment has been obtained against the bail in such 
 action, the defendant may be arrested in an action on the judgment. (^^) 
 A defendant cannot be arrested, on an affidavit stating him to be indebted to 
 the phiintilf for goods bargained and soW,(/i) or, for goods 8old,{i) without 
 saying that they were delivered: for there is no reason why the plaintiff 
 should have the security of the defendant's body under arrest, and also 
 retain the security of the goods in his own hands. (/c) And the court of 
 Common Pleas will not permit a defendant to be arrested, in an action 
 founded on the prothonotary's allocatur, for costs ;(?) nor on a policy of 
 assurance, for a total or partial loss, without an adjustment, or express 
 promise to pay the amount. (7w) But a defendant may be arrested on a 
 guaranty, or undertaking to be answerable to a certain amount, for goods 
 sold to a third person, in the event of his failing to pay for them.(?i) 
 
 A party cannot be arrested and held to bail for a j^c^ialti/, but only for 
 the sum secured by it.(o) And hence it is, that in an action of debt upon, 
 bond, conditioned for the j^aynient of money, though the penalty is, strictly 
 speaking, the legal debt, yet as it is now considered, upon the statute for 
 the amendment of the law,(^:)) to be merely a security for principal, in 
 interest and costs, the defendant cannot be arrested for more than the sum. 
 really due by the condition. And, in like manner, where the bond is con- 
 ditioned for the performance of covenants,{q) or save harmless,{r) &c. the 
 defendant ought not to be arrested for the penalty, but only for the amount 
 of the damages really sustained by the breach of the condition. But, 
 upon a bond in a penalty, conditioned for paying a less sum by instalments 
 and interest, though a part only of the instalments are due, the obligee 
 may arrest for the aggregate amount of all the instalments, and 
 the interest *accrued due before the action brought. (a) An arrest [ *174 ] 
 may also be made for the penalty of a bond conditioned for the 
 performance of ajirojuise of marriage, {b) &c. where the penalty is the real 
 debt, or rather in nature of stated damages. And where an agreement 
 was made in writing, to deliver a certain quantity of goods, within a certain 
 time, at the price of 300Z. or in default thereof, that the defendant would 
 forfeit and pay to the plaintiff lOOZ. ; in an action brought for the penalty, 
 the judges of the Common Pleas were of opinion, that the defendant 
 might be held to bail.(e) 
 
 Where there have been wtt^itaZ dealings between the parties, the balance 
 is considered as the debt at law, as well as in equity: And therefore, upon 
 an unliquidated account, if the plaintiff were to swear to the sum due to 
 him on the debtor side only, it would be looked upon as a mere evasion ; 
 
 {dd) R. M. 8 Ann,(c),K. B. 
 
 \ee) 1 Sulk. 91). (/) 6 Durnf. & East, 336. 8 Durnf. k East, 45T). 
 
 \g<j) Bull V. Moore ^ another, bail o/Reade, M. 28 Geo. III. K. B. 8 Durnf. & East, 85. 
 
 (A) 12 East, 398. (/) 8 Moore, 366. 1 Bing. 357, S. C. 
 
 h) Per Bitiile;i, J. 12 East, 399. {I) 4 Taunt. 705. 
 
 (m) 5 Taunt. 201. 1 Marsh. 19, S. C. Id. 21, (<;), and see 1 Maule & Scl. 494. 
 
 \n) 9 Price, 155. 
 
 (o) 6 Durnf. & East, 217. 2 East, 409. And for the dilTerence hciyracn penalties and /lyt/i- 
 rfa<c(i damages, see 2 Bos. & Pul. 346. Holt, Ni. Pri. 45, n. 2 Price, 200. 8 Moore, 244. 1 
 Bing. 302, S. C. 6 Barn. & Ores. 216. (;>) 4, 5 Ann, c. 16, § 13. 
 
 (7) 1 Sid. 63. 1 Salk. 100. Barnes, 109. Saj. Rep. 109. Doug. 449. 5 Taunt. 247. 
 
 (r) Barnes, 109. \a) 7 Taunt. 251. 
 
 \h] 1 Wils. 50. 3 Bur. 1351, 1373. Doug. 449. (c) Barnes, 86, but sec id. 108. 
 
 Vol. I.— 12
 
 171 FOR WHAT CAUSE OF ACTION 
 
 and if not sufficient to support an indictment for perjury, would it seems 
 entitle the defendant to a special action on the case, for a malicious 
 arrest :{d) And, at any rate, if the balance did not constitute an arrest- 
 able debt, the defendant would be entitled to the costs, under the statute 
 4o Geo. III. c, 46, § 3, as having been arrested and held to bail, without 
 any probable cause. (e) 
 
 The defendant having been once arrested, cannot in general be arrested 
 again, for the same cause of action. (/) Nemo debet his vexari, pro eddem 
 causa. Thus, where the defendant was arrested on a writ taken out pend- 
 ing a prior action, wherein he had been previously arrested for the same 
 cause, the court discharged him on common bail.(^) So the defendant 
 was disharged where he had been arrested a second time, pending a writ 
 of error, and before judgment was given thereon, or the action discon- 
 tinued, (/i) And where the plaintiff, not liking the bail in the former 
 action obtained a side-bar rule for leave to discontinue on payment of 
 costs, and afterwards proceeded to charge the defendant in custody with 
 a declaration in a new action, the court conceiving this to be a trick, dis- 
 charged the side-bar rule ; so that the bail to the former action still continued 
 liable. (i) But where it appeared that the bail in the prior action were 
 forsworn, the court refused to assist the defendant, though he was arrested 
 before the former action was discontinued ; saying, the plaintiff was right 
 in laying hold of him as he did ; for had he discontinued, the defendant 
 would probably have run away.(^) And it has been deter- 
 [ *175 ] mined, that the plaintiff, after suing out common process, may 
 sue out a bailable writ for the same cause, *and arrest the 
 defendant, before he discontinues the first action ; for this is not a case 
 within the rule of not permitting the defendant to be twice arrested for 
 the same cau3e.(«) By rule of Mich. 15 Car. ll.{b) it is ordered that "if 
 a defendant be lawfully delivered from arrest upon any process, he shall not 
 be arrested again at the same time, by virtue of another process, at the suit 
 of the same plaintiff." But, notwithstanding this rule, the court of King's 
 Bench held, that the plaintiff might lodge a detainer against the defendant, 
 in custody upon mesne process, after his bail had justified, the defendant not 
 having completed his discharge, but being still within the prison ; and that 
 he was not entitled to be discharged, upon an affidavit that the sum for which 
 the detainer was lodged, was due at the time of the first arrest. (c) 
 
 The rule for preventing vexatious arrests, was formerly so rigidly adhered 
 to, that where the plaintiff was nonjjrossed for want of a declaration, he 
 could not afterwards have arrested the defendant, in a second action for the 
 same cause.(tZ(i) And this is still the practice in the Common Pleas.(ee) But, 
 
 (d) Dr. Thurlington's case, 4 Bur. 1996. And for the facts of this case, see 1 Ken. 424. 
 See also 5 Barn. & Aid. 513. 1 Dowl. & Ryl. 67, S. C. 2 Barn. & Cres. 693. 4 Dowl. & Ryl. 
 187, S.C. 3 Barn. & Cres. 139. 4 Dowl. A^Ryl. 653, S. C, but see 2 Campb. hdi.semb. contra. 
 
 [e) 5 Barn. & Aid. 513. 1 Dowl. & Ryl. 67, S. C. And see further, as to the cause of 
 action, for which a defendant may or may not be arrested and holden to bail. Petersd. 
 Part I. Chap. II. 
 
 (/) R. M. 15 Car. II. reg. 2, K. B. 
 [g] 2 Str. 1209, and see 13 Price, 8. M'Clel. 2, S. C. 
 
 {h) 7 Taunt. 192. (i) 4 Bur. 2502. {k) 2 Str. 1216. 
 
 (a) 6 Durnf. & East, 616, and see Wightw. 72. Davison v. Cleworth, H. 58 Geo. III. K. B. 
 1 Chit. Rep. 275, in notis. 13 Price, 8. M'Clel. 2. S. C. 
 (6) ? 2, K. B. (c) 3 Maule & Sel. 144. 
 
 {dd) 1 Ld. Raym. 679. Com. Rep. 94, S. C. 
 (ee) 3 Moore, 607. 1 Brod. & Bing. 2S9, S. C. 4 Moore, 294. 1 Brod. & Bing. 514, S. C.
 
 AN ARREST IS ALLOWED. 175 
 
 in the King's Bench, it has been determined, that after a nonpros, the 
 defendant sliall find bail in the second action ',{ff) for the phiintiff, it is said, 
 suffers enough by paying costs in the first action, and therefore ought not to 
 be in a worse condition than before. For a similar reason, where the plain- 
 tiff, having misconceived his action, moves to discontinue w])on payment of 
 costs, he may, after the costs are taxe<l and paid,(/7^) take out a new writ for 
 the same cause, and have the defendant arrested de novo.ijih) But where the 
 plaintiff held the defendant to bail, before the cause of action accrued, and 
 afterwards discontinued and paid costs, and then arrested him de novo for 
 the same cause, after it accrued ; the court of Kings's Bench discharged the 
 defendant on common bail.(?) If the plaintiff be nonsuited, in an action 
 of debt on bond, for not sufficiently proving the execution of it, on non 
 est factum ;{k) or on the ground of a variance in a former action, in which 
 the defendant was arrested ;(Z) he may be arrested again, in a second 
 action for the same cause : But this is not allowed after a nonsuit on the 
 merits. (77j) So, where an action was brought against one of two partners 
 for a joint debt, and the defendant having been arrested therein, pleaded 
 the partnership in abatement, it was holden, that the plaintiff might, after 
 entering a cassetur billa, bring a new action against both partners, and 
 arrest the defendant again for the same debt.(n) And whore 
 the plaintiff becomes bankrupt, before *interlocutory judgment, [ *176 1 
 the defendant may be arrested and held to bail by the assignees, 
 in a second action for the same cause.(«) But where the defendant has 
 been arrested in an action brought in the name of a bankrupt, by the 
 authority of his assignees, he cannot be afterwards arrested, at the suit 
 of the assignees, for the same cause of action, unless the first action has 
 been discontinued, and the costs taxed and paid. (6) 
 
 Wherever the second action appears to be vexatious,(e) or the defend- 
 ant is arrested or detained in custody therein, and after being superseded 
 or supersedeable in a former action, by the laches of the plaintiff,(c?) the 
 court will discharge the defendant on common bail ; even though he be 
 arrested on a note given subsequent to the supersedeas,{e) or in a diflferent 
 form of action, so as it be substantially for the same cause. (/) And 
 where a defendant was arrested in the mayor's court of Hereford, by the 
 practice of which court, a plaintiff is not bound to declare, without a rule 
 for that purpose and the defendant, without conforming to the practice, 
 superseded the action for want of a declaration, and was again arrested 
 in London for the same cause of action, the court, without entering into 
 the irregularity of the defendant's proceedings, discharged him on filing 
 common bail.(_^) But where there are i^o laches in the plaintiff, and d for- 
 tiori where the defendant is in fault, the court will not assist the latter : 
 Thus, where A. having been arrested at the suit of 15. gave him a draft 
 for part of the demand, and agreed to settle the remainder in a few days ; 
 
 (/) 1 Str. 439. 
 
 {(/!/) 2 Str. 1209. 3 Maule & Sel. 153. 5 Barn. & Aid. 905. 1 Dowl. k Ryl. 556, S. C. 7 
 Moore, 312. (AA) 2 Wils. 381. Barnes, 399. 
 
 (t) 5 Maule & Sel. 93. (k) Barnes, 73. 
 
 (I) 1 Chit. Rep. 273. (m) Per Cur. E. 19 Geo. IIL K. B. 
 
 («) Salisbur;/ v. WhilcaU, H. 43 Geo. III. K. B. 1 Marsh. 395, 6. 
 
 ((/) Barnes, assi<jnee of Saunders, v. Maton, M. 23 Geo. III. K. B. 15 East, 631. 
 
 (6) 1 Chit. Rep. 276. (c) 2 Blac. Rep. 809. 
 
 (d) 2 Str. 782, 943, 1039. 2 Wils. 93. Cowp. 72. Cookson v. Foiter, T. 23 Geo. III. K. B., 
 but see Barnes, (52. («) 2 Str. 1218. 8 East, 334. 
 
 (/) 3 East, 309. \g) 3 Dowl. & Rjl. 189.
 
 176 
 
 FOR WHAT CAUSE OF ACTION 
 
 after which, the draft being dishonoured, B. sued out a now writ against 
 A. and arrested him again on the same aflidavit ; this was holden to be 
 ref^uLar.(/i) And if the defendant be discharged out of custody, on 
 account of some act for which the plaintiff is not answerable, such as an 
 alteration in the warrant to arrest by the sheriff's officer, without the 
 plaintiff's knowledge, in such case the defendant may, after the first action 
 is discontinued, be again held to bail for the same cause. (u) So, where 
 the first action is compromised, and a second brought for the same cause, 
 the court will not set aside a bail bond taken on an arrest, unless the pro- 
 ceedings appear to be vexatious. (A;A;) The defendant having given a bond, 
 conditioned for the payment of a sum of money, if the sentence of a 
 A^'ice-Admiralty court should be affirmed on appeal, and the appeal having 
 been dismissed for want of prosecution, the defendant was arrested and 
 holden to bail ; after which, the appeal being restored upon petition, the 
 action was suspended, and the bail discharged ; but being again dismissed, 
 a new action on the bond was commenced ; and the court of Common Pleas 
 held, that the defendant might be again arrested and holden to bail.(Z) 
 
 So, where the defendant has been arrested abroad, he may be 
 [ *177 ] again arrested here, for the same cause of action ; at *least 
 
 where it does not appear that the plaintiff may have the same 
 redress and benefit by the proceedings abroad, as in this country.(a) It 
 is no ground for discharging the defendant out of custody, that a previous 
 application had been made to the court of Chancery, for a writ of ne 
 exeat regno, for the same sum. (5) So, where A. proceeded by foreign 
 attachment against B. who surrendered, and pleaded to the jurisdiction 
 of the court, upon which A. discontinued the foreign attachment, and 
 arrested B. by process out of the King's Bench, the court of Common 
 Pleas held, that the foreign attachment was not such a proceeeding as to 
 entitle B. to be discharged out of custody in the present suit, on entering 
 a common appearance. (c) And where the defendant being in custody 
 within a ZocaZ jurisdiction, the plaintiff lodged a detainer against him, but 
 discontinued the action from fear of a plea to the jurisdiction, and then 
 arrested the defendant in the King's Bench, without having paid the costs 
 of the first suit ; the court held, that the defendant was not entitled to be 
 discharged on filing common bail, the second suit not being vexatious. (cZ) 
 Where a defendant was twice arrested, and put in bail to two writs in 
 different counties, for the same cause of action, the court of King's Bench 
 refused to make a rule absolute for setting aside one of the two writs; the 
 proper course being, that an exoneretur should be entered on one of the 
 bail-pieces(e) , 
 
 Upon the same principle of not permitting the defendant to be twice 
 arrested for the same cause, it is holden, (/) that in an action of debt upon 
 judgment, whether after verdict or by default, the defendant cannot be 
 arrested, if he was previously arrested in the original action; even though 
 
 {h) 6 Durnf. & East, 52, and see Penfold v. Maxwell, M. 57 Geo. III. K. B. 1 Chit. Rep. 275. 
 
 {ii) 6 Durnf. & East, 218. (kk) 1 Chit. Rep. 161. 
 
 (1) 1 New. Rep. G. P. 13. 
 
 (a) 7 Durnf. & East, 470. 2 East, 453. (b) 8 Taunt. 24. 
 
 (c) 5 Taunt. 851. 1 Marsh. 395, S. C, and see the case of Bromley v. Feck, 5 Taunt. 852, m 
 notis. (d) 3 Dowl. & Ryl. 33. 
 
 (e) 1 Chit. Rep. 392. And see further, as to the cases in which the defendant may or may 
 not be twice arrested for the same cause, id. 273, [a), 276, (a). Petersd. Part I. Chap. IV. 
 
 (/) 2 Str. 1218. Say. Rep. 43. Pr. Reg. 54. Cas. Pr. C. P. 32, S. C. Barnes, 116.
 
 AN ARREST IS ALLOWED. 177 
 
 the bail in that action have since become insolvent,{g) or the plaintiff has 
 released them, by declaring in a different county,(7<) or the defendant lias 
 surrendered in tlieir discluirge, and obtained a 8uper8edca8.{i) And if a 
 defendant being arrested upon process of the King's Bench, give a ■warrant 
 of attorney to confess judgment, and be afterwards holden to bail in the 
 Common Pleas, in an action upon that judgment, the latter court ■will dis- 
 charge him upon a common appearance. (/c) ]>ut if the defendant were not 
 arrested in the original action, he may be arrested in an action of debt on 
 the judgment. (/) And, in the Common Pleas, tlie defendant may be 
 arrested in such action, notwithstanding a writ of error has been 
 brought, and bail *put in thereon. (a) Where a cause, in which [ *178 ] 
 the defendant has been arrested, is referred to arbitration, and 
 the arbitrator awards to the plaintiff a sum exceeding twenty pounds, the 
 defendant may be arrested again, in the action upon the award. (/<) 
 
 It was formerly holden, that where the judgment was merely for costs, 
 upon a nonsuit,(6') or the debt was originally under teii pounds, but raised 
 to a larger sura by the addition of costs ;(t/) or the action was for general 
 damages, which were reduced by the judgment to a sum certain above ten 
 pounds, (f) the defendant could not be arrested in the King's bcncli, cither 
 upon the judgment itself, or upon a subsequent promise, in consideration 
 of forbearance,(/) to pay the debt and costs. But it was afterwards 
 determined in both courts,( (/_^) that a defendant might be arrested and held 
 to special bail, in an action on a judgment for ten pounds, for damages 
 and costs; though the original debt alone were under that amount. This 
 determination seems to have occasioned the passing of the statute 43 Geo. 
 III. c. 4G, § I. by which it is enacted, that " no person shall be arrested 
 or held to special bail, upon any process issuing out of any court in Ung- 
 land or Ireland, for a cause of action not originally amounting to the sum 
 for which such person is by the laws no^w in being liable to be arrested 
 and held to bail, over and above and exclusive of any costs, charges and 
 expenses that may have been incurred, recovered or become chargeable, 
 in or about the suing for or recovering the same, or any part thereof." 
 And by the statute 7 & 8 Geo. IV. c. 71,(/i7i) "no person shall be held to 
 special bail, upon any process issuing out of any court, where the cause 
 of action shall not have originally amounted to the sum of tiventy pounds 
 or upwards, over and above and exclusive of such costs, charges and ex- 
 penses as aforesaid." This statute, however, does not extend to Scotland 
 or Ireland.{ii) 
 
 {g) Say. Rep. 160. 
 
 \h) 2 \Vil3. 93. Barnes, 116, S. C, but see 2 H. Blac. 278. 
 
 (t) 2 Str. 1039. Cowp. 72, R. H. 8 Geo. II. rey, 2 C. P. Cas. Pr. C. P. 34. Pr. Reg. 56. 
 Barnes, 390. 1 Bos. & Pul. 361. 
 
 {k) 2 Bos. & Pul. 416, but see Barnes, 94. 
 
 (;) 8 Durnf. & East, 85. Pr. Reg. 55, 6. Cas. Pr. C. P. 32, S. C. Barnes, 116. 1 New Rep. 
 C. P. 133. 
 
 (rt) Barnes, 71. Pr. Reg. 57. Com. Rep. 556, S. C. 2 Blac. Rep. 768. 
 
 (6) 2 Durnf. & East, 756. 
 
 (c) 5 Bur. 2660. 2 Blac. Rep. 1274, C. P. contra. 
 
 {d) 2 Str. 975, 1077. 3 Bur. 1389. 4 Bur. 2117. Butchfr r. nolhmd,n. 25 Geo. III. K. B. 
 
 (e) 2 Sir. 1243. 1 Wils. 120. (f) Cowp. 129. 
 
 (y-/) 4 Durnf. & East, 570, K.B. Barnes, 432, 3. Pr. Reg. 60. Cas. Pr. C. P. 89, S. C. C. P., 
 but see Barnes, 433. Pr. Reg. 61, S. C, temb. contra. 
 
 (hh) I 1, and see stat. 51 Geo. III. c. 124, § 1, continued by 57 Geo. III. c. 101. (n) I 10.
 
 178 
 
 OF THE AFFIDAVIT 
 
 The affidavit required by the statutes, of the cause of action, may be 
 made by the plaintiff, his wife, or a third person -.{h) and it may be made 
 by one or several persons. [a] The affirmation of a Quaker is sufficient to 
 hold the defendant to special bail.(^) And, in the Common Pleas, an affi- 
 davit made by a third person, need not state any connection between the 
 deponent and the plaintiff.(wi)[B] But the affidavit, or affirmation, must 
 
 be made by some person who is legally competent to be a wit- 
 [ *179 ] ness ; and therefore it *is bad, if made by a person convicted of 
 
 felony, or other infamous crime.(«a) An affidavit however, that 
 the plaintiff is a transported felon, cannot be read in answer to an affidavit 
 to hold to bail, made by a third person :(^) And a plaintiff convicted of 'a 
 conspiracy, is not incompetent to make an affidavit to hold to bail.(c) The 
 true place of abode and addition of every person making the affidavit 
 must be inserted therein. (c?) In the King's Bench however, the deponent 
 may be described as " of the city of London^ merchant :(e)" And, in the 
 Common Pleas, the addition of '•'•manufacturer'' to the deponent's name, 
 has been deemed sufficient. (/) But the court of King's Bench will not 
 try the real place of the plaintiff's abode upon affidavits '.{g) And there is 
 no occasion to insert in the affidavit, the addition and description of the 
 defendant.[h) In an affidavit to hold to bail, the plaintiff's clerk may 
 state his place of abode to be the office where he is employed the greater 
 part of the day, though at night he sleep at another place :(z) and it is 
 sufficient to describe him as clerk to his employer, whose address is 
 stated.(A;^) So a foreigner, whose general residence is abroad, and who 
 only landed here for a temporary purpose, may properly describe his place 
 of abode to be his own country, and not at the place where the affidavit 
 was sworn \[ll) And where a deponent had been a few days before dis- 
 charged out of prison, but by permission had still continued to lodge there 
 at night, having no other place of residence, his describing himself bond 
 fide, in an affidavit to hold bail, as late of such a prison, has been deemed 
 sufficient :{mm) But a deponent who has left one place of residence, and 
 
 (k) 1 Wils. 339. Say. Rep. 59, S. C. 1 Bos. & Pul. 1. 1 Chit. Rep. 58, 161. 9 Price, 322. 
 {I) Cowp. 382, and see Willes, 292, n. Append. Chap. X. § 5. 
 (m) 1 Bos. & Pul. 1. 4 Taunt. 231. 1 Chit. Rep. 58. 161. 
 
 {aa) 5 Mod. 74. 2 Salk. 461. Barnes, 79. Pr. Reg.' 49, S. C. 2 Str. 1148. 2 Wils. 225. 
 and see Peake's Evid. 5 Ed. 129, &c.. but see Barnes, 116, contra, 
 (b) 1 Chit. Rep. 165. (c) 4 Dowl. & Ryl. 144. 
 
 (d) R. M. 15 Car. II. rfi^r. 1, K. B. 1 East, 18, 330. 4 Taunt. 154. 2 Bam. & Cres. 563. 4 
 Dowl. & Ryl. 45, S. C, but see 6 Taunt. 73, by which it appears that there is no such rule in 
 the Common Pleas. 
 
 (e) 3 Maule & Sel. 165. (/) 3 Bos. & Pul. 550. 
 iff) Per Cur. H. 45 Geo. III. K. B. 2 Smith R. 207, S. C. 
 
 (h) Per Cur. T. 41 Geo. III. K. B. 
 
 {i) 1 Maule & Sel. 103, and see 2 Chit. Rep. 15. 
 
 (kk) 1 Chit. Rep. 464, m notis. {II) 3 East, 154. 
 
 {mvi) 11 East, 528. 
 
 [a] It is said that a partnership, as such, cannot make an affidavit. Gaddis v. Dorothy, 
 1 Green's N. J. Rep. 325. 
 
 [b] Where the plaintiff resides in a foreign country, and indeed generally, the affidavit 
 made by an agent, that he the agent is informed and believes that the defendant is in- 
 debted to the plaintiff, has been held to be sufficient, the court in this case, reiterating the 
 general rule, that the affidavit must be distinct and positive as to the existence of the debt 
 or cause of action. Kerr v. Phillips, 2 Rich. S. C. Rep. 197. Bank of Mobile v. Smith, 14 Ala. 
 416, and see page 180, note [a].
 
 TO UOLD TO BAIL. 179 
 
 resides in another, cannot regularly describe himself as late of the for- 
 mer. (w) 
 
 The affidavit may be sworn in court, or before a judge, or commissioner 
 of the court authorized to take affidavits, by virtue of the statute 29 Ccw. II. 
 c. 0,(0) or else before the officer Avho issues the process, or his deputy :(p) 
 which deputy must be appointed for issuing process, and not merely for 
 taking affidavits, 7 Barn. <& Ores. 80. [a] And it may be sworn before a com- 
 missioner, although he be concerned as attorney for the plaintiff.((^) But, 
 in the Common Pleas, an affidavit of debt sworn before a commissioner in 
 the country, without stating him to be a commissioner in the jurat, is insuf- 
 ficient, although entitled in this coart : and the court will not allow a sup- 
 plementary affidavit to be filed, to aid the defect, 1 Moore & P. 22, 4 Bing. 
 393, S. C. In the King's Bench, when a bill of Middlesex issues, upon an 
 affidavit of debt duly sworn pursuant to the statute 12 Geo. I. c. 29, § 2, an 
 office copy of the same affidavit will authorize the issuing of a latitat into a 
 different county, 7 Barn. & Cres. 52(3, 1 Man. & Byl. 231, S. C. But a 
 special capias^ issued upon an affidavit sworn at the bill of 3Iiddlesc.r office, 
 is irregular: and though it was contended, that the practice was for the 
 filacer, upon transmitting to him either the original affidavit or an 
 office copy of it, to issue the writ, yet *the court said that such [ *180 ] 
 could not be the practice ; for that an affidavit made for one spe- 
 cific object, could not be transferred to another, and perjury could not be 
 assigned on the office copy.(a) So, in the Common Pleas, where, on an 
 affidavit of debt sworn before and filed with the filacer for Devonshire, a 
 capias ad respondendum issued to the sheriff of that county against the 
 defendant, who not being found there, an office copy of such affidavit was 
 filed with the filacer for London, on which another capias issued, directed 
 to the sheriffs of London, under which the defendant was arrested, the 
 court held, that this was irregular ; for, by the terms of the statute, an 
 affidavit must be made before a judge, or commissioner of the court author- 
 ized to take affidavits, or before the officer who issues the process or his 
 deputy ; and in this case, therefore, the affidavit should have been sworn 
 before and filed with the filacer in London.{h) But where the defendant 
 was arrested on a testatum capias into Devonshire, without any affidavit 
 filed on issuing the testatum capias, an affidavit having been filed on 
 issuing a previous capias into Cambridgeshire, the court held it to be 
 regular, though the testatum was not tested on the quarto die post of the 
 original ; the filacer for Cambridgeshire being the proper officer to issue 
 writs into Devonshire.[c) By the jurat to an affidavit of debt, made by a 
 
 (n) Td. {hid. 
 
 (o) Extended to the isle of Afan, by statute 6 Geo. III. c. 50, ? 2. And see the statute 55 
 Geo. III. c. 157, for empowering the courts of law and equity in Ireland, to prant commis- 
 sions to take affidavits, in all parts of Great Britain. The commission for taking aflidavits 
 
 [a] An affidavit must on its face appear to have been taken by the proper officer, and the 
 legal requisitions to have been complied with. The court cannot stop to inquire into the 
 competency of the ofiicer or the place wiicre it was taken. The State v. Green, 3 Green's 
 N. J. Rep. 90. Saunders v. Envin, 2 How. Miss. 732. Manufacturers' Bank \. Coicdcn, 3 Hill 
 4G1. English v. Bonham, 3 Green's N. J. Rep. 431. '
 
 2gQ OF THE AFFIDAVIT 
 
 foreiffncr, it was certified by the signer of the bills of Middlesex, that the 
 affidavit was interpreted by F. C. professor of languages, (he having first 
 sworn that he understood the Eyiglish and French languages,) to the 
 dejionent, who was afterwards sworn to the truth thereof; and this was 
 holden to be sufficient.((:?)[A'], 
 
 {d) 4 Barn. & Cres. 358, 6 Dowl. & Ryl. 514, S. C. 
 
 [a] Where an affidavit is made out of the state, there should be made before a judge or 
 justice in the state where it is to be used an additional affidavit, setting forth that the ori- 
 ginal affidavit was made before a person who had authority to administer an oath ; that the 
 person who subscribed the affidavit did take the oath ; that the handwriting so subscribed 
 is the proper handwriting of the affiant; and that the attestation thereto attached is the 
 proper handwriting of the officer before whom it purports to have been taken. Spragella v. 
 Montehruno, 1 South Car. Const. Rep. 281, by Mill. It was held in this case that an affidavit 
 made before a notary public in another state, and certified under his notarial seal, was in- 
 sufficient to hold to bail. It, however, rests wholly upon the construction of the South 
 Carolina act of 1769, though the opinion of Judge Johnston may be usefully consulted as 
 to sufficiency of attestations and authentications done out of the state, and as to the prin- 
 ciples which regulate exemplifications under the acts of Congress. 
 
 In Belden v. Deroe, 12 Wend. 225, the form of a certificate is given, and approved by 
 Savage, Ch. J., after exceptions taken by counsel. The practice does not seem to be uni- 
 form. In Tucker v. Ladd, 4 Cow. 47, an affidavit taken before a notary public in New 
 Hampshire, was allowed to be read in New York. The Supreme Court of New Jersey, in 
 The Trenton Bank v. Wallace, 4 Halst. Rep. 83, and Ano7iy., 3 Id. 176, held that an affidavit 
 made before a judicial officer in another state, verifying a plea in abatement, could not be 
 read. This, however, depended on the construction of a rule of court. 
 
 In the absence of statutory regulations or rules of court, perhaps, the most satisfactory 
 view of the whole matter is presented in Walker v. Bamher, 8 S. & R. 61, in the opinion of 
 Ch. Just. Tilghman, where it was held, that a positive affidavit of debt, made before a jus- 
 tice of the peace in England, was held sufficient. 
 
 "The question," says he, "is, whether this affidavit be sufficient to hold the defendants 
 to special bail, and a very important question it is ; for it is contended hj the counsel for 
 the defendants, that no oath made in a foreign country, however positive, is sufficient to 
 hold to bail, unless accompanied with some written acknowledgment of the debt by the 
 defendant. If the law be so, it may create great embarrassment to foreigners, and be in- 
 jurious to the commercial credit of the state. We have therefore endeavored to ascertain 
 the ground on which the rule, set up by the defendant's counsel, is supported. We have no 
 act of assembly or rule of court on the subject. But the authority of the case of Taylor v. 
 Knox, 1 Dall. 159, decided by the late Ch. J. Shippen, when President of the court of Com- 
 mon Pleas, in the year 1785, is relied on. Of course, we have examined that case thoroughly ; 
 and it appears, that the president found himself embarrassed by a practice, which had been 
 established before he came on the bench, of refusing special bail, unless the debt were 
 sworn to before one of the judges of the court, agreeably to the stat. 1 2 Geo. I. This prac- 
 tice he considered as illegal, because that statute had never been extended to this state, 
 before the revolution. The consequence ought to have been, the establishment of a prac- 
 tice, agreeably to the general principles of commercial law and the usage of the most en- 
 lightened nations. The mind of President Shippen was inclined to liberality, and we may 
 plainly discover a struggle between his own view of the law, and his wish to avoid too 
 wide a departure from the sentiments of his brethren who were not lawyers. Accordingly, 
 he made a compromise, by striking out a middle way, as he called it, between the statute 
 12 Geo I., which required an affidavit before one of the judges of the court, and the general 
 principles of law which admitted an affidavit before a notary public, or magistrate, of a 
 foreign country. President Shippen was aware, that in England, before the statute of 12 
 Geo. I., an affidavit before a notary i)ublic of a foreign country, was received in proof of 
 cause of bail; for he cites a case to that purpose, reported in 8 Mod. 323, (11 Geo. I.) But 
 he does not seem to have understood, that the same evidence has been received since that 
 statute. Nevertheless, it certainly has. For, the construction put upon the statute by the 
 English judges was, that although it prohibited a plaintiff" from arresting the defendant and 
 holding him to bail without an affidavit before a judge of the court, of his own authority, 
 and without a judge's order, yet it did not restrain a judge from making an order to hold 
 to bail, on an affidavit made in a foreign country. The reason why it is presumed that this 
 had escaped the President is, that he says, the court of Common Pleas desired to keep up a 
 reciprocity between this country and England, and therefore required an affidavit before a 
 judge. But there could be no reciprocity if one country admitted an affidavit before a
 
 TO HOLD TO BAIL. 180 
 
 There being no action depending in court, at the time when the affidavit 
 is made, it ought not regularly to be entitled in a cause : and in one case, 
 the King's Bench discharged the defendant out of custody on common 
 bail, on account of its being so entitled ;(c) but in a subsequent casc,(/) 
 they thought that as the practice had obtained so long, of adding a title 
 to affidavits of this kind, it would be too much to determine, that such 
 practice had been erroneous ; particularly as this was a mere question of 
 form, and did not interfere with the justice of the case. A rule of court, 
 however, has been since made in the King's Bench, " that affidavits of 
 any cause of action, before process sued out to hold defendants to bail, be 
 not entitled in any cause, nor read if filed. "((/) And, in the Common 
 Pleas, if an affidavit to hold to bail be entitled in a cause, it is bad ; and 
 the defendant may be discharged, on entering a common appearance.(A) 
 It was determined in one case,(z) to be no objection to an affidavit to hold 
 to bail, that it was not entitled "In the King's Bench :" but in a subse- 
 quent case it was holden, that an affidavit of debt, not entitled in any 
 court, and only subscribed with the words " i??/ the Court,'' at 
 the bottom of i\iQ jurat, *is not sufficient ;(««) though where the [ *181 ] 
 name of one of the judges of that court is affixed to the affidavit, 
 it will entitle the party to read it, as sworn in court •.(hh) And an affidavit 
 not entitled in the court, but purporting at the foot, to have been sworn 
 before the deputy filacer, is sufficient. (cc) 
 
 An affidavit made ahroad, out of the king's dominions, is put on the 
 same footing as an affidavit sworn in Scotland or Ireland ; which, though 
 not sufficient of itself to authorize an arrest, will be a good ground for 
 applying to the court or a judge, for an order to hold the defendant to 
 special bail.((Z) The affidavit, however, when made out of England, ought 
 to contain all the requisites that are essential to affidavits for holding to 
 
 (e) 6 Durnf. & East, 640 ; and see Say. Rep. 218. (/) 7 Durnf. & East, 321. 
 
 (9) R. T. 37 Geo. III. K. B. 7 Durnf. & East, 454. 
 
 (h) 1 Bos. & Pul. 36, 227. (i) 7 Durnf. & East, 451. 
 
 (aa) SMaule&Sel. 157. 
 
 (6i) M 157, 8; and see 13 East, 189. But see 1 Moore & P. 22. 4 Bing. 393, S. C. Ante, 
 179. And for the form of i\xQ jurat, on an affidavit to hold to bail, see Append. Chap. X. ^ 1. 
 {cc) 1 Chit. Rep. 165. [d) Ante, 166. 
 
 foreign magistrate and the other did not. But we may see clearly -which way the judg- 
 ment of President Shippen, who was a man of large views, inclined ; for in that very case 
 of Taj/lor v. K/iox, he held the affidavit before the lord Mayor of London, a sufficient ground 
 for an attachment, and even in cases of capias, where a written acknowledgment of the 
 defendant was required, he thus expresses himself: 'This rule, however, affects the inhabi- 
 tants of other countries as well as England, and it may possibly be found necessary at 
 some future time to make an alteration in it more conformable to the general law on these 
 subjects.' Had he been now living, I make no doubt that he would have thought that 
 future time was now come, especially had he been assured, (as we have been by very satis- 
 factory evidence,) that in the year 1807, the court of King's Bench, in England, ordered 
 special bail, on the affidavit of a citizen of the United States, made before a magistrate in 
 Paris, proving a debt contracted in the United States. Our commerce has increased pro- 
 digiously since the year 1785, when the rule was laid down in the case of Tai/lor v. Knoz, 
 and in order to do justice, it is necessary that the law of evidence, in commercial cases, 
 should keep pace with the progress of business. This court is unfettered by the rule of the 
 Common Pleas, and after diligent search, we have found no case, either reported or in 
 manuscript, in which we have decided that an affidavit made in a foreign country should 
 not be received. Affidavits made in other states hove always been received without scruple, 
 and I understand that suh silfnlio it has been customary to demand special bail on affidavits 
 made in Europe. It is time the matter should l)e settled. We have considered it delibe- 
 rately, and are of opinion, that in the case before us, the plaintiffs have shown good cause 
 for special bail."
 
 281 OF THE AFFIDAVIT 
 
 bail in this counti-y ; and therefore, -while the bank acts remained in force, it 
 was deemed necessary to state, in an affidavit made in Ireland, for the 
 purpose of arresting the defendant in this country, that he had not made 
 a tender of the money in bank notes.(e) It has been said, that where an 
 affidavit of debt is made in Scotland or Ireland, the party verifying it 
 must swear, "that it was made by the plaintiff; that the hand-writing 
 subscribed thereto, is of his own hand-writing ; that the said affidavit was 
 made and taken before a magistrate, who, deponent believes, had compe- 
 tent authority to administer an oath ; and that the hand-writing of the 
 person subscribing the said affidavit, is the hand-writing of such magis- 
 trate. "(/) But in practice it is deemed sufficient, where the affidavit of 
 debt is made in Scotland or Ireland, to swear to the hand-writing of the 
 judge before whom it was made:(^) And accordingly, where an affidavit 
 of debt contained no place in the jurat, but purported to be sworn before 
 the Chief Justice of the King's Bench in Ireland, and to be assigned by 
 him, and such signature was verified by affidavit here, the court held, that 
 it was a sufficient foundation for arresting the defendant, under a judge's 
 order, on mesne process :{h) Though if an affidavit of debt be made abroad, 
 out of the king's dominions, it is usual to swear to the other circumstances 
 before stated.(^) An affidavit to hold to bail, on an Irish judgment, must 
 show the value of the sum recovered in Irish money.(^) And where an 
 affidavit to hold to bail, made before a British Consul in a foreign country, 
 stated that the defendant was indebted to the plaintiff in 100,000Z. sterling, 
 for money had and received, it was holden that the affidavit was insuf- 
 ficient : inasmuch as it did not appear with certainty, whether the defendant 
 
 was indebted in British sterling money.(Z) It is not settled, 
 [ *182 ] whether a British * Consul, or Vice-Consul, resident in a foreign 
 
 country, has authority, by virtue of his office, to administer an 
 oath, for the purpose of holding a defendant to bail in this country ; the 
 judges of the King's Bench, in a late case,(a) being equally divided in 
 opinion on this point. 
 
 In point of form, the affidavit should be direct and positive, that the 
 plaintiff has a subsisting cause of action : and therefore, if it be merely by 
 way of argument, or reference to books or accounts, &c., or as the party 
 making it believes, it will not in general be sufficient.(5)[A] But an affidavit 
 
 (e) Nesbitt v. Pym, 1 Durnf. & East, 376, (c). Stcu-arty. Smith, 1 Bos. & Pul. 132, (a). 1 
 Chit. Rep. 464, i?i notis; but see 2 Chit. Rep. 17. And for the form of an affidavit in Eng- 
 land, to arrest in Ireland, see Append. Chap. X. ^ 6. 
 
 (/) 1 Sel. Prac. 2 Ed. 111. Lee's Prac. Die. 2 Ed. 20. 
 
 {g) 1 Chit. Rep. 721. Append. Chap. X. § 7. (/j) 1 Maule & Sel. 302. 
 
 \i) Per Lord Kenyan, T. 36 Geo. III. K. B. Sed qticere 9 and see 1 Chit. Rep. 463, 721, 2. 
 
 1 Durnf. & East, 251. Ilaydon v. Frederici, E. 38 Geo. III. K. B. 8 East, 364. 1 Chit. Rep. 
 464, in notis. 
 
 (k) 2 Chit. Rep. 16 ; and see 1 Chit. Rep. 28. 2 Barn. & Aid. 301, S. C. 
 (l) 4 Barn. & Cres. 886. 7 Dowl. & Rjl. 478, S. C. by three judges, Abbott, Ch. J. dis- 
 aentiente. 
 
 (a) 4 Barn. & Cres. 886. 7 Dowl. & Ryl. 478, S. C. and see 8 East, 364. 1 Chit. Rep. 
 463. 8 Moore, 632. And for other cases, respecting the ofBcer before whom affidavits made 
 abroad are to be sworn, see 1 Chit. Rep. 463, in notis. 
 
 (b) 2 Str. 1157, 1209, 1219, 1226, 1270. 1 Wils. 121, 231, 279, 339. Say. Rep. 59, S. C. 
 
 2 Bur. 655. 3 Bur. 1447, 1687. 4 Bur. 2126. Broivn v. Phepoe, H. 24 Geo. III. K. B. I 
 Durnf. & East, 716. 2 Durnf. & East, 55. 3 Durnf. & East, 575. 5 Durnf. & East, 364. 
 Barnes, 87 ; but see 3 Wils. 154. 2 Blac. Rep. 740, S. C. C. P. For the forms of affidavits 
 in different cases, see Append. Chap. X. § 1, &c. 
 
 [a] The general rule as to certainty is the same in this country. Wright v. Coggswell, I
 
 TO HOLD TO BAIL. 182 
 
 that tlie defendant is indebted to the phiintiff in such a sum, as lie computes 
 ify has been adjudged good.(6') And in an aflklavit to hold to bail, made by 
 the plaintiff's agent, (the plaintiff himself being abroad,) the debt on a 
 judgment being first positively s^vorn to, a subscciucnt statement that the 
 judgment is still in force, unpaid and unsatisfied, as chponent verUy be- 
 lieves^ will not vitiate.((i) AVhere the plaintiff sues as executor or admin- 
 istrator, or as assignee of a bankrupt, it is sufficient for him, or a clerk of 
 the testator,(e) &c. to swear that the defendant is indebted, &c. as appears 
 by books, J'c. and as he verily believes :{f) but even in that case, a mere 
 reference to books, &c. unsupported by the party's belief, is not sufficiently 
 positive •,{y) and, in the Exchequer, an affidavit by an executor, of a debt 
 due to his testator, " as appears by a statement made from the testator's 
 books, by an accountant employed to investigate the same, as deponent 
 verily believes,'' is insufficient to hold a defendant to special bail.(//) So, 
 where the affidavit to hold to bail was made by a bankrupt, who swore that, 
 at and before the date and suing out of the commission, the defendant was 
 indebted to deponent, and, as lie believed, was still indebted to his assignees, 
 on a bill of exchange accepted by the defendant, indorsed by the drawer to 
 deponent, and, as lie believed, still unpaid ; the court thought the affidavit 
 insufficient. (/) A co-assignee of a debt, arising out of bills of exchange in 
 his own possession, may sue in the name of the original creditor, and hold 
 the defendant to bail on his own affidavit, swearing positively as to all the 
 facts required which are within his own knowledge, and to the best of his 
 knowledge and belief, as to such as are within the knowledge of his princi- 
 pal and co-assignees.(Z:) And where the assignee of a bond swore, 
 that the obligor was indebted in ninety pounds, *for pi'incipal [ *183 ] 
 and interest upon the bond, as he believed, the affidavit was 
 deemed sufficient to hold the defendant to special bail :(«) But it is usual, in 
 such a case, for the obligee and assignee to join in an affidavit, stating the 
 execution of the bond, the assignment of it, and how much is due for prin- 
 cipal and interest. (6) And where, in an action on a bond, at the suit of the 
 obligee, for the benefit of the assignee, against the obligor, the affidavit to 
 hold to bail was made jointly by the plaintiff (the obligee,) and the assignee, 
 the former swearing that a certain sum was due for principal and interest on 
 the bond, and that he had assigned it to the latter ; and the latter, that the 
 sum due on the bond still remained unpaid, and due and owing to him as 
 
 (c) 2 Bur. 1032 ; but see 1 Durnf. & East, 717. {d) 1 Chit. Rep. 165. 
 
 (e) Elberington v. , M. 45 Geo. III. K. B. 
 
 (/) 4 Bur. 1992, 2283. Brown v. rhepoe, II. 24 Geo. III. K. B. 1 Durnf. & East, 83. 4 
 Durnf. k East, 176. 8 Durnf. & East, 419, 20. 2 Bos. & Pul. 298 ; and see Append. Chap. 
 X. I 93,4, 97, 8, 102. 
 
 {;/) 2 Str. 1219. 1 Durnf. & East, 83. 1 Chit. Rep. 92. 
 
 (h) 1 I'rice, 402. (j) 4 Bing. 142. 
 
 (k) 8 Durnf. & East, 418. (a) 1 Wils. 232 ; and see 7 Taunt. 275. 1 Moore, 24, S. C. 
 
 \b) 2 Bos. & Pul. 365 ; and see Append. Chap. X. g 75. 
 
 M'Lean, 471. Satterlee v. Lynch, 6 Hill, 228. It should be suflBciently certain to make out 
 a prima facie case. Postly v. Higgins, 2 M'Lean, 493. Wadcx. Judge, 6 Ala. 130. Read v. 
 Randal, 2 Harring. 327. Ilarman v. Brotherton, 1 Denio, 537. Parker v. Ogden, I Penning. 
 147. Woodfalk v. Leslie, 2 Nott <k M'Cord, 585. I^eu-in v. Breckenridge, 1 Blac. 112. Nex>eni 
 V. Merrie, 2 Wbart. 499. Thomas v. Crossin, 3 Amcr. Law Reg. 228, note. N'elson v. Cutter, 
 3 M'Lean, 326. Brooks v.M'Lellan, 1 Barb. 247. Jennings v. Sledge, 3 Kelly, 128. 
 
 It has been held in Montague v. Tjeatc, 7 Geo. Rep. 306, that the plaintifF need not set forth 
 nor describe the cause of action nor the character of the debt, but Xisbet, J., says expressly, 
 that the Georgia statute has superceded the act of 12 Geo. I. This case is therefore entirely 
 local.
 
 133 OF THE AFFIDAVIT 
 
 assi"-nco ; the court held this to be sufficient. 1 Moore & P. 179. An 
 affidavit of debt, stating that A. was indebted to B. for goods sold and deli- 
 vered in Jlolland^ and that the debt was assigned to C. according to the 
 laws of that country, and concluding with a statement that the assignee of a 
 debt may sue the debtor according to the laws of Holland, " as deponejit 
 is informed and believes," has been deemed sufficient to hold the defendant 
 to bail in this country.((?) 
 
 It is also requisite, that the affidavit should be certain and explicit, as to 
 the nature of the cause of action : Therefore, an affidavit that the defendant 
 is indebted to the plaintiff in such a sum, without more,(c?) or generally 
 upon promises, {e) or in so much upon a bond for performance of cove- 
 nants,{f) or upon breach of articles{g) or as a balance of accounts be- 
 tween the parties,(7j) has been holden to be too general. So an affidavit to 
 hold to bail, stating only that the defendant is indebted to the plaintiff, " for 
 goods sold and delivered, (without saying by the plaintiff to the defendant,) 
 and as the acceptor of a bill of exchange,"(^) or " for goods sold and deli- 
 vered (not saying by the ijlaintiff,) to the defendant," (A;) or "for goods 
 sold and delivered /or the defendant, "(?) is insufficient. And, in the King's 
 Bench, an affidavit to hold to bail, stating that the defendant, being captain 
 of a ship, was indebted to plaintiff, " for work and labour of plaintiff done 
 on board the ship, and for materials found by plaintiff and used therein, and 
 for goods sold and delivered, and money paid by plaintiff, at the request of 
 defendant," was holden to be defective, in not stating that the work was 
 done, or money paid for, or the goods sold to defendant. (?w) But where it 
 was stated in the affidavit, that the defendant was indebted, " for the use 
 and occupation of a certain dwelling house, &c. of the plaintiff, held and 
 enjoyed by the defendant as tenant thereof," without saying that he was 
 tenant to the plaintiff, it was deemed sufficient. (w) So, in the Common Pleas, 
 an affidavit to hold to bail, stating the debt to be " for money paid laid out 
 and expended, and wages due to the plaintiff for his services on board the 
 defendant's ship," is sufficient, without expressly stating that the wages 
 were due from the defendant. (o) So an affidavit to hold to bail, which 
 states that the defendant is indebted to the plaintiff, for the hire of divers 
 carriages, &c. of the plaintiff, to and for the use of the defendant, 
 [ *184 ] is sufficient, without stating that they were hired of the *plaintiff, 
 or by whom they were hired. (a) So, it has been deemed sufficient 
 to state, in an affidavit to hold to bail, that the defendant is indebted to the 
 plaintiff in such a sum, " for money had and received on account of the 
 plaintiff," without adding, that it was received by the defendant.(b) And, 
 in an affidavit of debt for money paid to the use of the defendant,(cc) or for 
 work and labour as the defendant's servant,((icZ) it is not necessary, in the 
 Common Pleas, to state that it was at his request ; but it is otherwise in the 
 
 (c) 4 DoM'l. & Ryl. 180. {d) 1 H. Blac. 10. 
 
 (e) Dou^. 467. (/) Say. Rep. 109 ; and see 4 Maule & Sel. 330. 
 
 \g) Booker v. Friend, cited in Say. Rep. 109. Fer. Ciir. M. 41 Geo. III. K. B. 
 
 (A) 4 Taunt. 154. 2 Chit. Rep. 15. [i) 7 East, 194. 
 
 (A:) 8 East, 106. 11 East, 315. 6 Taunt. 192. 1 Marsh. 535 S. C. 
 
 {l) 2 Barn. & Aid. 596. 1 Chit. Rep. 331, S. C. 
 
 {m) 2 Maule & Sel. 603. {n) 9 Price, 322. 
 
 (o) 1 Marsh. 317. (a) 6 Taunt. 389. 2 Marsh. 83, S. C. 
 
 [b) 8 Durnf. & East, 338 ; and see id. 27. 
 
 (cc) 5 Taunt. 704, 751. 1 Marsh. 315, S. C. 8 Moore, 332. 1 Bing. 338, S. C. accorJ. 
 
 (fW) 5 Taunt. 756. 1 Marsh. 317, (a). S. C. 6 Taunt. 389, S. P.
 
 TO HOLD TO BAIL. 184 
 
 King's Bench. (<'^) An affidavit made l3y a married woman, that the defend- 
 ant is indebted " for tlie rent of lodiijings, and for money lent ly her to the 
 defendant," was held suflicient ; although it did not state to whom the 
 lodgings were let, and the person making the affidavit was herself incapable 
 of lending money ; for she might have lent it as agent to her husband. (^) 
 And an affidavit that R. Patten is indebted for money paid to the use of 
 the said II. JaeJcson, is well enough. (//) But an affidavit stating the 
 defendant to be indebted to the plaintiff, for money had and received to 
 the use of his wife;(/i) or that E. I. is indebted, kc, for money due from 
 the said G. P., E. I., kc.,{i) is insufficient. An affidavit to hold to bail 
 on a bill of exchange, has been deemed sufficient, though it do not state 
 in what character the plaintiff sues, whether as payee or indorsee :{k) And 
 an affidavit, stating that the defendant was indebted to the plaintiff on a 
 bill of exchange, payable to a third person, at a day now past, was deemed 
 sufficient ; without stating at what day the bill was payable, or showing 
 the connexion between the payee and the plaintiff.(/) But an affidavit, 
 that the defendant is indebted to the plaintiff, " as indorsee of a promis- 
 sory note, or bill of exchange, made or accepted by defendant," without 
 stating the date of the note or bill, or that it was payable on demand, or 
 at a day past, is insufficient :(7?i)[l] and it seems that the affidavit must 
 state in what character the defendant is sued.(??.) So, an affidavit stating 
 the defendant to be indebted to the plaintiff, on a promissory note, drawn 
 in favour of J. E. & Co., and duly indorsed to the plaintiff, has been 
 deemed insufficient. (o) 
 
 In an action on a money bond, the affidavit to hold to bail should regu- 
 larly state that the defendant is indebted, &c., for principal and interest 
 due on a bond, bearing date, &c., and made and entered into by the 
 defendant to the plaintiff, in the penal sum, &c., conditioned for 
 
 the payment *of Z., and interest, at a certain day now past. (a) [ *18o ] 
 
 And where the affidavit stated, that the defendant was indebted, 
 &c., in a certain sum, for pi'incipal and interest due on a bond, made by 
 the defendant, in a greater penal sum, it was holden to be good ; though 
 it did not state the condition of the bond to be for the payment of 
 raoney.(6) But the affidavit must show that the bond was then due and 
 payable; otherwise the defendant will be discharged on common bail.(t') 
 And an affidavit, stating that defendant is indebted to the plaintiff in 
 6000/. " upon a bond, bearing date, &c., and made and entered into by 
 defendant to plaintiff, in the penal sum of 25,000/.," without showing the 
 condition of the bond, was holden insufficient ; and the court discharged 
 
 {ce) 5 Maule & Sel. 446. (/) Per. Cur. T. 40 Geo. III. K. B. 
 
 \q^ 3 Maule & Sel. 178. {h) 4 Bing. 50. 
 
 ((■)' 1 Dowl. &Ryl. 150. 
 
 \k) 7 East, 94, 194. 3 Smith R. 117, S. C. K. B. 7 Taunt. 171. 2 Marsh. 483, S. C. C. 
 P. accord, but see 6 Taunt. 25. 1 Marsh. 424, S. C. 6 Taunt. 531. 2 Marsh. 231, S. C. 
 contra. 
 
 (l) 1 Chit. Rep. 648 ; and see 4 Moore, 18. 5 Moore, 52. 2 Brod. & Bing. 338, S. C. Id. 
 343. 2 Dowl. & Ryl. 148. 
 
 (ot) 2 Maule & Sel. 148, 475. 3 Barn. & Aid. 495, K. B. 7 Taunt. 171. 2 Marsh. 483, S. 
 0. 4 Moore, 18, C. P. accord, but see 1 New Rep. C. P. 157, contra. 
 
 (n) 2 Marsh. 231. 6 Taunt. 531, S. C. (o) 4 Bing. 114. 
 
 (a) Append. Chap. X. g 73. 
 
 (6) 7 Taunt. 275. 1 Moore, 24, S. C. (c) 7 Dowl. & Ryl. 232. 
 
 [1] And an affidavit of debt, stating that several persons are jointly indebted to the plain- 
 tiff accepted in a particular form, by thctn, or one of them, is insufficient. 10 Moore, 323.
 
 2g5 OF THE AFFIDAVIT 
 
 the defendant on common bail.((;Z) So an affidavit to hold to bail, in an 
 action against a surety on an arbitration bond, must set out the condition, 
 and show that a demand of the money was made on the lyrincipal, if 
 required by the award, (e) 
 
 In holding a defendant to bail for stipulated damages, for not perform- 
 ing an agreement, it is necessary that the affidavit should state what the 
 agreement was, and the breach of it.(/) And as a party cannot be held to 
 bail for a penalty, but only for the sum secured by it, an affidavit stating 
 that the defendant was indebted to the plaintiff in lOOOZ. "under an agre- 
 ment in writing, whereby the defendant undertook to pay the plaintiff the 
 balance of accounts, &c., which balance is still due and unpaid," is insuf- 
 ficient, without stating that the balance was 1000Z.(</) So an affidavit, 
 that the defendant is indebted to the plaintiff in 50^. " by virtue of an 
 agreement, whereby he bound himself in that sum for the performance of 
 the said agreement, and which he had neglected and refused to perform," 
 without stating what the agreement was, or the breach of it is not suffi- 
 cient.(/i) So an affidavit, stating that the defendant is indebted to the 
 plaintiff in so much for interest money, under and by virtue of an agree- 
 ment under the hand of the defendant,(e) or for his subscription as mem- 
 ber of a certain reading club, according to the rules and regulations of 
 the same,(A;) is not sufficient. So, if a tenant bind himself in a penalty, 
 for performance of repairs within a certain time, the court will not permit 
 him to be arrested for the penalty, upon an affidavit which does not show 
 in what respect, and to what amount, he has violated his contract. (^) So, 
 where an affidavit stated, that the defendant was indebted to the plaintiff 
 in 2457. "for money lent by plaintiff to defendant, for the use of another, 
 and for which the defendant promised to be accountable, and repay or 
 cause to be paid or secured to the plaintiff, &c.," the defendant was dis- 
 charged on common bail ; it not appearing in the affidavit, but that the 
 
 money had been secured, according to the agreement. (??i) And 
 [ *186 ] where an affidavit stated, *that the defendant was indebted to the 
 
 plaintiff, upon a written agreement to marry plaintiff, at a time 
 specified, or pay her 1000?., and that he had not done either, although the 
 time had elapsed, and plaintiff was ready and willing to marry defendant, 
 and requested him to marry her; the court held that this was insufficient, 
 as they can take nothing by intendment in an affidavit of debt ; and here, 
 no consideration for the defendant's promise was shown. (a)[l] But, in 
 the Common Pleas, an affidavit to hold to bail, stating the defendant 
 to be indebted, " for damages awarded, and for costs and expenses 
 taxed and allowed," is sufficiently certain; for it will be inferred, that 
 the award and taxation are such as will support the action. (5) And, 
 in that court, an affidavit stating that the defendant was indebted to 
 
 (f^) 4Maule &Sel. 330; but see7 Taunt. 275. 1 Moore 24, S. C. Ante,\m. 
 
 (e) 7 Taunt. 405. 1 Moore, 110, S. C. 
 
 (/) 6 Durnf. &East, 13. Per Cwr. H. 41 Geo. III. K. B. 2 East, 409. 
 
 (q\ 6 Durnf. & East, 217. (h) 2 East, 409. 
 
 (t) 10 East, 358. {^) 1 Dowl. & Ryl. 150. {I) 5 Taunt. 247. 
 
 (to) 5 Durnf. & East, 552 ; and see 2 Bos. & Pul. 48. 
 
 (a) 1 Barn. & Cres. 108. 2 Dowl. & Ryl. 69, S. C. 
 
 (6) 1 Bos. & Pul. 365 ; and see 6 Dowl. & Ryl. 15. 
 
 [1] So, an affidavit of debt on an award, directing money to be paid by the defendant to 
 the plaintiff on demand, without alleging a demand, was deemed insufficient. 7 Barn. & 
 Cres. 494. 1 Man. & Ryl. 324, S. C.
 
 TO HOLD TO BAIL. 18G 
 
 the plaintiff, " upon and by virtue of a certain charter-party of affreight- 
 ment, bearing date, kc, for and on account of the hire of a ship, let 
 to hire by the plaintiff to the defendant, and by hira taken, for a cer- 
 tain voyage from to ," was deemed sufficient.(c) So, 
 
 an affidavit to hold to bail, stating that the defendant was indebted 
 to the plaintiff, in trust for the deponent, under a deed, by Avhich the 
 defendant had covenanted to pay money, " at certain times, and on cer- 
 tain events, now past and happened," was holden to be sufficient. ((/) In the 
 Exchequer, a defendant cannot be held to bail, on an aflidavit stating him 
 to be indebted to the plaintiff, "in respect to a certain sale of land, in pos- 
 session of the defendant," 2 Younge & J. 2. And an affidavit to hold to 
 bail, stating that the defendant was indebted to the plaintiff, by virtue of 
 certain articles of agreement, by which the latter agreed to sell, and the 
 former to purchase certain lands, and that defendant had been let into 
 possession in pursuance of the agreement, was deemed insufficicirt, with- 
 out stating that a conveyance had been tendered to the defendant. Id. 81. 
 
 It was formerly sufficient, in order to hold to bail in trover^ to make a 
 general affidavit, that the defendant had possessed himself of divers goods 
 and chattels of the plaintiff, of the value, &c. which he had refused to de- 
 liver to the plaintiff, and had converted the same to his own use.(e) But 
 an affidavit, stating that the defendant was indebted to the plaintiff " in 
 trovcr,'\f) or that the defendants had possessed themselves of certain 
 goods, &c. of the plaintiff, (md of other persons^''\g) or that "the plain- 
 tiff's cause of action against the defendant was for converting and dispos- 
 ing of divers goods of the plaintiff, to the value of 250Z. which he refused 
 to deliver, though the plaintiff had demanded the same, and that neither 
 the defendant nor any person on his behalf had offered to pay to the plain- 
 tiff the 250?. or value of the goods, "(7i) has been deemed insufficient. And 
 to obtain a judge's order, under the late rule,(i) the affidavit should fully 
 set forth the circumstances under which the defendant had possessed him- 
 self of the goods, the particulars of which they consist, and the value of 
 them, and in what manner the defendant has converted them to his own 
 use. In order to hold to bail in trover for a bill of exchange, it should be 
 stated that the bill remains unpaid. (A:) And an affic^avit to hold to bail in 
 troverhy the assignees of a bankrupt, stating that "the defendant possessed 
 himself of the goods, which he refused to deliver, and has converted them 
 to his own use, as appears by the bankrupt's books of account, 
 and by the *letters of S. (the agent,) and letters of the plaintiffs, [ *187 ] 
 as deponent believes^" was holden not to be sufficiently certain, 
 to show a conversion ; and therefore the court discharged the defendant 
 on common bail. (a) 
 
 An affidavit to hold to bail on the lottery act, must specify the nature of 
 the offence, and aver that the defendant has incurred the forfeiture :(h) but 
 the offence need not be described circumstantially, nor is the plaintiff 
 obliged to swear, that the defendant is indebted to him to the amount of 
 
 (c) 8 Moore, 107. 1 Bing. 242, S. C. (d) 3 Bing. 126. 
 
 {e) Append. Chap. X. ^ 82, &c. ( f) 1 H. Blac. 218. 
 
 ('/) Per Cur. T. 42 (leo. III. K. B. (/() 7 Dnrnf. & East, 550. 
 
 (i) R. H. 48 Geo. III. K. B. C. P. & Excheq. Ante, 172. And for the form of an aflidavit 
 ia trover, since the above rule, see Append. Chap. X. ^ 85. 
 {k) 7 Durnf, & East, 321. 
 
 (a) 2 Maulc & Sel. 5G3. [h] 1 Durnf. k East, 705.
 
 187 
 
 OF THE AFFIDAVIT 
 
 the penalty :(c) In such an affidavit, several offences of the same nature 
 may be included :(c?) and it need not state that the defendant received any 
 consideration for making the insurances, or set out the plaintiff's author- 
 ity to bring the action, (ee) 
 
 By the Bank acts,(_^) which were passed during the late reign, for re- 
 straining cash payments, the affidavit to hold to bail was required to state, 
 that no offer had been made to pay the sum sworn to, in notes of the gov- 
 ernor and company of the Bank of England, expressed to be payable on 
 demand, (fractional parts of the sum of 20s. only excepted.)(^) These acts 
 of parliament were construed to extend to affidavits made in Ireland, for 
 the purpose of being used in this country :(/i) And if an affidavit was made 
 here, to be used in Ireland, it must have negatived the tender in Irish, as 
 English bank notes. But the acts did not apply to the case of a defend- 
 ant holden to bail in trover, which could only be done under a judge's or- 
 der, on an affidavit of the circumstances. (i) By these acts,(^) " no action 
 or suit could have been prosecuted against the governor and company of 
 the Bank of England, during the continuance of the restriction thereby 
 imposed on payments by the said governor and company in cash, to com- 
 pel payment of any note of the said governor and company, expressed to 
 be payable on demand, or of any note of the said governor and company, 
 made payable otherwise than on demand, or of any sum of money whatso- 
 ever by the said governor and company, which they were willing to pay 
 in their notes expressed to be payable on demand." But in other cases, 
 bank notes, if objected to, were not made a legal tender by these acts:(Z) 
 
 though they are so considered, if not objected to at the time.(7;z) 
 [ *188 ] *It was not necessary, however, that the affidavit should be very 
 
 particular, in negativing a tender in bank notes : for, by the stat- 
 ute 43 Geo. III. c. 18, § 2, it was enacted, that " in case of any applica- 
 tion to any of his majesty's courts in Westminster hall, by any person who 
 had been or should be held to special bail, under or by virtue of any pro- 
 cess out of such court, to be discharged upon common bail, by reason of 
 any defect in such part of the affidavit on which he was so held to bail, 
 as negatived or was intended to negative any offer having been made to 
 pay the sum in such affidavit mentioned, in notes of the governor and com- 
 pany of the bank of England, the person or persons making such applica- 
 tion so to be discharged, should not be entitled to such discharge, unless 
 
 (c) Id. 2 Durnf. & East, 654. {d) 4 Durnf. & East, 228. 
 
 {ee) 6 Durnf. & East, 640 ; and see 2 H. Blac. 17. Append. Chap. X. ^81. 
 
 (/) 37 Geo. III. c. 45, § 9. 37 Geo. III. c. 91, I 8. 38 Geo. III. c. 1, I 8. 42 Geo. III. 
 c. 40. 43 Geo. III. c. 18, | 2 ; and see the statutes 51 Geo. III. c. 127 ; 52 Geo. III. c. 50 ; 
 53 Geo. III. c. 5 ; and 54 Geo. III. c. 52, for preventing bank notes from being received for 
 less than the sura specified therein, &c. ; and stat. 59 Geo. III. c. 23, for restraining, and id. 
 c. 49 ; 1 & 2 Geo. IV. c. 26, for the gradual resumption of cash payments. And for the 
 determinations on these acts, see the eighth edition of this work, p. 187, &c. 
 
 {g) Append. Chap. X. § 1. 
 
 (A) Nesbitt v. Fym, 7 Durnf. & East, 376, in notis ; Stewart v. Smith, 1 Bos. & Pul. 132, in 
 nolis, S. P. Ante, 181. 
 
 (i) 4 Price, 307. Ante, 171, 2, 186. 
 
 [k) See stat. 37 Geo. III. c. 45, ^ 2, and the other statutes referred to in note (/), 
 opposite. 
 
 {I) 2 Bos. & Pul. 526. And see the statute 56 Geo. III. c. 68, ^ 11, by which gold coin is 
 declared to be the only legal tender. 
 
 {m) 3 Durnf. k East, 554. 4 Esp. Rep. 267. Per Bidler J. in WUb;/ v. Warren, Sit. Mid. 
 after M. T. 28 Geo. III. K. B., and he held, that the same doctrine applied to a draft on a 
 banker.
 
 TO HOLD TO BAIL. 188 
 
 he she or they should at the same time make proof, by affidavit, that the 
 whole sum of money, for which he she or they had been so held to bail, 
 had been or was, before such holding to bail, offered to be paid, either 
 wholly in such notes, or partly in such notes and partly in lawful money 
 of this kingdom." This statute, however, was not intended to remedy the 
 total omission of a clause in the affidavit, negativing a tender in bank notes, 
 but merely to cure formal slips. (a) And by the statute 50 Geo. III. 49, 
 § 1, the restrictions on payments in cash, under the several bank acts, finally 
 ceased and determined on the first day of 3Ia!/ 1823: So that it is no 
 longer necessary to negative a tender of the debt in bank notes, in an affi- 
 davit to hold to bail. 
 
 Lastly, it is a general rule, that the affidavit to hold to bail should be 
 single : and therefore if it contain two or more different causes of complaint, 
 that cannot be joined in the same action, either at the suit of one or several 
 plaintiffs, (6) or against one(c?) or scveral(f?) defendants, it is irregular, and 
 the courts on motion will aet aside the proceedings. (c) 
 
 If there be no affidavit, or the affidavit be defective,{f) or materially 
 different from the process(^) or declaration, (^) or not dn\j filed,{h) or if 
 the sum sworn to be not indorsed on the writ,(^) the court will discharge 
 the defendant upon common bail. But if the affidavit be merely informal, 
 the defendant cannot object to it, after he has voluntarily given] a bail- 
 bond,(A;) put in(^) or perfected(m) bail above, taken the declara- 
 tion out of the office,(?i) *pleaded to the action, (aa) or let judg- [*189] 
 ment go by default. (6J) And it is a rule in the King's Bench, 
 that when the affidavit to hold to bail is regular, the court will not go out 
 of it, or prejudge the cause, by entering into the merits upon which it is 
 founded. ((?c)[a] The plaintiff, therefore, in that court, must stand or fall 
 by his affidavit ; it being the constant and uniform practice of the court, 
 in cases of arrest, not to receive a supplemental or explanatory affidavit 
 on the part of the plaintiff, nor a counter or contradictory one on the part 
 
 (a) Wood V. Jenkins, M. 45 Geo. III. K. B. 2 Smith, R. 15G, S. C. and see 1 Bos. & Pul. 
 17G. 7 Taunt. 405. 1 Chit. Rep. 58, (a). 59, 60, 161, (a). 2 Chit. Rep. 18. 9 Price, 322. 
 
 (b) 6 Durnf. & East, 688. (c) 5 Bur. 2690. 
 
 {d) Doug. 217. Fry v. Montgomery and others, M. 26 Geo. III. K. B. 4 Durnf. <k East, 
 577, 695. 5 Durnf. & East, 254, 722. 4 East, 589. 1 Maule & Sel. 55. Barnes, 70. 1 
 Bos. & Pul. 49. 2 New Rep. C. P. 82. 1 Marsh, 274. 
 
 [e) See further, as to the affidavit to hold to bail, Petersd. Part I. Chap. V. 
 (/) 7 Durnf. & East, 375. (g) Post, Chap. XII. 
 
 (h) Ilussey v. Baskerville, cited in 2 "Wils. 225. 2 Taunt. 163. "l Maule & Sel. 230. 2 
 .Moore, 192. 8 Taunt. 242, S. C. 
 
 (f) 2 Wils. 69. (/.-) 7 Durnf. & East. 375. 2 Dowl. & Ryl. 252. 
 (/) 1 East, 330. 1 Maule & Sel. 230. In the hxttcr case, Mr. Justice Bayhij observed, that 
 
 there was not any instance, in which the party, after putting in bail above, had been per- 
 mitted to take advantage of a defect in the aflSdavit to hold to bail. See also 6 Taunt. 185, 
 C. P. accord. 
 
 fm)lEast, 81. 1 Bos. & Pul. 132, S. P. (n) 7 Durnf. & East, 451. 
 
 \aa) 7 Durnf. & East, 376, in notis: and see 1 East 77. 
 
 {bb) 8 Durnf. & East, 77. 1 East, 19, in notis, S. C. 
 
 (cc) 1 Sall<. 100, but see Forrest, 153. 3 East, 169. 2 Chit. Rep. 20. 5 Barn. & Aid. 
 904. 13 Price, 8. M'Clel. 2, S. C. 6 Dowl. & Ryl. 24. 
 
 [a] See Samson v. Kilse, 1 Browne, 341. Oliver v. Parrish, 2 Wash. C. C. R. 462. Cham- 
 pion v. Poss, 4 lb. 325. Comly v. Kniyht, 1 Browne, 286. An affidavit need not be signed 
 by the affiant to render it valid, provided it be sworn to and so certified by the proper officer. 
 Mellcus v. ShaJTer, 3 Denio, 60. (iaddis v. Durashy, 1 Green, N. J. Rep. 325. llilsman 
 V. Garrard, 1 Ilnrr. 124. And if it begin with the deponent's name it is a sufficient signing. 
 Huffv. Spircr, 3 Caines, 190. Jackson v. Viryil, 3 Johns. 540. Neither is a date essential, 
 and if stated erroneously, the mistake may be shown. Freas v. Jones, 3 Green, 20. 
 
 Vol. I.— 13
 
 189 
 
 OF THE PRIVILEGE 
 
 of the defendant.('itZ)[A] Even an affidavit of the plaintiff's confession, 
 that the defendant owes him nothing, will not be received.(ee) This prac- 
 tice however must be understood with reference to the merits of the cause; 
 it being competent to the defendant to show by a counter affidavit, that 
 he was privileged from arrest, or had been before holden to bail in this 
 country, for the same cause of action. (^^■)[b] 
 
 In the Common Pleas, where the affidavit to hold to bail is defective, by 
 reason of the omission of some circumstance necessary to complete it, as 
 where it is not sworn, in an affidavit made by an executor, that he believes 
 the debt to be due,(<7^) or that the defendant acknowledged an account 
 stated,(7i7i) &c., the court will permit the deficiency to be supplied by a 
 supplemental affidavit. And so, where the matter of bail is discretionary, 
 as in an action for a malicious prosecution,(2V) &c., the court, in deter- 
 mining whether an order shall be granted for special bail, will permit a 
 conti'adictory affidavit to be read on the part of the defendant. But 
 where the affidavit is a mere nullity, as being made by a person convicted 
 of felony,(^) or does not contain any positive oath,(?) or cause of 
 action, (w) the court will not receive a supplemental affidavit : nor will 
 they try the merits of the cause on a contradictory one, except in cases 
 where the matter of bail is discretionary.(n) In the Exchequer, if there 
 be probable ground to suspect that the securities upon which the defend- 
 ant is held to bail are illegal, the court, it is said, will discharge him upon 
 
 filing common bail.(o) 
 [*190 ] *An affidavit to hold to bail continues in force for a year ;[c] 
 
 during which period the defendant may be arrested, on the first 
 or any subsequent process sued out thereon. (a) But an affidavit made 
 more than a year before the suing out of the writ, is not sufficient to 
 authorize an arrest, in the King's Bench ; for the act requires an oath of 
 a subsisting debt, at the time of suing out the process ; and after a year, 
 it will be presumed that the debt has been paid, if nothing appears to the 
 contrary. (6) It is therefore necessary that a new affidavit should be made, 
 
 {dd) 2 Str. 1157. I Wils. 335. Say. Rep. 53, S. C. 1 Ken. 424. 2 Wils. 225. 1 Blac. 
 
 Rep. 192. 2 Bur. 655. 4 Bur. 2017.' Doug. 450, 467. v. Malone, M. 22 Geo. III. K. 
 
 B. Jacques v. Kixon, E. 26 Geo. III. K. B. 1 Durnf. & East, 716. 5 Durnf. & East, 552, 3. 
 Spragg v. Young, H. 35 Geo. III. K. B. 2 Maule & Sel. 563. 7 Taunt. 408. 1 Moore, 112, 
 S. C. 4 Bing. 148 ; but see 2 Blac. Rep. 850, 886. 1 H. Blac. 301, C. P. 
 
 (ee) 1 Wils. 335, and see Forrest, 155. 2 Chit. Rep. 20, (a). 
 
 Iff) 2 East, 453. [gg) 2 Blac. Rep. 850. 
 
 (AA) Barnes, 100, and see z(/. 87. 1 H. Blac. 248. 1 Bos. & Pul. 36, 228. 2 Bos. & Pul. 
 
 110, 298. 
 
 (m) Cas. Pr. 0. P. 148. Pr. Reg. 66. Barnes, 76, S. C. and see Pr. Reg. 63. Barnes, 61, 
 S. C. Id. 72, 87. 
 
 (k) Pr. Reg. 49. Barnes, 79, S. G. 1 Chit. Rep. 167. {I) 2 Wils. 224. 
 
 {m) 1 H. Blac. 10. 7 Taunt. 405. 1 Moore, 110, S. C. 4 Moore, 18, 19. 
 
 («) Barnes, 61. Pr. Reg. 63, S. C. Barnes, 109. 7 Taunt. 235. 2 Marsh. 548, S. C. 
 4 Moore, 4. 
 
 (o) Forrest, 153. [a) Ante, 154, 176. 
 
 \b) 2 Str. 1270. Pitches v. Davy and others, H. 44 Geo. III. Stewart v. Freeman, E. 47 Geo- 
 
 111. K. B. but see 1 Bos. & Pul. 176, G. P. 
 
 [a] Tower v. Kingston, 1 Browne, 33. Eldridge v. Robinson, 4 Serg. & R. 548. Campbell 
 V. Grove, 2 Johns. Cases, 105. Norton v. Barnum, 20 Johns. 337. 
 
 [b] Generally, counter affidavits are not admitted where the affidavit is positive as to the 
 debt or merits. Welsh v. Hill, 2 Johns. 100 ; Jordan v. Jordan, 6 Wend. 524. Uart v. 
 Faulkner, 5 Johns. 362, admits the principle, but that case was not within it. 
 
 [c] Corrin v. Wellington, 2 Miles, 267.
 
 FROM ARREST. 190 
 
 before a writ is sued out, when more than a year has elapsed since the 
 making of the former affidavit. [a] 
 
 Having thus shown for wliat cause of action, and upon what affidavit, 
 the defendant may he arrested and heUl to special bail, it will next be 
 proper to consider the j'^rivilege from arrest ; which is personal, tempo- 
 rary, or local :{c) and either existed at common laAv, or was created by act 
 of parliamcnt.[B] 
 
 Where the defendant is not subject to a capias, he cannot of course be 
 arrested and held to special bail. Thus, in the first place, not to mention 
 the sovereign, it is holdcn that the servants in ordinary of the kiny, or 
 queen regent, though subject to a capias, ought not to be arrested even 
 upon process of execution, ((Z) without notice first given to, and leave 
 obtained from the lord chamberlain of his majesty's household :(c) And 
 a servant of this nature is not liable to be arrested, although the debt 
 be contracted in the course of trade, which he publicly carries on.(/) 
 But the servants of a queen consort or doivager have no such privi- 
 lege.(^) And as the privilege is confined to the king's servants in 
 ordinary with fee, in regard of their attendance on his person, it has 
 been determined, that a gentleman of the king's privy chamber,(/i) or 
 the fort major or deputy governor of the tower of London,{i) is not 
 privileged from arrest. So, where one of the wardens of the toiuer, 
 on being arrested, claimed his privilege, but afterwards executed a bail- 
 bond, the court 'refused to order it to be delivered up to be cancelled. (M) 
 The king hath moreover a special prerogative, (which indeed is very seldom 
 exerted,) that he may, by his ivrit 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 
 
 (c) 2 Salk. tit. Privilege. And see further, as to the privilege from arrest, and what per- 
 ns may or may not be arrested, and held to special bail, Petersd. Part. Chap. III. 
 (rf) 5 Durnf. k East, 686 ; but see 2 Chit. Pvep. 46. 1 Dowl. & Ryl. 127, n. 
 (e) T. Raym. 152. 2 Keb. 3, 485 ; but see 1 Barn. & Cres. 139. 2 Dowl. & Ryl. 250,'S. C. 
 (/) 2 Taunt. 167. (g) 1 Keb. 842, 877. 
 
 [h) 2 Caru. & Aid. 234. 1 Dowl. & Ryl. 79. 
 
 ((■) 2 Chit. Rep. 48, 51 ; and see 6 Barn. & Aid. 139. 2 Dowl. & Ryl. 250, S. C. 
 {kk) 6 Barn. & Cres. 84. 9 Dowl. & Ryl. 153, S. C. ; and see 1 Moore & P. 309, 4 Bing 
 523, S.C. 
 
 [a] Recent legislation in England has materially changed many of the positions stated 
 by Mr. Tidd, but inasmuch as the whole subject-matter of this chapter has been modified 
 in this country, the reader is referred simply to the later books of English practice, where 
 he will liud all that can be useful by way of analogy. See 1 Chitty's ^Vrchbold's Pract. p. 
 662, 8 Ed. Exchequer Dig. tits. Alfidavit, and Affidavit to hold to Bail. 
 
 [b] Imprisonment for debt in most of the states no longer exists. Arrests cannot be made 
 except in the cases specially provided in the statutes. It is not within the scope of these 
 notes to do more than refer to the several statutes without stating their various and com- 
 plicated provisions. See Rev. Stat. Maine, Title 10, p. 624, 2d Ed. 1847. Rev. Stat. Verm. 
 Tit. 11, ch. 28, p. 187, 188, Ed. 1840. New Hamp. Comp. Stat. Tit. 21, ch. 197, p. 476, Ed! 
 
 1853. Mass. Rev. Stat. Pt. 3, Tit. 2, p. 560, Ed. 1836. Curwen's Laws of Ohio, 1185, Ed. 
 
 1854. Rev. Stat. New York, p. 744, Ed. 1848. Gen. Stat, of New York, Pt. 2, Tit. 7, Ch. 
 
 I, p. 242, 418 and note, Blatchford's Ed. 1852. Nixon's li^mer's Dig. New Jersey, \). 330 
 Ed. 1855. Rev. Stat. N. J. p. 323, Ed. 1847. Brighlly's Purd. Dig. Penn. p. 28, Ed. 
 1853. Laws of Delaware, Tit. 10, Ch. 102, 103, p. 368, Ed. 1852. Michigan Rev. Stat'. Pt. 
 3, Tit. 1, Ch. 5, p. 391. Arkansas Rev. Stat. p. 38, Ed. 1838. Const. ^U-kan., Art 7 Sect. 
 
 II. Dorsey's Laws of Maryland, Vol. 1, p. 460, Ed. 1840. 
 
 sons
 
 190 
 
 OF THE PRIVILEGE 
 
 r *191 1 realm. 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 were paid : but by the statute 25 Edw. III. stat. 
 5 c. 19, notwithstanding such 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. (a) 
 
 By the law of nations,[A] as declared by the statute 7 Ann. c. 12, Am- 
 bassadors, and other public minister s,{h) are privileged from arrest; as 
 are also their domestic servants ; it being enacted by the above statute, 
 that "all writs and process against the person or goods of an ambassador 
 or other public minister of a foreign prince or state, or the domestic ser- 
 vant of such ambassador or public minister, shall be utterly null and void, 
 to all intents and purposes whatsoever." But a consul is not considered 
 as a public minister, nor consequently privileged from arrest.(c) And it 
 has been adjudged,((i) that a defendant claiming the benefit of this act, 
 as domestic servant to a public minister, must be really and bond fide his 
 servant, at the time of the arrest ;(e) and must clearly show by affidavit, 
 the general nature of his service, and actual performance of it, and that 
 he was not a trader or object of the bankrupt laws.(/) For, by the laws 
 of nations, a public minister cannot protect a person who is not bona fide 
 his servant. It is the law that gives the protection : and though the pro- 
 cess of the law shall not take a bond fide servant out of the service of a 
 public minister, yet, on the other hand, a public minister shall not take a 
 person, who is not bona fide his servant, out of the custody of the law, 
 or screen him from the payment of his just debts. (^) So, where the ser- 
 vant of an ambassador did not reside in his master's house, but rented and 
 lived in another, part of which he let in lodgings ; the court held, that 
 his goods in that house, not being necessary for the convenience of the 
 ambassador, were liable to be distrained for the poor rates. (7i) And where 
 the wife of an ambassador's secretary was arrested, upon a writ issued 
 against her and her husband, the court refused to quash the writ, though 
 the husband swore that, before and at the time of the arrest, he was in 
 the actual employment of the ambassador, and in daily attendance upon 
 him, in writing dispatches, and other official documents ; it not being 
 sworn that he was a domestic servant, or employed in the abassador's 
 house, (z) 
 
 This privilege, however, has been long settled to extend to the servants 
 
 of a public minister, being natives of the country where he resides, as well 
 
 as to his foreign servants ',{k) and not only to servants lying in 
 
 [ *192 ] his house, *for many houses are not large enough to contain and 
 
 lodge all the servants of some public ministers, but also to real 
 
 (a) 3 Blac. Com. 289, 90. (6) Cas. <otj3. Talb. 281. 4 Bur. 2016. 
 
 (c) 3 Maule & Sel. 284 ; and see Cas. temp. Talb. 281. 3 Bur. 1481, S. C. cited. Com. Dig. 
 tit Ambasadors, B. 1 Taunt. 106. 9 East, 447, by whicli it appears that this point was for- 
 merly considered as doubtful. 
 
 (d)2Str.19l. 2 Ld. Raym. 1524. Fitzgib. 200, S. C. 1 Wils. 20, 78. 1 Blac. Rep. 48. 
 1 Bur. 401. 3 Bur. 1478. 1 Blac. Rep. 471, S. C. 3 Bur. 1676, 1731. 3 Wils. 33, and see 3 
 Carapb. 47. 
 
 (e) Flint v. De Lot/ant, M. 42 Geo. III. K. B. 
 
 (/) See the statute, ^ 5. (ff) 4 Bur. 2016, 17. 
 
 (A) 1 Barn. & Cres. 554. 2 Dowl. & Ryl. 833, S. C. 
 
 (t) 3 Dowl. & Ryl. 25. {k) 3 Bur. 1676. 
 
 [A] See Wbeaton's Elm. Inter. Law, p. 139, 3d Ed. 1846.
 
 FROM ARREST. 192 
 
 and actual servants lying out of his house :(a) Nor is it necessary, to enti- 
 tle them to the privilege, that their names should have been registered in 
 the secretary of state's office, and transmitted to the sheriff's office ;{b) 
 though, unless they have been so registered and transmitted, the sheriff 
 or his officers cannot be proceeded against for arresting them.(c) And it 
 is not to be expected, that every particular act of service should be spe- 
 cified : 'Tis enough, if an actual bond fide service be proved : and if 
 such a service be sufficiently made out by affidavit, the court will not, 
 upon bare suspicion, suppose it to have been merely colourable and collu- 
 sive. (cZ) 
 
 By the common law, Peers of the realm of England^{e) and Peeresses, 
 whether by birth or marriage,(/) are constantly privileged from arrest in 
 civil suits, on account of their dignity, and because they are supposed to 
 have sufficient property, by which'they may be compelled to appear : which 
 privilege is extended, by the act of union with Scotland,[g) to hcotch peers 
 and peeresses ; and by the act of union with Ireland,{h) to Irish peers and 
 peeresses. An Irish peer, who has voted in the election of representative 
 peers, cannot be arrested or sued hj capias. 7 Barn. & Ores. 388. 1 Man. 
 & Ryl. 110, S. C. And they are not liable to be attached, for the non- 
 payment of money, pursuant to an order of nisi py^ius, which has been 
 made a rule of court. (2) But this privilege will not exempt them from 
 attachinents, for not obeying the process of the courts ;( A;) nor does it ex- 
 tend to peeresses by marriage, if they afterwards intermarry with common- 
 ers.(/) And though the servants of peers, necessarily employed about 
 their persons and estates, could not formerly have been arrested,(m) yet 
 this privilege seems to have been taken away by the statute 10 Geo. III. c. 
 50, § l.{ii) Where a capias issues against a peer, the court will set aside 
 the proceeding for irregularity :(o) But it seems, that the sheriff is not a 
 trespasser for executing ii.{p) And the court will not, on motion, cancel 
 a bail-bond, given by a person claiming to be an Irish peer, unless his 
 peerage be clearly made o\xi.{q) 
 
 By the law and custom of parliament, Blemhers of the House of Com- 
 mons are privileged from arrest, not only during the actual sitting of par- 
 liament, but for a convenient time, sufficient to enable them to come from, 
 and return to any part of the kingdom, before the first meeting, 
 and after the *final dissolution of it ',{aa) and also for forty days(W)) [ *103 ] 
 after every prorogation, and before the next appointed meeting: 
 which is now in effect as long as the parliament exists, it being seldom 
 
 (a) 2 Str. 191. 3 Wils. 35, and see I Barn. & Cres. 563. 2 Dowl. & Ryl. 480, S. C, per 
 Abbott, Ch. J. 
 
 (6) 4 Bur. 2017. 3 Durnf. & East, 19. 
 
 (c) See the statute, ^ 5. 1 Wils. 20, and a modern order. (d) 3 Bur. 1431. 
 
 (e) 6 Co. 52. 9 Co. 49, a. 68, a. Hob. 61. Sty. Rep. 222. 2 Salk. 512. 2 II. Blac. 272. 3 
 East, 127. 
 
 (/) 6 Co. 52. Sty. Rep. 252. 1 Vent. 298. 2 Chan. Cas. 224. 
 
 (g) 5 Ann, c. 8, art. 23, and see Fort. 1C5. 2 Sir. 990. 
 
 (A) 39 & 40 Geo. III. c. 67, art. 4 ; but see 7 Taunt. 679. 1 Moore, 410, S. C. 
 
 (t) Ld. Falkland s case, E. 36 Geo. III. K. B. 7 Durnf. & East, 171, and see id. 448. 
 
 [k) 1 Wils. 332. Say. Rep. 50, S. C. 1 Bur. 631. 
 
 {I) Co. Lit. 16. 2 Inst. 50. 4 Co. 118. Dyer, 79. 
 
 im) Ordo Dorn. Proc. 28 Junii. 1715. 1 Mod. 146. 2 Str. 1065. 1 Wils. 278. 
 
 (n) 5 Durnf. & East, 687. 1 Chit. Rep. 83. 
 
 (0) 4 Taunt. 668. Ante,U%. (/>) Doug. 671. (y) 3 Dowl. & Ryl. 488. 
 
 (aa) Stat. 10 Geo. III. c. 50. 2 Str. 985. Fort. 159. Com. Rep. 444, S. C. 1 Ken. 125. 
 
 \bb) 2 Le7. 72. 1 Chan. Cas. 221, S. C, but see 1 Sid. 29.
 
 193 OI' THE PRIVILEGE 
 
 prorof^ued for more than fourscore days at atime.(cc)[A] And the courts 
 ■will not grant an attachment against a member of the house of commons, 
 for non-payment of money pursuant to an award.(c?(i) 
 
 Blenibers of convocation are allowed, by statute(e) the same privilege 
 from arrest in coming, tarrying, and returning, as members of the house 
 of commons. And members of corporations aggregate{f) and hun- 
 dredors,{g) not being liable to a capias, cannot be arrested for any thing 
 done in their corporate capacity, or on the statute 7 & 8 Geo. IV. c. 31. 
 
 Attorneys and other Officers, on account of the supposed necessity of 
 their attendance, in order to transact the business of the courts, are generally 
 speaking, privileged from arrest. (7i) And a Samsfer has been discharged 
 from an arrest on the circuit. (z) But the sheriff cannot take notice of their 
 privilege ;(/(;) nor is he bound to discharge them, even upon producing their 
 writs of privilege, except where the arrest was by process issuing out of an 
 inferior court, in which case their writs of privilege ought to be allowed 
 instanter.{l) 
 
 All other persons, being subject to a capias, were formerly liable to be 
 arrested. And indeed, before the statute 12 Geo. I. c. 29, where a capias 
 issued, there was no other way of bring them into court. But executors 
 and administrators are privileged from arrest, where they merely act en 
 auter droit, and have duly administered the effects of the deceased ;{m) 
 though where an executor or administrator hath personally promised to pay 
 a debt or legacy,(n) he may be arrested on such promise. So, he may be 
 arrested in an action of debt on judgment, suggesting a devastavit ;{o) if it 
 appear by affidavit, or the sheriff's return, (j'j)) that he has wasted the effects 
 of his testator, or intestate. Heirs and devisees, in like manner are privi- 
 leged from arrest, when sued on the obligation of their ancestors, or devisors: 
 For although an heir, having assets by descent in fee simple, is liable to be 
 sued in the debet and detinet, on the obligation of his ancestor ; yet the 
 action, being rather instituted to recover the value of the assets descended 
 and in his possession, than brought against him personally, he cannot be 
 arrested and holden to bail on his ancestor's bond : And the 
 [ *194 ] *same rule and reasoning apply to devisees, chargeable under the 
 statute 3 & 4 W. & M. c. 14. 
 
 In an action against Hiisbayid and Wife, the husband alone is liable to be 
 arrested, on mesne process ; and shall not be discharged, until he have put 
 in bail for himself and his wife.(a) If the wife be arrested on mesne pro- 
 
 {cc) 1 Blac. Com. 165. {dd) 7 Durnf. & East, 448. 
 
 (e) 8 Hen. VI. c. 1. 1 Eq. Cas. Abr. 349. (/) Bro. Abr. tit. Corporation, 43. 
 
 ((/) 3 Keb. 126, 7. (A) 1 Mod. 10, but vide ante, 80, 81. 
 
 (t) 1 H. Blac. 636. 
 
 (/:) Co. Lit. 131. 1 Salk. 1, and see Doug. 671. 4 Taunt. 631. 4 Moore, 36, (i). 
 
 {I) Cas. Pr. C. P. 2. 2 Blac. Rep. 1087. Ante, 81. 
 
 (m) Yelv. 53. Brownl. 293. 3 Bulst. 316. R. M. 15 Car. II. reg. 2. K. B. R. M. 1654, 
 I 12, C. P. Gilb. C. P. 37. 
 
 (n) 1 Durnf. & East, 716. 
 
 (o) 1 Sid. 63. 1 Lev. 39. Garth. 264. 1 Salk. 98. Highmore on Bail, 10. 
 
 ip) Comb. 206, 325. 
 
 [a) 1 Vent. 49. 1 Mod. 8, S. C. 6 Mod. 17, 86, R. E. 5 Geo. II. 1, (6), K. B. 1 Barn. & 
 Aid. 165. 2 Dowl. & Ryl. 225 ; but see 1 H. Blac. 235. 
 
 [a] Members of Congress are also privileged. Lewis v. Elmendorf, 1 Johns. Cas. 222. 
 Cox V. M-Lanahan, 3 Dall. 478. United States v. Cooper, 4 Id. 341. King v. Coil, 4 Day, 
 133. Gibbs V. Mitchell, 2 Bay, 406 ; and members of the State Legislatures or State Con- 
 ventions. Calvin v. 3Iorgan, 1 Johns. Cas. 415. Correy v. Russell, 4 Wend. 204. Bolton v. 
 Martin, 1 Dall. 296.
 
 FROM ARREST. 194 
 
 cess, she shall be discharged on common bail ; and that, ■whether she be 
 arrested singly,(6) or jointly with her husband. (c) But where the wife is 
 taken in execution, she shall not be discharged ;((/) unless it appear that she 
 has no separate property, out of which the demand can be satisfied ;{d) or 
 that there is fraud and collusion between the plaintiff and her husband, to 
 keep her in prison. (e) And where a woman, who had given a Avarrant of 
 attorney, married during the term, and was afterwards taken in execution, 
 on a judgment signed as of that term, and therefore having relation to the 
 first day of the term, it was holden that she could not be relieved. (/) In 
 an action against the wife only, if it be clear and notorious that she i3 
 covert, the court will discharge her out of custody, upon her own afiidavit 
 of the fact, which must be positively sworn to,(^) and that her husband is 
 alive ; or, if she has given a bail-bond, will order it to be delivered up to be 
 cancelled, on filing common bail, or entering a common appearance ;(/<) un- 
 less she has deceived the plaintiff, by representing herself to be a feme 
 sole.(e;) And common bail was ordered, in a case where the plaintiff, at the 
 time of giving credit to the defendant, knew that she was a married woman, 
 though living apart from her husband, with a separate maintenance. (/c) So 
 where a feme covert, separated from her husband by a sentence of divorce a 
 mensd et thoro, was holden to bail, while an appeal was still pending against 
 the sentence, the court, on motion, ordered the bail-bond to be cancelled, on 
 her entering a common appearance. (^) In order to entitle a feme-covert to 
 her discharge, it is not necessary that her coverture should be known to the 
 plaintiff; nor is it sufficient to prevent it, that she has appeared and acted 
 as a feme sole, and obtained credit in that character, unless she represented 
 herself to be single. (»i) And where no fraud Avas intended, the court of 
 King's Bench discharged her on common bail ; though at the time of the 
 credit given her by the plaintiff, she informed him by mistake that 
 her husband was dead.(w) But if the fact *of the coverture be [ *195 ] 
 doubtful, or the defendant has obtained credit by imposing herself 
 on the plaintiff as a feme sole, she must find special bail, and plead her 
 coverture, or bring a writ of error.(a) And the court of Common Pleas 
 refused to discharge a defendant on the ground of coverture, she being a 
 foreigner, and her husband abroad ; though she was not separated from him 
 by deed, had no separate maintenance, nor had ever represented herself as 
 a single woman. (W) So that court would not upon a summary application ; 
 
 (6) Cro. Jac. 445. Pr. Reg. 65, 6. 1 Barn. & Aid. 165. 6 Moore, 128. 
 
 (c) 1 Lev. 21G. 1 Salk. 115. 6 Mod. 17. 2 Str. 1272. 1 Durnf. & East, 486. 2 Dowl. 
 & Ryl. 225, K. B. Barnes, 96. 3 Wils. 121. 2 Blac. Kep. 720, S. C. 6 Moore, 128, C. P., 
 but see 1 Taunt. 254, contra. 
 
 {d) Chalk V. Deacon ^ wife, T. 2 Geo. IV. C. P. 6 Moore, 128, and see 5 Barn. & Aid. 
 759. 
 
 (c) 2 Str. 1167, 1237. 1 Wils. 149, K. B. Barnes, 203. 3 Wils. 124. 2 Blac. Rep. 720, 
 S. C. C. P. 
 
 (/) Per Baylcy, J. in Triggs v. Triggs, Trin. Vac. 1815. Man. Excheq. 67, 8, and see 4 
 East, 521. 
 
 (g) 5 Barn. & Aid. 747. 
 
 {h) 2 II. Bl.ac. 17. 3 Taunt. 307. 
 
 (t) 6 Mod. 105. 7 Mod. 10. 6 Durnf. & East, 451. 1 New Rep. C. P. 54. 
 
 \k) 7 East, 582. 3 Taunt. 307. 
 
 \l) 6 Moore, 265. 3 Brod. k. Biug. 92, S. C, and see 3 Barn. & Ores. 291. 
 
 {m) 1 New Rep. C. P. 54. (n) 1 East, 16. 
 
 (r/) Wilson T. CampMl, M. 20 Geo. III. K. B. 2 Bl.ac. Rep. 903. 3 Bos. k Pul. 220. 5 
 Durnf. & East, 194. 1 East, 16. 
 
 (W) 2 New Rep. C. P. 380. March v. CapcUi,E. 3D Geo. III. 1 East, 17, {a), semb. contra;
 
 195 OF THE PRIVILEGE 
 
 cancel the bail-bond, and permit the defendant to enter a common appear- 
 ance, where a great part of the debt sued for was contracted before she dis- 
 closed her coverture, and it appeared that she had acted with great duplicity 
 in eluding payment, and, at the time of the application, was residing out of 
 the jurisdiction of the court. (c) Where a married woman had been arrested 
 as acceptor of a bill of exchange, at the suit of an indoi'see, the court of 
 Common Pleas would not order the bail-bond to be cancelled on an affidavit 
 that the drawer, when he drew the bill, knew the defendant to be a married 
 woman :(c?) And where a woman was arrested as drawer of a bill, at the 
 suit of an indorsee, that court refused to discharge her, on the affidavit of 
 a third person, that she was married. (e) But where a married women 
 had been arrested as acceptor of a bill of exchange, at the suit of an 
 administratrix, to whose intestate the bill was indorsed, the court ordered 
 the bail-bond to be delivered up to be cancelled, on an affidavit that the 
 drawer and intestate knew, at the time the bill was drawn, accepted and 
 indorsed, that the defendant was married. (/) If a plaintiff knowingly 
 arrest a married woman, the court of Common Pleas will make him pay 
 the costs of the motion for her discharge :{g) And, in the Exchequer, the 
 court would not order a feme covert to pay costs, nor impose any terms, 
 on her being discharged, although it was sworn that she was carrying 
 on business on her own separate account, and that the action was brought 
 for goods furnished to her in the way of her trade. (A) 
 
 The Parties to a suit, and their Attorneys and Witnesses, are for the 
 sake of public justice, protected from arrest, in coming to, attending upon, 
 and returning from the courts ; or, as it is usually termed, eundo, morando, 
 etredeundo.{i)\_A\ And this protection extends to persons attending the 
 
 insolvent debtors' court •,{k) or who come from abroad to give 
 [ *196 ] evidence, *without a suhpoena.[a) Nor have the courts been 
 
 nice in scanning this privilege; but have given it a large and 
 liberal construction. Thus a plaintiff, who was attending from day to day 
 at the sittings, in expectation of his cause being tried, was held to be pri- 
 vileged from arrest, whilst waiting for that purpose at a coffee house in 
 the vicinity of the court, before the actual day of trial. (6) And where 
 the defendant was attending his cause at the sittings, and though it was 
 put off early in the day, stayed in court till five in the afternoon, and 
 then went with his attorney and witnesses to dine at a tavern, where he 
 was arrested during dinner ; the court held, that such a necessary refresh- 
 ment as this ought not to be looked upon as a deviation, so as to cancel 
 the defendant's privilege redeundo.[cc) So where a witness, having 
 attended a trial at Winchester assizes, which was over on Friday about 
 four in the afternoon, was arrested on Saturday about seven in the even- 
 ing, as she was going home in a coach to Portsmouth, the court held that 
 
 but this was said by Heath, J. to be a very loose note. 2 New Rep. C. P. 381 ; and see 2 
 Salk. 646. 2 Esp. Rep. 554. 1 Bos. & Pul. 357. 
 
 (c) 1 Bing. 344. 3 Moore, 346, S. C. {d) 2 Marsh. 40. 
 
 (e) n Taunt. 55. 2 Marsh. 385, S. C. (/) 2 Moore, 211. 
 
 [a) 3 Taunt. 307. (A) 9 Price, 161. 
 
 (i) 2 Rol. Abr. 272. 2 Lil. P. R. 369. 1 Mod. 66, S. C. 1 7ent. 11. Gilb. C. P. 207, &c., 
 
 Barnes, 27, 378. 2 Str. 986. Peake's Evid. 5 Ed. 198, 9. 1 Campb. 229. 4 Moore, 34. 
 
 {k) 6 Taunt. 356. 2 Marsh. 57, S. C. 
 
 (a) Walpole v. Alexander, H. 22 Geo. III. K. B. 
 
 (b) 11 East, 439. (cc) 2 Blac. Rep. 1113. 
 
 [a] See 1 Greenl. on Evid., § 316,317, 318.
 
 FROM ARREST. 196 
 
 phe ought to be discharged, her protection not being expired ; and that a 
 little deviation or loitering would not alter h.{d) There is indeed a case 
 in the year books,(6'e) where a man was arrested in a town, which was 
 forty miles out of his way, and yet was allowed his privilege; for perhaps, 
 it is said, he went there to buy a horse, or other necessaries for his jour- 
 ney. But the sheriff, not being bound to take notice of the privilege of 
 a witness, is not liable to an action of false imprisonment for arresting 
 him when privileged redeundo from attending the court. (^) And where 
 an attorney had been attending a cause at the Middlesex sittings in terra, 
 which was put off to the adjournment day, after which he went with his 
 witnesses to a coffee house, where he was arrested, three hours after the 
 rising of the court, on an attachment for non-payment of money, the court 
 held that an attorney was not to be allowed so long a time to speak to his 
 witnesses on such an occasion, before he went home ; and that he was 
 properly taken. (_^) In the same case, the attorney having been discharged, 
 on payment of the money for which the attachment issued, was taken in 
 execution at the door of the court, as he was going away ; and the court 
 held, that as he was decided to have been in legal custody, he was not 
 entitled to any privilege redeundo. 
 
 The privilege we are speaking of has been holden to extend to all persons 
 who have any relation to a cause, which calls for their attendance in court, 
 and who attend in the course of that cause, though not compelled by process ; 
 such as bail, &c.(/i) And it has been determined, that the party to a cause is 
 privileged from arrest for debt, during his attendance on an arbitra- 
 tion, under an order of nisi prius, made a rule of court ;(«') or *on [ *197 ] 
 the execution of a writ of inquiry.(«) So, the summons of an arbi- 
 trator, to whom a cause has been referred by order of the court of Chancery, 
 protects a party from arrest, under process of the court of King's Bench, 
 whilst employed in bona fide obedience to the summons, (5) But where a 
 party residing in London^ was summoned to attend an arbitrator at Exeter^ 
 and required to bring with him certain papers then at Clifton, and he went 
 to the latter place, where all his papers were, to make a selection, and having 
 stayed there more than twenty-four hours for that purpose and necessary 
 refreshment, was arrested; a majority of the judges of the court of King s 
 Bench held, that he was not entitled to be discharged out of custody, having 
 no right to stop and sort his papers. (5) It is likewise holden, that all persons 
 attending under the summons of commissioners of bankrupt, are protected 
 from arrest :(c) And a witness attending commissioners, in order to tender 
 his testimony upon a subject of inquiry before them, without having been 
 summoned for that purpose, is privileged from arrest during such attendance 
 and in returning.(dd) But the court of King's Bench would not discharge a 
 
 (d) Gilb. Cas. K. B. 308. 2 Str. 986, S. C. cited. 
 
 \te) Bro. Abr. tit. rrivilege, 4. (/) 2 Blac. Rep. 1190. 
 
 (g) Rex V. Priddle, M. 27 Geo. III. K. B., and see 1 Smith, R. 355. 
 
 (A) Walpole V. Alexander, H. 22 Geo. III. K. B. I H. Blac. 636. 1 Maule & Sel. 638. 2 
 Rose, 23, [d). 
 
 (j) 2 Blac. Rep. 1110. I Durnf. & East, 536. 3 East, 89. 3 Barn. & Aid. 252. 1 Chit. 
 Rep. 679, S. C. Id. 682. 
 
 (a) 4 Moore, 34. 
 
 (b) 3 Barn. & Aid. 252. 1 Chit. Rep. 679, S. C. But, in the same case, a majority of 
 the judges of the court of Exchequer were of a diflferent opinion. 1 Chit. Rep. 682. 7 
 Price, 699. 
 
 (c) 7 Ves. 312. 1 Rose, 265, n. 
 
 Idd) 1 Ves. & B. 316. 1 Rose, 451, S. C, sed quare if protected eundo? Id.
 
 197 
 
 OF THE PRIVILEGE 
 
 person in custody by process of the sheriff's court, in a cause afterwards 
 removed into the King's Bench, because he was arrested while attending 
 commissions of bankrupt, to prove a debt.(e) A witness is not privileged 
 from arrest by his bail, on his return from giving evidence :(/) And where 
 he has absconded from his bail, he may be retaken by them, even during his 
 attendance in coviYt.{gg) So, a capital burgess of a borough, attending an 
 election of co-burgesses, under a summons from the mayor, issued in obedi- 
 ence to a mandamus, directing the corporation to proceed to such election, 
 is not privileged from arrest, during his attendance there for that purpose. (A/i) 
 If a party be arrested, in coming to attend the trial of his cause, the judge at 
 nisi prius will grant a habeas corpus to discharge him : and will put off the 
 trial until he is released.(n) So, where a witness from the country, on his 
 arrival in London, for the purpose of giving evidence in a cause which 
 stands for trial during the sittings, is arrested for debt, the proper course 
 for obtaining his discharge, is to bring him before a judge at chambers, by 
 writ of habeas corpus.{k) If a defendant be arrested by quo minus, while 
 protected as a suitor, by the privilege of the Common Pleas, he may be 
 discharged either by that court, or the court of Exchequer.(?) And where 
 a solicitor was arrested on his way to Lincoln's Inn Hall, for the purpose 
 of attending a petition in bankruptcy, he was ordered to be discharged on 
 motion, having been first sworn by the Register, and examined 
 [ *198 ] by the *Lord Chancellor. («) But an arbitrator, or commissioner 
 of bankrupt, is not empowered to discharge a person arrested 
 during his attendance before them ;(6) nor can the under sheriff discharge 
 a person arrested, when attending on the execution of a writ of inquiry, (c) 
 
 By the mutiny and inarine acts,(tZ) "all witnesses duly summoned by 
 the judge advocate, or person officiating as such, shall during their neces- 
 sary attendance on courts martial, and in going to and returning from the 
 same, be privileged from arrest, in like manner as witnesses attending any 
 of his majesty's courts of law are privileged ; and if any such witness 
 shall be unduly arrested, he shall be discharged from such arrest, by the 
 court out of which the writ or process issued, by which such witness was 
 arrested, or if the court be not sitting, then by any judge of the court of 
 King's Bench, &c., as the case shall require, upon its being made appear 
 to such court or judge by affidavit, in a summary way, that such witness 
 was arrested in going to, or returning from, or attending upon such court 
 martial." 
 
 Seamen, marines, and soldiers are also, under certain circumstances, 
 privileged from arrest. Thus, with regard to seamen and marines, it is 
 enacted, (ee) that "no person who shall serve as q> petty officer{ff) or seaman, 
 
 (e) 4 Durnf. & East, 377, but see 7 Ves. 416. 1 Rose, 265, n. 2 Rose, 24, semb. contra., 
 and see 1 Atk. 55. 2 Blac. Rep. 1142. 1 H. Blac. 636. West on Extents, 95. 
 
 (/) 3 Stark. Ni. Pri. 132. 
 
 {gg) Dowl. <fe Ryl. Ni. Pri. 20, and see 1 Sel. Pr. 1 Ed. 180. 
 
 {hh) 7 Taunt 682. 1 Moore, 413, S. 0. {ii) 1 Camp. 229. 
 
 {k) 1 Stark. Ni. Pri. 470. (/) 3 Anst. 941, and see 4 Moore, 36. 
 
 {a) 16 Ves. 413. See also 14 Ves. 183, S. P., in which the Lord Chancellor administered 
 tbe oath, and examined the party, in the absence of the Register. 
 
 (b) 4 Moore, 36, per Park, J. (c) 4 Moore, 34. 
 
 (/) 7 & 8 Geo. IV. c. 4, § 28. 
 
 (ee) Stat. 1 Geo. II. Stat. 2, c. 14, ^ 15. Barnes, 95, 114, and see the statutes 32 Geo. III. 
 c. 33, §22. 44 Geo. III. c. 13. 11 East, 25. 9 Geo. IV. c. 3, ^0. 
 
 {ff) For a description of petty or interior oiScers, seamen, and non-commissioned officers 
 of marines, or marine, see the stat. 32 Geo. III. c. 34, ^ 8.
 
 FROM ARREST, 198 
 
 or be embarked as a non-commissioned officer of marines, or marine, on 
 board any of his majesty's ships or vessels, shall be liable to be taken out 
 of his majesty's service, by any process or execution Avhatsoever, either in 
 Great Britain, Ireland, or any other part of his majesty's dominions, 
 other than for some criminal matter, unless such process or execution be 
 for a real debt, Avhich shall have been contracted by such petty officer or 
 seaman, non-commissioned officer of marines, or marine, ■when he did not 
 belong to any ship or vessel in his majesty's service, or other just cause 
 of action ; and unless, before the taking out of such process or execution, 
 not being for a criminal matter, or for a debt contracted in the service as 
 aforesaid, the plaintiff or plaintiffs therein, or some other person or per- 
 sons on his or their behalf, shall make affidavit, before one or more judge 
 or judges of the court of record, or other court out of Avhich such process 
 or execution shall issue, or before some person authorized to take affida- 
 vits in such courts, that to his or their knowledge, the sum justly due to 
 the plaintiff or plaintiffs, from the defendant or defendants in the action, 
 or cause of action on which such process shall issue, or the debt or dam- 
 age and costs for which such execution shall be issued out, amounts to the 
 value of tiventy pounds at the least, and that such debt, so amounting to 
 twenty pounds or upwards, was contracted by the said defend- 
 ant, when he did not belong *as aforesaid to any ship in his [ *199 ] 
 majesty's service; a memorandum of which oath shall be marked 
 on the back of such process or writ, for which memorandum or oath no 
 fee shall be taken." 
 
 A similar privilege is allowed, by the annual mutiny and marine acts,(a) 
 to volunteer soldiers, who are not liable to be taken out of his majesty's 
 service, by any process or execution whatsoever, other than for some crimi- 
 nal matter unless for a real debt, or other just cause of action; and unless, 
 before the taking out of such process or execution, (not being a criminal 
 matter.) an affidavit shall be taken as before mentioned, that the original 
 sum justly due and owing to the plaintiff or plaintiffs, from the defendant 
 or defendants in the action, or cause of action on which such process shall 
 issue, or the original debt for which such execution shall be sued out, 
 amounts to the value of tiventy pounds at least, over and above all costs of 
 suit in the same action, or in any other action on which the same shall be 
 grounded. 
 
 These acts have been construed to extend not merely to common soldiers, 
 and troopers{h) in the life guards, &c. but also to no7i-commissioncd or 
 warrant officers, as gunners,(c) Serjeants, and drummers :((^) For a serjeant 
 is a soldier with a halbert ; and a drummer is a soldier with a drum.(e?) 
 These acts, however, do not extend to commissioned officers; nor to the 
 case of soldiers imprisoned for disobeying orders of justices,(/) or on any 
 other criminal account. (/y) And if a non-commissioned officer has been 
 arrested and given bail, the court of Common Pleas will not, after judgment 
 recovered against the bail, set aside the proceedings, and cancel the bail- 
 bond.(/i) It should also be observed, that volunteer drill Serjeants, kc. 
 though subject to the regulations of the mutiny act, so far as relates to trial 
 
 (a) 37 Geo. III. c. 33, § 63, and see 7 & 8 Geo. IV. c. 5, § 70, c. 4, ? 129. Geo. IV. 
 C. 4, § 129. 
 
 (6) 1 Str. 2. Say. Rep. 107. (c) 1 Str. 7. 
 
 {d) 1 Wils. 216. 1 Blue. Rep. 29, S. C. (c) 1 Blac. Rep. 30. 
 
 (/) 2 Diirnf. & East, 270. {ff) 5 Durnf. k East, 156. 
 
 (h) 4 Taunt. 557.
 
 199 OF THE PRIVILEGE 
 
 and punishment by volunteer courts marshal, according to the statute 44 
 Geo. III. c. 54, § 21, are not privileged from arrest, for debts under 20Z. 
 as regular soldiers. (2) 
 
 By the same acts of parliament, " if any petty officer or seaman^ non- 
 commissioned officer of marines, or marine, or any volunteer soldier, 
 shall nevertheless be arrested contrary thereto, it shall and may be lawful 
 for one or more judge or judges of the court out of which the process or 
 execution shall issue, upon complaint thereof made by the party himself, or 
 by any of his superior officers, to examine into the same, by the oath of the 
 parties or otherwise, and by warrant under his or their hands and seals, to 
 discharge such petty officer, &c. so arrested, without paying any fee or fees, 
 upon due proof made before him or them, that such petty officer or seaman, 
 non-commissioned officer of marines, or marine, was actually belonging to 
 one of his majesty's ships or vessels, or that such soldier was legally enlisted 
 as a soldier in his majesty's service, and arrested contrary to the 
 [ *200 ] intent of the before-mentioned acts ; *and also to award the party 
 so complaining, such costs as such judge or judges shall think rea- 
 sonable; for the recovery whereof, he shall have the like remedy, that the 
 person who takes out the said execution might have had for his costs, or the 
 plaintifif in the like action might have had for the recovery of his costs, 
 in case judgment had been given for him with costs, against the defendant 
 in the said action. "(a) 
 
 By other acts of parliament,(5) for the speedy and effectual recruiting of 
 his majesty's land forces and marines, " no person, listed by virtue of those 
 acts, shall be liable to be taken out of his majesty's service, by any process, 
 other than for some criminal matter." But these latter acts were only 
 meant to privilege such persons as were compelled to serve against their 
 will:((?) or rather to prevent their being taken out of the service, by means 
 of feigned actions. 
 
 The privilege of hanhrupts from arrest may be considered in a threefold 
 point of view : first, as it respects the time allowed them for coming to sur- 
 render, and finishing their examination ; secondly, after the time allowed 
 for these purposes is expired, and before they have obtained their certifi- 
 cates ; and thirdly, after they have obtained their certificates. 
 
 By the statute 5 Geo. II. c. 30, § 5, bankrupts, who are not previously in 
 custody, were exempted from the arrest of their creditors, in coming to 
 surrender ; and from their actual surrender, for the two o^ndi forty days men- 
 tioned in the act,((^) or such further time as should be allowed for finishing 
 their examination : which privilege was allowed in all cases, except that of a 
 surrender in discharge of bail.(e) On this statute it was holden, that the 
 surrender of the bankrupt to the commissioners ; at a private meeting, 
 entitled him to the benefit of this privilege ;(/) and it extended to the end 
 of the forty second day,(^) and afterwards, if the bankrupt surrendered 
 within two and forty days, to the end of the enlarged time allowed by the 
 commissioners, or the lord chancellor, in pursuance of the statute 5 Geo. II. 
 c. 30, § 8.(A) But commissioners of bankrupt were not authorized by that 
 
 (t) 8 East, 105. 
 
 (a) Stat. 1 Geo. II. c. 14, | 15. 32 Geo. III., c. 33, 1 22. 37 Geo. III. c. 33, § 63. 9 Geo. 
 IV. c. 3, ? 70, and c. 4, § 129^ 
 
 {b) 29 Geo. II. c. 4, § 14. 30 Geo. II. c. 8, I 20. 
 
 (c) 1 Bur. 339, 466. {d) § I. (e) 5 Durnf. & East, 209. 
 
 (/) 1 Rose, 46, 230. {g) 7 Ves. 317. 
 
 {h) 8 Duraf. & East, 475. 3 Esp. Rep. 40, S. C. 1 Rose, 264, n. and see stat. 6 Geo. IV. c. 
 16, I 113.
 
 FROM ARREST. 200 
 
 Statute, to enlarge the time, for an indefinite period, in order to enaLle a 
 bankrupt to make a full disclosure of liis estate and effects. (z) "Where a 
 bankrupt, whose last examination had been adjourned shie die, gave his 
 voluntary attendance before the commissioners, in order to be examined at a 
 meeting under his commission for a distinct purpose, and was there arrested 
 the chancellor held him to be entitletl to his discharge. (/c) So it was holden, 
 that a bankrupt attending the hearing of a petition for leave to surrender, 
 after the time had expired, was privileged from arrest, as a party attending 
 his own cause. (/) So, a bankrupt attending, upon notice for that 
 purpose, a meeting of the commissioners, to declare a dividend of [ *201 ] 
 *his estate, was protected from arrest, at the suit of a creditor, du- 
 ring such attendance although several years after his last examination. (aa) 
 And where a bankrupt was arrested on a writ of extent, while actually attend- 
 ing to give evidence before commissioners of bankrupt, the chancellor dis- 
 charged him, as being privileged from arrest at common \^\\\{hh) ]>ut as the 
 king was not bound by the statute 5 Geo. II. c. 30, it was holden, that a 
 bankrupt was not entitled to be discharged by virtue of that statute, when 
 arrested on a writ of extent, during the time of privilege. (<?) It should 
 also be observed, that the privilege we are now speaking of, is sl jyart ieidar 
 privilege, to enable bankrupts to surrender, and till their actual surrender, 
 is confined to the act of going with that view ; not a general privilege, 
 during the whole time which the act of parliament allows them for that 
 purpose. (c?) And they may be taken, in order to be surrendered by their 
 hail, at any time ; even during their examination before the commissioners. (e) 
 So where a bankrupt, having escaped out of the custody of the marshal, 
 and being at large, surrendered to a commission subsequently issued, and 
 received the protection conferred by the statute ; the court held, that he 
 might notwithstanding be retaken, and detained in custody by the mar- 
 shal.(/) 
 
 At present, the privilege of bankrupts from arrest, in coming to surren- 
 der, &c. depends on the statute 6 Geo. IV. c. 16, (r/) by which it is enacted, 
 that " the bankrupt shall be free from arrest or imprisonment, by any cre- 
 ditor, in coming to surrender; and after such surrender, during i\\cforty- 
 tivo days mentioned in the act,(/i) and such further time as shall be allowed 
 him for finishing his examination ; provided he was not in custody at the 
 time of such surrender : And if such bankrupt shall be arrested for debt, or 
 on any escape warrant, in coming to surrender, or shall, after his surrender, 
 be so arrested within the time aforesaid, he shall, on producing the summons 
 under the hands of the commissioner to the officer Avho shall arrest him, and 
 giving such officer a copy thereof, be immediately discharged : And if any 
 officer shall detain any such bankrupt, after he shall have shown such sum- 
 mons to him, so signed as aforesaid, such officer shall forfeit to sucii bank- 
 rupt, for his own use, the sum o^ five pounds for every day he shall detain 
 
 (i) 1 Barn. & Cres. 652. 6 Dowl. & Ryl. 831, S. C. 
 
 (A:) 1 Rose, 260. (/) 15 Ves. 117. 
 
 \aa) 8 Durnf. & East, .'534. 3 Esp. Rep. 117, S. C. 
 
 {hb) Ex parte Russcl, 1 Rose, 278. 
 
 (c) Ex parte Temple, 2 Rose, 22; and see West on Extents, 95. (d) Cowp. 156. 
 
 (e) 1 Atk. 238. 1 Hur. 339, 466. 5 Durnf. & East, 209. 3 Taunt. 425 ; and see Co. B. L. 
 133. Ed. B. L. 79. 
 
 (/) 1 Barn. & Aid. 308. And for the cases in vvliich a bankrupt is protected from arrest, 
 see I Rose, 264, 5, n. ; and for those in which he may be discharged on motion, or must 
 apply by petition, id. 230. 
 
 (y) ^'ll7, and see stat. 5 Geo. II. c. 30, I 5. (A) § 112.
 
 201 
 
 OF THE PRIVILEGE 
 
 such bankrupt, to be recovered by action of debt, in any court of record at 
 Westminster, in the name of such bankrupt, with full costs of suit." This 
 provision being similar in substance to that of 5 Geo. II. c. 30, § 5, the deci- 
 sions on the latter statute, which have been already stated, (^■) will of course 
 
 be applicable thereto. 
 [ *202 ] *And, by a subsequent clause in the statute G Geo. IV. c. 16,(a) 
 " it shall be lawful for the commissioners, at the time appointed for 
 the last examination of the bankrupt, or any enlargement or adjournment 
 thereof, to adjourn such examination sine die ; and he shall be free from 
 arrest or imprisonment for such time, not exceeding three calendar months 
 as they shall, by indorsement upon such summons as aforesaid, appoint, with 
 the like penalty upon any officer detaining such bankrupt, after having 
 been shown such summons." 
 
 When a bankrupt is in prison, or in custody, under any process, attach- 
 ment, execution, commitment or sentence, the commissioners are authorized 
 by the statute 6 Geo. IV. c. 16(5) "by warrant under their hands, directed 
 to the person in whose custody such bankrupt is confined, to cause such 
 bankrupt to be brought before them, at any meeting, either public or pri- 
 vate ; and if any such bankrupt is desirous to surrender, he shall be so 
 brought up, and the expense thereof shall be paid out of his estate ; and 
 such person shall be indemnified by the warrant of the commissioners, for 
 bringing up such bankrupt ; provided that the assignees may appoint any 
 persons to attend such bankrupt from time to time, and to produce to him 
 his books, papers and writings, in order to prepare an abstract of his ac- 
 counts, and a statement to show the particulars of his estate and efi'ects, 
 previous to his final examination and discovery thereof; a copy of which 
 abstract and statement, the said bankrupt shall deliver to them, teii days 
 at the least before his last examination." 
 
 When the time of privilege allowed to the bankrupt, in coming to sur- 
 render, and for finishing his examination, has expired, he is liable to be 
 arrested, till he has obtained his certificate, for debts contracted previous 
 to the date and issuing of the commission, and not proved or claimed un- 
 der it. And the court would not discharge a defendant out of custody on 
 common bail, on the ground that the plaintiifs, at whose suit he was arrest- 
 ed, were assignees under a commission of bankrupt, sued out above three 
 years before, against the defendant, under which they had received divi- 
 dends ; though they suspended the execution of the rule on the sheriff to 
 bring in the body, to give the defendant time to make application to the 
 lord chancellor for relief.(tf) So, where the plaintiflF had petitioned for a 
 sequestration in Scotland against the defendant, this was holden not to be 
 a sufficient cause for discharging him on common bail.(cf) And the drawer 
 of a bill of exchange, who has paid the amount to the holder, after a com- 
 mission of bankrupt issued against the acceptor, may sue the latter, before 
 he has obtained his certificate, and arrest him upon the bill, notwithstand- 
 ing the holder has proved it under the commission. (e) But by the 
 
 (i) Ante, 200, 2Q\. 
 
 («) § 118, and see stat. 5 Geo. II.c. 30, ^ 3. 
 
 (b) I 119, and see stat. 5 Geo. II. c. 30, | 6. 49 Geo. III. c. 121, § 13. 
 
 (c) 8 Durnf. & East, 364, and see 1 Bos. & Pul. 302, 424. 3 Bos. & Pul. 6. 9 Price, 391. 
 {d) Carruthers v. Farkin, H. 41 Geo. III. E. B., but see 3 Barn. & Cres. 12. 4 Dowl. & liyl. 
 
 658, S.C. 
 {e) 3 Maule & Sel. 91, and see 3 Dowl. & Ryl. 269.
 
 FROM AllREST. 204 
 
 *statute G George IV. ch. 10,(«) " no creditor who has brought [ *20o ] 
 any action, or instituted any suit, against any bankrupt, in re- 
 spect of a demand prior to the bankruptcy, or which might have been 
 proved as a debt under tlic commi^jsion against such bankrupt, shall prove 
 a debt under such commission, or have any claim entered upon the pro- 
 ceedings under such commission, without relin([uishing such action or suit ; 
 and in case such bankrupt shall be in prison or custody, at the suit of or 
 detained by such creditor, he shall not prove or claim as aforesaid, with- 
 out giving a suflicient authority in writing, for the discharge of such 
 bankrupt ; and the proving or claiming a debt under a commission, by any 
 creditoi-, shall be deemed an election by such creditor to take the benefit 
 of such commission, with respect to the debt so proved or claimed : Pro- 
 vided that such creditor shall not be liable to the payment to such bank- 
 rupt, or his assignees, of the costs of such action or suit so relinquished 
 by him; and that where any such creditor shall have brought any action 
 or suit against such bankrupt, jointly with any other person or persons, 
 his relinquishing such action or suit against the bankrupt, shall not affect 
 such action or suit against such other person or persons: Provided also, 
 that any creditor who shall have so elected to prove or claim as aforesaid, 
 if the commission be afterwards superseded, may proceed in the action, as 
 if he had not so elected; and in bailable actions, shall be at liberty to ar- 
 rest the defendant de novo, if he has not put in bail below, or perfected 
 bail above ; or if the defendant has put in and perfected such bail, to have 
 recourse against such bail, by requiring the bail below to put in and per- 
 fect bail above, within the first eight days in term, after notice in the Lo7i- 
 don G-azette, of the superseding such commission, and by suing the bail 
 upon their recognizance, if the condition thereof is broken." 
 
 In the construction of a similar clause, in the statute 49 Geo. III. c. 
 121, (^)) it has been holden, that the words of the statute must be taken to 
 relate to cases where a party, who has proved under a commission, arrests 
 the same person under whose commission he has proved ;(c') Therefore, 
 where separate commissions of bankruptcy had been issued against three 
 or four partners, to which they conformed and passed their examinations, 
 and an order was made for allowing the joint creditors to prove their debts 
 under the commission of one of the three bankrupts, under which commis- 
 sion the plaintiffs proved their joint debt, and afterwards sued all the 
 partners for the same debt, and arrested one of the other two, under whose 
 commission they had not proved ; the court held, that he was not entitled 
 to be discharged out of custody.(c) The election also is confined to the 
 debt actually proved: Therefore, where two parcels of goods were sold at 
 different times, and paid for by bills, and the vendee afterwards becoming 
 bankrupt, the vendors proved under the commission, for the amount of the 
 first parcel, for which they still held the bill of exchange ; and the bill 
 for the other parcel having been negotiated by them *prior to the [ *20-4 ] 
 bankruptcy, and being then outstanding, was afterwards dishon- 
 oured ; the court held that the vendors were not precluded by the above 
 statute, from suing the bankrupt for the amount of the last parcel of 
 goods. ((/(i) And the proof of a debt under the commission, cannot be 
 pleaded in bar to an action brought for its recovery ; though it may be a 
 
 (rt) I 59, and sec stat. 40 Geo. III. c. 121, g U. 
 
 (6) I 14. (0 IG East, 252. 
 
 {aa) 1 Bam. & Aid. 121, and see 5 Bara. & Aid. 95. 2 Dowl. & Ryl. 337. 4 Biug. 18.
 
 202 
 
 OF THE PRIVILEGE 
 
 ground for the defendant to apply to the court in Tvhich the action is 
 brouo'ht, to stay the proceedings, or to the chancellor, to expugne the 
 deht.{l>b) But it seems that the proving of a debt under a commission, is 
 an election by the creditor, within the statute 49 Geo. III. c. 121, § 14, 
 which deprives him of his remedy by action against the bankrupt, in the 
 cases excepted by the statute 5 Geo. II. c. 30, § 9,(ec) And where the 
 plaintiiF, in an action against a bankrupt, makes his election to proceed 
 under the commission, the defendant is entitled to have some entry or 
 suggestion, recording the election, put on the record. (c?) 
 
 After a bankrupt has obtained his certificate, his privilege from arrest 
 principally depends on the statute 6 Geo. IV. c. 16,(e) by which it is en- 
 acted, that " every bankrupt who shall have duly surrendered, and in all 
 things conformed himself to the laws in force concerning bankrupts, at the 
 time of issuing the commission against him, shall be discharged from all 
 debts due by him when he became bankrupt, and from all claims and de- 
 mands thereby made proveable under the commission, in case he shall ob- 
 tain a certificate of such conformity, so signed and allowed, and subject to 
 such provisions, as thereinafter directed : but no such certificate shall release 
 or discharge any person who was partner with such bankrupt, at the time of 
 his bankruptcy, or who was then jointly bound, or had made any joint 
 contract with such bankrupt."(/) 
 
 The bankrupt being discharged, by the above statute, from all debts 
 proveable under the commission, it may not be deemed an improper digres- 
 sion to consider, in the next place, what debts may or may not be proved 
 under it. By that statute,(^) every person with whom any bankrupt shall 
 have really and bond fide contracted any debt or demand before the issu- 
 ing of the commission against him, shall, notwithstanding any prior act of 
 bankruptcy committed by such bankrupt, be admitted to prove the same, 
 and be a creditor under such commission, as if no such act of bankruptcy 
 had been committed : provided such person had not, at the time the same 
 was contracted, notice of any act of bankruptcy by such bankrupt com- 
 mitted." And with regard to debts payable on a future day, "any person 
 ■who shall have given credit to the bankrupt upon valuable consideration, 
 or for any money or other matter or thing whatsoever, which shall not 
 have become payable, when such bankrupt committed an act of bankruptcy, 
 and whether such credit shall have been given upon any bill, bond, 
 [ *205 ] note, or other negotiable *security, or not, shall be entitled to 
 prove such debt, bill, bond, note, or other security, as if the 
 same was payable presently, and receive dividends equally with other cre- 
 ditors, deducting only thereout a rebate of interest for what he shall so 
 receive, at the rate of five per cent., to be computed from the declaration 
 of a dividend, to the time such debt would have become payable, according 
 to the terms upon which it was contracted."(a) 
 
 Previously to the above statute, contingent debts, not due at the time 
 of issuing the commission, were not in general proveable under it ; and 
 therefore, where the action was founded upon a recognizance of bail in 
 
 (bb) 5 Barn. & Aid. 95. (cc) 3 Maule & Sel. 78. 
 
 (rf) 6 Taunt. 549. 
 
 (e) § 121, and see stat. 5 Geo. II. c. 30, | 7. 46 Geo. III. c. 135, § 4. 
 (/) See Stat. 10 Ann, c. 15, § 3. 
 iff) I 47, and see stat. 46 Geo. III. c. 135, § 2. 
 
 (a) 6 Geo. IV. c. 16, | 51, and see stat. 7 Geo. I. c. 31, § 1, 2. 49 Geo. III. c. 121, § 9. 2 
 Str.949. Barnes,101. 3 Wils. 17. Cowp.22. Doug. 669. 1 Durnf. & East, 17.
 
 FROM ARREST. 205 
 
 error,(^>) or bail-bond,(c) or on a bond given by a member of parliament, 
 being a trader, under the statute 4 Geo. 111. c. 38, § l,(t7) which was not 
 forfeited at the time of issuing the commission, or upon a promise of in- 
 demnity'' which was tlien unbroken, (c) or upon a promissory note subse- 
 quently indorsed by the bankrupt,( /f') he might have been arrested there- 
 on, notwithstanding his certificate. So, where the obligor is in a bastardy 
 bond, after the bond had been forfeited, became bankrupt, and obtained 
 bis certificate, the court held, that the parish officers were not precluded 
 therel)y from recovering upon the bond, further expenses incurred subse- 
 quent to the bankruptcy. (//.y) But now, by G Geo. IV. c, 10,(/t) "if a 
 bankrupt shall, before the issuing of the commission, have contracted any 
 debt payable upon a contingency^ which shall not have happened before 
 the issuing of such commission, the person with whom such debt has been 
 contracted may, if he think fit, apply to the commissioners, to set a value 
 upon such debt, and the commissioners are thereby reipiired to ascertain 
 the value thereof, and to admit such person to prove the amount so ascer- 
 tained, and to receive dividends thereon; or if such value shall not be so 
 ascertained, before the contingency shall have happened, then such per- 
 son may, after such contingency shall have happened, prove in respect of 
 such debt, and receive dividend with the other creditors, not disturbing 
 any former dividends; provided such person had not, when such debt was 
 contracted, notice of an act of bankruptcy, by such bankrupt committed." 
 This statute, however, is confined to debts payable on a contingency : 
 And therefore, where the demand rests in damages^ and cannot 
 be *ascertained without the intervention of a jury, it is not prove- [ *206 ] 
 able under the commission. (a) So where the defendant cove- 
 nanted for the due payment by A. B. of a premium upon a policy of insu- 
 rance eff"ected to secure a debt due from A. B. to the plaintiff; which pre- 
 mium became due June 17th, and being unpaid by A. B. or the defendant, 
 was paid by the plaintifi"; and on June 20th, the defendant obtained his 
 certificate under a commission of bankrupt ; the court held, that his cer- 
 tificate did not discharge him from the amount of the premium.(7*^) So, 
 where an action is brought for the recovery of general damages, and the 
 defendant becomes bankrupt between verdict and judgment, he is not dis- 
 charged by his certificate. (c) But where the plaintifi" in an action of tres- 
 pass, having obtained a verdict, signed final judgment after the defendant 
 had committed an act of bankruptcy, but before the issuing of the commis- 
 
 {h) 2 Str. 1043, and see 2 Blac. Rep. 811. 2 Taunt. 246, 7. 
 
 (c) 1 I5ur. 43G, but see Cowp. 25. 4 Moore, 350. 3 Dowl. & Rjl. 533. 2 Bam. & Crcs. 626. 
 4 Dowl. &Ryl. 160, S. 0. 
 
 (rf) 5 Barn. & Aid. 250. 8 Moore, 281. 1 Bing. 320, S. C, in Error. 
 
 (c) 3 Wils. 13. 2 Blac. Rep. 794, 839. 
 
 {ff) I Bing. 281. 8 Moore, 261, S. C, but see 5 Barn. & Cres. 360. 8 Dowl. & Ryl. 110, 
 S. U. 
 
 [gj] 1 Barn, k Aid. 491. 2 Stark. Ni. Pri. 183, S. C, and sec 5 Maulc k Scl. 21. 1 Moore, 
 196. 2 .Moore, 326. 8 Taunt. 315, S. C. 3 Barn. & Aid. 521, S. C. in Error. 2 Barn. & Aid. 
 302. 3 Bing. 154. 
 
 (A) 2 56. And see stat. 19 Geo. IT. c. 32. 49 Geo. III. c. 121, g 16, and 6 Geo. IV. c. 16. 
 § 53, as to the claim and proof of debts on bottomry or respondnitid bond;', and policies of 
 assurance, where the loss or contingency has not happened at the time of issuing the com- 
 mission. 
 
 ((7) 7 Durnf. & East, 612. {bh) 4 Bing. 209. 
 
 (c) Ez parte Charles, 14 East, 197. 2 Mavile k Sel. 70. Wiglilw. 16, but see the case of 
 Lanijjord v. El!U, E. 25 Geo. III. K. B. 1 11. Blac. 29, n. 14 East, 202, (i), which seems to 
 have been overruled by the case Ex parte Charles ; and sec 4 Bing. 37. 
 
 Vol. I.— U
 
 206 
 
 OF THE PRIVILEGE 
 
 sio7i ; the court held, that the debt was provable under a commission sub- 
 sequently issued, and that the defendant, who had been arrested on a capias 
 ad satisfaciendum, was entitled to be discharged, on obtaining his certi- 
 ficate.(c?) So where the plaintiff, in an action of assumpsit, obtained a 
 verdict against the defendant on the 4th June ; and on the 18th June^ 
 judgment was signed as of Trinity term, which commenced on the 7th of 
 tiiat month; and on the 15tli June, a commission of bankrupt issued 
 against the defendant, on an act of bankruptcy committed on the 7th 3Iay 
 preceding ; the court held, that at the time of issuing the commission, the 
 plaintiff had a debt proveable under it.(e) 
 
 Before the making of the statute 49 Geo. III. c. 121, a surety, or person 
 liable for the debt of another, could not have come in and proved the debt, 
 under a commission issued against the principal, unless it had been before 
 the issuing of the commission :(/) nor could the grantee of an annuity 
 have proved the value of it as a debt under the commission issued against 
 the grantor, unless the annuity had been secured by bond, which was for- 
 feited by non-payment of the arrears, before the bankpuptcy :(^) and con- 
 sequently an action might have been maintained in these cases, notwith- 
 standing the certificate, for the money paid, or arrears of the annuity, after 
 the issuing of the commission ; in which the defendant might have been 
 arrested and held to special bail. These defects were remedied by the 
 above statute ;(7i) by which it was enacted, that "in all cases of commis- 
 sion of bankrupt thereafter to be issued, where, at the time of issuing the 
 commission, any person should be surety for, or be liable for any debt of 
 
 the bankrupt, it should be lawful for such surety or *person 
 [ *207 ] liable, if he should have paid the debt, or any part thereof in 
 
 discharge of the whole, (although he might have paid the same 
 after the commission should have issued,) and the creditor should have 
 proved his debt under the commission, to stand in the place of the creditor, 
 as to the dividends upon such proof: and where the creditor should not 
 have proved under the commission, it should be lawful for such surety, or 
 person liable, to prove his demand, in respect of such payment, as a debt 
 under the commission, not disturbing the former dividends, and to receive 
 a dividend or dividends, proportionably with the other creditors, taking 
 the benefit of such commission : And every person against whom any 
 such commission of bankrupt should be awarded, and who should obtain 
 his certificate should be discharged of all demands, at the suit of every 
 such person having so paid, and being enabled to prove, or to stand in the 
 place of such creditor as aforesaid, with regard to his debt in respect of 
 such suretyship or liability, in like manner, to all intents and purposes, 
 as if such person had been a creditor before the bankruptcy, for the whole 
 of the debt in respect of which he was surety or liable as aforesaid." 
 
 This branch of the statute was extended to all cases of sureties, where 
 relief could be had under the commission, though the money was not paid 
 till after it issued. (a) And where, upon a dissolution of partnership 
 between three partners, two of the three assigned to the other all their 
 
 {d) 2 Barn. & Cres. 762. 4 Dowl. & Rvl. 430, S. C. 
 [e) 4 Barn. & Cres. 880. 7 Dowl. & Ryl. 436, S. C. 
 (/) 3 Wils. 13. 2 Blac. Rep. 794, 839, and see Doug. 160. 
 
 [g) 2 Blac. Rep. 1106. Doug. 97, 393, 519. 9 Ves.>«. 110. 2 Rose, 416. 1 Barn. & Aid. 
 493,4. 2 Barn. & Aid. 802. 
 
 {k) ?i 8, 17. {a) 5 Barn. & Aid. 12,
 
 FROM ARREST. 207 
 
 shares in the partnership dehts and effects, and tlie latter covenanted to 
 pay all debts then due from the partnership, and to indemnify the two 
 from the payment of the same, and from all actions, kc, by reason of the 
 non-payment thereof, and afterwards became bankrupt, and a commission 
 issued against him, under which he obtained his certificate, and afterwards 
 the holder of a bill accepted by the three partners, and due before the 
 dissolution of the partnership, sued the two, and they were ol)li<red to pay 
 the bill ; the court held, that the certificate might be pleaded in discharge 
 of an action brought by the two against the other, upon his covenant. (i) 
 And the certificate was holden to be a bar, not only to an action, at the 
 suit of a surety, for the recovery of money paid in discharge of the original 
 debt, but to any action for consequential damages, accruing from the non- 
 payment by the bankrupt of such debt when due : Therefore, where the 
 acceptor of an accommodation bill brought an action against the drawer, 
 who had become bankrupt aiul obtained his certificate, for not providing 
 him with funds to pay the bill when due, whereby he had incurred the 
 costs of an action, and was obliged to sell an estate in order to raise money 
 to pay the bill, the certificate was holden to be a good bar to such action, (<?) 
 But the drawer of a bill of exchange, who has paid the amount to the holder, 
 after a commission of bankruptcy issued against the acceptor, may, we 
 have seen,((Z) sue the latter, before he has obtained his certificate, 
 and arrest *him upon the bill notwithstanding the holder has [ *208 ] 
 proved it under the commission. (aa) And where a surety in a 
 warrant of attorney, in order to discharge himself from personal liability, 
 paid part of the debt due to the creditor of a bankrupt who had proved 
 under the commission, and thereupon satisfaction was entered on the 
 record, the court held, that this did not fall within the statute 49 Geo. 
 III. c. 1*21, § 8, as being a payment of part of a debt in discharge of the 
 whole, and consequently that the bankrupt's certificate was no bar to an 
 action by the surety, to recover the money so paid by him.(^J) So, a surety 
 in an annuity deed, who had been compelled by the annuity creditor, after 
 the bankruptcy and allowance of the certificate of the principal, to pay 
 several sums for arrears due after the issuing of the commission, was 
 holden not to be within the statute 49 Geo. III. c. 121, § 8 ; and therefore 
 might have an action against the principal for such sums, and hold him to 
 bail.(c'(?) And such surety was not entitled, by that statute, to prove the 
 value of the annuity as a debt under the commission : and therefore, 
 where such a surety had redeemed the annuity, subsequently to the bank- 
 ruptcy, it was holden, that he was entitled to maintain an action for the 
 value against the bankrupt, who had obtained his certificate, although the 
 grantee had proved under the 17th section. ((7c?) And where one of the 
 three co-sureties, for the payment of an annuity, paid money on account 
 of it after the bankruptcy of the co-surety, the court held that the latter 
 was liable to an action for contribution, although ho had obtained his 
 certificate ; inasmuch as one surety could not prove the value of an annuity 
 under the commission against his co-surety; but that he could not at law 
 
 (b) 2 Maule & Sel. 195. 
 
 (c) 2 Moore, G02. 8 Taunt. 550. S. C. 3 Barn. & Aid. 13, S. C, in Error. 
 
 {d) A!it<',202. ' ('la) 3 Maule & Sel. 91, ami sec 3 Dowl. k Rj-1. 269. 
 
 (bb) 5 Barn. & Aid. 852. 1 Dowl. & Ryl. 521, S. C, and see 2 Maule & Sel. 551. 
 (cc) 4 Maule & Sel. 333, and see 2 Moore, G44. 8 Taunt. 584, S. C. 
 
 (rf(/) 3 liarn. & Aid. 180. 8 Moore, 480. 1 Bing. 413, S. C. 13 Price, 24, S. C. in Error : but 
 see Stat. G Geo. IV. c. IG, g 55.
 
 208 
 
 OF THE PRIVILEGE 
 
 bo compcllctl to pay more than one-tbird of the sum paid on account of 
 the annuity, although the third surety had become insolvent at the time 
 of such payment. 6 Barn. & Ores. 689. Bail to the sheriff, being only 
 answerable for the defendant's appearance, (e) or bail above, who might 
 have discharged themselves by rendering the defendant, (/) were also not 
 considered as sureties for, or liable for the debt of a bankrupt, within the 
 meaning of the above statute. 
 
 The statute 49 Geo. III. c. 121, was repealed by the statute 6 Geo. IV. 
 c. 16,(^) which came into operation on September 1st, 1825.(7t) And by the 
 latter statute it is enacted, that " any person who, at the issuing of the com- 
 mission, shall be surety or liable for any debt of the bankrupt, or hail for 
 the ba7ik)'upt, either to the sheriff, or to the action, if he shall have paid 
 the debt, or any part thereof in discharge of the whole debt, (although he 
 may have paid the same after the commission issued,) if the creditor shall 
 have proved his debt under the commission, shall be entitled to stand in the 
 place of such creditor, as to the dividends, and all other rights under the said 
 commission, which such creditor possessed, or would be entitled to, in 
 respect of such proof; or if the creditor shall not have proved under the com- 
 mission, such surety or person liable, or bail, shall be entitled to prove his 
 demand, in respect of such payment, as a debt under the commission, not 
 disturbing the former dividends, and may receive dividends with the other 
 creditors, although he may have become surety, liable, or bail as aforesaid, 
 after an act of bankruptcy committed by such bankrupt ; provided that such 
 person *had not, when he became surety or bail or so liable as 
 [ *209 ] aforesaid, notice of any act of bankruptcy, by such bankrupt com- 
 mitted, "(a) The decisions on this statute will of course be similar 
 to those on the 49 Geo. III. c. 121, § 8, IT. 
 
 By the same statute,(J) it is enacted that "any annuity creditor of any 
 bankrupt, by whatever assurance the same be secured, and whether there 
 were or not any arrears of such annuity due at the bankruptcy, shall be 
 entitled to prove for the value of such annuity ; which value the commis- 
 sioners shall ascertain, regard being had to the original price given for the 
 said annuity, deducting therefrom such diminution in the value thereof, as 
 shall have been caused by the lapse of time since the grant thereof, to the 
 date of the commission." In the construction of a similar clause, in the 
 statute 49 Geo. III. c. 121, (c) it was determined, that the bankruptcy and 
 certificate of one of several grantors of an annuity, who had jointly and 
 severally covenanted for its payment, as well as given a warrant of attorney 
 to confess joint and several judgments, discharged the bankrupt ;{d} but did 
 not affect the liability of the other grantors ; and the act made no difference 
 in this respect between principals and sureties. ((i) 
 
 And, by another clause in the same statute, (t't^) "it shall not be lawful for 
 any person entitled to any annuity granted by any bankrupt, to sue any 
 person who may be collateral surety for the payment of such annuity, until 
 such annuitant shall have proved under the commission against such bank- 
 rupt, for the value of such annuity, and for the payment thereof; and if such 
 
 (e) 6 Taunt. 329, 30. 2 Marsh. 37. 192, S. C. 
 
 (/) 4 Barn. & Aid. 493. (ff) § 52. (h) 4 Bing. 212. 
 
 {a) The words 'or that he was insolvent, or had stopped payment,' which were inserted 
 in the stat. 49 Geo. III. c. 121, § 8, are here omitted. 
 
 (i) ^ 54, and see stat. 49 Geo. III. c. 121, ^ 17. (c) § 17. 
 
 (d) 4 Taunt. 90, and see id. 460, 584. 16 East, 252. (ee) g 55.
 
 FROM ARREST. 209 
 
 surety, after such proof, pay the amount proved as aforesaid, he shall be 
 thereby discharged from all claims in respect to such annuity : and if such 
 surety shall not (before any payment of the said annuity, subsequent to the 
 bankruptcy, shall have become due,) pay the sum so proved as aforesaid, he 
 may be sued for the accruing payments of such annuity, until such annui- 
 tant shall have paid or satisfied the amount so proved, with interest thereon 
 at the rate of /our per cejit. per anmim^ from the time of notice of such 
 proof, and of the amount thereof, being given to such surety ; and after such 
 payment or satisfaction, such surety shall stand in the place of such annui- 
 tant, in respect of such proof as aforesaid, to the amount so paid or satisfied 
 as aforesaid, by such surety ; and the certificate of the bankrupt shall be a 
 discharge to him, from all claims of such annuitant, or of such surety, in 
 respect of such annuity: Provided that such surety shall be entitled to cre- 
 dit in account with such annuitant, for any dividends received by such 
 annuitant under the commission, before such surety shall have fully paid 
 or satisfied the amount so proved as aforesaid." 
 
 Interest is proveable by the above statute,(/) though not reserved on 
 bills of exchange or promissory notes, over-due at the time of 
 issuing the 'commission. And where an action is brought for the [ *210 ] 
 recovery of a debt due before the bankruptcy, the bankrupt is dis- 
 charged by his certificate, from the payment of interest{aa) and costs,{bb) as 
 well as the debt ; and that, whether the action was brought before, or a.her{ec) 
 the issuing of the commission ; and if before, wdiether the bankruptcy hap- 
 pened before verdict,((:?) or after verdict and before final judgment. (e) And 
 a certificate will discharge a cofpiovit^ given after a secret act of bankrptcy, 
 for a debt previously due, with interest and costs. (^') So where, on a com- 
 mission of bankrupt being sued out against the plaintiff", he brought an action 
 of trespass against the commissioners for false imprisonment, and was non- 
 suited, and they entered up judgment accordingly, and the commission was 
 afterwards superseded, on which another -was sued out, founded on the same 
 act of bankruptcy as the first, under which the plaintiff obtained his certifi- 
 cate, and the defendants afterwards charged him in execution for the costs of 
 the non-suit, the court of Common Pleas held, that he was entitled to be 
 discharged out of custody ; as such costs were proveable under the second 
 commission. (</) And, by the statute Geo. IV. c. 16,(7t) " if any plaintiff, 
 in any action at law or suit in equity, or petition in bankruptcy or lunacy, 
 shall have obtained any judgment, decree or order, against any person who 
 shall thereafter become bankrupt, for any debt or demand, in respect of 
 which such plaintiff or petitioner shall prove under the commission, such 
 plaintiff' or petitioner shall also be entitled to prove for the costs which 
 he shall have incurred in obtaining the same, although such costs shall not 
 have been taxed at the time of the bankruptcy." But where the plaintiff" 
 is non-suited,(/) or has a verdict against him,(.t) and afterwards becomes 
 
 (/) § 57, and see Co. B. L. 7 Ed. 18G. (an) Cowp. 138. 
 
 (66) 2 Str. 1196. IWils. 41,S. C. 6 Durnf. & East,282. 3 Maule &Sel. 32G, K. B. 2 Blac. 
 Rep. 1317. 1 n. Blac. 29. 1 Bos. & Pul. 134, in nods. 2 New Rep. C. P. 190. 3 Barn. & 
 Ores. 762, in nolis. 
 
 {cc} 2 New Rep. C. P. 190, and see 4 Moore, 350. 2 Brod. & Bing. 8, S. C. 
 
 (d) 1 H. H. Blac. 29, but SCO 11 Ves. 640. 2 New Rep.C. P. 101, [a), scmb. contra. 
 
 \e) 2 Blac. Rep. 1317. 
 
 (/) 1 Chit. Rep. 16, but see 2 Taunt. 68. 2 Rose, 112, S. C. temb. contra : and see 4 Bing. 37. 
 
 (<7) 7 Moore, 614. 1 Bing. 189, S.C. (A) § 58. 
 
 (j) Fx parte Todd, cited in 3 Wils. 270, but see 5 Durnf. & East, 365. 1 Bos. & Pul. 134, 
 
 {k) See next page.
 
 21Q OF THE PRIVILEGE 
 
 bankrupt before judgment, the costs not being proveable under the com- 
 mission, are not barred by his certificate. And where a bankrupt, sued as 
 executor, pleaded a false plea, between the issuing of the commission and 
 the obtaining of his certificate, he was holden to be liable to costs for such 
 plea, de bonis proprus.{l) So, the costs of a suit in Chancery, directed to 
 be paid by an award, made before the bankruptcy of the defendant, but 
 which costs were not taxed till after he became bankrupt, cannot be proved 
 
 under the commission ; but the bankrupt remains liable to be 
 [ *211 ] attached for the non-payment of them. (7??) *And in a late case it 
 
 was holden, that a certificate is no bar to an attachment for the 
 non-payment of costs, pursuant to a rule of court made before the bank- 
 ruptcy, but which were not taxed until the day of issuing the commis- 
 sion. (a) 
 
 The bankrupt laws do not extend to debts contracted in foreign countries : 
 And where the plaintiff resided here, the court would not order an exonere- 
 tur to be entered on the bail-piece, on the ground that the debt was con- 
 tracted while the defendant was resident in a foreign country, and before he 
 became a bankrupt by the laws of that country, though he might have ob- 
 tained his certificate there. (5) But an insolvent's certificate, obtained in 
 Neivfoundland, under the statute 49 Geo. III. c. 27, § 8, may be pleaded 
 in bar to an action brought in this country, for a debt contracted here prior 
 to the insolvency.(c) And a debt contracted in Ungland, by a trader 
 residing in Scotland, is barred by a discharge under a sequestration issued 
 in conformity to the statute 54 Geo. III. c. 137, in like manner as debts 
 contracted in Scotlcmd.[d) So a certificate, obtained under an Irish com- 
 mission of bankruptcy, has been holden to be a bar to an action brought 
 in this country for a demand arising upon a bill of exchange drawn in 
 Ireland^ and payable by the defendant who resided there. (e) But a bill 
 of exchange drawn by the defendant in Ireland, and accepted and paid 
 by the plaintifis in England, is a debt contracted in England, and cannot 
 therefore be discharged by a certificate under an Irish commission. (/) 
 
 Before the making of the statute 6 Geo. IV. c. 16, a bankrupt who had 
 obtained his certificate, could not have been arrested, in the King's Bench, 
 upon a subsequent promise, to pay a debt due before his bankruptcy ',{g) 
 though it was otherwise in the Exchequer. (/«) And now, by that statute,(^) 
 " no bankrupt, after his certificate of conformity shall have been allowed, 
 
 contra; -which cases seem to have been overruled hj Ex parte Charles, 14 East, 197, and see 
 llVes. 646. 7 Moore, 614. 1 Bing. 189, S. C. Ed. B. L. 127, 8, 9. 
 
 {k) 5 Taunt. 778. 1 Marsh. 346, S. C, and see 4 Bing. 57. 
 
 (I) 3 Bur. 1368. 1 Blac. Rep. 400, S. C. 
 
 (tw) 9 East, 318, and see the case Ex parte Sncaps, Co. B. L. 7 Ed. 211, 12, but see 7 Price, 
 209. (a) Fisher v. Coates, E. 8 Geo. IV. K. B. 
 
 (h) 8 Durnf. & East, 609, and see 2 H. Blac. 553. 1 East, 6. 2 Chit. Rep. 53, 55. 3 Moore. 
 244. 1 Brod. & Bing. 13, S. C, but see Ballantine v. G aiding ,11. 24 Geo. III. K. B. Co. B. L, 
 7 Ed. 464. 4 Durnf. & East, 185, 6. 5 East, 124. 
 
 (c) 3 Moore, 623. 1 Brod. & Bing. 294, S. C. 
 
 \d) 3 Barn. & Cres. 12. 4 Dowl. & Rvl. 658, S. C. 
 
 (e) Ballantine v. Golding, M. 24 Geo. ill. K. B. Co. B. L. 7 Ed. 464. 4 Durnf. & East, 
 185, 6, S. C, and see 2 H. Blac. 553. 
 
 (/•) 4 Barn. & Aid. 654. 
 
 (g) 6 Barn. & Aid. 116. 2 Dowl. & Ryl. 240, S. C, and see 2 Bur. 736. 2 Ken. 436, S. C. 
 3 Maule & Sel. 595, but see Drew v. Jefferies, E. 26 Geo. III. K. B. 8 Price, 531, sm6. 
 contra. 
 
 (h) 8 Price, 526, and see Cowp. 549. 2 H. Blac. 116. 5 Esp. Rep. 198. 6 Taunt. 563. 
 9 Price, 19, 20, 27. 1 Bing. 281. 
 
 (t) 2 131.
 
 FROM ARREST. 211 
 
 under any commission of bankrupt alrendy issued, or hereafter to be issued, 
 shall be liable to pay or satisfy any debt, claim or demand, from which he 
 shall have been discharged by virtue of such certificate, or any part of 
 such debt, claim or demand, upon any contract, promise or agreement, 
 made or to be made after the suing out of the commission, unless such 
 promise, contract, or agreement be made in writing, signeil by the bank- 
 rupt, or by some person thereto lawfully authorized, in writing, by such 
 bankrupt." 
 
 *When a bankrupt is clearly entitled to the benefit of his cer- [ "212 ] 
 tificate, he may be discharged in two ways : 1st, by pleading his 
 certificate, if in time ; and secondly, by applying to a judge, on an afllidavit 
 of the certificate,(a) under the statute <! Geo. IV. c. l<J,(/>) by which it is 
 enacted, that " any bankrupt who shall, after his certificate shall have 
 been allowed, be arrested for any debt, claim or demand, thereby made 
 proveable under the commission, against such bankrupt, shall be dis- 
 charged upon common bail ; And if any such bankrupt shall be taken in 
 execution, or detained in prison for such debt, claim or demand, where 
 judgment has been obtained before the allowance of his certificate, it shall 
 be lawful for any judge of the court wherein judgment shall have been so 
 obtained, on such bankrupt producing his certificate, to order any officer 
 who shall have such bankrupt in custody by virtue of such execution, to 
 discharge such bankrupt, without exacting any fee ; and such officer shall 
 be thereby indemnified for so doing." But where the commission, (cc) or 
 certificate,(c?tZ) appears to have been fraudulent, or unduly obtained, the 
 court will not discharge the defendant upon common bail. And where the 
 validity of the commission is disputed, the court it seems will in general 
 direct it to be tried on a feigned issue, notwithstanding the certificate, 
 before they discharge the defendant. (ce) But where the defendant in an 
 action had become bankrupt, and obtained his certificate, after which pro- 
 ceedings were taken against the bail, the court of King's Bench relieved 
 them on motion, without directing an issue to try the fact of the bank- 
 rupt's being a trader ; the certificate, by the statute 5 Geo. II. c. 30, § 7 
 & 13,(/) being made sufficient evidence of the trading, &c.(<7) The court 
 of Common Pleas would not formerly have relieved a bankrupt, in a sum- 
 mary way, where his goods were taken in execution under di fieri facias, 
 after he had obtained his certificate ; and therefore if he had not obtained 
 his certificate in time, so as to plead it, he must have brought an audita 
 querela :{h)\Y\ But in a modern case, where a fieri facias issued against 
 the goods of a bankrupt, before he had obtained his certificate, and was 
 not executed till after, the court ordered the goods to be restored ; for it 
 is now the practice to give that relief in a summary way, which might be 
 obtained by audita <iuerela.{i) 
 
 (a) Doug. 676, and see 1 Wils. 41. Barnes, 386. 1 II. Blac. 29. 
 
 h) § 126, and see stat. 5 Geo. II. c. 30, § 7, 13. 
 
 (cc) 2 Blac. Hep. 725. Cowp. 824, but set' 5 Moore, 21. 
 
 (rfrf) Doug. 228. 2H. Blac. 1. 2 Bos. & Pul. 390. 6 Taunt. 75. 
 
 lee) Veo v. Allen, H. 28 Geo. III. K. B. 6 Taunt. 75. 
 
 (/) And see stat. 6 Geo. IV. c. IG, ^ 126. 
 
 Iff) 1 Barn. & Aid. 332, and see Ed. B. L. 415. 
 
 (A) Barnes, 204, 20G, and see 1 Durnf. & East, 361. 
 
 (t) 1 Bos. & Pul.427, but see 1 Moore & P. 261. 4 Bing. 493, S. C. 
 
 [1] In a late case, the court of Common Pleas, adhered to this doctrine. 1 Moore & P 
 261. 4Bing. 493, S. C.
 
 212 
 
 OF THE PRIVILEGE 
 
 Insolvent debtors and fugitives, discharged under occasional insolvent 
 act3,(/c) were not liable to be arrested for debts contracted pn'or to the 
 times prescribed by the acts. And, in the Common Pleas, an 
 [ *213 ] insolvent *discharged under the 41 Geo. III. c. 70, could not 
 have been holden to bail, on a bill drawn and indorsed over by 
 liim, previous to the 1st March, 1803, though not due till after that 
 period. (rt) But insolvent debtors and fugitives, discharged under occa- 
 sional insolvent acts, were formerly liable to be arrested, for debts con- 
 tracted after the time prescribed in the acts, and before they were actually 
 discharged. (6) And the clauses respecting fugitives, in those acts, did 
 not extend to persons who had constantly resided abroad ;{c) or who had 
 been abroad merely in the course of their trade, and not for the purpose 
 of avoiding their creditors.(cZ) A debt depending upon a contingency, at 
 the time of a party's discharge under the insolvent act, 18 Geo. III. c. 
 52, was not thereby discharged. (e) So, a party discharged under the 51 
 Geo. III. c. 125, was holden to be liable to his surety for the arrears of 
 an annuity, due since his discharge, which the surety had been obliged to 
 V^J'iff) ^^^ ^^^ obligors in a bastardy bond, discharged under the 
 general insolvent act, 1 Geo. IV. c. 110, subsequently to a judgment on 
 the bond, were deemed liable for expenses incurred, in respect of the bas- 
 tard, subsequently to their discharge. (<7^) But where a party had joined 
 in a bond with the grantor of an annuity, to secure the payment of it, and 
 afterwards obtained his discharge under the insolvent act, having duly 
 inserted the bond in his schedule, the court held, that he could not be 
 arrested upon the bond, for arrears of the annuity afterwards becoming 
 due.(AA) In the King's Bench, it has been determined, that an insolvent who 
 has taken the benefit of the 54 Geo. III. c. 28, is not liable to be arrested, 
 upon a subsequent promise, to pay a debt contracted prior to the day men- 
 tioned in the act ;(«) though it has been otherwise ruled in the Common 
 Pleas. (Z:;^) And, in the latter court, a cognovit given by an insolvent after 
 his discharge, upon proceedings commenced before, has been deemed to con- 
 stitute a new promise, upon which he becomes liable, notwithstanding his 
 discharge. (^) 
 
 By the last general insolvent act,(wi) the court, commissioner, or justices 
 therein mentioned, are authorized, " upon the prisoner's swearing to the 
 truth of his or her petition and schedule, and executing such warrant of 
 attorney as is thereinafter directed, to a judge that such prisoner shall be dis- 
 charged from custody, and entitled to the benefit of that act, at such 
 [ *214 ] time as the said court, commissioner, or justices, shall direct, *in 
 
 [k) See the statutes 37 Geo. III. c. 112. 41 Geo. III. c. 70. 44 Geo. III. c. 108. 45 Geo. 
 IIL c. 3. 46 Geo. III. c. 108. 49 Geo. III. c. 115. 51 Geo. III. c. 125. 52 Geo. III. c. 165. 
 53 Geo. III. c. 6. 54 Geo. III. c. 28. 
 
 (a) 3 Bos. & Pul. 394. 
 
 (b) Cowp. 527, and see stat. 53 Geo. III. c. 102, ^ 30. (c) 1 Wils. 85. 
 
 (d) 1 Ken. 380. Say. Rep. 308, S. C. 
 
 [e] 2 Chit. Rep. 448, and see 2 Blac. Rep. 1217. 
 
 Iff) 2 Maule & Sel. 551, and see 2 Black Rep. 1217. 4 Taunt. 460. 
 
 (gff) 3 Bing. 154. (hh) 5 Barn. & Ores. 581. 8 Dowl. & Ryl. 339, S. C. 
 
 (ij 3 Maule & Sel. 595. 4 Dowl. & Ryl. 154, and see 2 Str. 1233. 2 Blac. Rep. 724, 798. 6 
 Barn. & Aid. 116, 17, accord., but see Best v. Barber, or Barker, M. 23 Geo. III. K. B. 8 
 Price, 533, semb. contra. 
 
 (kk) 6 Taunt. 563, and see 1 New Rep. C. P. 134, 8 Price, 526, 531. Ante, 211. 
 
 (I) 4 Bing. 37. 
 
 {m) 7 Geo. IV. c. 57, § 46, and see stat. 53 Geo. III. c. 102, ? 29. 56 Geo. III. c. 102. 1 
 Geo. IV. c. 119, 2 26. 3 Geo. IV. c. 123. 5 Geo. IV. c. 61. 7 Geo, IV. c. 57, ^ 10, 50, 51, 63.
 
 FROM ARREST. 2U 
 
 pursuance of the provisions thereinafter contained in that belialf, as to 
 the several debts and sums of money due, or claimed to be due, at the time 
 of filing such prisoner's petition, from such pri^-oner, to the several persons 
 named in his or her schedule as creditors, or cluimin<j; to be creditors for the 
 same respectively; or for ^\•hic•h such persons shall liavc;;ivcn credit to such 
 prisoner, before the time of filing such petition, and which were not then 
 payable ; and as to the claims of all other persons, not known to such pri- 
 soner, at the time of such adjudication, who may be indorsees or holders 
 of any negotiable security set forth in such schedule." 
 
 But by a subsequent clause of that act,(rt) " in all cases ■where it shall liave 
 been adjudged, that any sucli prisoner shall be so discharged, and so entitled 
 as aforesaid, at some future period, such prisoner shall be subject and liable 
 to be detained in prison, and to be arrested and charged in custody, at the 
 suit of any one or more of his or her creditors, with respect to whom it shall 
 have been so adjudged, at any time before such period shall have arrived, in 
 the same manner as he or she would have been subject and liable thereto, if 
 that act had not passed. Provided nevertheless, that when such period shall 
 have arrived, such prisoner shall be entitled to the benefit and protection of 
 that act, notwithstanding that he or she might have been out of actual cus- 
 tody, during all or any part of the time subsequent to such adjudication, by 
 reason of such prisoner not having been arrested or detained during such 
 time, or any part thereof." Previously to the above act, where a defend- 
 ant was ordered by the insolvent debtors' court to remain in custody, at 
 the suit of certain creditors by name, until sixteen months had expired, 
 and was found at large within six months ; the court held, under the statute 
 3 Geo. IV. e. 123, that any of his scheduled creditors, though not named 
 in the order, might arrest him, and cause him to be confined, until the six- 
 teen montlis were expired. (i) 
 
 The effect of the discharge of an insolvent debtor is declared, and mode of 
 relieving him when arrested pointed out, by the statute 7 Geo. IV. c. o7,(c) 
 by which it is enacted, that "no person Avho shall have become entitled to 
 the benefit of that act, by any such adjudication as aforesaid, shall, at any 
 time thereafter be imprisoned, by reason of the judgment so as aforesaid 
 entered up against him or her, according to that act, or for or by reason of 
 any debt or sum of money, or costs, with respect to which such person shall 
 have become so entitled, or for or by reason of any judgment, decree or 
 order for payment of the same ; but that upon every arrest or detainer in 
 prison, upon any such judgment so entered up as aforesaid, or for or by rea- 
 son of any such debt or sum of money, or costs, or judgment decree or order 
 for payment of the same, it shall and may be lawful for any judge of the 
 court from which any process shall have issued in respect thereof, and such 
 judge is thereby required, upon proof made to his satisfaction, that 
 the cause of such arrest or *detainer is such as thereinbefore men- [ *215 ] 
 tioned, to release such prisoner from custody, unless it shall appear 
 to such judge, upon inquiry, that such adjudication as aforesaid was made 
 without due notice, where notice is by that act required, being given to or 
 acknowledged by the plaintift", or such process, or being by him or her dis- 
 pensed with, by the acceptance of a dividend under that act, or otherwise ; 
 and at the same time, if such judge shall in his discretion think fit, it shall 
 
 a) § 55. {b) 4 Dowl. & Ryl. 347, and see id. 216. 
 
 c) I 60, and see stat. I Geo. lY. c. 119, § 26.
 
 215 OF THE PRIVILEGE FROM ARREST. 
 
 and may be lawful for him to order such plaintiff, or any person or persons 
 suing out such process, to pay such prisoner the costs which he or she shall 
 have incurred on such occasion, or so much thereof as to such judge shall 
 seem just and reasonable, such prisoner causing a common appearance 
 to bo entered for him or her in such action or suit." Where a party is 
 arrested for a debt for which he has been discharged under the insolvent 
 act, and gives bail, the court will order the bail bond to be delivered up 
 to be cancelled. (a) But though certificated bankrupts, or persons dis- 
 charged under insolvent acts, are privileged from arrest, yet the sheriff, 
 or his officer, is not liable to an action of false imprisonment for arresting 
 thcm.(&) 
 
 Aliens have, in general, no privilege from arrest : But, in order to protect 
 foreigners, residing in this kingdom, who had quitted their own country in 
 consequence of the French Revolution, it was enacted by the statute 38 
 Geo. III. c. 50, § 9,(c) that ^^ aliens abiding in this kingdom, having quitted 
 their respective countries by reason of any revolution or troubles in France, 
 or in countries conquered by the arms of France, should not be liable to 
 be arrested, imprisoned, or held to bail, or to find any caution for their forth- 
 coming or paying any debt, nor to be taken in execution on any judgment, 
 nor by any caption, for or by reason of any debt or other cause of action, 
 contracted or arising in any parts beyond the seas, other than the dominions 
 of his majesty, while such aliens were not within the said dominions of his 
 majesty ; and in case any such alien should be arrested, imprisoned, or held 
 to bail, or taken in execution on a judgment, or by any caption, contrary 
 to the intent of that act, such alien should be discharged therefrom, by order 
 of any of his majesty's courts in Westminster Hall, or of the court of Ses- 
 sion in Scotland, or of any judge of such courts in vacation time." This 
 statute seems to have been occasioned by the case of 3Ielan v. 
 [ *216 ] DuJce de Fitz-James :{d) And it was extended by *the statute 
 41 Geo. III. c. 106, to all such persons as were born in any of 
 the countries subject to the late king of France, or who, having been born 
 within this kingdom, passed into the dominions of the said late king, under 
 the age of fifteen years, and who had bond fide resided in such countries 
 as subjects of the said late king, although born of parents subjects of his 
 majesty, or his predecessors. Also, by the statute 43 Geo. III. c. § 28, 
 this provision was extended to his majesty's four courts in Ireland. But its 
 further continuance being no longer necessary, the acts by which it was 
 created have been suffered to expire. 
 
 In some of the preceding cases, the process is declared to be void ; as 
 
 {a) 6 Barn. & Cres. 106. 9 Dowl. & Rjl. 107, S. C, but see 3 Dowl. & Ryl. 600, contra. 
 
 {b) Doug. 671, and see 4 Taunt. 631. 
 
 (c) This statute was made perpetual by 42 Geo. III. c. 92, | 23, which, however was 
 repealed by 43 Geo. III. c. 155, | 1 ; and this latter statute was also repealed by 54 Geo. III. 
 c. 155, § 1, which was repealed by 55 Geo. III. c. 104, g 1; but the same provisions are to 
 be found in each of these statutes, and were finally re-enacted by 56 Geo. III. c. 86, | 19- 
 which statute was continued by 58 Geo. III. c. 96. 1 Geo. IV. c. 105. 3 Geo. IV, c. 97, and 
 5 Geo. IV. c. 37, but is now expired. 
 
 ('/) 1 Bos. & Pul. 138. In that case it was decided, by two judges of the Common Pleas 
 that a defendant could not be held to bail in this country, on an instrument entered into 
 in France^ by which his property only, and not his person, was, according to the law of 
 France, made liable to the payment of the debt sued for : but Heath, Justice, was of a dif- 
 ferent opinion ; and it is observable, that in Imley v. EUefaen, 2 East, 453. Lord Ellenborougk 
 expressed his dissent from the decision of the court of Common Pleas in the above case. 
 See also Barnes, 73.
 
 BY AVnOM AN ARREST MAY BE MADE. 216 
 
 against Ambassadors, &c. In others, the court is expressly required to 
 discharge the defendant. (^) And it may be remarked, in general, that 
 ^vhere the defendant is clearly entitled to privilege, as the arrest is irreg- 
 ular and unlawful, the court will discharge him upon motion ; and not put 
 him to the necessity of suing out a writ of privilege, (^') or of filing common 
 bail,(c) but "where the (jucstion of privilege from arrest is doubtful, the 
 court will not, upon motion, discharge the party out of custody, but leave 
 him to his writ of privilege.(t7) And they will not discharge a defend- 
 ant out of custody on common bail, on the ground of infancy ;[e) or that 
 he was insane at the time of the arrest,(/) or afterwards became so;(^) 
 nor will they discharge his bail, on the ground of the insanity of their 
 principal, although a commission of lunacy may have issued against him, 
 under which lie has been found a lunatic. (/;) The bail, however, may 
 have a habeas corpus, to bring up their principal, notwithstanding his 
 lunacy, in order to surrender him in their discharge. (?) And where the 
 return to a writ of latitat stated that the defendant was insane, and could 
 not be removed without great danger, and continued so till the return of 
 the writ, the court of King's Bench refused an attachment against the 
 sheriff. (^) 
 
 An arrest, when allowed, is made by the sheriff or his officers ; or by 
 the bailiff of a liberty of franchise. [a] The sheriff's authority is derived 
 immediately from the court, except in counties palatine, where he acts by 
 virtue of a mandate from the officer to whom the writ is directed: And 
 even there, if the writ be directed immediately to the sheriff, he is bound 
 to execute it ; and a bail-bond taken on the arrest is legal. (?) The offi- 
 cers of the sheriff are of three kinds, first, bailifi"s in fee, or perpetual 
 bailiffs, who have, by charter of prescription, the execution of 
 writs within the *yuildable ;{aa) secondly, common bailiffs, (called [ *217 ] 
 in the old books, bailiffs errant,{bb) who are usually bound with 
 sureties in an obligation for the due execution of their office, and thence 
 are called bound bailiffs •,{co) thirdly, special bailiffs, nominated by the 
 plaintiff or his attorney, and appointed by the sheriff ^ro hac vice.{dd) 
 
 The sheriff 's warrant[ee) to any of these officers ought not to be made out, 
 
 (a) Ante, 199,201,212,214,15. 
 
 {b) 2 Str. 989. Fort. 159. Com. Rep. 444, S. C. 1 Ken. 125. 5 Durnf. & East, G89, but 
 see 1 Wil3. 278. 2 Blac. Rep. 788. 
 
 (c) Walpole V. Alexander, H. 22. Geo. III. K. B. 
 
 (d) 2 Barn. & Aid. 234. (e) 1 Bo9. & Pul. 480. 
 (/) 4 Durnf. & East, 121. (y) 2 Durnf. & East, 390. 
 (h) 6 Durnf. k East, 133. 2 Bos. & Pul. 362. 13 East, 355. 2 Chit. Rep. 104. 
 (i) 3 Bos. & Pul. 550, and see Highmorc on Lunacy, 123. 
 
 (k) 4 Barn. & Aid. 279, but see 8 Dowl. & Ryl. 606. 
 (/) G Durnf. & East, 71. 
 
 (aa) For an account of the^wi'Waft/e, and how it differs from & franchise, see 8 Co. 125, a, Dalt. 
 Sher. 185,and for the nature of the office of a bailiQ' !«/«, see Dalt. Sher. 187. Gilb. C. P. 30. 
 {bb) 3 East, 130. [cc) 1 Blac. Com. 346. 
 
 ((f<f) 2 Blac. Rep. 952. 4 Durnf. & East, 110. 1 Chit. Rep. 613, 14, (a). 
 \ee) Append. Chap. X. § 104, 6, 6. 
 
 [a] Where one not generally known as an officer makes an arrest, his authority if 
 demanded must be shown. The Stale v. Curtis, 1 Hayw. 471. Arnold v. Stevens, 10 Wend. 
 514. Com. V. Field, 13 Mass. 321. The Slate v. Kirby, 2 Ired. 201,
 
 ojy BY WHAT AUTHORITY AN ARREST MAY BE MADE. 
 
 until the sheriff have the writ in bis actual custody ;(/) And therefore, 
 where the defendant was arrested before the officer had any warrant, and 
 before the writ was delivered to the sheriff, the bail-bond, was ordered to 
 be delivered up to be cancelled. (^) So, where an attorney fills up the 
 sheriff's warrant on a capias ad resj^ondendum, after it is signed, sealed, 
 and sent to him with a blank, this is bad. (7i) And where the sheriff hav- 
 ing directed a "Warrant to A. and all his other officers, to arrest B., and 
 A. afterwards inserted therein the name of C ; it was holden that the war- 
 rant was illegal, and the arrest by C. consequently void.(zj[A] But where 
 the sheriff made a warrant to four jointly, and not severally^ and one of 
 them arrested the defendant, the court of Common Pleas, though they 
 were of opinion that the arrest was not authorized by the warrant, would 
 not interfere to discharge the defendant out of the custody of the sheriff, 
 on entering a common appearance. (/c) And a defendant is not entitled to 
 be discharged oiit of custody, on the ground of his having been arrested 
 upon a warrant, in which the names of the plaintiffs are not inserted con- 
 formable to the writ, if the defendant be not misled by the mistake ; there- 
 fore, where the arrest took place on a warrant at the suit of three plaintiffs, 
 which required the defendant to answer A. B. and two others, without 
 naming them, the court of King's Bench held, that he was not entitled to 
 be discharged. (/^) 
 
 If the defendant reside within a liberty, the bailiff of which has the exe- 
 cution and return of writs, there should regularly be a non omittas ; or if 
 there be not, the sheriff for having execution of the writ, should make out 
 his mandate, directed to the bailiff of the liberty.(m) And if there be two 
 liberties in a county, and the sheriff make his mandate to the bailiff of one 
 of them, who gives him no answer, he may, upon a non omittas, arrest the 
 defendant in either liberty ;(w) and even if the sheriff enter, and arrest the 
 defendant in a liberty, without a non omittas, the arrest is good, though 
 
 the sheriff may be liable to an action. (o) 
 [ *218 ] *The arrest may be made at anytime (except on Siinday,)he- 
 fore, or on the day of the return of the writ ; and at any 2^lace 
 
 if) R. M. 1654, ^ 2. R. E. 15 Car. II. reg. 4, K. B. R. M. 1654, I 2. R. H. 14 & 15 Car. II. 
 reg. 1, C. P. Stat. 6 Geo. I. c. 21, ^ 53. 
 
 (g) 8 Duraf. & East, 187. 
 
 [h) 2 Wils. 47. (f) 6 Durnf. & East, 122. 
 
 (k) 2 Taunt. 161. {II) 1 Chit. Rep. 611. 
 
 {m) Gilb. C. P. 25, &c. 
 
 («) 5 Co. 92, a, Gilb. C. P. 29. 9 East, 335, 340. 
 
 (o) Gilb. C. P. 27. Fitzpatrick v. Kelly, M. 22 Geo. III.K.B. cited in 3 Durnf. & East, 740, 
 and see 5 Durnf. & East, 687. 9 East, 341, 2. 7 Taunt. 311. 1 Chit. Rep. 375, in notis. 3 
 Barn. & Aid. 502. 1 Moore k P. 309. 4 Bing. 523, S. C. 
 
 [a] If the process is void the arrest is illegal. Tracy v. Williams, 4 Conn. 107. State v. 
 Leach, 7 Id. 456. State v. Curtis, 1 Hayw. 471. And when the illegality is apparent on the 
 face of the process the officer who executes it is a trespasser. Lampson v. Laudon, 5 Day, 
 508. Grumon v. Raymond, 1 Conn. 40. Reynolds v. Corp, 3 Caines, 269. Griswold v. Sedg- 
 wick, 6 Cow. 456. Sanford v. Nichols, 13 Mass. 280. Pearce v. Aticood, 13 Id. 324. WoodY. 
 Ross, 11 Id. 277. Com. v. Foster, 1 Id. 488. Wells t. Jackson, 3 Munf. 458. 
 
 So an arrest of one named by a wrong name in the process, though he be the person 
 intended, subjects the officer making it to an action for false imprisonment, unless the party 
 arrested was known by both names. Griswold v. Sedgivick, supra. Mead v. Ilatts, 7 Cow. 
 332. Gurnsey v. Lovell, 9 Wend. 319; or of the wrong person; The Bank v. Howard, 14 
 Mass. 184. Smith v. Boucher, 1 Id. 76 ; or when made after the return day of the writ ; 
 Stoyel V. Lawrence, 3 Day, 1. Prescott v. Wright, 6 Mass. 22 ; but it seems the arrest may be 
 made on the return day. Adams v. Freeman, 9 Johns. 117.
 
 OF THE TIME, PLACE, ETC., OF ARREST. 218 
 
 ■within the county, except where the defendant is privileged. But it cannot 
 be made, between the day of the return and quarto die post, by original. (a) 
 And, by the statute 20 Car. II. c. 7, § 0, "no person or persons, upon the 
 Lord's day, shall serve or execute, or cause to be served or executed, any 
 writ, process, warrant, order, judgment, or decree, except in cases of trea- 
 son, felony, or breach of the peace : but the service of every such writ, kc. 
 shall be void to ail intents and purposes ;{b) and the person or persons bo 
 serving or executing the same, shall be as liable to the suit of the party 
 gi'ieved, and to answer damages to him for doing thereof, as if he or they 
 had done the same without any writ, kc." 
 
 In construing this statute, it has been holden, that an arrest cannot be 
 made on a Sunday, upon a capias iitla(jatum;{c) or for non-payment of a 
 penalty upon conviction. (t?) And the statute extends not only to process 
 properly so called, but also to all notices on which rules are made : and 
 hence it has been holden, that service of notice of plea filed on a Sunday 
 is void, by construction of the statute.(t') "Where A. was arrested at the suit 
 of B. and discharged, the sherifl' not knowing that there was also a detainer 
 in his office at the suit of C. and on the Sunday following he was arrested 
 at C.'s suit, the court discharged him out of custody ;(/) considering the 
 arrest on the Sunday, as an original taking, or a retaking after a volun- 
 tary escape ',{g) and in either case it was prohibited by the statute. But 
 after a negligent escape, the defendant maybe retaken on a Sunday; and 
 that either by the officer upon fresh pursuit, or by virtue of an escape 
 warrant ;(/i) for this is not an original undertaking, but the party is siill in 
 custody upon the old commitment. Also it is holden, that bail may take 
 their principal on a Sunday, in order to surrender him ;(/) for this is not by 
 virtue of any process at all. And it should seem that process of contempt 
 being of a criminal nature, may be served upon that day. (A') But a rule 
 nisi for an attachment for non-payment of money pursuant to the master's 
 allocatur, cannot be so served. (Z) 
 
 The arrest must be made in the county into which the process issues ; 
 Therefore, an arrest in the city of London on a bill of Middlesex, is irre- 
 gular, even though it took place on the verge of the county of 
 Middlesex, *if there be no dispute as to the boundaries. (aa) [ *219 ] 
 And it is a rule, that no man can be arrested in his own house, 
 provided the outer door be shut;(W))[A] or in the king's presence ;(ee) or 
 
 (a) 1 Sid. 229. 2 Esp. Rep. 585. 
 
 (6) 1 Salk. 78. The service of process on a Sundar/, being absolutely void by the statute, 
 cannot be made good by any subsequent waiver of tlie defendant, as by bis not objecting 
 until after a rule to plead given. 3 East, 155. 8 East, 547, (i). 
 
 (c) Barnes, 319. (rf) 1 Durnf. & East, 2C5. 
 
 {e) 8 East, 547. And see 5 Barn. & Cres. 40G. 8 Dowl. & Ryl. 204, S. C. 4 Bing. 84, as 
 to the validity of contracts entered into on Sundat/. 
 
 (/) 5 Durnf. & East, 25. (ff) Barnes, 373. 
 
 (A) 2 Ld. Raym. 1028. 2 Salk. G26. 6 l^Iod. 95, S. C. 
 
 (t) 6 Mod. 23'l. 1 Atk. 239, but see 2 Blac. Rep. 1273. 
 
 (A-) 12 Mod. 348. 1 Atk. 55. Willes, 459. [l) 8 Durnf. & East, 86. 
 
 (aa) 3 Barn. & Aid. 408. 
 
 (W) 5 Co. 91, but see Uowp. 1. 2 Moore, 207. 8 Taunt, 250, S. C. 
 
 (cc) 3 Blac. Com. 289. 
 
 [a] In order to make an arrest in a civil case, an outer cannot be broken open, but an 
 inner may. Oi/xted v. Shed, 13 Mass. 520. Allen v. Martin, 10 Wend. 300. Williams v. 
 Spencer, 5 Jobns. 352. Fitch v. Lovland, Kirby, 38G. Hibbard v. Mack, 17 Johns. 127. And 
 if the debtor resist and commit an assault where the sheriOf has broken open the outer door
 
 ^.(. OF THE MANNER OF ARREST. 
 
 witliln tlic vev'^e of his royal palace,((^cZ) (except by an order of the board 
 of creen cloth, or unless the process issue out of the palace court ;)(e) or 
 in any place where the king's justices are actually sitting.(/) So it has 
 been decided, that process cannot be lawfully executed in Kensington 
 palace, which is privileged for this purpose as a royal residence. (^) And 
 an arrest within the tower of London, would it seems be bad, without 
 leave obtained from the governor. (A) But an arrest, within the verge of 
 the kinf^'s palace, has been holden, in the Common Pleas, to be no ground 
 for discharging the defendant out of custody.(e) The privilege of the 
 parties to a suit, and their ivitnesses, of which we have before spoken, (^) 
 may also in some measure be considered as of a local nature : And of the 
 same kind as that of clergymen, who, by several ancient statutes,(0 are 
 privileged from arrest, in going to and returning from church, or perform- 
 infT divine service; but not if they stay in church, with a fraudulent design 
 of eluding the process of the law. And it is said, that the party grieved 
 may have an action upon these statutes. (m) 
 
 In making the arrest, the sheriff or his officer, it has been said, must 
 actually seize or touch the defendant's body:(7?) 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, that is held to be an arrest ; 
 for he is in custody of the officer.(o)[A] And it is not necessary that the 
 officer who has the authority, should be the hand that arrests, nor in the 
 presence of the person arrested, nor actually in sight, nor is any exact 
 distance prescribed : it is sufficient if he be near, and acting in the 
 arrest.(p) If the defendant be wrongfully taken, without process,(2} or 
 
 (rfc/) Stat. 28 Hen. VIII. c. 12. 3 Inst. 141. 2 Ld. Raym. 978. 3 Salk. 91, 284. 6 Mod. 
 73. Holt, 590, S. C. 1 Man. & Rjl. 452. Id. 457, (a). 
 
 (e) 3 Durnf. & East, 735. 
 
 (/) 3 Inst. 140, 41. 2 Mod. 181, but see 1 Lev. 106. 
 
 {g) 10 East, 578. 1 Campb. 475. 
 
 {h) 2 Chit. Rep. 48, 51. But see 1 Moore & P. 309. 4 Ring. 523, S. C. 
 
 (?■) 7 Taunt. 311, and see 1 Chit. Rep. 375, in notis. 3 Barn. & Aid. 502. 
 
 {k) Ante, 195, &c. 
 
 (;) 50 Edw. III. c. 5. 1 R. II. c. 15, and see 1 Mar. sess. 2, c. 3. 
 
 [m) 12 Co. 100. In 5 Bac. Abr. 565, it is said, that the arrest of a clergyman under civil 
 process, either in going to church, to perform divine service, or in returning from thence, on 
 any day, is a false imprisonment. But from several later decisions it may be collected, that 
 if any action would lie, which is doubtful, it should be an action on the case, and not an 
 action of trespass, against the sheriff or his officers. 3 Wils. 341. 2 Blac. Rep. 1087, 1190. 
 Doug. 671. 
 
 (?i) 1 Salk. 79, and see 1 Ry. & Mo. 2G. 1 Car. & P. 153, S. C. 6 Barn. & Cres. 528. 
 
 (o) Cas. temp. Hardw. 301, and see 2 New Rep. C. P. 211, 12. 1 Man. & Ryl. 211. Id. 
 215, (a). 
 
 ip) Cowp. 65. 
 
 {q} 2 Anstr. 461, and see 1 New Rep. C. P. 135. 11 Price, 156, 345. 
 
 of the dwelling house, an indictment will not lie against him for so doing. The State v. 
 Rooker, 17 Verm. 658. 
 
 But the law will not permit a dwelling-house to be used fraudulently to cover a man's 
 goods. Stitt V. Wilson, Wright, 505. But if an arrest has been made and the prisoner 
 escapes and takes refuge in a dwelling, the officer while in fresh pursuit of him may break 
 the outer door. Oysted v. Shed, supra. Allen v. Martin, supra. 
 
 [a] It is an arrest if the party is within the power of the officer. Gold r. Bissell, 1 Wend. 
 215. Strout V. Gooch, 8 Greenl. 127. Cooper y. Adams, 2 Blackf. 294. Field v. Ireland, 21 
 Ala. 240. Jones v. Jones, 13 Ired. 448. But if the defendant resists, some touching of the 
 body is necessary, but if he submits, it can be dispensed with. M'Cracken v. Anslcy, i 
 Srobh. 1.
 
 OF THE BAIL BOND. 219 
 
 after it is returnable,(r) &c. he cannot be lawfully detained in 
 custody under subsequent process at the suit of the same plain- [ *220 ] 
 tiff, though regularly issued : But *third persons, who find a 
 defendant in custody, have a right to consider him as being lawfully in 
 the custody in which he is found, and to proceed against him accordingly ; 
 for otherwise a person under an illegal arrest, at the suit of one party, 
 would be completely protected, during his imprisonment, from all other 
 process, which would be productive of great inconvenience and suspension 
 of justice. (a) 
 
 *CHAPTER XL [*221] 
 
 Of the Bail Bond; and Duty of Sheriffs, Jr., on the Aiirest.[a] 
 
 When the defendant is arrested, he is either let out of custody, upon 
 giving bail to the sheriff, or an attorney's undertaking for his appearance ; 
 or depositing in the sheriff's hands, the sum indorsed on the writ, with ten 
 pounds in addition to answer costs, &c. ; or he remains in custody, or 
 escapes or is rescued, &;c. 
 
 Bail in personal actions came in with the capias :{a) and it is eitiicr to 
 the sheriff, for the appearance of the defendant at the return of the writ, 
 or to abide the event of the suit : The former is called bail to the sheriff) 
 or bail beloiv ; the latter bail to the action^ or, when special, bail above. 
 Before the statute 23 Hen. VI. c. 9, the sheriff was not obliged to bail a 
 defendant, arrested upon mesne process, unless he sued out a writ of 
 mainprize ; though he might have taken bail of his own accord. (7>) This 
 arbitrary power produced great extortion and oppression of the subject : 
 to remedy which, it was enacted by the above statute, that " sheriffs, &c., 
 shall let out of prison all manner of persons arrested, or being in their 
 custody, by force of any writ, bill or warrant, in any action personal, or 
 by cause of indictment of trespass, upon reasonable sureties of sufficient 
 persons, having sufficient wuthin the counties where such persons be so let 
 to bail or mainprize, to keep their days in such place as the said writs, 
 bills or warrants shall require ; persons being in their ward by condemna- 
 tion, execution, capias utlagatum or excommunicatiim, surety of the peace, 
 or by special commandment of any justice, and vagabonds refusing to 
 serve according to the statute of labourers, only excepted. 
 
 And that " no sheriffs, &c., shall take, or cause to be taken, any obli- 
 gation, for any cause aforesaid, or by colour of their office, but only to 
 themselves, of any person, nor by any person, which shall be in their ward 
 by cause of law, but by the name of their office ; and upon condition 
 
 (r) 2 H. Blac. 29, and see 3 East, 89. 1 Rose, 261, 2. 
 
 (a) 2 Barn. & Aid. 743. 1 Cbit. Rep. 579, S. C, and see id. 579, 80, 81, in notis. 
 
 {a) Gilb. C. P. 33. And for the origin, progress, and general nature of the law of bail, 
 see Pctcrsd. Part I. Chap. I. 
 
 (6) Gilb. C. P. 20, 21. 4 Bac. Abr. 4G1. F. N. B. 251. Plowd. 67. Dalt. Shcr. 56, and 
 see 1 Vent. 55, 85. 2 Wms. yaund. 5 Ed. 60, 61, g. 1 H. Blac. 233. 15 East, 321. 
 
 [a] See 1 Archb. Pract. Ft. II., p. 632, 8 Ed.
 
 221 OF THE BAIL BOND. 
 
 written, that the prisoners shall appear at the day and place contained in 
 the writ, bill or warrant. And if any sheriffs, &c., take any obligation in 
 other form, by colour of their office, it shall be void." 
 
 *This is a public act, of which the courts will judicially take 
 [ *222 ] notice, without its being specially pleaded. (a«) And it hath two 
 
 branches: first, as to the personslo be let to bail; and, secondly, 
 as to the form of the security.(55) Upon the first branch of the statute, 
 it has been determined, that the sheriff has no authority to take a bond 
 for the appearance of persons arrested by him, under process issuing upon 
 an indictment at the quarter sessions, for a misdemeanour ; but can only 
 take a recognizance for their appearance :(c) And it has been doubted, 
 whether the sheriff can take bail on an attachment for a contempt, issuing 
 out of a court of law.(c/) But it is holden, that bail may be taken on 
 attachment out of Chancery, on mesne process :{e) though not after a 
 decree. (/) The practice upon mesne process is, for the sheriff to take 
 a bond in the penalty of 401. for the defendant to appear and answer •,{g) 
 and an action may be brought on the bond, in the name of the sheriff.(/<') 
 But though the sheriff may, yet he is not compellable to take bail, on an 
 attachment out of Chancery ; it having been determined, that an action 
 will not lie against him for refusing to take it :(i) and therefore, if he will 
 
 not take bail, the defendant must remain in *custody, and can 
 [ *223 ] only be relieved by applying to the chancellor, or a judge of the 
 
 court out of which the process issued.(a) If the sheriff take bail, 
 it seems from the case of the King v. Dawes,{h) that he may be amerced, 
 
 (a«) 2 Durnf. & East, 569. 15 East, 323. 
 
 \bb) For the determinations on both these branches of the statute, see 2 Wms. Saund. 5 
 Ed. 59, (3), &c. 
 
 (c) 4 Durnf. & East, 505. 2 H. Blac. 418. 
 
 ((7) la an anonymous case, reported in 1 Str. 479, the Chief Justice, on a motion for an 
 attachment, declared, that all the judges on consideration had resolved, that the sheriff could 
 not take bail on an attachment, but a judge at his chamber might. And accordingly, in a 
 late case oi Phelps v. Barrett, 4 Price, 23, it was determined by the court of Exchequer, that 
 the sheriff cannot let out of custody on bail, a defendant taken under an attachment, issuing 
 out of courts of law, for non-payment of costs ; such process being in nature of, and in effect 
 an execution : and see Com. Rep. 264. Barnes, 64. Per Ld. Mansfield, M. 23 Geo. III. K. 
 B. accord.: but see 1 Ld. Raym. 722. 2 Salk. 608, S. C. contra. The case of Morris v. 
 Hayward, however, 6 Taunt. 569. 2 Marsh. 280, S. C, is an authority to show, that although 
 the sheriff is not bound to take bail upon an attachment, yet if he do, he may recover upon 
 the bail bond : and see the case of Rex v. Bowes, 1 Ld. Raym. 722. 2 Salk. 608, S. C, 
 accord. That indeed was the case of an attachment out of Chancery, to enforce an appear- 
 ance; but process issuing out of courts of law and equity is said to stand on the same 
 foundation : though it is observable, that process out of Chancery is not within the statute 
 23 Hen. VL c. 9, as appears by that case, and Studd v. Acton, 1 H. Blac. 474. The case of 
 Morris v. Hayward was decided upon great consideration, and is at variance with the sub- 
 sequent case of Phelps v. Barrett; the foundation of which was, that an attachment is a 
 process in nature of an execution. Per Baijlcy, J. in the case of Lewis v. Morland, 2 Barn. 
 <Sc Aid. 63. And as it was determined, in the latter case, that an attachment issuing out 
 of the court of King's Bench, for non-payment of money, is in nature of mesne process, the 
 principle on which tlie case of Phelps v. Barrett was decided, cannot it seems be supported. 
 In the case of Kex v. Aylett, T. 23 Geo. IIL K. B. a distinction was taken by the counsel in 
 argument, which seems to be reasonable, between an attachment for non-payment of money, 
 and for not delivering papers, or other cause ; and it was said, that on the former, the sheriS" 
 might take bail, but the latter was bailable only before a judge. 
 
 (e) Sty. Rep. 212, 234. 2 Vent. 237. Com. 'Rep. 264. Barnes, 64. 2 Blac. Rep. 955. 
 6 Taunt. 569. 2 Marsh. 280, S. C, but see 3 Leon. 208, contra. 
 
 if) Gilb. Rep. 84. Free. Chan. 331, S. C. 
 
 {g) 1 Eq. Cas. Abr. 351. 4 Bac. Abr. tit. Sherif, 0. 4 V. 463. 
 
 [h) Taunt. 569. 2 Marsh. 280, S. C. ; and see Price, 224. 
 
 (t) 1 H. Blac. 468. 6 Taunt. 571, &c. 2 Marsh. 2S3, 286, S. C. 
 
 (a) 1 Str. 479. (6) 2 Salk. 608. 1 Ld. Raym. 722, S. C.
 
 OF THE BAIL BOND. 22S 
 
 if the party do not appear and answer ; but in a subsequent case,((') a 
 messenger was sent, upon the sheriff's return of ccpi corpus^ to bring him 
 in ; which seems to be now the practice in Chancery, instead of making 
 an order on the sheriff to bring in the body. So, in the Exchequer, if the 
 condition of the bond be broken, the course is said to be, to get an order, 
 on the return by the sheriff of ccpi corpus, for a messenger to bring in the 
 defen(hint.((ZtZ) But where a defendant had been arrested on an attach- 
 ment for contempt, in not appearing to a suhpcena ad respondenduniy the 
 court would not grant a motion for the messenger to bring up the body, 
 after the defendant had given a bail bond to the sheriff, although the 
 penalty was inadequate. (ee) 
 
 When the defendant is arrested, and in actual custody, it is the duty of the 
 sheriff' to take bail, if required ;[a] and therefore if a bail bond be tendered, 
 with sufficient sureties, and the sheriff refuse to accept it, and liberate the 
 defendant, ho is liable to a special action on the case.(/) But in order to 
 maintain such an action, it must appear that the parties who were offered 
 as bail, had sufficient within the county where the arrest was made.(^) A 
 bond, however, with five sureties, three of whom are respectively worth 
 more than the penalty of the bond, is sufficient, though the other two are 
 "worth less than the penalty.(/t) The clause which requires reasonable 
 sureties was introduced for the benefit of the sheriff; and therefore, though 
 he may insist upon tivo sureties, yet he may take a bond with 07ie only.(/)[B] 
 And for the same reason, the plaintiff cannot maintain an action against 
 him, for taking sureties that are insufficient, or do not inhabit within his 
 county, (/c) And though the words of the statute seem to be confined to 
 persons arrested and in actual custody, yet it has been holden, that the 
 arrest need not be stated in an action upon the bail bond ;{l) and if stated, 
 it is not traversable :(w) for it would be of mischievous consequence, if a 
 bail bond, taken civilly, without exposing the party by an arrest, were not 
 as effectual as if he had been actually arrested. 
 
 (c) Prec. Chan. 331. ((/c?) 3 Price, 223. (ee) 6 Price, 32. 
 
 (/) Gilb. C. P. 20. Cro. Car. 196. W. Jon. 22G, S. C. 1 Sid. 22. 2 Mod. 31, 84, 180. 2 
 Vent. 9G. 6 Durnf. & East, 35.5, and see 2 Wms. Kauud. 5 Ed. 61, b. e. (5.) 
 
 (if) 15 East, 320. (h) 5 Maule & Sel. 223. 
 
 (t) 10 Co. 100, b. Cro. Eliz. 624, 808, 852, 862. 9 Moore, 422. 2 Bing. 227, S. C. So, 
 though a replevin bond be executed by one of the sureties onlj', it is nevertheless available 
 by the sheriff, against such surety. 7 Taunt. 28. 2 Marsh. 352, S. C. ; and see 7 Taunt. 327. 
 
 1 Moore, 68, S. C. 
 
 (k) Cro. Eliz. 808, 852, 862. Noy. 30. 1 Sid. 96. 2 Wms. Saund. 5 Ed. 59. 1 Mod. 227, 
 239. 2 Mod. 83, 177 ; but see 1 Ld. Raym. 425. 1 Salk. 99, S. C. 6 Mod. 122, semb. contra. 
 
 (l) 1 t<tr. 643. 
 
 (th) Id. 444 ; but see Noy. 43, semb. contra. See also Say. Rep. 116, by which it appears, 
 that the issuing of the process may be traversed. 
 
 [a] The bond should be given to the sheriff and his successor. Loker v. Antonio, M'Cord, 
 175. Jfunter v. Gilham, 1 Brcese, 51. Rahton v. Love, Hardin, 501. Glczcn v. llood, 2 
 Metcf. 490. And bond taken to the plaintiff instead of the sheriff is void. Ilanile;/ v. 
 Ewingn, 4 Bibb, 505 ; or with a blank condition ; I'erry v. JJobbins, 2 Bailey, 343 ; or with- 
 out a seal ; Walker v. Lewis, 2 Hayw. 16. I'eijton v. Mo.scUj, 3 .Monr. 80. Smallcyv. Vanorden, 
 
 2 South. 811 ; or if it be not executed by the principal as well as the sureties ; Bco'i v. 
 Parker, 17 Mass. 591 ; or if it specify no sum to be paid by the obligors ; Ilarri^on v. Tier- 
 nan.i, 4 Rand. 177; or if it be not delivered. Harrison v. Tiernans, 4 liand. 177. 
 
 [b] Statutory directions as to the number of sureties on the bond are merely directory 
 and the slieritf may take a smaller number without ntiocting the validity of the bond. 
 Johnson v. Williams, 2 Overt. 178. liice v. Hosmer, 12 Jlass. 129. Lonj v. Hillings, 9 Ih. 
 482. Lane v. Smith, 2 Pick. 284. Arrenton v. Jordan, 4t Hawks, 98. Glezen y. Rood, 2 
 Metcf. 490. Bennett v. Brown, 5 Rich. 347. 
 
 Vol. I.— 15
 
 2-23 
 
 OF THE EAIL EOND. 
 
 r *22i ] *ThG second branch of tlie statute requires a security by hond 
 or obligation : (a) and therefore an agreement in writing, made 
 by a third person with a sheriff's oflBcer, to put in good bail for the defen- 
 dant at the return of the writ, or surrender his body to the officer, or pay 
 the debt and costs ]{h) or an attorney's undertaking to the officer, for the 
 appearance of the defendant,(c) or to give a bail bond to the sheriff in due 
 time,(t^) has been holden to be void, by the statute 23 Hen. VI. c. 9 ; and 
 an action will not lie upon such an agreement or undertaking,((?) In these 
 cases, if bail above be not duly put in, the sheriff is liable to an action for 
 an escape ; and the court will not relieve him, by permitting him after- 
 wards to put in and justify bail :( /f ) nor, after the plaintiff has recovered 
 against the sheriff for the escape, will the court proceed summarily against 
 the attorney, to make him pay the debt and costs, for his breach of 
 faith. ((/</) It is also settled, that the sheriff or his officer cannot maintain 
 an action against the defendant for money paid, when he has discharged 
 him out of custody on mesne process, without taking a bail bond, and has 
 in consequence of his non-appearance, been obliged to pay the debts and 
 costs. (7i7i) 
 
 The bail bond is usually taken in a penalty, being double the amount of 
 the sum sworn to and indorsed on the writ, notwithstanding the statute 12 
 Geo. I. c. 29, which directs the sheriff to take bail for that sum, and no 
 more ;(/*') and the sheriff's bail are liable thereon to the full extent of the 
 debt and costs, and not exceeding the penalty of the bond.(/c) Respect- 
 ing \\\Q form of the bond, there are three things to be observed; first, that 
 it may be made to the sheriff himself; secondly, that it be made to him, 
 by his name of office ; and thirdly, that it be conditioned for the defen- 
 dant's appearance at the return of the writ, and for that only.(/) There- 
 fore, if the bond be not made to the sheriff,(m) or be not made to him by 
 his name of office,(7M) or if it be single, without any condition at all,(;?i) or 
 with an impossible condition, (w) or the condition be not for the defendant's 
 appearance,(m) or be for that and something else,(m) it is void by the 
 statute. So it is void, if executed before the condition is filled up.(c')M 
 
 («) 2 Wms. Saund. 5 Ed. 59, a. b. Append. Chap. XI. § 1, 2, 3. 
 
 ib) 1 Durnf. & East, 418. 
 
 (c) 7 Durnf. & East, 109. Parker v. England, M. 45 Geo. III. K. B. 2 Smith, R. 52, S. 0. 
 
 \d) 4 East, 568. (e) 1 Durnf. & East, 418. (/) 7 Durnf. & East, 109. 
 
 {gij) 4 East, 568. Parker v. Enc/land, M. 45 Geo. III. K. B. 2 Smith R. 52, S. C. 
 
 [hh) 8 East, 171 ; and see Eyles y. Faihicy, E. 32 Geo. III. K. B. Peake's Gas. Ni. Pri. 3 
 Ed. 195, (a). 1 Esp. Rep. 383. 
 
 (u) Gas. Pr. C. P. 43. Fort, 363. Prac. Reg. G. P. 67; but see 3 Blac. Gom. 290, semb. 
 contra. 
 
 {k) 2 Blac. Rep. 816. 1 H. Blac. 76. (/) Cro. Eliz. 862. 4 Bac. Abr. 462. 
 
 [m) Dyer, 119, 20. 10 Go. 100, a. b. Gro. Eliz. 800. W. Jon. 138. Palm. 378. 2 Lev. 123. 
 Fort. 371. 
 
 {n) 3 Lev. 74. 1 Str. 399. Fort, 363, S. C. 2 Durnf. & East, 569. 
 
 (o) 3 Gampb. 181. 
 
 [a] a bond varying slightly from the statute will be good, if it include all the obliga- 
 tions imposed, and allow every defence given by the statute. Rhodes v. Vawjhan, 2 Hawks. 
 167. Saunder v. Hughes, 2 Bailey, 504. Payne v. Britton, 6 Rand. 101. But the condition 
 of the bond must pursue, and not be contrarj^ to the statute. Basket v. Scott, 5 Litt. 208. 
 Barnard v. Viele, 21 Wend. 89. Though a bail bond which omitted the nature of the action 
 and the amount of the debt, has been held sufficient in Kentucky. Palmer v. JrGinnis, 
 Hard. 505. But regularly it should show substantially at whose suit the arrest was made, 
 the amount of damages demanded, and when and where the process is returnable. Churchill 
 V. Perkins, 5 Mass. 542. Stevens v. Claney, 1 Johns. 521. JI'Lean v. Lillard, 1 Bibb. 146. 
 Robeson v. Thompson, 4 Halst. 97. Carter v. Cockrill, 2 Munf. 448. See note [a], p. 223, 
 ante.
 
 OF THE BAIL EOND. 224 
 
 And in an action on a bail bond, the return of the writ, on ^vbicU the 
 defendant in the original action was arrested, must be stated with cer- 
 tainty. (/)) If the objection to the bail bond appear on the face 
 of the declaration, or upon oijer^ the •defendant may demur ; [ *225 ] 
 but otherwise he should plead it : and when, by pleading or 
 otherwise, it appears in any part of the record, he may move in arrest of 
 judgment. (rt) 
 
 If the bond be substantially good, it cannot be avoided for any trilling 
 informality, or variance of the condition from the writ, in the description 
 of the plea, or of the time or place of appearance. [a] Thus, where the 
 writ was to answer the plaintiff" in a plea of debt for tlircc humlrcd and 
 twenty pounds, or in a ploa of trespass within an ac etiam, and the con- 
 dition was to answer the plaintiflf in a plea of debt or trespass gencralli/, 
 or without mentioning the plea at all, the variances were holden to be 
 immaterial ;(/>) for the statute only requires a bond conditioned for the 
 defendant's appearance, and the description of the plea is merely sur- 
 plusage. And accordingly, where the sheriff, upon an original writ in a 
 plea of trespass on the case on 'pi'omiscs, took a bail bond conditioned for 
 the defendant's appearance, to answer the plaintiff in a plea of trespass, 
 the court held it to be valid. (c) So, where the writ, in trespass, was to 
 appear before the lord the kinrj at Westminster, and the condition was to 
 appear before the justices of the King's Bench at Westminster, (r?) the 
 bond was holden good. And where the writ, by original, was returnable 
 before the lord the king, loheresoever he shall then be in England, and the 
 condition was without the words wheresoever, &c., the court gave judgment 
 for the plaintiff, in an action upon the bond ; saying, they would under- 
 stand, that by appearing before the king was meant, before the king in 
 his court, and not before the king in pcrson.{e) So, where the condition 
 of the bond, in an action by original, was to appear before the king 
 at Westminster, it was deemed sufficient. (/) And where a declaration 
 on a bail bond, in setting out the condition, stated that if the defendant 
 should appear, &c., to answer the plaintiff " according to the custom of 
 his majesty's court of Common Bench here," the obligation should be void ; 
 and on the production of the bond, the latter words were omitted ; the 
 court of Common Pleas held, that this was no variance, as it was only neces- 
 sary to set out the condition according to its legal effect. ((/) It has also 
 
 (p) 2 Chit. Rep. 624. (a) 2 Durnf. & East, 569. 
 
 (6) Cro. Jac. 286. 2 Lev. 123. 2 Show. 51. T. Joa. 137, 8. 6 .Mod. 122. 10 Mod. 327. 
 Atkinxon v. Sattndcrson, E. 25 Geo. III. K. B. ; but see 2 Lev. 177, .icml>. contra. 
 
 (c) 6 Durnf. & East, 702 ; and see 5 Moore, 538. 2 Brod. & Bing. 059, S. C. 
 
 (d) 2 Lev. 180. T. Jon. 4G, S. C. 2 Vent. 237, 8. (e) 2 Str. 1155, 6. 
 (/) 9 East, 55 ; but see 1 Chit. Rep. 323. Ante, 129, 30. 
 
 (ff) 3 Moore, 214; and see 3 Stark. Ni. Pri. 76. 
 
 [a] Misnomer of the plaintiff in the recital will not of itself render the bond void. Col- 
 hum V. J)owne.o, 10 Mass. 20. Even where a bail bond was executed by the principal and 
 the bail, but tiie name of the bail was not inserted in the body of the bond, tiiouj;h a blank 
 was left for it, and tlie i)laintill' recovered a judgment upon it aj^aiiist bolii the principal 
 and the bail, which judgment stood unreversed, the court held tlie bond valid, and would 
 not allow the plaintiff to maintain an action against the sheriff for returning a defective 
 bail bond, h'ri/nolds v. Gore, 4 Leigh. 270. A substantial compliance with the act is all 
 that is required. Mu.itin v. Muxfin, 13 Geo. 357. Siiyar v. D'lves, A/. 462. Tlius, where 
 the names of the sureties are inserted in the first part of the bond and signed by them, but 
 omitted iu the condition of the bond, the legal effect of the instrument was not altered. 
 Davidson v. Carter, 9 Geo. 501.
 
 225 
 
 OF THE BAIL BOND. 
 
 been holdcn, that the statute for preventing frivolous and vexatious ar- 
 rests(//) is merely directory to the sheriff; and does not avoid the bail 
 bond, where there is no affidavit of the cause of action, (i) or the sum sworn 
 to is not indorsed on the writ,(z) or even where the bond is taken in a 
 
 penalty, being more than double the amount of the sum sworn 
 [ *22G ] to.(/c) But an allegation, that an action was ^depending in his 
 
 majesty's court of the Bench at Westminster, is not sustained by 
 proof of a ijluries bill of 3Iiddlescx : for by such allegation the Common 
 Bench must be intended. (a) So, where a cajnas ad respondendum was 
 made returnable before his majesty' s justices of the Bench dit Westminster^ 
 by virtue of which the sheriff issued his mandate to the bailiff of a liberty, 
 commanding him to take the defenant, so that the sheriff might have his 
 body before his said majesty at Westminster ; and the bailiff took a bail 
 bond, conditioned for the defendant's appearance before his said majesty 
 at Westminster ; the court of Common Pleas held, that the variance be- 
 tween the bail bond and the writ was fatal, and therefore that the bond 
 was void, by the statute 23 Hen. VI. c. 9.(^) And in an action on a bail 
 bond, where the condition set out on the record was, " to answer the 
 plaintiff in a plea of trespass, and also to a bill to be exhibited against 
 the defendant for 60/. upon promises,'' and the bond, when produced, did 
 not contain the words ^' upon promises,'" the variance was holden to be 
 fatal. ((?) 
 
 The defendant having given a bail bond, could not formerly have dis- 
 charged his bail to the sheriff, by surrendering himself before the return 
 of the writ ; for it was considered as a settled point, that nothing could 
 be a performance of the condition of the bail bond, but putting in and 
 perfecting bail above. (cZ) But it has since been determined, that if the 
 defendant surrender himself to the sheriff, before or on the return-day of 
 the writ, the bail bond may be given up to be cancelled : after which, the 
 plaintiff cannot take an assignment of it ;(e) nor can he rule the sheriff, or 
 maintain an action against him, for not assigning it.(/) And where the 
 defendant surrendered to the gaoler, at the county gaol, in discharge of 
 his bail to the sheriff, before ttvelve o'clock on the first day of terra, being 
 the return day of the writ, and the under-sheriff, who lived at a distance, 
 signified his assent to the surrender by return of post the next day, it was 
 held sufficient to discharge the bail bond, of which the plaintiff had taken 
 an assignment afterwards, with notice of such surrender. (^^) But it is 
 optional in the sheriff, whether he will accept the surrender of the party, 
 in discharge of the bail bond : and therefore, where notice of such sur- 
 render was given to the sheriff, and to the gaoler in whose custody the 
 party then was, at the suit of another, after which the gaoler let the party 
 out of custody, the court held that the gaoler was not liable upon his 
 
 {h) 12 Geo. I. c. 29. 
 
 \i) 1 Bur. 330; but see 2 New Rep. C. P. 202, semb. contra. 
 
 \k) 2 Wils. 69. 1 Bur. 331. 1 H. Blac. 76. 2 Bos. & Pul. 109. 
 
 (a) 3 Maule & Sel. 166 ; and see 7 Taunt. 271. 1 Moore, 19, S. C. 
 
 (6) 6 Taunt. 551. 2 Marsh. 258, S. C. 
 
 (c) 1 Ry. & Mo. 93. And see further, as to the nature and form of the bail bond, Petersd. 
 Part I. Chap. VI. 
 
 {d) 5 Bur. 2683 ; and see Dalt. Sher. 356. 1 Price, 262. 
 
 (e) Callaioay v. Seymoiir, E. 42 Geo. III. K. B. 
 
 (/) 6 Durnf. & East, 753. 7 Durnf. & East, 122. 8 Durnf. & East, 456, 505; and see 1 
 Bos. & Pul. 325. 
 
 {gg) 10 East, 100; and see 8 Moore, 518. 1 Bing. 423, S. C.
 
 ON THE ARREST. 226 
 
 bond of indemnity to the sheriif, as for an escape in tlic former suit ; for 
 the party was not legally in the custody of the sheriff or his gaoler, merely 
 by virtue of such surrender.(/i) And it seems, that rendering 
 the ^defendant to the King's Bench prison, before the return of [ *22T ] 
 the writ, will not discharge his bail to the sheriir.((<) 
 
 The provisions of the statute of Hen. VI. are not applicable to securi- 
 ties taken by, or for the benefit of the plaiutifr:(/y) And hence, an attor- 
 ney's undertaking to appear for the defendant is binding, if given to the 
 plaintiff in the cause, though it be not exactly in the form prescribed. 
 And an undertaking, by a third person, to sign a bail bond for the defen- 
 dant, is not considered as an undertaking, within the statute of frauds, (c) 
 to answer for the debt, default, or miscarriage of another. ((^) By an old 
 rule of court,((?) "a prisoner taken upon a capias shall not be discharged, 
 till he hath given bond to appear ; unless the plaintiff or his attorney 
 shall consent to take an appearance, without bail:" But it is now the 
 common practice to take an attorney's undertaking to the plaintiff, whore 
 special bail is required; and the courts will enforce it by attachment. (/) 
 
 It sometimes happens, that persons arrested upon mesne process may 
 not be able to find sufficient sureties for their appearance at the return of 
 the writ, and yet may be able to make a deposit of the money for which 
 they are so arrested, together with a competent sum for costs : and there- 
 fore, by the statute 43 Geo. III. c. 46, § 2, reciting that it is expedient 
 that persons arrested should, upon making such deposit, be permitted to 
 go at large until the return of the writ, without finding bail to the sheriif 
 for their appearance at the return thereof; it is enacted, that "all per- 
 sons who shall be arrested upon mesne process, within those parts of the 
 united kingdom of Great Britain and Ireland, called England and Ire- 
 land^ shall be allowed, in lieu of giving bail to the sheriff, to deposit in 
 the hands of the sheriff, by delivering to him or to his under-sheriff, or 
 other officers to be by him appointed for that purpose, the sum indorsed 
 upon the writ, by virtue of the affidavit for holding to bail in that action, 
 together with ten pounds in addition to such sum, to answer the costs 
 which may accrue or be incurred in such action, up to and at the time of 
 the return of the writ, and also such further sum of money, if any, as 
 shall have been paid for the king's fine upon any original writ; and shall 
 thereupon be discharged from such arrest, as to the action in which he, 
 she, or they shall so deposit the sum indorsed on the writ." And that 
 " the sheriff shall, in every such case, at or before the return of the said 
 writ, pay into the court in which such writ shall be returnable, the sum 
 of money so deposited with him as aforesaid; and thereupon, in case the 
 defendant or defendants shall afterwards duly put in and perfect bail in 
 such action, according to the course and practice of such court, 
 the sum of money so deposited and paid into court *as aforesaid [ *228 ] 
 shall, by order of the court, upon motion to be made for that 
 purpose, be repaid to such defendant or defendants. (aa) But in case the 
 
 {h) 1 East, 383. 
 
 (a) Foifter v. Ui/de, M. 41 Geo. III. K. B. ; and see 1 Price, 2GJ ; but see 3 Bos. & Pul. 232. 
 (6) Cro. Eliz. ioo. 1 Sid. 132. 1 Lev. 98, S. C. 2 Mod. 305. 1 Durnf. & East, 421. 4 
 East, 5G9. 2 Smith R. 53. 
 
 (c) 29 Car. II. c. 3, g 4. [d] 1 By. & Mo. 348. 
 
 (e) R. M. 1654, ? 6, K. B. R. M. 1G54, ^ 9, C. P. 
 
 (/) 1 Durnf. & East, 422. 4 East, 509. 2 Sraitli, R. 53. 
 
 \aa) For the form of an aflidavit for this purpose, see Append. Chap. XI. \ 4.
 
 228 OF THE DUTY OF SHERIFFS, ETC. 
 
 defendant or defendants shall not duly put in and perfect bail in such action, 
 then and in such case the said sum of money so deposited and paid into 
 court as aforesaid shall, by order of the court, upon a like motion to be 
 made for that purpose, be paid out to the plaintiff or plaintiffs in such action, 
 who shall bo thereupon authorized to enter a common appearance, or file 
 common bail for such defendant or defendants, if the said plaintiff or plain- 
 tiffs shall so think fit : such payment to the plaintiff or plaintiffs to be made 
 subject to such deductions, if any, from the sum of ten pounds deposited 
 and paid to answer the costs as aforesaid, as upon the taxation of the plain- 
 tiff's costs, as well of the suit as of his application to the court in that 
 behalf, may be found reasonable." 
 
 In the construction of the above act of parliament, (which has been 
 sometimes, though erroneously, called Lord Ellenhorougli 8 act,)(i) it has 
 been holden, that where money is paid to the sheriff upon an arrest, it shall 
 be presumed to have been paid as a deposit in lieu of bail, unless a discharge 
 or some acknowledgement in writing be given to the defendant for the debt 
 and costs. (c) This act was made in ease of defendants, and not for the 
 benefit of plaintiffs : And therefore, where the defendant puts in bail above, 
 who, on being excepted to, render him, instead of justifying, the plaintiff is 
 not entitled to receive the money out of court ; but the defendant, if he 
 made the deposit, may in such case receive it back \{d) or if the deposit was 
 made by any other person than the defendant, the court will, upon bail above 
 being put in and perfected, or the defendant surrendered, order it to be re- 
 paid in the bail, or other person by whom it was actually deposited, and not 
 to the defendant(e) The above act does not controul the discretion of the 
 court, with respect to the time for putting in bail: therefore, where money 
 is paid into court in lieu of bail, Avhich is not put in and perfected in due 
 time, the court, on an affidavit of merits, will grant further time to the de- 
 fendant. (/) And where the plaintiff had made application for the money 
 to be paid out of court to him, and that rule was discharged on showing 
 cause, and it appeared, on fully discussing the merits of the case, that the 
 defendant was entitled to the money, the court of Common Pleas granted a 
 rule, absolute in the first instance, for the money to be paid over to him.(^) 
 If a defendant, being arrested by a wrong name, pay the amount of the sura 
 sworn to, and lOZ. for costs to the sheriff, without prejudice, the plaintiff 
 will not be permitted to take it out of court, on the defendant's 
 [ *229 ] omitting to perfect bail:(/A) And neither the *sheriff, nor officer 
 of the court, is entitled to poundage, on the money being taken 
 out of court.(a) 
 
 When bail above is not put in and perfected in due time, the plaintiff is 
 entitled, by the express words of the statute, to have the money paid him, 
 by order of the court, upon motion made for that purpose. (65) And, in the 
 King's Bench, where a defendant cannot be found, so as to serve him per- 
 sonally with a rule for taking out the money deposited in the hands of the 
 sheriff, the court will allow the service to be good, by leaving a copy of the 
 
 {h) 1 Smith, R. 128. , (c) Id. 127. 
 
 {d) 4 Taunt. 669. 3 Maule & Sel. 283. 2 Moore, 610. 8 Taunt. 557, S. C. 1 Chit. Rep. 
 145, S. P. 2 Chit. Rep. 71 ; and see 7 Moore, 432. 1 Bing. 103, S. C. 
 
 (e) 1 gmith, R. 13 ; but see 2 Moore, 610. 
 
 f/) 2 Chit. Rep. 71. (^) 4 Taunt. 670. (A) 5 Taunt. 623. 
 
 (fl) 2 Barn. & Aid. 770. 1 Chit. Rep. 529, S. C. 6 Moore, 124. 
 
 {hh) For the form of an affidavit for this purpose, see Append. Chap. XI. \ 5, aud for the 
 rule, of court thereon, id. \ 6.
 
 ON THE ARREST. 229 
 
 rule at the defcntlant'.s last place of aLude, and sticking it up in the oK\cq.{cc) 
 In the Common Pleas, where the defendant, on being arrested, paid the debt 
 and ten pounds in addition for costs, -which sum was more than sufficient to 
 cover them, and informed the plaintifl"s attornc}', that he should reclaim 
 only the surplus ■which might remain after paj'ment of debt and costs, and 
 the [)laintift"s attorney, on the slierifT's omitting after request to remit the 
 money, proceeded in the action ; the court held, that the defendant was not 
 liable to pay the costs so incurred after the arrest.(rZ) The cases in -which 
 the plaintift' may think fit to enter a common appearance, or file common 
 bail for the defendant, are ■where he claims and means to proceed for more 
 than the sum indorsed on the writ : but in these cases, there is no provision 
 made by the act, with regard to costs, if he should not eventually recover 
 more than that sum ; nor for his refunding any part of it, if he should 
 recover less. In an action for a malicious arrest, an allegation that the 
 plaintiff gave bail to the sheriff for his appearance at the return of the 
 writ, is not supported by evidence that he paid the debt and 10/. for costs 
 into the hands of the sheriff; but he may still maintain the action, although 
 he cannot recover for the consequential damages. (c) 
 
 If the defendant, upon being arrested, remain in custody, he is either con- 
 fined in a private house, or carried to the county gaol. And where a per- 
 son was arrested, by virtue of a warrant directed to a sheriff's officer, but 
 on account of illness was permitted to remain a few days in his own house, 
 in the custody of the officer's follower, who was not named in the warrant, 
 but who kept the key of the house in his possession, and was then removed 
 to gaol, where he continued for the remainder of two months, the court of 
 Common Pleas held, that this was a legal imprisonment, so as to constitute 
 an act of bankruptcy. (/) For preventing the oppression of inferior officers, 
 in the execution of process for debt, it is enacted by the statute 32 Geo. II. 
 c. 28, (^) commonly called the Lords' Act, that "no sheriff, under-sheriff, 
 bailiff, Serjeant at mace, or other officer or minister, shall conveyor carry, 
 or cause to be conveyed or carried, any person or persons by him 
 or thera arrested, or being in his or their custody, by *virtue or [ *230 ] 
 colour of any action, writ, process, or attachment, to any tavern, 
 alehouse, or other public victualling or drinking house, or to the private 
 house of any such officer or minister, or of any tenant or relation of his, 
 without the free and voluntary consent of the person or persons so arrested 
 or in custody ; nor charge any such person or persons with any sum of 
 money, for any wine, beer, ale, victuals, tobacco, or any other liquor or 
 things whatsoever, save what he, she, or they shall call for, of his, her, or their 
 own free accord : nor shall cause or procure him, her, or them, to call or 
 pay for any such liquor or things, except what he, she, or they shall par- 
 ticularly and freely ask for ; nor shall demand, take, or receive, or cause 
 to be demanded, taken, or received, directly or indirectly, any other or 
 greater sum or sums of mone}^ than is or shall be by law allowed to be 
 taken or demanded for any arrest or taking, or for detaining, or waiting 
 till the person or persons so arrested or in custody shall have given an 
 appearance or bail, as the case shall require, or agreed with the person or 
 persons at whose suit or prosecution he, she, or they shall be taken or 
 arrested, or until he, she, or they shall be sent to the proper gaol bclong- 
 
 (cc) 1 Chit. Rep. 675. (d) Brod. & Hing. 273. 7 iloore, S3, S. C. ; but see 7 Moore, 557, 
 
 (e) 4 Campb. -213. 1 Stark. Ni. I'ri. 48, S. (J. 
 
 (/) 6 TauQt. 106. 1 .Marsh. 469, S. C. (y) 2 1.
 
 230 OF THE DUTY OF SHERIFFS, ETC., 
 
 in^i- to the county, riding, division, city, town, or place, where such arrest 
 or taking shall be ; nor shall exact or take any reward, gratuity or money, 
 for keeping the person or persons so arrested or in custody, out of gaol or 
 prison." 
 
 And that " no sheriff, &c. shall carry any such person to any gaol or pri- 
 son, within four and twenty hours from the time of such arrest, unless 
 such person or persons so arrested shall refuse to be carried to some safe 
 and convenient dwelling-house, of his, her, or their own nomination or 
 appointment, within a city, borough, corporation, or market town, in case 
 such person or persons shall be there arrested, or within three miles from 
 the place where such arrest shall be made, if the same shall be made out 
 of any city, borough, corporation, or market town, so as such dwelling- 
 house be not the house of the person arrested, and be within the county, 
 riding, division, or liberty in which the person under arrest was arrested ; 
 and then and in any such case, it shall be lawful to and for any such 
 sheriff, or other officer or minister, to convey or carry the person or 
 persons so arrested, and refusing to be carried to such safe and conve- 
 nient dwelling-house as aforesaid, to such gaol or prison as he, she, or 
 they may be sent to, by virtue of the action, writ or process against him, 
 her, or them : And that no sheriff, &c., shall take or receive any other or 
 greater sum or sums, for one or more night's lodging, or for a clay's diet, 
 or other expenses of any person or persons under arrest, on any writ, 
 action, attachment or process, other than what shall be allowed as reason- 
 able in such cases, by some order or orders made by justices of the peace, 
 in pursuance of the said act. "(a) 
 
 These provisions are not confined to persons arrested on mesne process ; 
 the intent of them being, that such persons may have an opportunity of 
 procuring bail, or of agreeing with the plaintiffs : and it has accordingly 
 been determined, that a sheriff's officer is not liable to the penal- 
 [ *231 ] ties of the ^statute, for carrying a defendant taken in execution 
 to prison, within twenty-four hours after the arrest, (aa) Neither 
 is the sheriff liable to an action of escape, for taking a prisoner in execu- 
 tion to a lock-up house, and keeping him there fourteen days before the 
 return of the writ.(5) No time is limited by the above act, within which a 
 defendant, arrested on mesne process, should be carried to the county 
 gaol : And where, to an action for an escape on mesne process, the sheriff 
 pleaded, that the debtor was rescued out of his custody, as he was carry- 
 ing him to Newgate, to which the plaintiff replied, that the debtor ought 
 to have been carried to prison within a convenie7it time after the arrest, 
 and that he was rescued, because the defendant neglected, &c. the court 
 thought the replication bad, and gave judgment for the defendant.(e) But 
 it seems to be the duty of the sheriff, if possible, to carry the defendant to 
 the county gaol, by the return of the writ on which he was arrested ;[d) 
 and that afterwards the sheriff keeps him at his peril, in case the creditor 
 is delayed. Where the defendant, however, is arrested on the return day, 
 he cannot be carried to the county gaol, till the expiration of twenty-four 
 hours after the arrest, (e) And where the sheriff, having arrested a defend- 
 ant on mesne process, keeps him in his custody, after the return of the 
 
 (a) ? 2. (ao) 4 Durnf. & East, 555. 
 
 (h) 4 Taunt. 608. (c) 1 Lutw. 128. 
 
 (d) Per BuHer, J. 5 Durnf. & East, 41, and see 2 Bing. 317. 
 
 (e) 5 Durnf. & East, 40.
 
 ON THE ARREST. 231 
 
 •writ, and then carries him to prison, lie is not liable to an action on the 
 case, as for an escape, if the jury find that tlie plaintiflf has not been 
 delayed, or prejudiced in his suit.(/) 
 
 For the further protection of persons arrested, against the oppression of 
 inferior officers, and the exaction of gaolers, to whose custody they may be 
 committed, it is by the same statute( (/) enacted, that " every sheriff, under- 
 sheriff, bailiff of any liberty, gaoler and keeper of any prison or gaol, and 
 other person and persons, by whom, or to whose custody or keeping, any 
 one shall be arrested, taken, committed, or charged in execution, by virtue 
 of any writ, process, action, or attachment, shall at all times permit and 
 suffer every such person and persons, during his, her, and their respective 
 continuance under arrest or in custody, or in execution, for any debt, dam- 
 ages, costs, or contempt, at his, her, and their free will and pleasure, to send 
 for, and have brouglit to him, her, or thera, at seasonable times in the day 
 time any beer, ale, victuals, or other necessary food, from what place he, 
 she, or they shall think fit, or can have the same ; and also to have and use 
 such bedding, linen, or other necessary things, as he, she, or they shall liave 
 occasion for, and think fit, or shall be supplied with, during his, her, or their 
 continuance under any such arrest or commitment, without purloining or 
 detaining the same, or any part thereof, or enforcing or requiring him, her, 
 or them to pay for the having or using thereof, or putting any manner of 
 restraint or difficulty upon him, her, or them, in the using thereof, 
 or *relating thereto ; and no such prisoner or prisoners shall pay [ *232 ] 
 any thing in respect thereof, to any such sheriff, &c. And that no 
 gaoler or keeper of any gaol or prison, or other person thereto belonging, 
 shall demand, take, or receive, directly or indirectly, of any prisoner or 
 prisoners for debt, damages, costs, or contempt, any other or greater fee 
 or fees whatsoever, for his, her, or their commitment, or coming into gaol, 
 chamber rent there, release or discharge, than what shall be mentioned or 
 allowed in the list or table of fees, settled, inrolled and registered, accord- 
 ing to the directions of the said act."(a) 
 
 And for the more speedy punishing gaolers, bailiffs, and others employed 
 in the execution of process, for extortion, or other abuses in their respective 
 offices and places, it is further enacted, that " upon the petition in term 
 time, of any prisoner or person being, or having been under arrest or in 
 custody, complaining of any exaction or extortion by any gaoler, bailiff, or 
 other officer or person, in or employed in the keeping or taking care of any 
 goal or prison, or other place, where any such prisoner or person under, or 
 having been made under arrest or in custody, by any process or action, is or 
 shall have been carried, or in respect of the arresting or apprehending any 
 person or persons, by virtue of any process, action, or warrant, or of any 
 other abuse whatsoever, committed or done in their respective offices or 
 places, unto any of his majesty's courts of record at Westminister, from 
 whence the process issued, by which any person who shall so petition was 
 arrested, or under whose power or jurisdiction any such gaol, prison, or 
 place is ; or, in vacation time, to any judge of any such courts at West- 
 7ninster, from whence any such process so issued; or to the judges of assize, 
 &c. : every such court, judges of assize, &c. are by the said act authorized 
 and required to hear and determine the same, in a summary way, and to 
 make such order thereupon, for redressing the abuses which shall by any 
 
 (/)/(/. 37, but see 9 Moore, 584. 2 Bing. 31T, S. C. (y) § 4. («) 2 12.
 
 232 OF THE DUTY OF SHERIFFS, ETC., 
 
 such petition be complained of, and for punishing such officer or person com- 
 plained against, and for making reparation to the party or parties injured, as 
 they shall think just, together with the costs of every such complaint: and 
 all orders and determinations which shall be thereupon made, by any of the 
 said courts, &c. shall have the same effect, force and virtue, as other orders 
 of the same courts, &c; and obedience thereto may be enforced in like 
 manner, by attachment or otherwise. "(?j) And that every sheriff, under- 
 sheriff, bailiff of any liberty, bailiff, Serjeant at mace, gaoler, and other 
 officer and person as aforesaid, who shall in anywise offend against the 
 said act, shall, for every such offence, (over and above such other penal- 
 ties and punishments as he may be liable unto,) forfeit and pay to the 
 party thereby aggrieved, the sum of fifty pounds, to be recovered, with 
 treble costs of suit, by action of deU., bill, plaint, or information in any of 
 his majesty's courts of record diiWest')ninster.{c) 
 
 *At common law, a sheriff has no right to take fees for the 
 [ *233 ] execution of process :(a) And, by the statute 23 Hen. VI. c. 9, 
 he is only entitled to the fee of/o?tr pence, for issuing his warrant 
 on mesne process, to arrest the defendant ;(<7) although, when the plaintiff 
 has paid the sum of one guinea to the plaintiff for an arrest, he has been 
 allowed it by the master or prothonotary, in the taxation of costs. (55) And 
 where a sheriff's officer, who had arrested a defendant, demanded and re- 
 ceived from him, a larger sum than he was liable to pay as a caption fee, 
 and for the expense of a bail-bond, &c. the court of Exchequer, on motion, 
 ordered it to be referred to the master, to ascertain what the officer was 
 entitled to on that account, and ordered him to restore the surplus to the 
 defendant, and to pay the costs of the application. (ec) But if, by the abuse 
 of the process of one of the courts at Westminster, a sheriff's officer extort 
 a promissory note from a suitor, and then declare upon that note, in another 
 of the courts Q.iWestminstery the latter court cannot interfere summarily to 
 punish the officer, under the statute 32 Geo. II. c. 28, § 12.{d) And in 
 order to recover a penalty on this statute, against a sheriff's officer, for 
 taking a larger fee than is allowed by law upon arrest, the plaintiff must 
 prove what sum is allowed by law, either by a table of fees, or some regu- 
 lation respecting it, by the officers of the court out of which the process 
 issued. (e) The justices in sessions have no authority to fix the bailiff's fees 
 for an arrest :(/ ) And an action will not lie against the sheriff, where more 
 than the sum allowed has been taken for a bail-bond, by one of his officers, 
 to whom the warrant was not directed, but to whose lock-up house the 
 defendant was brought, after being arrested. (^) 
 
 When a defendant escapes out of legal custody, he may be either retaken 
 by the sheriff or other officer on fresh pursuit, or by virtue of an escape 
 
 [1) § n. 
 
 (c) § 12. And see stat. 3 Geo. I. c. 15, ? 13, and 5 Geo. IV. c. 106, § 16, by which latter 
 act, the judges of the courts of Great Sessions in Wales are authorized to remove any officer 
 of the said courts, (not nominated and appointed by the crown,) or his deputy, for pecula- 
 tion, extortion, or other misconduct, and appoint a new officer or deputy, in the room of the 
 person so removed. 
 
 [a] 2 Barn. & Aid. 562. 1 Chit. Rep. 295, S. C. ; and see 2 Barn. & Aid. TYO. 1 Chit. Rep. 
 529, S. C. 5 Barn. & Cres. 328. 8 Dowl. & Ryl. 48, S. C. 6 Moore, 124. 
 
 (bh) 1 Chit. Rep. 2,02, per Holroyd, J. ; and see 2 Blac. Rep. 1101. 3 Durnf. & East, 417. 
 2 New Rep. C. P. 59. 1 Stark. Ni. Pri. 417. 1 Ry. & Mo. 314. 
 
 {cc) 4 Price, 309. {d) 2 Bos. & Pul. 88. 
 
 (e) 1 E.sp. Rep. 361. 2 New Rep. C. P. 59. (/) 3 Durnf. & East, 417. 
 
 [g) 4 Esp. Rep. 63.
 
 ON THE ARREST. 233 
 
 warrant, (if he escaped out of the custody of the marslial of the King's 
 Bench, or Avarden of the Fleet prison,) on the statute 1 Ann. stat. 2, c. 6. 
 And tliough in general a defendant cannot be retaken on fresh pursuit, after 
 a voluntanj cscape,(//) yet it has been determined, tliat a bailiff vho has 
 arrested a prisoner on mesne process, may retake him before the return of 
 the writ, though he voluntarily permitted tlie prisoner to escape immediately 
 after the arrest.(e) By the above statute(/") it is enacted, that " if any per- 
 son or persons committed or rendered to, or charged in custody of the mar- 
 shal of the King's Bench, or prison of the Fleet, either in execution or 
 upon mesne process, or upon any contempt in not performing the 
 order or decree of a Court of Equity, by any of 'his majesty's [ *234 ] 
 courts at WcistminHter, shall escape from the custody of the mar- 
 shal or prison of the King's Bench, or from the prison of the Fleets or shall 
 go at large, it shall and may be lawful, upon oath thereof in writing, to be 
 made by one or more credible person or persons, before any one of the 
 judges of that court where such action was entered, or judgment and exe- 
 cution were obtained, or where the party Avere so committed or charged as 
 aforesaid, to and for such judge, before whom such oath shall be made as 
 abovesaid, and such judge is thereby authorized and required, from time to 
 time, to grant unto any person whatsoever, who shall demand the same, one 
 or more warrant or warrants under his hand and seal, therein reciting the 
 action or actions, execution or executions, contempt or contempts, with 
 which such person or persons, so escaping or going at large, stood charged, 
 or were committed, at the suit of any person or persons, on whose behalf 
 such warrant or warrants shall be demanded, at the time of such escape or 
 going at large, (which said warrant or warrants shall be in force in all places 
 whatsoever, within the kingdom of England., dominion of Wales, and 
 town of Berwick upon Tweed,) directed to all sheriffs, mayors, bailiffs, con- 
 stables, head-boroughs, and tithing men, therein and thereby commanding 
 them, and every of them, in their respective counties, cities, towns, and 
 precincts, to seize and retake such person or persons, so escaped or going at 
 large; and such person or persons, so retaken upon such warrant, forthwith 
 to convey and commit to the common gaol of such county, where such per- 
 son or persons, so escaped or going at large, shall be retaken, there to 
 remain without bail or mainprize, or being thence upon any account what- 
 soever delivered or removed, until he, she, or they shall have made full pay- 
 ment or satisfaction to the respective plaintiff or plaintiffs, creditor or credi- 
 tors, in such action or actions, execution or executions named, or until the 
 iudcment or iudfrments, on which such execution or executions was or were 
 sued out against such person or persons, shall be reversed or discharged by 
 due course of law, or until judgment in such action or actions be given for 
 such person or persons so committed as aforesaid, or until the said contempt 
 or contempts, for which such person or persons were or shall be committed, 
 be cleared and discharged ; except such person or persons be charged with 
 treason or felony, or any other crime, matter, or cause, for and on the behalf 
 of the queen's majesty, her heirs and successors ; and if he or she, for any 
 such cause be removed to any other gaol or prison, he or she shall be, in 
 the custody of such gaol, charged with all the causes with which he or she 
 is or shall be charged, in the gaol from whence he or she shall be removed." 
 Upon this statute it has been determined, that if a person charged in execu- 
 
 (A) Carter. 212. 2 Bac. Abr. tit. Escape, C. 
 
 (i) 2 Durnf. & East, 172. {h) § 1.
 
 234 OF THE DUTY OF SHERIFFS, ETC., 
 
 tion in tlie King's Bench, he turned over to the Fleet and escape, either a 
 judge of the King's Bench or Common Pleas may grant an escape war- 
 rant.(a) And after a negligent escape, the defendant, we have seen(5) may 
 
 bo retaken on a Sunday, by virtue of such warrant. But if one 
 [ *235 ] who is no officer, by virtue of the warrant, seize a person *escaping, 
 
 and bring him before the sheriiF, he cannot detain him ; for, being 
 illegally executed, it is the same thing as if there had been no warrant at 
 all.(c?«) It has also been determined, that a person who has a day rule, 
 cannot be taken by virtue of an escape warrant :{hh) and if a person be 
 taken thereon at eight in the morning, and the same day obtain a day rule, 
 pursuant to a petition which was not read in court till after eight, yet he 
 shall be discharged ; for as to this purpose, there shall be no fraction of a 
 day.(c) 
 
 The plaintiff's remedies, when the defendant escapes, are first, by taking 
 out fresh process against him ; secondly, by obtaining an escape warrant 
 for retaking him, if the escape was from the custody of the marshal of the 
 King's Bench, or warden of the fleet ; and thirdly, by action or attach- 
 ment against the sheriff or officer, for an escape: which remedies may be 
 pursued, as well where the escape was voluntary, as where it was only 
 negligent. {d)\^A\ But where the sheriff, having arrested the defendant, suf- 
 fers him to go at large, upon giving bail for his appearance at the return 
 of the writ, he is not liable to an action of escape : for he was obliged to 
 take bail, by the statute 23 Hen. VI. c. 9.(e) And even where he suffers 
 him to go at large without bail, he is not, it seems, liable to an action, 
 provided he have him at the return of the writ.(/) But if he have him 
 not then, or afterwards suffer him to go at large, without lawful authority, 
 he is, in either case, liable to an action. ((/) And where an action is 
 brought against the sheriff, after he has taken bail, he must plead the 
 statute; and cannot take advantage of it on demurrer to the declaration, 
 or in arrest of judgment. (7i) 
 
 (a) 8 Mod. 240. {b) Ante, 21B. 
 
 (aa) 6 Mod. 154, and see 1 Str. 99, 100. {bb) 8 Mod. 80. 
 
 (c) Id. ibid., and see 2 Bac. Abr. tit. Escape, E. 3. 
 
 {d) 2 Bac. Abr. tit. Escape, C. E. 3, and see stat. 8 & 9 W. III. c. 26. 7 Moore, 552. 1 
 Bing. 156, S. 0. 
 
 (e) Cro. Eliz. 624, 852. Nov, 39, S. C. 1 Sid. 23. 1 Vent. 55. 3 Salk. 314, 15. Gilb. 
 C. P. 22. 2 Wms. Saund. 5 Ed. 61, c. (6.) 
 
 (/) 2 Durnf. & East, 172. 2 Bos. & Pul. 35, and see 2 Wms. Saund. 5 Ed. 61, a. b. (4.) 
 2 Barn. & Aid. 56. 
 
 (^)Noy, 39. 1 Mod. 228, 9. 2 Mod. 178, S. C. Gilb. C. P. 22. 2 Durnf. & East, 174, 
 &c. 7Durnf.& East, 109. 1 Bos. & Pul. 225. 9 Moore, 584. 2 Bing. 317, S. C. 3 Anstr. 
 675, and see 2 Wms. Saund. 5 Ed. 61, a. b. (4.) 
 
 {h) Cro. Eliz. 460, Moor, 428, S. C. 1 Sid. 22, 439. 1 Vent. 85. 1 Mod. 33, 57, S. C. 
 2 Wms. Saund. 5 Ed. 154, 5. 
 
 [a] Nothing but the act of God or the publie enemies will excuse the sheriff for an escape. 
 Fairchild v. Case, 24 Wend. 381. Rainey v. Dunning, 2 Murph. 386. Call v. Haggar, 8 
 Mass. 423. Patten y. Halsted, Goxq, 211. Colby v. Sampson, 5 lla.ss. 310. Lowry v. Barney, 
 2 Chip. 11. Adams v. Turrcntine, 8 Ired. 147. Mabry v. Id., Id. 201. State v. Halford, 6 
 Kich. 58. But unless the process under which the arrest is made is judicial process, the 
 sheriff is not guilty of an escape in letting the prisoner go at large. Ellis v. Gee, 1 Murph. 
 445. Although no informality in the process will justify the prisoner in effecting an 
 escape. The State v. 3Iurphy, 3 Shep. 100. It is otherwise 'if the process be void. Neither 
 will the insecure state of the jail excuse the sheriff for an escape. Smilh v. Hart, 1 Brevard, 
 146. Parsons v. Lee, Jefferson, 50 ; or even if there be no jail. Gurnn v. Hubbard, 3 Blackf. 
 14. Nor will the death of the prisoner before recapture, although there has been a fresh pur- 
 suit, purge the escape. ^Yhicker v. Roberts, 10 Ired. 485.
 
 ON THE ARREST. 235 
 
 An action against the sheriff for an escape may it seems be defeated, 
 by putting in bail in the original action, of the term in which the vrrit was 
 returnable, though after the expiration of the time allowed for putting it 
 in ; and even after the action for an escape is brought.(/) To prevent this, 
 the plaintiff should oppose the justification of bail if put in : and in a late 
 case,(/c) where bail had been permitted to justify without opposition, the 
 court of King's Bench set aside the rule for the allowance of bail, on pay- 
 ment of the costs of justification. And, in that court, bail put in after the 
 term in which the writ is returnable, is not an answer to an ac- 
 tion against *the sheriff for an escape, brought before it was put [ *23G ] 
 in. ((/a) So, in the Common Pleas, if the sheriff omit to take a 
 bail-bond upon the arrest, and afterwards, upon an action being commenced 
 against him for an escape, he causes bail to be perfected, the court will 
 order the allowance of bail to be set aside, that the action may proceed. (W) 
 But the court of Exchequer would not set aside an order for the allow- 
 ance of bail, obtained after an action commenced against the sheriff for an 
 escape, though no bail bond had been taken, nor bail above put in in due 
 time, where the defendant had been rendered on the day of the expiration 
 of the rule to bring in the hodj.{ee) And in an action against the sheriff, 
 for not assigning a bail bond, that court would not grant a motion, to enter 
 tlie recognizance of bail on the record, as taken on the true day, (it being 
 always entered generally as of the term,) to enable the plaintiff to proceed 
 with his action. (c?) If a bail bond has been taken by the sheriff, thouf^h 
 his clerk, on inquiry at the office, deny that he has taken one, the plain- 
 tiff cannot maintain an action against him for an escape :{e) It is there- 
 fore usual, in declaring against the sheriff, to insert three counts ; First, for 
 an escape ; 2dly, for not taking the defendant when he had an opportunity ; 
 and 3dly, for not assigning the bail bond, on request. And, in an action 
 for an escape upon mesne process, it is enough, Avithout producing the war- 
 rant, or giving direct evidence of the arrest or escape, to prove the sheriff's 
 return of cejn corpus^ and to show that the party did not put in bail, and 
 was not in the sheriff's custody at the return of the writ.(/) 
 
 "When the defendant is rescued upon mesne process, as he is going to 
 prison, the sheriff may return the rescue ',{g) but not, where the defendant 
 is rescued after he is put in prison, except by the king's enemies. (/<) And it 
 seems that a return by the sheriff to a bill of Middlesex, stating that he took 
 and detained the defendant, until he rescued himself, and that he was not 
 afterwards found, &c. is sufficient, without naming the rescuers, or stating 
 
 (t) 1 Esp.Rep. 87. 2 Bos. & Pul. 35, 246. 1 Taunt. 25. 1 Chit. Rep. 575, (a). 5 Barn. 
 k Cres. 244. 
 
 {k) Bomnquct v. Simpson, E. 42 Geo. III. K. B. 
 
 (aa) 4 Maulo & Sel. 397 ; and see 2 Chit. Rep. 93. 
 
 (bh) 1 Taunt. 119 ; and see id. 23. 6 Taunt. 167. 1 Marsh. 520, S. C. 
 
 (cc) 1 Price, 103 ; and see 5 Barn. & Cres. 244. 
 
 (d) 3 Price, 36 ; but see 9 Price, 406. 
 
 (f) 5 Taunt. 325. 
 
 ( f) 3 Canipb. 397. And for the evidence necessary to charge the defendant with the act 
 of liis bailiff, see 7 Durnf. & East, 113. 1 Canipb. 389. Holt, Ni. Pri. 217. 1 Stark. Ni. Pri. 
 413. 2 Stark. Ni. Pri. 189, 202, 314. 7 Taunt. 8. 5 Moore, 183. 3 Brod. & Bing. 26, S. 
 C. Holt Ni. Pri. 537. 5 Moore, 184, (b). 3 Brod. & Bing. 27, (a), S. C. 6 .Moore, 120. 1 
 Car. & P. 7, (a). 3 Bing. 164, 492. 
 
 iff) Cro. Jac. 419. 3 Bulst. 198. 1 Rol. Rep. 383, 440, S. C. 3 Lev. 46. 1 Str. 435. 
 Giib. C. P. 23 ; but see Cro. Eliz. 868. Moor, 852, contra. 
 
 (//) Cro. Jac. 419. 1 Rol. Rep. 441. 1 Str. 435. 5 Bur. 2814.
 
 ooQ OF APPEARANCE AND BAIL. 
 
 them to be people of the county ;(«) but the return not stating the arrest to 
 have been made in the proper county, was holden to be bad.(i) And if the 
 defendant escape, owing to the negligence of the officer, this will not justify 
 
 the return of a rescue. (A;) Upon the sheriff's return of a rescue, the 
 [ *237 ] plaintiff has a triple remedy against the rescuers; by *attachment, 
 
 action on the case, or indictment. («) The return of a rescue is of 
 itself a conviction ;(6) and the courts will grant an attachment upon it in 
 the first instance, (c) which should be made returnable on a general return, 
 though the original process was at a da>j certain. {dd) But, without the she- 
 riff 's return, the courts will not grant an attachment upon a mere affidavit of 
 the fact.(cc) It was formerly the constant course, upon the return of a res- 
 cue, to set a certain fine of four nobles on each offender :{ff) but of late years, 
 the courts have fined according to their discretion, upon considering the cir- 
 cumstances of the case. ((/(/) And as the sheriff 's return of a rescue is not tra- 
 versable, the court of King's Bench will proceed to punish the rescuers, 
 without going through the ordinary course of examining them upon interro- 
 gatories. (A/i) But where a defendant in that court, was brought up on an 
 attachment, for rescuing a person arrested on a warrant for obstructing 
 excise officers, it was said to be the invariable practice of the court, in 
 such a case, to put the defendant to answer interrogatories, though he did 
 not deny the charge in the affidavits, unless the prosecutor waived putting 
 them.(^) 
 
 [*238] *CHAPTER XII. 
 
 Of Appearance and Bail to the Action. 
 
 HEPtETOFORE, when a writ issued out of the King's Bench, it was entered 
 upon a roll ; so that though the officer had not returned the writ, yet the 
 defendant might have appeared at the day given by the roll ; and that 
 either to save himself from corporal pain by imprisonment, or to prevent 
 the loss of issues, or to save his freehold or inheritance. («a) And so it 
 was in the Common Pleas ; where they entered the writ upon a roll, by 
 way of recital, viz. Dominus rex misit breve swum clausum, in hseo 
 verba, kc.{aa) 
 
 Appearance is the first act of the defendant in court ;[bb) and differs from 
 putting in bail, which is the act of the court itself, (ec) as is evident from 
 
 {i) 1 Barn. & Aid. 190. Holt, Ni. Pri. 539, n. S. C. 
 
 (k) Holt, Ni. Pri. 537. 5 Moore, 184, [b). 3 Brod. & Bing. 27, (a), S. C. ; and see 2 Stark. 
 Ni. Pri. 189. 
 
 (a) Com. Dig. tit. Eescous. D. An indictment for preventing an arrest, on process issuing 
 out of an inferior court, must state that the process was directed to the officer of the court. 
 5 East, 304. 
 
 {b) Cas. /em;?. Hard. 112. 
 
 (c) 2 Salk. 586. Say. Rep. 121. 4 Bur. 2129. (rW) 1 Str. 624. 
 
 (ee) 2 Salk. 586. 6 Mod. 141. 1 Str. 531 ; and see 1 Ken. 138. Say. Rep. 253. 
 
 if] T. Jon. 198.- 2 Salk. 586. (fft/) 1 Str. 642. 
 
 (M) 4 Bur. 2129; but see 2 Salk. 586. (i) 5 Durnf. & East, 362. 
 
 (aa) Co. Lit. 135, a. 1 Salk. 64. (hb) Com. Dig. tit. Pleader, B. 1. 
 
 \cc) 1 Salk. 8.
 
 OF APPEARANCE AND BAIL. 238 
 
 tlie language of the bail-piece in the King's Bench, wherein tlie defendant 
 is stated to be delivered to bail,((Z) &c. : and it is either voluntary or com- 
 2ndsive.\_s'C\ A voluntary appearance is of no eft'ect, in the King's Bench, 
 unless the plaintiff's attorney, 'wiih.m fourteen days after such appearance, 
 sue out a writ of latitat, or bill of Middlesex, where the defen<lant abides 
 in that county.(c) But this rule cannot be taken advantage of by any but 
 the defendant, unless some particular fraud be alleged. (/) In the Com- 
 mon Pleas it is a rule, that no bail be put in for any party against whom 
 no writ or process is sued out, without leave of the court. (//) And no 
 bail is required in that court, but a common appearance only, if the 
 defendant appear upon a summons, attachment or distress, or by superse- 
 deas quia iinprovidc, &c.(/t) 
 
 In actions by oriyinal, in the King's Bench, the appearance is entered 
 with the filacer of the county where the action is brouglit ;(«/) and upon a 
 summons, attachment or distringas, it should be entered on or before the 
 quarto die post of the return of the writ.(A;) So, in the Common Pleas, 
 the appearance by original is entered with the proper filacer :{l) and the 
 defendant in that court, must appear upon a summons, attachment or dis- 
 tringas, within four days after the return, which are reckoned inclusive 
 both of the return day and quarto die p}ost.{m) 
 
 *The appearance of the defendant is triable by the record :{aa) [ *239 ] 
 and in the Common Pleas it is a rule,(5) that " all appearances 
 for defendants, upon writs of capias, alias and pluries, issuing out of that 
 court, ought to be entered of record, or otherwise they are not warranted 
 by the course of the court ; neither can the defendant, if he have been 
 arrested, plead comperuit ad diem, in discharge of the sherifl["'s bond taken 
 for his appearance." By that rule, the appearance is required to be 
 entered with the proper filacers ; but there does not seem to be any 
 apjyearance roll, or entry of the defendant's appearance, except the state- 
 ment of it on the recognizance roll, or on the imparlance, pica, or issue roll, 
 and the entries in the filacer's books ; which entries however cannot be 
 considered as records. 
 
 Bail to the action are common or special\jf\ In the King's Bench by 
 hill, common bail must be filed in all cases where special bail is not neces- 
 sary, or has been dispensed with by the court ; and they are particularly 
 
 (<f) 1 Atk. 239. 
 
 (e) R. T. 4 W. & M. reg. 1 K. B. (/") 1 Maule & Sel. 408, (a). 
 
 [g) R. H. 14 Jac. l.reg. 2, § 4. (h) R. M. 1G54, ^ 12, C. P. 
 
 (h) Trye, in pref. and see Append. Chap. XII. ? 1, 2. (/r) Trye, 67, 8. 
 
 (l) R. M. 14 Jac. I. reg. 1, 2. R. M. 1654, g 13. R. E. 24 Car. II. rcg. 2, U. P. 
 
 (m) 1 H. Blac. 9. 
 
 (aa) Cro. Eliz. 466, 1. (i) R. M. 14 Jac. I. reg. 2, C. P. 
 
 [a] Entry of appearance, or plea to the merits, cures defective service. Smith v. Itobin.wn, 
 IS.Metcf. 165. Breiver v. Sibley, Id. 175. Barker v. Norton, 5 Shep. 416. Harrison v. The 
 Bank, 2 Sm. & Marsh. 307. liannj v. M'Rar, 14 Geo. 589. Amcr v. Wc.oton, 4 Shep. 266 ; 
 or irregularity in seal or signature, Lowell v. Labine, 15 New Hainp. 29. Garland v. Bretton, 
 12 111. 232 ; or in return day. Graves v. Cole, 2 (jlreene, Iowa, 467. An appearance by a defen- 
 dant after an amended declaration has been filed, and consentinjif to a continuance and enter- 
 ing into an agreement of record recognizing the amended declaration, is a waiver of the irre- 
 gularity in filing such amended declaration, after the time allowed by the court for filing it. 
 BriiihliU V. Duncan, 5 Eng. 252. 
 
 [li] A liail bond to the sheriff must be conditioned for the appear.ance of the party only, 
 otherwise it will be void. Blanding v. Rodgers, 2 Brevard, 294. Lane v. Tnwnycud, Ware, 
 286. llnicland v. Seymour, 2 Metcf. 590. Stewart v. M-Clurc, 1 Brevard, 407. Embree v. 
 Norris, 2 Ala. 271.
 
 239 
 
 OF COMMON BAIL. 
 
 required in ejectment, for the casual ejector,(6') and to authorize judgments 
 by warrant of attorney, default, or non sum informatus.{d) These bail 
 are merely noniinal.{e) In the Common Pleas, there is no common bail ; 
 but in that court, and also in the King's Bench by original, a common 
 appearance is entered for the defendant, in cases where special bail is not 
 necessary. 
 
 Before the making of the statute 12 Geo. I. c. 29, the defendant being 
 always arrested upon process against his person, it was discretionary in 
 the courts to discharge him upon common bail, or a common appearance, 
 or hold him to special bail.(/) Anciently, if the cause of action were 
 for a sum under ttventy pounds, or for uncertain damages,(^) the courts 
 let the defendant out of custody upon common bail ; but if it Avere for a 
 sum certain above twenty pounds, they made him find special bail.(/j) 
 Afterwards, the sum was reduced to ten pounds :(i) And now, by the sta- 
 tute 7 & 8 Geo. IV. c. ll,{k) "no person shall be held to special bail, 
 upon any process issuing out of any court, where the cause of action shall 
 not have originally amounted to the sum of tweiity pounds or upwards, 
 over and above and exclusive of any costs, charges and expenses, that 
 may have been incurred, recovered, or become chargeable, in or about the 
 suing for or recovering the same, or any part thereof." So that special 
 or common bail is no longer discretionary in the court, but is governed by 
 the arrest ; it being a general rule, that whenever the defendant 
 [ *240 ] may be *arrested, he may be holden to special bail ; and e con- 
 verso, that whenever the defendant cannot be arrested, common 
 bail is sujfficient. 
 
 Common bail may be filed, or a common appearance entered by the de- 
 fendant or his attorney, or by the plaintiff according to the statute ;(a) and 
 it may be filed or entered by the defendant originally, or in consequence of 
 a rule of court,(?>) or judge's order, for discharging him out of custody, on 
 filing or entering it, [a] In the King's Bench, where the defendant has been 
 served with the copy of a bill of Middlesex, or other process thereon, he 
 should file common bail at the return of it, or within eight days after such 
 return,(cc) which are reckoned exclusively ; and Sunday is not accounted as 
 
 (c) R. T. 14 Car. II. reg. 1. R. M. 33 Car. II. K. B. 
 
 [d) R. H. 1 W. & M. R. T. 4 W. & M. reg. II. K. B. 
 
 \e) For the origin o{ coinvwii bail, see Gilb. K. B. 309; for the difference between common 
 and special bail, see Gilb. C. P. 34, 5. Cromp. Introd. 3 Ed. Ix. ; and for the manner in which 
 the courts formerly exercised their discretion of allowing common, or requiring special bail, 
 see Gilb. C. P. 35, 6. Cromp. Introd. 3 Ed. Ixxxi. 
 
 (/) R. M. 1654, I 9, K. B. Gilb. K. B. 309. 2 Keb. 101. 
 
 [g) Gilb. C. P. 36, 1. 
 
 [h) Id. 35. R. T. 24 Eliz. ^ 1. R. M. 1654, g 12, C. P. 
 
 {i) Gilb. C. P. 36 ; and see the statutes 12 Geo. I. c. 29. 19 Geo. III. c. YO, ? 1, 2. 
 
 [k] ll\ and see stat. 51 Geo. III. c 124, § 1 ; continued by 57 Geo. III. c. loi. 
 
 {a) 12 Geo. I. c. 29. {b) 1 Chit. Rep. 282. 
 
 [cc) Stat. 5 Geo. II. 27, § 1. This is the same time as was allowed to file common bail upon 
 an arrest, before the statute 1 2 Geo. I. c. 29. And if the defendant did not file it within that 
 time, he was liable to the penalty of ^ye pounds, to be paid to the plaintiff. Stat. 5 W. & M. 
 c. 21,^3, 9 & 10 W. III. c. 25, g 33. 5 Mod. 392. iCl.lnst.bl. The rule for payment of 
 this penalty was absolute in the first instance ; the words of the statute, being that the court 
 shall immediatelg award judgment, whereupon the plaintiff may take out execution. 2 Str. 
 737. Gilb. K. B. 369. 
 
 [a] See Laney. Cook, 8 Johns. 359. Bgrnev. Morris, 2 Cow. 472. Pardee v. Read, 4 Cow. 
 51. And the court will permit the filing of common bail on motion nunc pro time, where 
 judgment has been inadvertently taken without it. Phelps v. Bronson, 4 Cow. 61. Colden 
 V. Knickerbocker, 2 Cow. 31.
 
 OR APPEATwYXCE. 240 
 
 one of them, if it happen to be the last. (J) These bail are entered on a 
 piece of parchment called a bail-piece,(6') which is filed with the clerk of the 
 common bails ; who is required to mark the bail-pieces numerically^ as the}' 
 are received. (/) The defendant, having been served with a copy of a 
 capias, or other process by ori(/inal, in the King's Bench, should enter a 
 common appearance with the //Vat'tv of tiie county where the action is laid, 
 within eight days after the appearance day, or quarto die 2J08t of the return 
 of the process. (^) 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 ;{h) 
 and the appearance is entered with the filacer of the county to which the 
 writ is directed, upon a jjrwcipe or note of appearance being made out and 
 delivered to him, on unstamped paper, which he enters in a book kept for 
 that purpose. (<") In an action against husband and wife, when the husband 
 alone has been arrested, special bail may justify for him only, on his filing 
 common bail for his wife ;(/c) but when the husband alone has been served 
 with process, he ought regularly to file common bail, or enter an appearance, 
 for himself and his wife.(/) Yet, where he entered an appearance for him- 
 self only the court of Common Pleas held it to be so far regular, as that the- 
 plaintiff could notsign judgment, without demanding a plea, (m) And where., 
 in a similar case, an appearance was entered for the husband only, by his 
 attorney, who expressly disclaimed any interference for the wife, and the 
 latter not appearing, an appearance was entered for her by the plaintiff' 
 according to the statute, upon which the plaintiff declared 
 against the husband and wife jointly, and the *former pleaded [ *241 ] 
 for himself only ; the court of Exchequer held, that an inter- 
 locutory judgment signed against both, for want of a joint plea, was 
 regular, (a) 
 
 When an attorney of either court has accepted a warrant, or subscribed a 
 process, declaration, or warrant to appear, the rule in the King's Bench is. 
 that "he shall be compelled to cause an appearance, or liable to an attach- 
 ment, or put out of the roll, as the case requires ; and the party is not to be 
 received to countermand such appearance after his retainer."(i) And in 
 the Common Pleas it is a rule, that " every attorney accepting or subscribing 
 any warrant to appear for any defendant, to any writ issuing out of that 
 court, shall within four days after the appearance day to the return of 
 every such Avrit in London or 3Iiddlescx, and within eight days after the 
 appearance day in any other county, enter the appearance of such defend- 
 ant with the proper officer; and if he do not, he shall be liable to an 
 attachment, and not discharged therefrom till he hath paid full costs to 
 the plaintiff; and the defendant, when he appears, shall be compelled to 
 plead as of the time when he should have pleaded, if his appearance had 
 been duly entered."(c) The usual mode of proceeding against an attorney, 
 for not filing common bail, or entering an appearance, pursuant to his 
 
 (d) 1 Bur. 5G. (c) Append. Chap. XII. ? 3. 
 
 (/) R. E. 30 Geo. III. K. B. 3 Dnrnf. & East, 6G0. 
 
 (^)Imp. K. B. lOEd. 527. 2 Chit. Rep. 35. 3 Barn. & Crcs. 110. 4 Dowl. &R3I. 713, S. C. 
 
 (h) Imp. C. P. 7 Ed. IGl, 2. Fr. Reg. 32. Barnes, 245,6. 
 
 (i) Imp. C. P. 7 Ed. IGl. (A-) 1 Chit. Rep. 75. 
 
 (/) Barnes, 412. (?;0 1 II. Bine. 235; and see 1 Salic. 1 14. 
 
 (a) Jiu.i.ie/l V. Buchanan ^- tcife, Man. Ex. Addend. 625, &c. G Price, 139, S. C. 
 
 (b) R. M. 1G54, 1 10, K. i3. R. M. 1G54, g 13, C. P. ; and see LoITt, 192, 3, hy which it appears 
 thai the undertalcing must be signed: but see 2 Chit. Rep. 36. 
 
 (c) R. H. GGeo.I.rci?. 2, C. P. 
 
 Vol. I.— 1G
 
 241 
 
 OF COMMON BAIL, 
 
 undcvtakin"', is by attachment ;{d) and if an attorney undertake to appear, 
 the courts will oblige him to do it in a proper manner : therefore, if he 
 undertake to appear for an infant, he must appear by guardian.{e) And 
 thouirh he may have been imposed upon by the sheriff 's officer, yet they 
 will oblige him to fulfil his undertaking. (/) But a general undertaking 
 by an attorney to appear to process, does not oblige him to put in special 
 bail to bailable process.(//) And where the attorney for the defendants, 
 on their being sued by the plaintiff, undertook by letter, to procure their 
 signature to a cognovit for payment of the debt and costs, which he failed 
 to do, but the plaintiff afterwards said that he would proceed with the 
 action ; the court of Common Pleas held, that this was virtually a waiver 
 of the attorney's undertaking, and that he could not be called on by the 
 court to perform it. (A) 
 
 Before the statute 12 Geo. I. c. 29, common bail could only have been 
 filed, or a common appearance entered, by the defendant or his attorney. 
 But now, by that statute,(^) as altered by the 5 Geo. 11. c. 27, " 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,(^) made before a judge, or com- 
 [ ^42 ] missioner of the court for taking affidavits, or before the proper 
 
 officer *for entering common appearances, or his deputy, (and 
 which affidavit shall be filed gratis,) may enter a common appearance, or 
 file common bail for the defendant, and proceed thereon, as if such defend- 
 ant had entered his appearance, or filed common bail." The affidavit 
 required by these statutes cannot be dispensed with ;(a) nor can it be 
 taken in the King's Bench, before a commissioner who is concerned as 
 attorney for the plaintiff; but in the Common Pleas it is otherwise. (5) 
 And common bail cannot be filed, or common appearance entered, by the 
 plaintiff", till the nirith day after the return of the writ; the defendant 
 having all the eighth to file or enter it. (cc) Common bail however should 
 be filed, or a common appearance entered, by the plaintiff for the defend- 
 ant, of the term in which the writ is returnable :((^c^) but it may be filed 
 or entered as of that terra, in the term next after the return of the 
 writ,(ee) or before the quarto die post of the first return of the following 
 term ; it being holden that till then, common bail may be filed, or an 
 appearance entered, as of the preceding term.(^) In practice it is usual 
 for the plaintiff to file common bail, or enter a common appearance, for the 
 defendant, according to the statute at any time before judgment is signed ; 
 though if filed or entered in a subsequent term, it must be filed or entered 
 as of the term in which the writ was returnable. And though judgment 
 has been irregularly signed, without filing common bail for the defendant 
 according to the statute, till after the term succeeding that in which the 
 writ was returnable, and after the judgment itself has been entered up, 
 
 (d) 6 Mod. 42, 86. 4 Dowl. & Ryl. 719. (e) 1 Str. 114, 445. 
 
 ( f) Id. G93; and seel Chit. Rep. 129, (a). 4 Dowl. & Ryl. 719. 
 {ff) 2 Chit. Rep. 415. (h) 8 Moore, 208. 
 
 (t) ? 1. (k) Append. Chap. XTI. ? 4. 
 
 (a) 2 Moore, 462. 8 Taunt. 410, S. C. (6) R.E. 13 Geo. ILrcy. 1, C. P. 
 
 (cc)Imp. K. B. lOEd. 167. Pr. Reg. 32. Imp. C. P. 7 Ed. 163. 
 
 (dd) Cas. temp. Hardw. 138. Ilolmcsx. White, Imp. K. B. 10 Ed. 165, 6. 6 East, 314. 2 
 Chit. Rep. 37. 3 Barn. & Cres. 555. 5 Dowl. & Ryl. 352, S. C. 9 Id. 18. 
 [ce) 2 Diirnf. & East, 719, 20. 7 Durnf. & East, 206. 
 [jf) 5 Durnf. & East, 65 ; and see 6 East, 314. 2 Chit. Rep. 37.
 
 OR APPEARANCE. 242 
 
 yet the defendant, havinf^ <:^iven a eof/novif, is estopped from objecting to 
 the irregularity, if the plaiiitifF has tiled common bail nimc pro tunc, be- 
 fore the time of making the objection. (//) If the defendant be sued by a 
 wrong name, and do not appear, the plaintifl' cannot rectify the mistake, 
 by appearing for him in his right name, according to the statute :{h) nor 
 can he appear for him in the name by which he is sued, and afterwards 
 declare against him in his right name.(/) But, in the Common Pleas, if 
 the writ and declaration be against the defendant in his right name, an 
 appearance entered for him by tbe plaintiff according to the statute, in a 
 wrong name, may be amended. (/c) Where the plaintiff, having sued out a 
 writ against /o?<r defendants, for separate causes of action, and tiled sep- 
 arate declarations against three of them conditionally, and given three 
 separate rules to plead, afterwards entered a common appearance, accord- 
 ing to the statute, for all the tliree defendants, and signed three separate 
 interlocutor yjudgments for want of a plea, the court of King's 
 Bench held Vhis to be irregular: For, by declaring *separately [ *243 ] 
 against the three defendants, the phiintiff had made there sepa- 
 rate causes, and had thereby elected to proceed separately; and by the 
 practice of the court, he ought to have entered a separate appearance for 
 each of them. (a) 
 
 For preventing inconveniences which happened to plaintiffs, by the de- 
 fendant's omitting to file common bail, according to the ancient usage and 
 course of the court, there is an old rule in the King's Bench, that " all 
 clerks, &c. do within ten days after the end of every term, deliver to the 
 secondary a note of all such appearances as have been made unto them the 
 term before, and by whom they were made, so that the person appointed 
 to enter the bails may see whether they are filed for every such appear- 
 ance or not. "(6) And for the better distinguishing by whom common bail 
 shall have been filed, it is ordered, that " in all cases where common bail 
 shall be filed by the plaintiff for the defendant, by virtue of the act, these 
 words shall be written on the bail-piece, viz. '•filed according to the statute,' 
 or words to the like effect."(t') And where the plaintiff' files common bail 
 for the defendant, on any day between the second and sixth of November, 
 and he is in other respects entitled to sign judgment, it is signed as on the 
 day preceding the essoin day of dlichaelmas term,(cZ) 
 
 It should also be remembered, that by the statute 45 Geo. III. c. 124, 
 § 3, a common appearance may be entered by the plaintiff, in actions 
 against members of the house of commons, if the defendants do not appear 
 at the return of the summons, or within eight days after such return. (c) 
 And by the annual mutiny and marine acts,(/) a common appearane may 
 be entered by the plaintiff, in actions against volunteer soldiers, or marines. 
 Also, by the statutes 48 Geo. III. c. 4G, § 2, & 7 & 8 Geo. IV. c. 71, § 2, 
 the plaintiff is authorized to enter a common appearance, or file common 
 bail, for the defendant, after money has been deposited in the sheriff's 
 
 (^f) 7 Durnf. & East, 206. 
 
 {h) 3 Duruf. & East, 611, 2 New Rep. C. P. 132. 11 East, 225, accord. 1 Bos. & Piil. 
 105, contra. 
 
 (j) 10 East, 328. 11 East, 225 ; and see 3 Maule k Sel. 450. {!:) 3 Wils. 40. 
 
 (a) 5 Barn. & Aid. 802. 1 Dowl. & Ryl. 545, S. C. 
 (6)R. E. \Qbl,rcg. 2 K. B. 
 
 (c) R. M. 10 Geo. II. r<><7. 1, K. B. 2 Str. 1027. Cas. /eni;>. Hardw. 207, S. C. 
 
 (d) 5 Durnf. & East, 65 ; and !<ee 6 East, 314. (e) Ante, 120, 21. 
 (/) 7 & 8 Geo. IV. c. 4, I 130, c. 5, ^ 71 ; nnd see & Geo. IV. c. 3, g 71 ; and see 4, I 130.
 
 243 
 
 OF SPECIAL BAIL. 
 
 han(ls,(^) or paid into couvt,{Jt) on those statutes, in case the defendant 
 shall not duly put in and perfect bail in the action. And, by the statutes 
 51 Geo. III. c. 124, § 2, & 7 cSt 8 Geo IV. c. 71, § 5, if the defendant, on 
 being personally sei'ved with the summons or attachment by original, do 
 not appear at the return of such writ, or of the distringas, as the case may 
 be, or within eight days after the return thereof, the plaintiff", upon affida- 
 vit being made and filed in the proper court, of the personal service of 
 such summons or attachment, or of the due execution of such distringas, 
 &c. may enter a common appearance for the defendant, and proceed there- 
 on, as if he had himself entered his appearance. (z) 
 
 [ *244 ] *When the defendant has been arrested, and discharged out of 
 custody, upon giving bail to the sheriff" for his appearance at the 
 return of the writ, or upon depositing with the sheriff" the sum for which he 
 was arrested, together with 10/. in addition for costs, he should regularly 
 appear, if not surrendered to and in custody of the sheriff",(a) and put in and 
 perfect special bail to the action, or bail above : so called, in contradistinc- 
 tion to sheriff" 's bail, or bail beloio. Or, instead of putting in and perfect- 
 ing special bail, the defendant may, under the statute 7 & 8 Geo. IV. c. , 
 71, deposit and pay into court the sum indorsed upon the writ, together 
 with an additional sum, as a security for costs, to abide the event of the 
 suit. By the above statute, (^) reciting that by an act passed in the 43d 
 year of the reign of his late majesty,(c) persons arrested upon mesne pro- 
 cess were enabled, in lieu of giving bail to the sheriff, to deposit in his 
 hands the sum indorsed upon the writ, together with teii pounds in addi- 
 tion, to answer the costs which might accrue up to the time of the return 
 of the writ, and also so much further sum, if any, as should have been 
 paid for the king's fine upon any original writ, and should thereupon be 
 discharged from such arrest; and that it was expedient to extend the pro- 
 visions of the said act, and to enable persons who have been arrested, to 
 deposit or pay into the court in which the writ shall be returnable, the 
 sum indorsed upon the writ, together with an additional sum as a security 
 for costs, to abide the event of the suit, instead of putting in and perfect- 
 ing bail in the said action, it was enacted, that "in all cases in which 
 any defendant shall have been discharged from arrest, upon making such 
 deposit as was required by the said recited act, and the sum so deposited 
 shall have been paid into court, it shall be lawful for such defendant, in- 
 stead of putting in and perfecting special bail in the action, according to 
 the course and practice of the court, to allow the sum so deposited with 
 the sheriff", and by him paid into court as aforesaid, together with the addi- 
 tional sum of ten pounds, to be paid into court by such defendant, as a fur- 
 ther security for the costs of the action, to remain in the court, to abide the 
 event of the suit: And in all cases where any defendant shall have been ar- 
 rested and given bail to the sheriff", or shall have been arrested and remain in 
 custody, it shall be lawful for such last mentioned defendant, instead of put- 
 ting in and perfecting special bail, to deposit and pay into the said court, the 
 sum indorsed on the writ, together with the amount of the king's fine, if any, 
 
 {g) Ante, 22%. {h) Post, 2U. (i) Ante, lU. 
 
 (a) 6 Durnf. & East, 753. 1 Durnf. & East, 122, Ante, 226, &c. (6) ^ 2. 
 
 (c) 43 Geo. III. c. 46, § 2. Ante, 227, &c.
 
 OF SPECIAL BAIL. 244 
 
 upon the original writ, and the further sura of tivcntjj pounds as a aecurity 
 for the costs of the action, there to remain, to abide the event of the suit; 
 and thereupon the said defendant may, and he is thereby required, to enter 
 a common appearance, or file common bail in the action, within such time 
 as he would have been required to have put in and perfected special bail 
 in the action, according to the course of the said court ; or in default 
 thereof, the plaintiff in tlio action is tlicreby empowered to enter such 
 common appearance, or file common bail, for the said defendant ; and the 
 cause may proceed, as if the defendant had put in and *perfectcd 
 special bail : And in case judgment in the said action shall be [ *245 ] 
 given for the plaintiff, he shall be entitled by order of the court, 
 upon motion made for that purpose, to receive the said money so remain- 
 ing in, or so deposited or paid into the court as aforesaid, or so much 
 thereof as will be sufficient to satisfy the sum recovered by the judgment, 
 and the costs of the application: and if judgment bo given in the said 
 action for the defendant, or the plaintiff discontinue his suit, or be other- 
 wise barred, or in case the sum deposited and paid into court be more 
 than sufficient to satisfy the plaintiff, the said money so deposited or paid 
 into court, or so much thereof as shall remain, shall, by order of the 
 court, upon motion to be made for that purpose, be repaid to such de- 
 fendant. 
 
 " Provided always, that it shall and may be lawful for the said defend- 
 ant, who hath made his election to make such deposit and payment as 
 aforesaid, at any time in the progress of the cause, before issue joined in 
 law or fact, or final or interlocutory judgment signed, to receive the same 
 out of court, by order of the said court, upon putting in and perfecting 
 special bail in the cause, and payment of such costs to the plaintiff as the 
 said court shall direct. Provided also, that it shall and may be lawful for 
 any defendant who shall have put in and perfected special bail in any 
 cause, upon motion to the court in which the action is brought, if the 
 court shall so think fit, to deposit and pay into court, the sum which would 
 have been deposited and paid, in case the defendant had originally elected 
 so to do, together with such further sum, to answer the costs, as the court 
 may direct, to abide the event of the said suit, and to be disposed of in 
 manner aforesaid ; and thereupon it shall be lawful for the said court to 
 direct a common appearance to be entered, or common bail to be filed for 
 the defendant, and an exoneretur to be entered upon the bail piece in the 
 said cause." It is remarkable, that in a case long prior to the above sta- 
 tute, the Court of Common Pleas permitted a defendant instead of giving 
 bail, to pay into court a sum sufficient to cover the debt and costs, in order 
 to abide the event of the cause. (a) 
 
 Special bail are tivo or more real and responsible persons, who undertake 
 generally, or in a sum certain, that if the defendant be convicted, he sliall 
 satisfy the plaintiff, or render himself to the custody of the marshal of the 
 King's Bench, or warden of the Fleet prison. One bail is not deemed 
 sufficient, even for the purpose of rendering the defendant ;(^>) but there 
 must be ttvo bail at least, and in general there are two only : though, in 
 the King's Bench,(c) and Exchequer, (t^) where the debt is large, the court 
 
 (a) 1 Taunt. 425. (f>) Barnes, 60. 1 Chit. Rep. 602, in notis. 
 
 (c) Lofft, 26, 252. S'm///i v. TV/VifA-r, II. 7 Geo. III. K. B. 1 Sel. Pr. 1 Ed. 169. Per Cur. 
 M. 29 Geo. III. K. B. Mtllnr v. Jcnkin, cited ia Forrest, 138. 1 Chit. Rep. 601. 
 {d) Forrest, 138. Wightw. 110.
 
 245 OF SPECIAL BAIL. 
 
 will ivllow three ov four persons to become bail, in different sums, amount- 
 inty altogether to the requisite sum. In the Common Pleas, however, it is 
 said that notice given to justify tJiree bail is irregular :(e) And, in the 
 Exchequer, if more than two persons are meant to be bail to a large 
 [ *246 ] amount, leave *should be first asked of the court to permit them 
 to justify; for they will not be allowed to do so, on motion merely 
 in the ordinary course. (a) In cases of felony, it is said to be an invaria- 
 ble rule to require four bail, in order to discharge a prisoner on a habeas 
 corpus. {b) 
 
 Special bail may be put in by the defendant, or by his attorney, in pur- 
 suance of his undertaking; or by the sheriff,((?) or his bail,(f?) for their 
 own indemnity: And the sheriff, or his bail, may put in or justify bail 
 above, by their own attorney :{ee) In practice however it is usual for the 
 attorney, employed by the sheriff or his bail to put in and justify bail 
 above, to describe himself as the defendanV s attorney in the notice, 
 though he be not actually employed by the defendant. (/) It is no objec- 
 tion to bail, that they were put in by an uncertificated attorney :(^) Nor 
 does it seem to be a ground for an attachment against the sheriff, that bail 
 had been put in by a new attorney, without an order for the former attor- 
 ney being changed. (7i) But where two notices are given by different 
 attorneys, one on behalf of the defendant, and the other for the sheriff, of 
 two different sets of bail, and the bail put in for the sheriff have already 
 justified, the defendant is entitled to have his bail justified, and allowed. (/) 
 If a defendant be arrested by process of the King's Bench, and removed 
 by habeas corjyus to the Common Pleas, he may put in and justify bail in 
 either court. (Z;) 
 
 The general qualification of bail above is, that they should be house- 
 keepers, or freeholders ;{l) and, except where there are more than twohaW, 
 that they are respectively worth double the amount of the sum sworn to, 
 or one thousand pounds beyond that sum, if it exceed one thousand 
 pounds, (?») after payment of all their debts. A person resident in Eng- 
 land has been admitted to be bail, in respect of mortgage money secured 
 on an estate in Ireland :[n) and, in the Common Pleas, it seems that the 
 court will permit the bail to justify as tenant by the curtesy of lands in 
 the Isle of 3Ian, without an afiidavit or other evidence that the law of 
 tenancy by the curtesy prevails there.(o) But a copyhold estate of the 
 bail, in right of his wife is not sufficient to qualify him to become 
 
 (e) 2 Blac. Rep. 1123 ; and see 1 Chit. Rep. 601 , 2, [a). 
 
 (a) 13 Price, 448. And see further, as to special bail to the action, and the mode of 
 putting in, excepting to, and justifying the same, Petersd. Part I. Chap. VII. VIII. IX. 
 
 (b) 6 Dowl. & Ryl. 154. 
 
 (c) Peake's Cas. Ni. Pri. 3 Ed. 226. 1 Chit. Rep. 81, 329. 5 Price, 558 ; but see 8 Moore, 
 398. 1 Bing. 367, S. C. 
 
 (d) 2 Str. 876. 7 Taunt. 47. 2 Marsh. 365, S. C. 1 Chit. Rep. 81. 2 Barn. & Aid. 604. 
 1 Chit. Rep. 329, S. C. And see 1 Stark. Ni. Pri. 190, as to the liability of the bail in such 
 case, to the defendant's attorney, for the general expenses of the suit. 
 
 (ee) 7 Taunt. 48. 2 Marsh. 365, 6, S. C. 1 Chit. Rep. 81. 2 Barn. & Aid. 604. 1 Chit. 
 Rep. 329, S. C. 5 Price, 558 ; and see 1 Ken. 376. 7 Dowl. & Ryl. 259. 
 
 (/) Per Bar/leij, J. after consulting the Master, 7 Dowl. & Ryl. 261. 
 
 iff) 2 Chit. Rep. 98, ante, 77. (A) Jd. 76 ; but see id. 87, 93. 
 
 (i) I Chit. Rep. 81 ; and see 7 Dowl. & Ryl. 259. (k) 1 Bos. & Pul. 311. 
 
 (l) 8 Taunt. 148. (;«) Post, 251. 
 
 (n) Per Cur.M. 42 Geo. III. K. B. ; but see 1 Sel. Pr. 2 Ed. 161, where it is said, that pro- 
 perty in Scotland is not sufficient, because it is not liable to the process of our courts. 
 
 (o) 8 Taunt. 148.
 
 OF SPECIAL BAIL. 246 
 
 bail.(|?) And tliougli It has been *i'ulcd in the bail court, that [*247] 
 long beneficial leases, at small rents, are sufficient to entitle bail 
 to justify,(aa) yet this point does not seem to be settled. (//^) 
 
 A peer of the realm, (c) or member of the house of commons,(cZ) is not 
 allowed to be bail, as not being liable to the ordinary process of the court. 
 And a servant in the King's household, liable to be called upon to attend 
 the person of his majesty, cannot justify as bail; for his person cannot be 
 taken in execution. (c) It is also a rule in both courts, that " no attorney 
 shall be bail, in any action or suit depending therein. "(/) This rule, which 
 was calculated for the benefit of attorneys, and intended to protect them 
 against the importunity of their clients, has been extended to their clerks. (^) 
 And, in the King's Bench, a conveyancer, engaged in partnership with an 
 attorney of this court, and sharing the general profits of the business of the 
 office, though he did not himself practise as an attorney, was not allowed to 
 justify as bail.(/i) But the sixty sworn clerks, of the six clerks in Chan- 
 cery^ do not come within the operation of the rule which prohibits attor- 
 neys from being bail.(^) And an attorney, or his clerk, may be put in as 
 bail, though he cannot justify \{lt) and if not excepted to, he is liable to be 
 sued on his recognizance.(?) So, he has be^n allowed to become bail, in 
 order to surrender the defendant immediately, without justification. (w) It 
 is also a rule, founded on principles of prudent jealousy, that " no sheriff's 
 officer, bailiff, or other person concerned in the execution of process, shall, 
 in either court, be permitted to be bail, in any action or suit depending 
 therein :"(w) which latter rule has been applied to the keeper of the Poul- 
 try compter,(o) a turnkey of the King's Bench prison, (j!?) and marshalsea 
 court officers. (5') BanhruiJts, who have not obtained their certificates, 
 are not allowed to be bail, for want of property ;(r) or such as have been 
 twice bankrupts, and not ^dXOi fifteen shillings in the pound under the 
 second commission ;(s) And for the same reason, insolvent debtors, dis- 
 charged under any of the general insolvent acts,(^) are disqualified from 
 being bail : as their future effects are liable under these acts. 
 Though if a person who, by the *rules of the court, is not per- [ *248 ] 
 mitted to become bail, be put into the bail-piece, and not excepted 
 to, the plaintiff, in the King's Bench, cannot take an assignment of the 
 
 [p) 2 Chit. Rep. 97. 
 
 {aa) 2 Cbit. Rep. QQ,per Bayhij, J. {bh) Id. ibid. 
 
 (c) 2 Marsh. 232; and see f Dowl. & RyL 126. 
 
 {d) 4 Taunt. 249. 1 Dowl. & Rvl. 126. {c) 1 Dowl. & Ryl. 127, n. 
 
 (/•) R. M. 1654, I 1. R. M. 14 Geo. II. reg. 1, K. B. R. T. 24 Eliz. ^ 8. R. M. 1G54, I 1. 
 R. M. G Geo. II. reg. 5, C. P. 1 Chit. Rep. 8. 
 
 {g) Cowp. 828. Doug. 466. Mmon v. Caswell, T. 26 Geo. III. K. B. 2 East, 182 ; and 
 see 1 H. Blac. 76. 2 II. Blac. 349. 1 Bos. & PuL 356. 2 Boa. & Pul. 49, 564. 1 Taunt. 
 162, 164, C. P. 3 Price, 263, in Scac. 
 
 (A) 1 Dowl. Si Ryl. 9. {{) 2 Chit. Rep. IT. 
 
 (k) 1 Chit. Rep. 714, (a). (/) Id. 714, 15. 
 
 {m) Per Cur. M. 42 Geo. III. K. B. 2 Blac. Rep. 1180. 7 Moore, 403, C. P.; and see 1 
 Chit. Rep. 714, (a), where an attorney who had not practised for 6ix years, was allowed to 
 justify as baiL 
 
 (n) R. M. 14 Geo. II. rcg. 2, K. B. 2 Str. 890. 1 Barnard, K. B. 417. Lofft, 153. R. M. 
 6 Geo. II. reg. 7, C. P. 2 Blac. ^ep. 799. 2 Bos. & Pul. 150. /(/. ((/). 
 
 (oj Doug. 466. (p) 5 Moore, 72. 2 Brod. & Bing. 359, S. C. 
 
 {q) Per Cur. T. 18 Geo. III. K. B. {r) 1 Chit. Rep. 9. 
 
 («) 3Iounlainv. Wilki/is, M. 21 Geo. III. K. B. 1 Chit. Rep. 293. 
 
 (i) 53 Geo. III. c. 102. (1 Chit. Rep. 9; and see id. 143.) 1 Geo. IV. c. 119. 7 Geo. IV. 
 c. 57.
 
 248 
 
 OF SPECIAL BAIL. 
 
 bail-bond, and proceed upon it, as if no bail had been put in. (a) But, in 
 the Common Pleas, if an attorney be put in as bail, even though another 
 person be afterwards added in his stead,(5) the plaintiff may treat the bail 
 as a nullity, and take an assignment of the bail-bond, or proceed against 
 the sheriff' :(c6') If the plaintiff", however, except to the added bail, who 
 thereupon justifies without opposition, the court will not set aside the 
 rule of allowance. (c^) And if added bail be excepted to on the ground 
 that the original bail were attorneys' clerks, the court will give time to 
 put in and justify fresh bail.(e) 
 
 Bail above are in general put in, at or within a certain number of days 
 after the return of the writ ;[a] but they may be put in before, for the 
 purpose of surrendering the defendant :(/) and, after the return of the 
 writ, they may be put in at any time pending the action, and even after 
 verdict(^) or final judgment, and before the defendant is charged in execu- 
 tion. (A) Where a verdict has been found for the plaintiff", in a larger sura 
 than in the judge's order to hold to bail, the defendant, in order to obtain 
 his discharge out of custody, must justify bail in such larger sum ; unless 
 a rule has been made absolute for a new trial, in which case it is suflScient 
 for the bail to justify in the ^mailer sum.(z') And, after a final judgment 
 
 (a) Thomson v. Roubell, E. 22 Geo. III. K. B. cited in Doug. 466. 2 East, 181. 1 Chit. 
 Rep. 713, accord. ; and see id. 714, (a). 
 
 [b) Jackso?iy. Ilillas, E. 45 Geo. III. C. P. 1 Taunt. 162. 
 
 {cc) I Bos. & Pul. 356. 2 Bos. & Pul. 564. 1 Taunt. 162, 164. 
 [d) 1 Taunt. 162. [e) 3 Moore, 240. 
 
 (/) 8 Durnf. & East, 456. Barnes, 81, 83. 9 Moore, 556. 2 Bing. 271, S. C. 
 Iff) 2 Chit. Rep. 72. 
 
 (h) Hill V. Stanton, H. 55 Geo. III. K. B. 2 Chit. Rep. 73. 2 Marsh. 374; but see 
 Barnes, 92. 
 
 {i) 2 Chit. Rep. 72. 
 
 [a] In Maine, New Hampshire, and Massachusetts, on the arrest of the defendant, he 
 gives bail by bond to the sheriff, with condition that he shall appear and answer the plain- 
 tiff, and abide the order and judgment of the court in the action, and shall not avoid; 
 and the effect of this condition is, that the principal shall satisfy the plaintiff's judgment, or 
 surrender himself to be taken in execution, or that the bail shall pay the debt, &c. Bail 
 thus given answers the purposes of bail below and bail above at common law. Hamilton 
 V. Bunldee, 1 N. Hamp. 172. Jfale v. Euss, I Greenl. 336. Fierce v. Eeed, 2 N. Hamp. 360. 
 Champion v. Noijes, 2 Mass. 484. Harrington v. Hennie, 13 Mass. 94. Broaders v. Welsh, 2 
 N. & M. 569. In Georgia, appearance bail entered to the sheriff, is equivalent to special 
 bail. Low ther Y. Lawrence, Wright, 180. In South Carolina, bail to the sheriff is bail to 
 the action by statute. Harwood v. Robertson, 2 Hill, 336. Fletcher v. Weatherby, 3 Strobh. 
 56. So, also, in North Carolina. West v. Ratledge, 4 Dev. 40. In New Hampshire, bail 
 generally put their names on the back of the writ, and thereby take upon themselves the 
 liability of bail. This rests upon uninterrupted usage. Fierce v. Read, 2 New Hamp. 362. 
 In Virginia, if the principal does not appear according to the condition of the bail bond, 
 judgment is taken against him, and also against his bail, by default, unless they appear, 
 &c. Lee V. Carter, 3 Munf. 121. Garter v. Cockrill, 2 Munf. 448. Keerle v. Norris, 2 Virg. 
 Cas. 217. But if special bail be afterwards put in, this judgment will be set aside. Ibid. 
 Bail to the sheriff in New York will be relieved in all cases on the usual terms, upon the 
 return of the writ against them. Ilaswell v. Bates, 9 Johns. 80. Bulkley v. Collin, 1 lb. 515. 
 Berry v. Elles, Coleman, 57. In Pennsylvania, where bail to the sheriff' entered special bail, 
 which he refused to justify, and was thereupon sued on the bail bond, but surrendered the 
 principal before the writ was returned, the surrender was held to be good, and the bail was 
 relieved on the usual terms. Stockton v. Throgmorton, 1 Baldw. 148. In Ohio, if special 
 bail be not put in and perfected in due time, the plaintiff tnay elect to proceed against the 
 appearance bail, or rule the sheriff to bring in the defendant; but he cannot do both ; and 
 the entry of the rule, although not served, is an election to proceed against the defendant. 
 Valentine v. Smith, 8 Ham. 26. In Connecticut, the officer indorses on the writ that he has 
 taken special bail, if he would preserve a hold on the defendant's body. The condition of 
 the bond is performed by the defendant's appearance. Hubbard v. Shaler, 2 Day, 199. Hal- 
 sey V. Fanning, 2 Root, 101. Gallup v. Denison, Kirby, 434.
 
 OF SPECIAL BAIL. 248 
 
 has been signed, the defendant's bail may put in fresh bail ; for the pur- 
 pose of rendering him.(Ar) 
 
 In the King's Bench, if the defendant be arrested in London or Middle- 
 sex, special bail should be put in witiiin/our days exclusive, or, if in any 
 other county, within six days after the return of the process, (/) or quarto 
 die jjost by original :(?w) And if either the fourth or sixth day fall on a 
 Sunday, the defendant has all the Monday following to put in bail.(w) 
 But, excepting Sunday, bail above may be put in on a dies non juridicus, 
 as on the second of February, which is considered as a day for such busi- 
 ness as is transacted at the judge's chambers. (o) In the Common Pleas, on 
 process returnable i\iQ first return of the term, special bail should be put in 
 within /our days, in London or Middlesex, or, in any other city 
 or county, *within eight days after the appearance day, or quarto [ *249 ] 
 die i^ost of the return of the process,(a) exclusive of the day on 
 which it is returnable : but on process returnable the second or any other 
 subsequent return of the term, special bail should be put in within /owr 
 days, in London or 3fiddlesex,{b) or, in any other city or county, within 
 eiyht days exclusive after the return of the process, or day on which it 
 is actually made returnable.((?) And in either court, if any further time 
 be required for putting in bail, it may be obtained by taking out a sum- 
 mons for that purpose ; and the judge will make an order, upon the terms 
 of putting the plaintiff in the same state as he would have been in, if 
 bail has been put in in due time. In the Exchequer, it seems, the defend- 
 ant is allowed only three days after the return day of the writ, to put in 
 \>dJi\.{dd) 
 
 Before the statute 4 & 5 W. & M. c. 4, special bail could only have been 
 put in before a judge in town. But this practice being found productive of 
 great expense and inconvenience, it was enacted by the above statute,(£?c) that 
 "the chief justice, and other the justices of the court of King's Bench for 
 the time being, or any two of them, whereof the chief justice for the time 
 being to be one, and the chief justice of the court of Common Pleas, and 
 other the justices there for the time being, or any two of them, w^iereof 
 the chief justice of the same court to be one, and also the chief baron and 
 barons of the degree of the quoif, of the court of Exchequer for the time 
 being, or any two of them, whereof the chief baron for the time being to 
 be one, shall or may, by one or more commission(/) or commissions, under 
 the several seals of the said respective courts, from time to time, as need 
 shall require, empower such and so many persons, other than common 
 attorneys and solicitors, as they shall think fit and necessary, in all and 
 every the several shires and counties within the kingdom of England, 
 dominion of Wales, and town of Berwick upon Tweed, to take and receive 
 all and every such recognizance or recognizances of bail or bails, as any 
 
 [k) 2 Chit. Rep. 74. 
 
 (l) R. M. 8 Ann. reg. 1 K. B. Former rule, E. 11 "W. III. retj. 2 K. B. 
 
 (m) 4 Durnf. & East, 377 ; but see 2 Barn. & Cres. 626. 4 Dowl. & Ryl. 160, S. C, wherein 
 the court were of opinion, that the bail bond was forfeited, by not putting in bail on the 
 quarto die post ; and that the other four or fix days were allowed merely ex gratia. 
 
 (n) R. M. 8 Ann. 1, (6), K. B. 2"Str. 782, 914. (o) 5 Durnf. & East, 170. 
 
 (a) 2 H. Blac. 276. 
 
 (6) White V. Girdler, T. 26 Geo. III. Imp. C. P. 4 Ed. 196, 7. 
 
 (c.) R. T. 30Geo. III. C. P. Imp. C. P. 7 Ed. 110, 11, 129,30, 137,8. 
 
 {dd) 1 Price, 104, (a). (ee) § 1. 
 
 ( /■) This commission is subject to the stamp duty of 10.?. by stat. 55 Geo. III. c. 184. 
 Schcd. Part II. g III,
 
 249 OF SPECIAL BAIL. 
 
 person or persons shall be willing or desirous to acknowledge or nialce 
 before any of the persons so empowered, in any action or suit depending 
 in the said respective courts, in such manner and form, and by such recog- 
 nizance or bail-piece, as the justices or barons of the said respective courts 
 have used to take the same : which said recognizance or recognizances of 
 bail or bail-piece, so taken as aforesaid, shall be transmitted to some or 
 one of the justices or barons of the said respective courts ; who, upon 
 affidavit made of the due taking of the recognizance of such bail or bail- 
 piece, by some credible person present at the taking thereof, shall receive 
 the same, upon payment of the usual fees; which recognizance of bail or 
 bail-piece, so taken and transmitted, shall be of the like effect, as 
 [ *250 ] if the same were taken de bene esse, before any of the *said jus- 
 tices and barons: for the taking of which recognizance, the per- 
 son empowered shall receive only the sum or fee of two shillings, and no 
 more." But, in the Exchequer, it has been holden, that a commissioner 
 is not confined to that sum, if he have been put to expense by travelling, 
 or have taken extraordinary trouble, at the instance of the parties, to 
 effect the taking of the recognizance, or where there are other circum- 
 stances in the case, which afford reasonable ground for a further charge.(a) 
 And any judge of assize, in his circuit, shall and may take and receive all 
 and every such recognizance and recognizances of bail or bails, as any 
 person shall be willing and desirous to make and acknowledge before him ; 
 which being transmitted in like manner, shall, without oath, be received 
 in manner as aforesaid, upon payment of the usual fees. (5) Since the 
 making of the above statute, special bail may be put in before a judge in 
 town, a commissioner in the country, or a judge of assize in his circuit. 
 And one of the bail may be taken by affidavit, before a commissioner in 
 the country, and the other before a judge in town.(c) 
 
 In the King's Bench, special bail are put in, before a judge in town, at 
 his chambers ; and, in actions by bill, their recognizance is taken by the 
 judge's clerk, on a bail-2nece,{d) made out by the defendant's attorney ; 
 stating the term, the county into which the writ issued, (e) and the names 
 of the parties together with the names and additions of the bail, and the 
 sum sworn to. [a] In actions by original, in the King's Bench, special 
 bail are put in before a judge in town, with a filacer or his clerk, who 
 enters it of the county into which the capias issued ;(/) the defendant's 
 attorney first making out and delivering to him a note in writing, answer- 
 ing to the bail-piece by bill :(^) and bail must likewise be put in that 
 county, on a testatum ca])ias.{Ji) But where the defendant had been 
 arrested on a testatum capias from Middlesex to Kent, and bail was put 
 in in the latter county, Kent being inserted in the bail-piece, but in the 
 
 (a) 5 Price, 2. {b) ? 3. (c) 2 Chit. Rep. 90. 
 
 {d) Append. Chap. XII. I 5, 6. (e) 7 Durnf. & East, 96. 
 
 (/) 1 Chit. Rep. 237. 
 
 [g) Trye, 67, 8. Append. Chap. XII. ^ 7. And for the filacer's entry of special bail by 
 original, in K. B. see id. § 8. 
 
 {h) 1 East, 603. 2 Bos. & Pul. 516. 3 Moore, 76; and see Barnes, 63. R. H. 22 Geo. 
 III. C. P. 
 
 [a] Bail may justify at the time and place specified in the notice before a different ofiBcer 
 from him who is named in the notice, but the plaintiff must not be misled. Southerland v. 
 Sheffield, 2 Wend. 293. And before officers authorized to talie recognizances, or in open 
 court, see Rule of Court, 13 Johns. 422 ; or in vacation before a judge at chambers. Fe?m 
 V. Smith, 6 Id. 124. The matter is generally regulated by rules of court.
 
 OF SPECIAL BAIL. 250 
 
 margin tliese words, " Testatum from Middlesex,'" the court held, that the 
 notice in the margin made it regular. («) And where the defendant, by 
 mistake, put in bail in the Common Pleas, to an action in the King's 
 Bench, and thereby misled the plaint ill", who declared without discovering 
 the mistake, the court ordered the defendant to rectify the same, by put- 
 ting in and perfecting bail in the King's ]>ench, of the proper terra. (^) 
 The recognizance of bail by hill, in the King's Bench, if taken before 
 judgment, is general, (?) that if the defendant be condemned in the action, 
 he shall satisfy the costs and condemnation money, or render himself to 
 the custody of the marshal ; or that the bail will pay the costs 
 and condemnation money for him -.[in) And *the bail piece is left [ *251 ] 
 at the judge's chambers, until the bail are perfected. Vyy origi- 
 nal, the recognizance is taken in a penalty or sum certain, being double 
 the amount of the sum sworn to,(a) or one thousand pounds beyond that 
 sum, if it exceed one thousand pounds :{b) And where bail is put in after 
 judgment, the recognizance is taken in double the amount of the sum 
 recovered. (6-) 
 
 In the Common Pleas, bail should be put in with the filacer of the 
 county into which the capias issued, ((Z) who attends to take them at the 
 judge's chambers ; and, on being furnished with an abstract of the writ, 
 and the names and additions of the bail,(e) he will make an entry 
 thereof in a book kept for that purpose '-{ff) or bail may be taken in 
 the absence of the filacer, upon bringing a true abstract of the writ on 
 parchment, ((/(/) in form of a bail-piece. (/iA) The entry of bail in the 
 filacer's book is of the term generally, which of course relates to the 
 first day of it; and therefore, in an action on a bail bond, if the issue 
 depend on the date of the appearance, the court, upon an application by 
 the plaintiff, will order the day of appearance to be entered in the filacer's 
 book; although issue has been already joined on the plea oi cowperuit 
 ad diem.^ii) Formerly, the defendant, in the Common Pleas, might have 
 entered into the recognizance of bail himself; and in that case he was 
 bound in double the sum sworn to, and each of the bail in the single sum 
 only;(^Z:) but now, by a late rule,(/?) "in all actions requiring bail, the 
 defendant shall not be permitted to enter into the recognizance ; but the bail 
 shall each of them enter into a recognizance, in double the sum sworn to, 
 or, by a subsequent rule,(??rm) one thousand pounds beyond that sum if it ex- 
 ceed one thousand pounds. In the Exchequer, there is a similar rule:(M) 
 And, in that court, the form of a recognizance of bail after judgment, and 
 before the defendant has been charged in execution, is to render him to 
 
 ((■) 3 Maule & Sel. 532. 
 
 (/•) Boi/ce V. Ruxt, T. 22 Geo. III. K. B. 
 
 (Z) 2 Bulst. 232. Cro. Jac. 449, G45. Cro. Car. 481. 2 Salk. 564. 
 
 (m) Append. Chap. XII. § 12. 
 
 {a) Trye, 121, 2. (!,) R. M. 51 Geo. III. K. B. 13 East, 62. 
 
 (c) Jim V. S/'i>ito/i, H. 55 Geo. III. K. B. 2 Chit. Rep. 73. Ai)pend. Chap. XII. § 46. 
 
 (d) R. T. 1 W. & M. rcif. 2, C. P. 2 Blac. Rep. lOGl. 2 Bos. & Pul. 516. 3 Moore, 76. 3 
 Bwg. 603. 
 
 {e) Append. Chap. XII. ? 7. 
 
 (/) Jd. § 9, 1 1. (ffff) Notice, U. 8 Geo. II. g 3, C. P. 
 
 (hh) Append. Chap. XII. ? 10. (ii) 1 Taunt. 23. 
 
 (kk) R. 10 Mar. 5 W. & M. p, C. P. 1 Bos. & Pul. 206, 7. 
 
 {U)'R. E. 36 Geo. III. C. P. 1 Bos. & Pul. 530. 1 Brod. & Bing. 490. 
 
 {mm) R. M. 51 Geo. III. C. P. 3 Taunt. 341. 2 Chit. Rep. 378. 
 
 (n) Wightw. 115. Man. Ex. Append. 226. 3 Price, 508.
 
 251 OF SPECIAL BAIL. 
 
 the prison of the Fleet, on or before the fourth day of the next following 
 term.(o) 
 
 Before a commissioner in the country, a bail-piece is made out in the 
 King's Bench,(|)) whether the action be by hill or original, and the recog- 
 nizance taken thereon, in the same manner as in town, where the action is 
 by bill.{q) In the Common Pleas, the recognizance is taken on a bail- 
 piece,(r) in a sum certain :{s) And where the defendant had been arrested 
 in the county palatine of Lancaster, upon a testatum capias 
 [ *252 ] from *London, and it appeared on the face of the bail-piece, that 
 they had been put in at Lancaster, the court held that the bail- 
 piece was wrong, and that it should have been taken as upon a testatum 
 from London into the county palatine. (a) In both courts, an ajfidavit of 
 the due taking of the bail should be made, either before the judge to whom 
 the bail-piece is transmitted, or before a commissioner for taking affida- 
 vits •,{b) which affidavit is in general made before a commissioner, (not being 
 the person who took the bail,) and annexed to the bail-piece :(c) but no such 
 affidavit is necessary upon the transmission, when the bail is taken by a judge 
 of assize in his circuit. The rules of court require the bail-piece to be trans- 
 mitted to the chief-justice, or other judge of the court of King's Bench, in 
 eight days, if taken within forty miles of London or Westminster, or, if 
 taken above that distance, in fifteen days after the taking thereof; and in the 
 Common Pleas, the bail, if taken within forty miles of London, should be 
 transmitted within ten days, or, if taken above that distance, within twenty 
 days after the taking thereof ;(t7) unless all the judges are on their cir- 
 cuits, and then as soon as any one of them is returned.(e) But it is said 
 that, notwithstanding these rules, the bail-piece must actually be filed with 
 one of the judges, on the sixth day after the return of the writ in the King's 
 Bench, or eighth day in the Common Pleas, or the bail-bond may be 
 assigned. (/) And where the action is by original, in the King's Bench 
 or Common Pleas, the bail-piece being transmitted and allowed by the judge, 
 should be filed with the filacer of the county where the action is laid.(^) 
 
 In putting in special bail, the parties to the suit should be named as in 
 the process, unless the defendant be called therein by a wrong name, and 
 mean to avail himself of the misnomer; in which case he should put in bail 
 in his right name, stating that he was arrested or sued by the name in the 
 writ : For if a defendant, sued by a Avrong name, appear and perfect bail by 
 his right name, without identifying himself as the person sued by the other 
 name, the plaintiff may treat the bail as a nullity, and attach the sheriff.(7i) 
 And if the defendant, after being arrested, were to put in bail above in a 
 wrong name, it would estop him from pleading the misnomer in abate- 
 ment ;(^) even though he were himself no party to the recognizance.(A;) But 
 
 (o) M'CleL 310. 13 Price, 589, S. C. [p) Append. Chap. XII. | 16. 
 
 Iq) R. T. 8 W. III. reg. 3, ^ 1, K. B. 
 
 (r) R. 10 March, 5 W. & M. § 1, C. P. Append. Chap. XII. ? 17. 
 
 (.s) Append. Chap. XII. § 19. (a) 3 Moore, 76. 
 
 (b) R. T. 8 W. III. reg. 3, § 2, K. B. R. 10 March, 5 W. & M. | 2, C. P. ; and see Append. 
 Chap. XII. I 20. (c) R. T. 8 W. III. reg. 2, (a), K. B. 
 
 {d) R. 10 Mar. 5 W. & M. § 3, C. P. (e) R. T. 8 W. III. reg. 3, § 3, K. B. 
 
 (/) Imp. K. B. 10 Ed. 137.' Imp. C. P. 7 Ed. 129, 30. 
 
 (g) 1 East, 603. Imp. K. B. 10 Ed. 528. 1 Cromp. 3 Ed. 51, 2. R.H. 6 Geo. L reg. 2, R. M. 
 13 Geo. I. R. M. 6 Geo. II. reg. 1, C. P. 
 
 (Ji) 4 Taunt. 818. 
 
 {i) Willes, 461. Barnes, 94, S. C. ; and see 1 Salk. 8. 3 Durnf. & East, 611. 
 
 {k) 2 New Rep. C. P. 453.
 
 OF SPECIAL BAIL. 052 
 
 where the plaintiff sued out an orUjinal writ against the defendant in his 
 
 ■wrong name, the j^rsccipe being right, and the defendant put in hail in his 
 
 right name, the court set aside an attachment obtained against the sheriff, fur 
 
 not bringing in the body, but without costs on eitlier side.(/) And where 
 
 the defendant was named in the notice of bail by his right name, 
 
 as *having been sued by a wrong one, but in the bail-piece he was [ *2o3 ] 
 
 called by the wrong name only, this was deemed sufficient. (a) If 
 
 the parties be rightly named in the recognizance of bail, it is sufficient, 
 
 where there is no exception, though they are misnamed in the aflidavits of 
 
 sufficiency, and acknowledgment of the bail. (6) 
 
 Special bail are ahsolutc or de bene esse.{c) In criminal cases no justifi- 
 cation being requisite, the bail are absolute in the first instance \{d} but in 
 civil cases, they cannot be taken absolutely, without the consent of the 
 plaintiff, or his attorney :(e) And when they are taken de bene esse, the de- 
 fendant's attorney should give notice thereof in writing without delay, to 
 the plaintiff's attorney. (/) Formerly, the defendant's attorney was re- 
 quired to give notice of bail, in the King's Bench, to the plaintiff's attor- 
 ney, before it was put in;(g) and the plaintiff's attorney, on such notice 
 being given to him, was obliged to attend before a judge, to accept of, or 
 except to the bail :{hh) But notice of bail is not now given, until after it is 
 put in : and though it should regularly be given before the time for putting 
 in bail is expired, yet if it be not given in time, the plaintiff cannot, after 
 notice, regularly take an assignment of the bail bond.(») In the Common 
 Pleas, where bail was put in in due time, the defendant was not formerly 
 bound to give notice thereof, but the plaintiff must have searched in the 
 filacer's book ;{Ick) though it was otherwise, if they had not been put in in 
 due time :{ll) But now, by a late rule of court,(wi) " when special bail is 
 put in for the defendant, a notice in writing of such bail being so put in, 
 must be forthwith given to the plaintiff's attorney or agent; and special 
 bail shall not be considered as put in, until such notice shall be given." 
 
 The notice of bail in town is, that they are put in ;(?i) or, if taken before 
 a commissioner, that the bail-piece is Jiled,{o) with an affidavit of the due 
 taking thereof, at a judge's chambers ; or, in actions by original, in the 
 King's Bench or Common Pleas, that the bail has been allowed by a judge, 
 and the bail-piece and affidavit are filed Avith the filacer. The notice, in 
 either case, should be properly eyititled ;{p) and, where it is of 
 bail put in, 'should set forth with truth and certainty, their [ "'^.Vi ] 
 
 (/) 2 Chit. Rep. 56. 
 
 (a) 2 Chit. Rep. 81. (6) 5 Taunt. 603 ; nnd ?ee 1 rricc. '^^^b. 
 
 ((•) The origin of bail de bene esse is thu3 related by 67y«, Ch. J. " A bishop, (says he,) 
 having arrested a man for a large debt, he tendered bail to chief justice Jiic/iiir<i.ion, who 
 took it in his chamber ; and the Ijail being insufficient, the bisliop represented tlie matter 
 to parliament, and prayed their remedy for it: upon which it was enacted, tliat no bail, 
 taken belbic a judge in his chamber, should bind the plaintiff, without his assent thereto, 
 or the confirmation of such bail taken by all the court." 2 Sid. 91. For the proceedings in 
 tliis case, see Man. Ex. Append. 243. 
 
 {d) 2 Blac. Rep. 1110. And for the rules respecting bailing prisoners, on the return of a 
 habeas corpus, in criminal ca.ies, see 1 Chit. Cr. L. 129. 2 Chit. Rep. 109, 10. C Dowl. k Ryl. 
 154. Petersd. Part III. Chap. III. 
 
 (<•) R. M. 1C54, § 8, K. B. R. M. 1654, ? II, C. P. 
 
 (/) R. M. IG Car. II. K. B. Append. Chap. XII. g 13, 15. 
 
 (ff) R. M. 7 Jac. I. K. B. (hh) R. M. 21 Car. I. K. B. 
 
 (ji) Per Cur. M. 44 Geo. III. K. B. (kk) 2 Ken. 467. 
 
 (U) 1 H. Blac. 529. (m) R. E. 49 Geo. III. C. P. 1 Taunt. 616. 
 
 (n) Append. Chap. XII. ? 13, 15. (o) Id. I 21, 22. 
 
 (/>) Lofft, 237 I and see 2 Chit. Rep. 77, 81.
 
 254 OF srEciAL bail. 
 
 namcs,((/) places of abode, (?>) and degrees or mysteries, (<?) in order 
 that tlie plaintiif may have an opportunity of inquiring after them:(£Z) 
 And if the bail above are the same persons as were bail to the sheriff, it is 
 usually so expressed in the notice. 
 
 In setting out the places of abode of the bail, it seems sufficient to 
 describe them in the notice, by their place of business :(e) But the 'parish 
 wherein they live, without the street, or other certain place of their resi- 
 dence, is too A^ague a description :(/) And a mistake in the number of the 
 house in which the bail resides, is a ground of rejection. (£/) So, it is not 
 sufficient to describe the bail generally, as of a large town, such as Liver- 
 pool,{Ji) Lancaster ^{i) Leeds,{k) Leicester, [k) Birmingham,{l) or the town 
 and county of the town of Notting]ia7n,{m) without any further descrip- 
 tion, to direct the plaintiff in his inquiries as to their sufficiency : In all 
 large towns, the street ought to be mentioned in the notice.(w) And a de- 
 scription of bail as of one of the large villages near London, such as Clap- 
 ham,{p) ovWalworth,{pp) or Battle Bridge,{q) is too general, if there be 
 a known and particular designation of the place where the bail resides. But 
 when the plaintiff has had a long time to inquire after the bail,(r) or has in 
 fact found them, (5) the court will not reject the bail, on account of a gene- 
 rality of description, which would otherwise have been fatal : And, in thje 
 Common Pleas the court will not take judicial notice of the size of the 
 place, where the bail are described as residing ; and if it be too large, that 
 fact must be shown by affidavit. (<) As to the degree or mystery of the bail, 
 a schoobnaster,{u) or clei'k in the custom-house, (.r) is holden to be well de- 
 scribed as a gentleman: but the description of bail as o, gentleman, when 
 it appears he is a servant,[x) or clerk in a mercantile house,(2/) or has 
 recently been a butcher, and is about to set up again in that trade,(2:) is 
 insufficient ; and though the bail has been found, yet the objection is not 
 aUded.^z) So, where a baker was described in the notice as a gentleman, 
 the court of Common Pleas rejected him ; and desired that it might be 
 understood in future, as a general rule, that a false addition to the name 
 of the bail, should be considered as a ground of rejection. (*) But it is 
 
 not a sufficient ground for rejecting a *person as bail, in that 
 [ *255 ] court, that he is described in the notice, to be of A. in the 
 
 county of B. gaol-keeper. (aa) It seems that shopkeeper is in 
 general a sufficient description of bail ;{bb) though bail so described have, 
 under particular circumstances, been rejected. (?)§) The notice of bail 
 should regularly be served, either upon the plaintiff's ixttorney personally, 
 
 [a) Lofft, 187. 5 Taunt. 854. 1 Marsh. 386, S. C. 1 Moore, 126 ; but see 4 Dowl. & Ryl. 30. 
 (6) Lofft, 72, 194. 1 Bos. & Pul. 325, 335. 5 Taunt. 173, 554. 
 (c) Lofft, 187, 281. 2 Taunt. 173. 5 Taunt. 554. (d) 6 Mod. 24. 
 
 [e) I Price, 400. (/) Lofft, 72, 194. 
 
 ((/} Per Cur. H. 55 Geo. IIL K. B. 1 Chit. Rep. 493, in notis. 
 [h) 1 Chit. Rep. 492. Id. 492, 3, [a). {i) Id. 492, (a), 
 
 (k) Id. ibid. 6 Moore, 44. \l) Per Cur. E. 22 Geo. IIL K.B. 
 
 (m) Per Cur. E. 59 Geo. IIL C. P. (n) Per Cur. E. 22 Geo. IIL K. B. Ante, 31. 
 
 (o) 5 Taunt. 173; but see 6 Moore, 332, where a notice of bail, as residing at Clapham, 
 was deemed sufficient, it appearing that he resided in the Clapham road. 
 
 (pp) 1 Chit. Rep. 493, in notis. (q) 2 Chit. Rep. 81. 
 
 (r) 1 Chit. Rep. 493, in notis. (s) Id. 503. 
 
 (0 5 Taunt. 554. (m) Id. 759. 
 
 {x} 1 Chit. Rep. 494, in notis. (y) 7 Dowl. & Ryl. 772. 
 
 (z) 1 Chit. Rep. 76, [a), per Abbott, J. (*) 2 Taunt. 173, 4. 
 
 (aa) 2 Bos. & PuL 150. 
 
 [bb) 1 Chit. Rep. 494, in nods.
 
 OF SPECIAL BAIL. 255 
 
 or upon some clerk or servant in his office : but wlicn the attorney cannot 
 be met with, and his office is not open, it is suificient to stick up a copy of 
 the notice in the King's Bench office, and put another under tlie attor- 
 ney's door.(6') And service of notice of bail, by leaving the same at a sta- 
 tioner's, where the plaintiff's attorney's papers are usually left for him, 
 has been deemed sufficient. ((Z) 
 
 The plaintift' or his attorney, upon being served with this notice, either 
 accepts of, or excepts to the bail. If he accept of them, the defendant's at- 
 torney, in the King's Bench, should cause the bail-piece to be filed with the 
 master, within twenty days after such acceptance :(t') or if the plaintiff do 
 not except to the bail for insufficiency, within ttventij days next after notice 
 thereof given to him or his attorney, then, upon an affidavit in writing of 
 such notice on the back of the bail-piece, for which affidavit no fee shall be 
 taken, the bail-piece shall be filed by the defendant's attorney, witliin/owr 
 days next after the end of the tioenty days.(/) But if the plaintiff be not 
 satisfied with the bail, he may except to them in either court, and thereby 
 compel a justification. If the bail to the sherift' become bail above, theplain- 
 tifl', in the King's Bench, is not at liberty to accept of them, after he has 
 taken an assignment of the bail bond •,{g) for by so doing, he has admitted 
 them to be sufficient : but if exception be taken to the bail before the bond 
 is assigned, they are bound to justify, notwithstanding such assignment :{A) 
 and in the Common Pleas it is a rule, that " in all cases wherein bail bonds 
 shall be taken, and the same bail is put in above, the plaintiff" may except 
 against such bail."(t) The delivery of a declaration in chief before spe- 
 cial bail put in, is holden in both courts, to be a waiver of the bail ; and, 
 before justification, it is an acceptance of them :(^;)[a] But the plaintiff 
 may declare de bene esse, or conditionally, provided good bail be put in, 
 or the bail already put in do justify ;(/) though the demand or acceptance 
 of a plea will even then, in general, be deemed a waiver of the bail, or 
 justification. (m) When bail above is put in in due time, and notice thereof 
 given to the plaintiff's attorney, the bail should be excepted to, 
 and notice of the exception given to the defendant's attorney, [ *256 ] 
 before the *sheriff is ruled :(a) And there is no difference in 
 this respect, between the original and added bail ; it being holden, that 
 the adding bail afterwards, does not supersede the necessity of such 
 exception, before an attachment can issue against the sheriff, on account 
 
 (c) 2 Chit. Rep. 81. (d) Id. 82. 
 
 (e) R. T. 13 Car. II. K. B. Former rule, II. 23 Car. I. K. B. 
 (/) R. M. 16 Car. II. K. B. 
 
 {</) 1 Salk. 97. 7 Mod. 62, 117. 6 Mod. 122. R. M. 8 Ann. re;/. 1, (c). R. E. 5 Geo. II. 
 reff. l,{a), K. B. [h] 11 East, 321. 
 
 (i) R. M. 6 Geo. II. rej. 2, C. P. Barnes, 63. 2 Wils. 6. 
 
 (A-) R. M. 8 Ana. rej. 1, (<•), K. B. R. E. 5 Geo. II. rcj. 1, (a), K. B. Cas. Pr. C.P. 81, 155. 
 {I) R. M. 8 Ann. rey. 1, (c), K. B. Cas. Pr. C. P. 81. 
 (m) Barnes, 92; but see 1 Dowl. & Ryl. 163. 4 Dowl. & Ryl. 834. 
 (a) Loflft, 159. 8 Durnf. & East, 258. 1 New Rep. C. P. 139. 7 Dowl. k Ryl. 264. 
 
 [a] By filinp a declaration, exceptions to the bail are waived, but the bail is not discharged. 
 Filler V. linjs'in, 6 W. & S. 566. Caton v. M'Carti/, 2 Dall. 141. Jiobi/s/uill v. Oppenheimer, 4 
 Wash. C. C. 317. Cnndee v. Kehn/, 7 Ham. (Part 2,) 210. People v. Slrrenx, 9 Johns. 72. lin'ffgs 
 V. Howe, 7 Cow. 503. Com. v. Ileilmon, 4 Barr, 455. Culpepper Socieh/ v. Di^jges, 6 Rand. 
 165. The riglit to special bail may always be waived, and the trial proceed. Paul v. Pur- 
 rrll, 2 Browne, 20. Thus, a rule to arbitrate before special bail is entered, is a waiver. 
 Moithon V. Rees, 6 Binn. 32. Nonen v. Gelhaud, II S. & R. 9. l'hiUip.f v. Oliver, 5 Id. 410. 
 Maus V. Scilzinffcr, 2 Id. 421 ; or a judgment for want of an affidavit of defence. Barbe v. 
 Bavin, 1 Miles, 120.
 
 256 
 
 OF SPECIAL BAIL. 
 
 of the added bail not having justified in time.(M) But when bail above 
 is not put in at the time of ruling the sherifi' to return the writ, or 
 brinf in the body, he must put in and perfect bail at his peril, or render 
 the defendant, yfith'm four days in a town cause, or six days in a country 
 cause, without any exception ; for otherwise, if the plaintiif excepted, the 
 sheriff would have four days after exception to perfect bail, and by that 
 means would have more than the time allowed him, by the practice of the 
 court, to return the writ, and bring in the body.(c) 
 
 In the King's Bench, the exception to bail, if put in in due time, should 
 be put in the bail book at the judge's chambers by biU,{d) or in the filacer's 
 book by original,{e) within twenty days after notice of bail put in or filed, (/) 
 and not afterwards. (^) If it be not entered within that time, the bail be- 
 comes absolute ;(7i) and the bail-piece should be filed by the defendant's 
 attorney, ysiihin four days after the end of the twenty days.(z) But if bail 
 above be not put in in due time, they must be justified, though not excepted 
 to by the plaintiff.(A:) The exception being entered, notice thereof should 
 be given in writing, without delay, to the defendant's attorney :(?)[a] and 
 " if the notice be given in term-time, the defendant shall procure his bail to 
 justify in four days exclusive after such notice: or shall add other bail, 
 who shall justify within the said four days: but if such exception be en- 
 tered in vacation, and notice thereof given in like manner, the bail put in 
 or other additional bail, shall justify upon the j^rs^ day of the subsequent 
 term."(??i) The notice of exception to bail should be entitled in the cause; 
 and if not so entitled, it is a nullity, although served upon the defendant's 
 attorney at the same time as the declaration. (?i) And notice of exception 
 to bail, entitled by mistake "In the Lord Mayor's court," instead of "In 
 the King's Bench," is a nullity ; and an attachment against the sheriff was 
 
 in consequence set aside. (o) 
 [ *257 ] *In the Common Pleas it is a rule, that in all cases of excep- 
 tion to bail, such exception should be made, either in the filacer's 
 book, or on the bail-piece, if taken by a commissioner, before it is trans- 
 mitted, and afterwards above in the filacer's book, or the bail-piece ;(a) 
 
 [bb) 8 Durnf. & East, 258. T Durnf. & East, 109. 7 East, 607. 
 
 (c) Per Cur. E. 24 Geo. III. K .B. 2 Black. Rep. 1206, C. P. ; and see 2 Chit. Rep. 82, 108, 9. 
 
 (d) R. M. 8 Ann. reg. 2, (o), K. B. 1 Chit. Rep. 174. 4 Dowl. & Ryl. 365. 5 Barn. & 
 Cres. 389. 8 Dowl. & Ryl. 149, S. C, and see Append. Chap. XIL § 23. 
 
 (e) R. E. 2 Geo. II. K. B. 
 
 (/) R. M. 16 Car. IL K. B. 1 Salk. 98. 6 Mod. 24. 2 East, 406, 7. 
 
 {g) R. M. 8 Ann. reg. 2, K. B. 
 
 (A) 1 Chit. Rep. 174. 4 Dowl. & Ryl. 365. (?") R. M. 16 Car. II. K. B. 
 
 {k) 7 Durnf. & East, 109. 7 East, 607. 2 Chit. Rep. 108, 9. 
 
 \l) R. M. 8 Ann. reg. 2, (a). R. E. 2 Geo. II. R. B. 5 Geo. II. reg. 1. 7 Durnf. & East, 
 26. 5 Barn. & Cres. 389, K. B. 1 H. Blac. 80, 106, C. P., and see Append. Chap. XII., 
 I 24. 
 
 [m) R. E. 5 Geo. II. reg. 1, K. B. R. T. 3 & 4 Geo. IL, C. P., and see 4 Barn. & Cres. 864. 
 7 Dowl. & Ryl. 374, S. C. 
 
 (nj 1 Chit. Rep. 741. (o) Id. 374. 
 
 {a) Cas. Pr. C. P. 33, 55. Barnes, 101. 
 
 [a] If bail do not justify within the time allowed by the rules of the court, they cease to 
 be bail, and cannot be held by the plaintiff's giving notice that he waives the exception. 
 People V. The Judges, ^'c., 1 Cow. 54. Waterman v. Allen, lb. 60. Trotter v. Ilawle;/, lb. 
 226. Thorp v. Faulkner, 2 Cow. 514. Cooper v. Spicer, lb. 619 ; but the plaintiif may 
 waive the exception without requiring the justification, provided the waiver be before the 
 expiration of the time of justification. The People v. The Supreme Court, 20 Wend. 607. 
 Boyd v. Weeks, 6 Hill, 71. And special bail, if excepted to, must justify in at least double 
 the amount each. Louis v. Mitchell, 2 Hill, 379.
 
 OF SPECIAL BAIL. 257 
 
 and notice of the exception must also be given in ^vriting to the defend- 
 ant's attorney.(J) But notice of justification of bail is in that court a 
 waiver, as between the parties, of a neglect to give notice of exception ; 
 though it is not a waiver, with respect to the sheriff, so as to support a 
 rule to bring in the body.f/'c) If special bail put in by the defendant be 
 excepted to, the defendant in that court shall perfect his bail, •within four 
 days after exception taken ; in default whereof the plaintiff shall be at lib- 
 erty to proceed upon the bail bond :{dd) and of these four days, the first 
 is reckoned exclusively, and the last inclusively ; so that where the excep- 
 tion is on Wednesday, an attachment cannot regularly issue against the 
 sheriff till the Tuesday following, Sunday being considered as a dies 
 non ;[dd) and if an attachment issue on the fourth day, the court will set 
 it aside, without first calling on the defendant to justify bail.(6') 
 
 In the exchequer, it is a rule,(/) that "in every action where special 
 bail is put in before the barons of this court, the plaintiff may except there- 
 to within twenty days next after the putting in of such bail, and notice 
 thereof given in writing to the plaintiff, his attorney or clerk in court ; but 
 no exception to bail shall be admitted, after the time hereinbefore limited: 
 And in case exception shall be taken to the bail, within the time aforesaid, 
 and notice of such exception given in writing to the defendant's attorney 
 or clerk in court, the defendant shall perfect his bail, and justify the same, 
 (if the notice be given in term-time,) within four days after such notice; 
 but if exception be taken in vacation time, and notice thereof given in like 
 manner, the defendant shall perfect his bail, and justify the same, upon 
 the first day of the subsequent term, unless the plaintiff, his attorney or 
 clerk in court, shall consent to a justification before one of the barons of 
 this court, in which case the bail shall justify themselves before one of the 
 barons, mth'm four days after notice of such exception in writing given to 
 the defendant, his attorney or clerk in court : and in default of the de- 
 fendant's justifying his bail, in either of the said cases, the plaintiff shall 
 be at liberty to proceed on the bail bond." Notice of exception is not en- 
 tered, in this court, on the bail-piece, but is given on a separate paper, to 
 the defendant's attorney or clerk in court, within the twenty days; except 
 when the twentieth day falls on Sunday, in which case the exception may 
 be made on the following dsij.{f/) 
 
 By the statute 4 & 5 W. & M. c. 4, § 2, " the justices of the courts of 
 King's Bench, &c. shall make such rules and orders, for the 
 *justifying of such bails as are taken by a commissioner in the [ *258 ] 
 country, and making of the same absolute, as to them shall seem 
 meet ; so as the cognizor or cognizors of such bail or bails be not com- 
 pelled to appear in person in the said courts, to justify him or themselves ; 
 but the same may, and is thereby directed to be determined by afiidavit 
 or affidavits, duly taken before the said commissioners, who are thereby 
 empowered and required to take the same, and also to examine the sure- 
 ties upon oath, touching the value of their respective estates ; unless the 
 cognizor or cognizors of such bail do live Avithin the cities of London and 
 Westminster, or within ten miles thereof." And by the rules of all the 
 
 (6) Barnes, 88. (cc) 1 II. Blac. 80, 106. 1 Chit. Rep. 174, (a). 
 
 [dd) 2 H. Blac. 35. 
 
 (e) 1 New Rep. C. P. 139. 2 H. Blac. 35, semb. contra. 
 
 (/) R. T. 26 & 27 Geo. 11. ^ 1, in Scac. Man. Ex. Appcn<l. 209. 
 
 {</) 7 Durnf. & East, 20. 
 
 Vol. I.— 17
 
 258 
 
 OF SPECIAL BAIL. 
 
 courts, " every commissioner is required to have a book, kept purposely 
 for entering exactly the names of the defendant and his bail, and of the 
 plaintiff, as it is in the bail-piece, and the time of the taking thereof, and 
 the name of him by whom such bail shall be transmitted;" and also, in 
 the King's ]iench and Exchequer, the name of the attorney for the de- 
 fendant: and the plaintiff's attorney shall be at liberty to repair to the 
 commissioner's book, for the names of the bail, to the end that he may in- 
 quire of the sufficiency of them ; and if they are found insufficient, he may 
 except against them, within twenty days after the said bail is transmitted, 
 and notice to the plaintiff or his attorney of the taking thereof: and in 
 that case the defendant must either put in better bail, or the cognizors of 
 such bail must justify themselves in open court, either by affidavit taken 
 before such commissioner that took the said bail, or by oath made in court, 
 or before one of the judges of the said courts respectively.(a) 
 
 When the bail already put in do not mean to justify, others should be 
 added, before a judge, on the bail-piece by hill, or in the filacer's book by 
 original, in the King's Bench ; or, in the Common Pleas, with the filacer 
 or his clerk, within the time allowed for their justification : and if there 
 be not time enough, the defendant's attorney may take out a summons, 
 and obtain an order for further time. (6) The summons in such case, if 
 made returnable before the time allowed for justifying bail has expired, 
 will operate as a stay of proceedings. (c) It seems that, generally speak- 
 ing, bail are not in a condition to make any motion to the court, until 
 they have justified. (c?) And when bail are excepted to, they are consi- 
 dered as no bail, unless they justify ;(e) and if they do not justify, the 
 court will order their names to be struck out of the bail-piece :(/) But 
 until this be done, they are liable to be proceeded against :[g) and if it be 
 not done until after proceedings have been had against them, they must 
 pay the costs of such proceedings. (A) It should also be observed, that 
 one who is bail, being interested, cannot be a witness in the cause for his 
 principal ; nor is the wife of bail competent to give evidence for 
 [ *259 ] the defendant, on *whose behalf her husband became bound •.{aa) 
 and therefore, if the defendant be likely to have occasion to 
 examine one of his bail as a witness, he must make an affidavit that such 
 bail will be a material witness for him in the cause ;{hh) and thereupon 
 move the court for a rule to show cause, why his name should not be 
 struck out of the bail-piece, on adding and justifying another in his stead; 
 which the courts will order, on an affidavit of service, if no sufficient cause 
 be shown to the contrary. (<?(?) And where one of the sureties in a replevin 
 bond was a material witness in the cause, the court granted a rule for sub- 
 stituting another surety in his place, upon giving the defendant's attorney 
 notice of such xv\Q.{dd) 
 
 Previous to the justification of bail, there should be a notice, setting 
 
 (a) R. T. 8 W. in. reg. 3, § 4, 5, K. B. R. 10 March. 5 W. & M. | 4, 5, C. P. 1 Burt. 
 128, 9. Man. Ex. Pr. 106, 7, in Scac. 
 
 {b) 1 Cromp. 3 Ed. 62, 84, &c. (c) 6 Taunt. 240. 
 
 {d) n Durnf. & East, 226. (e) 7 East, 580. 
 
 (/) Say. Rep. 58. 1 Wils. 337, S. C. 1 Ken. 382. 
 
 lo) 1 Ken. 382. Say. Rep. 308, 9, S. C. 1 Taunt. 427. 
 
 (A) 1 Blac. Rep. 462. 4 Bur. 2107. 7 East, 581. 
 
 \aa) 8 Dowl. & Ryl. 65. (bb) Barnes, 69. 
 
 {cc) 2 Chit. Rep. 103. Whatley v. Fearnlcij, E. 33 Geo. III. C. P. Imp. C. P. 7 Ed. 128 ; 
 and see 1 Phil. Evid. 6 Ed. 127, 8. 
 
 (^dd) 1 Bing. 92. 7 Moore, 439, S. C.
 
 OF SPECIAL BAIL. 250 
 
 forth that the bail ah'cady put in will, on a certain day, justify themselves 
 in open court ;{ee) or that one or more persons will l)o added, and justify 
 themselves as good bail for the defendant. (/f' )[a] This notice should be 
 l)YO'pcr\j eiititled ; and therefore in an action at the suit of Uvo, if the 
 notice of justification and reco;:^nizance of bail are at the suit of one only, 
 the bail may be treated as a nullity :(///y) But it is no objection to the 
 notice of justification, that it states that two were added bail, when in 
 point of fact one only was added, (ZiZ!) In the King's Bench, the notice 
 of justification should regularly contain the christian and surnames of 
 the bail,(«) and also, in the case of added bail, their additions ;(/(:) but this 
 does not seem to be necessary, in the case of justifying bail already put 
 in, mIioso additions must have been before inserted in the notice of bail.(?) 
 The same distinction was formerly observed in the Common Pleas :(m) 
 But by a late rule of that court,(n) "in every case wherein the same bail 
 have been already put in, or wherein other bail are intended to be added 
 to the original bail put in, the names and descriptions, or name and 
 description, of such same original bail intended to justify, or added bail 
 to be put in and justify, shall be inserted in every ncftice of such same or 
 added bail to be justified, or to be put in and justified, pursuant to such 
 notice ; and that m default thereof, in either of the cases aforesaid, no 
 rule for the allowance of such same or added bail shall be drawn up." If 
 the bail were put in before a commissioner, the notice should express that 
 they will justify themselves hy affidavit :{o) And, except where the defend- 
 ant is a prisoner,( j;) it cannot be given by a new attorney, without an 
 order for changing the attorney before employed. (^) In the 
 King's Bench, Avhen *thc bail already put in intend to justify, [ *2G0 ] 
 one day's previous notice of justification, or notice for the next 
 day, is deemed sufficient ;{a) unless iSimdrn/ intervene, and then notife 
 must be given on Saturdaij for Monday. But where other bail are added 
 to those already put in, there must be tu'o days' previous notice of justi- 
 fication, one inclusive and the other exclusive, as Monday for Wedncs- 
 day,{b) or, if Sunday intervene, Saturday for Tuesday^ &c. In the Com- 
 mon Pleas, tivo days' notice of justification must be given, as well where 
 the bail already put in intend to justify, as in the case of added bail.(c) 
 And Sunday is not reckoned a day for this purpose : therefore, notice of 
 added bail on Saturday for Monday is not sufficient. (tZ) If the time 
 
 {ce) Append. Chap. XII. | 25. 
 
 (/) Id. I 26, 7. {uo) 2 Chit. Rep. 77. (hh) Id. 86. 
 
 (;) T(i>/lorv. Halliburion, M. 55 Geo. III. K. B. 1 Chit. Rep. 351, (a), 494, in noils. 9 
 Moore, 579, 80. 
 
 (k) 1 Chit. Rep. 351, (a). 
 
 (I) Imp. K. 15. 10 Ed. 127. Archb. Forms, 50. 
 
 (vi) 1 Bos. & Pul. 335. 9 Moore, 579, 80. 
 
 (fl) R. M. 7 Geo. IV. C. P. 4 Bing. 51, 2. (o) Append. Chnp. XII. ^ 25. 
 
 (p) 1 Chit. Rep. 291 ; and see id. 88, 329. 2 Chit. Rep. 93. 
 
 (q) Per Cur. M. 24 Geo. III. K. B. 
 
 (a) Wriffht v. Let/, II. 15 Geo. III. K. B. 
 
 {b) Per Cur. M. 21 Geo. III. K. B. 9 East, 435. 1 Chit. Rep. 308. 
 
 (c) Barnes, 82, 88. 2 Bos. & Pul. 30. 1 Marsh. 322. 
 
 \d) Case of Overton's bail, M. 2G Geo. III. K. B. Imp. K. B. 10 Ed. 129. Barnes, 303. 
 
 [a] In bail to the action, the plaintilTis entitled to two persons if he rciiuiro it. Lang v. 
 Billing^, Mass. 480. Kicc v. Ilosmcr, 12 lb. 130. Wendozer v. Ball, Coleman, 44. But if one 
 real and one fictitious person be given, or two who are insufiicicnt, the bail piece does not 
 become thereby a nullity. Caincs v. Hunt, 8 Johns. 358. Ferris v. P/iclps, 1 Johns. Cas. 249.
 
 260 
 
 OF SPECIAL BAIL. 
 
 allowed for justifying expire on a day in term, which happens to be 31{d- 
 suinnier day, or any other hol3Mlay when the court does not sit, the notice 
 of justification, in the King's Bench, should be for the day they ought to 
 justify, to prevent an assignment of the bail bond ; and the bail may jus- 
 tify the next day as a matter of course :{e) but, in the Common Pleas, the 
 notice ought to be given for the bail to justify on the following day.(/) 
 In the Exchequer, the clerk in court must sign all the proceedings : It is 
 not sufBcient that it be done by the attorney or agent :(^) Therefore, bail 
 in that court were not allowed to justify, when the notice of justification 
 was signed by a person describing himself as the defendant's agent, not 
 being an attorney of the Exchequer, or clerk in court. (7t) And a notice 
 to justify bail on a day on which the court sits in equity, is holden to be 
 a bad notice. (t) 
 
 When bail above is put in, and exception entered in vacation, the defend- 
 ant's attorney, in the King's Bench, must, mth'm four days after the excep- 
 tion, give notice of justification of the same bail for the first day of the next 
 term ; or the plaintiff may take an assignment of the bail bond ;[k) It is not 
 necessary, however, that the sa^ne bail should justify; the rule of court(Z) 
 requiring, that if the exception be entered in vacation, and notice thereof 
 given, the bail put in, or other additional bail shall justify on the first day 
 of the subsequent term : and therefore, where bail were excepted to in vaca- 
 tion, and the defendant gave four days notice of justication for the first 
 day of the next term, but ttvo days before that time gave notice of added 
 bail, the court of King's Bench held, that the latter bail were entitled to 
 justify.(m) In the Common Pleas, notice of justification may be given at 
 any time in vacation, so as there be tivo days notice before the 
 [ *2G1 ] first day of the next term :(?i) And, in that court, two days no- 
 tice of bail is *not required on an attachment, but reasonable 
 notice is sufficient. (a) In the Exchequer, when an exception is entered in 
 vacation, notice of justification for i\iQ first day of the ensuing term, must 
 be o-iven within four days after such exception ;(6) and the bail cannot regu- 
 larly justify at chambers in vacation, without consent, except in the case 
 of a prisoner. (c) 
 
 The notice of justification of bail, like the notice of putting it in,(c?) 
 must be personally served, either upon the plaintiff's attorney, or upon 
 some clerk or servant in his office.(^e) And service of the notice of justifi- 
 cation on the master of a house, in which the attorney had an office, is not 
 sufficient, unless some privity be shown to exist between them.(^) But if 
 an attorney be not at chambers in office hours, service on a person with 
 whom his papers are directed to be left, is deemed sufficient :{gy) and notice 
 of justification may be stuck up in the King's Bench office, for the plain- 
 tiff's attorney, who had no known place of residence or business. (/Ji) This 
 notice must have been formerly served before te7i o'clock at night, in the 
 
 (e) Per Master Forster, T. 45 Geo. III. K. B. 
 
 (/) 8 Moore, 528. 1 Bing. 430, S. C. 10 Moore, 95. 2 Bing. 440, S. C. 
 
 (</) 2 Chit. Rep. 84. (/*) 9 Price, 148. (?) 2 Chit. Rep. 84. 
 
 {/(•) 9 East, 434. 1 Sel. Pr. 2 Ed. 153, accord. 
 
 (I) R. E. 5 Geo. II. reg. 1, K. B. 
 
 (Ill) 1 Chit. Rep. 4. 2 Chit. Rep. 84. 1 Dowl. & Ryl. 7. 
 
 («) Barnes, 101. 
 
 (a) 2 Blac. Rep. 1110. (6) Man. Ex. Pr. 103. (c) 1 Price, 2. 
 
 ((/) Ante, 255. (ee) 1 Chit. Rep. 78. ( /) 2 Chit. Rep. 88. 
 
 Iffl/) Id. 87. [hh) Id. 89.
 
 OF SPECIAL EAIL. 261 
 
 King's Bench ;(i) or 7ihie o'clock at night, in the Common Plcas.(^) And, 
 in the former court, it was hoklcn, that an ufli(hivit that the office door was 
 shut, and the notice left there, before ten o'clock at night, would not suf- 
 fice,{Z) unless the plaintiff's attorney had afterwards acknowledged the 
 receipt of it,(??z?«) and that service of the notice of justification after ten 
 o'clock was bad, though the person on whom it was served read, or even 
 retained it. {nn) ]>ut where notice of bail was served in due time, by leav- 
 ing it at the office of the plaintiff's attorney, who returned it the next day 
 in a letter, saying that he should not accept the notice, because he had 
 taken an assignment of the bail bond, but the letter did not state the time 
 when the notice was received, this was deemed a sufficient acknowledgment 
 to render the service of the notice effectual. (o) And now, it is a rule in 
 all the courts, (^>) that, "every notice for justifying bail in pirson, shall be 
 served before before eleven o'clock in the forenoon of the day on which, 
 according to the present practice, such notice ought to be served ; except 
 in case of an order of the court for further time, in which case it shall be 
 sufficient to serve the notice befere three o'clock in the afternoon of the 
 day on which such order shall be granted : and in all the cases aforesaid, 
 the affidavit of service shall specify the time of day at which notice shall 
 be served." This rule, however, does not seem to apply to country bail, 
 ■who are justified by affidavit. 
 
 *The court in which bail are added and justified, in the King's 
 Bench, (commonly called the hail court.) is now usually holden [ *2G2 ] 
 before one of the juilges of that court, in pursuance of the statute 
 57 Geo. III. c. 11, by which it is declared to be lawful " for any one of the 
 judges of the King's Bench, when occasion shall so require, to sit apart 
 from the other judges of the same court, in some place in or near to West- 
 minster hall, for the business of adding and justifying special bail, in causes 
 depending in the same court, whilst others of the judges are at the same 
 time proceeding in the dispatch of the other business of the same court in " 
 bank, in its usual place of sitting for that purpose in Westminster hall ; 
 and the proceedings so had by and before such one of the judges, so sit- 
 ting apart for those purposes, are made as good and effectual in the law, 
 to all intents and purposes, as if the same were had before the court 
 assembled and sitting as usual, in its ordinary place of sitting in Westmin- 
 ster hall." In the Common Pleas and Exchequer, there is no distinct or 
 or separate court for the justification of bail. 
 
 It was formerly a rule, (a) made in consequence of the obstruction of ac- 
 cess to Westminster hall during Mr. Hastimjs's trial, that the court of 
 King's Bench should sit in Serjeant's Inn hall, every morning during 
 term, from half past ei[/ht o'clock till ten, for the purpose of taking justifi- 
 cations of bail, and hearing motions of course, and discharging insolvent 
 debtors; and that it should adjourn on Mondays, Fridays, and Saturdays, 
 from Serjeant's Inn to Westminster hall, to transact the usual business, 
 
 (t) R. M. 41 Geo. III. K. B. 1 East, 132. 1 Chit. Rep. 77, (a). 
 
 (k) R. E. 10 Geo. II. C. P. 1 Chit. Rep. 77, (a). 
 
 (l) 1 Chit. Rep. 78 ; and see id. 76, (a), 79, 100, 294. 
 
 (mm) Id. 77, 100, 294. (nn) 2 Chit. Rep. 88. 
 
 (o) 1 Chit. Rep. 77, (b),per ITolrot/d, J., but see 3 Taunt. 234. 
 
 (p) R. T. 59 Geo. III. K. B. 2 Barn. Aid. 818. 1 Chit. Rep. 756. 2 Chit. Rep. 374, 5. 
 R. M. 60 Geo. III. C. P. 4 Moore, 2. 1 Brod. & Bing. 469. R. T. 59 Geo. III. E.xcheq. 8 
 Price, 500 ; and see 5 Moore, 472, 3, as to the service of the continuance of notice of bail. 
 
 (a) R. E. 28 Geo. III. K. B.
 
 2(52 OF SPECIAL BAIL. 
 
 except the justifying of bail and discharging insolvent debtors, which busi- 
 ness was directed to be transacted entirely at Serjeant's Inn hall ; and it 
 was ordered, that the bail should attend before half past nine, and that if 
 they did not, they should not be permitted to justify. This rule was 
 repealed by a subsef|uent one,(6) ordering, that the sittings of the court in 
 Serjeant's In7i hall, should be discontinued ; and that the business there 
 transacted should be done in the court of King's Bench at Westminster, 
 where one of the judges would sit, during term-time, every morning at half 
 past nine o'clock, for the purpose of taking the justification of bail, and dis- 
 charging insolvent debtors ; and it was directed, that no bail should be per- 
 mitted to justify after ten o'clock : And accordingly, when the bail court 
 was established, Mr. Justice Bayley, sitting in that court, directed it to be 
 understood in future, that bail intended for justification, must be in West- 
 minster hall, by half past nine o'clock in the morning ; and that if the 
 bail were not ready, and the papers delivered to counsel by ten o'clock, no 
 bail would be taken after that hour.(c) 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, 
 [ *263 ] bail are still allowed to justify, as formerly, in full court, at its *rising, 
 
 whether by affidavit or otherwise. In the Common Pleas, it is a 
 rule,(aa) that "bail shall justify at the sitting of the court only, and at no 
 other time, 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." And, in the Exchequer, the junior 
 baron attends in court alone, a few minutes before ten o'clock, every morn- 
 ing during term, for the purpose of taking the justification of bail, and 
 such motions as are merely of course ; and it is expected that all such 
 matters should be then brought on, in order that they may be disposed of 
 before the court is full, that they may not interfere with the more import- 
 ant business.(5o) This, however, does not extend to the justification of 
 bail by affidavit. (cc) But no bail will be permitted to justify in person, 
 unless they are in attendance, and counsel instructed, by half past ten 
 o'clock at the latest. (t^) 
 
 The justification of bail is either in person or by affidavit. When the 
 bail are put in before a judge in town, whether by bill or original, they 
 must personally appear in court ; or, by consent, (^) before a judge at his 
 chambers: and in order to justify themselves, must swear that they are 
 housekeepers, or freeholders, and, if more than tivo, that they are respec- 
 tively worth double the sum sworn to, or 1000?. beyond that sum, if it 
 exceed 1000?., (/) after all their debts are paid, or over and above all 
 
 {b) R. T. 35 Geo. III. K. B., which rule was directed by that of H. 46 Geo. III. K. B., to 
 be strictly attended to. 
 
 {c) H. 59 Geo. III. K. B. ; and see 1 Chit. Rep. 1, {a). 
 
 [cia) R. M. 51 Geo. III. C. P. 3 Taunt. 5G9. 2 Chit. Rep. 378 ; but see 8 Taunt. 56, 
 where bail were permitted to justify, under particular circumstances, at the rising of the 
 court, before the last day of term. 
 
 {bb) 8 Price, 612 ; and see R. E. 46 Geo. III. in Scac. 2 Chit. Rep. 381. 2 Price, 327. 4 
 Price, 155. 2 Chit. Rep. 94. 
 
 (cc) 3 Price, 35. (d) 9 Price, 57. 
 
 (e) 6 Mod. 24. R. E. 5 Geo. II. reg. 1, (b), K. B. 
 
 (/) R. M. 51 Geo. III. K. B. C. P. & Excheq. Ante, 251.
 
 OF SPECIAL BAIL. 263 
 
 debts or demands due from them to any person or persons whomsoever ;(^) 
 it not he'mcr sufTicicnt for bail to swear they are worth a certain sum, exclu- 
 sive of their debts. ()^) Bail put in before a commissioner must justify 
 themselves in the same manner, where they live in London or Westmin- 
 ster, or within ten miles thereof :(i) But where they live at a greater dis- 
 ta,nce, they may be justified without their personal attendance, by affida- 
 vit^ duly taken before the commissioner, of their being housekeepers, 
 kc.;{k) and they may be so justified, though the defendant has been 
 arrested in London, in a town cause ;(^) nor is it necessary that, in bail 
 by affidavit, both the bail should justify l3cforc the same commissioner.(wt) 
 The alhdavit of justification must state the addition of the degree or mys- 
 tery, as well as the names and places of residence of the bail ;(?i) and it 
 is usually annexed to the bail-piece, and a copy of it delivered 
 to the plaintift"s attorney, at the time of giving him *notice of [*2G4] 
 the bail-piece being filed; after which, if an exception be entered, 
 which seldom happens, the affidavit must be produced and read in court as 
 a justification, upon notice given thereof, and an affidavit of the service 
 of such notice. An affidavit that A. and B. and each of them, were 
 worth double the sum sworn to in the affidavit to hold to bail, exclusive of 
 all debts due to any other person, is sufficient.(a) And the affidavit of 
 justification need not be sworn before the same commissioner, as the affi- 
 davit of taking the bail. (66) In the Exchequer, the affidavit of justifica- 
 tion of country bail ought to be taken before the bail commissioner ; and 
 the affidavit of caption, before a commissioner for taking affidavits, or the 
 baron to whom the bail is transmitted. (<?) 
 
 When the bail are to be justified in court, an affidavit must be made of 
 the service of notice of justification ;{d) which should state the manner in 
 which the notice of justification was served.(e) And where the notice of 
 justification was served, and affidavit of the service thereof made, by dif- 
 ferent attorneys, without a rule to change the former attorney, the bail 
 were rejected.(/) This affidavit should be properly entitled :{gg) and is 
 delivered to counsel in the King's Bench, or a serjeant in the Common 
 Pleas, with a brief or motion paper, indorsed "to move to justify the 
 within bail:" And at the time appointed by the notice of justification, 
 they are allowed to justify, if present, as a matter of course ; unless they 
 are opposed by counsel vivd voce, or, if taken before a commissioner, upon 
 cross affidavits. (/Jt) If bail are to be added, they ought to attend for the 
 purpose, in the King's Bench, before the judge goes into the bail court, 
 otherwise they are themselves delayed, and the business is impeded : and 
 care should be taken, in actions by hill, to have the bail-piece in court, 
 otherwise the bail cannot justify :(i7) In actions by original, the filacer 
 attends with his book. And when bail are opposed in two actions, they 
 must be opposed in each separately.(/cA;) In the King's Bench, opposition 
 
 (</) R. T. 8 W. IIL reg. 3, § 5, (c). R. E. 5 Geo. II. reg. 1, (i), K. D. R. E. 33 Geo. III. 
 in Scac. Man. Ex. Append. 217. 
 
 (A) 4 Taunt. 704. (,) Stat. 4 & 5 W. & M. c. 4, § 2. 
 
 {k) Id. ihid. R. T. 8 W. III. rcg. 3, g 5. R. E. 5 Geo. II. reg. 1, (6), K. B. : and see 
 Append. Chap. XII. g 30. 
 
 {I) 5 Price, 13. 
 
 (m) 2 Chit. Rep. 91. Ante, 250. (n) 1 Chit. Rep. 292. 
 
 (a) 2 Chit. Rep. 95. • (W) Id. 9i. 
 
 (c) 1 M'Clei. & Y. 149. (d) Append. Chap. XII. 3 28, 9. 
 
 (e) 1 Chit. Rep. 43, 77, 8, 9, 100. Ante, 2Q\. {/) 2 Chit. Rep. 37. 
 
 {gg) 1 Chit. Rep. 1. Ihh) Append. Chap. XII. ? 31. 
 
 (it) 2 Chit. Rep. 83. [kk) Id. 94.
 
 2(54 OF SPECIAL BAIL. 
 
 to bail must be before justification; and a mistake of counsel, in not 
 opposing in time, will not be a ground for being afterwards permitted to 
 examine them.(Z) So, in the Common Pleas, if bail justify, without the 
 observation of counsel instructed to oppose them, the court will not require 
 them to come up again, and justify de novo.[ni) 
 
 The common grounds of opposing bail are first, that there is some 
 defect in the hail-piece. But where the bail piece was not entitled of the 
 court, or in the cause,(7?) or it did not appear thereby, that the person 
 before whom the bail was taken was a commissioner,(o) time was given, in 
 the King's Bench, to amend the defect. And when bail has been 
 [ *265 ] put in by a *wrong name, a misnomer in the bail-piece may be 
 amended, if the bail be rightly named in the notice. (a) 
 
 Secondly, It is a good ground of opposition, that there is some defect in 
 the notice of bail ; which should truly and accurately describe the persons 
 intended to justify, so that the plaintiiFmay not be misled: and therefore, 
 where one of the bail was described as the housekeeper, and it turned out 
 that his father was really the occupier of the house, the bail court would not 
 permit him to justify, nor grant time to add and justify another, without an 
 affidavit repelling all intention to mislead.(6) So, notice given of bail as put 
 in before one judge, when in fact they were put in before another, is irregu- 
 lar :(cc) And, in the King's Bench, any material defect in the notice of bail, 
 as that it is not properly entitled,(tZcZ) or that it does not set forth with truth 
 and certainty, the names, (e?) places of abode, (^)and degrees or mysteries(^^) 
 of the bail, Avill be a good ground for opposing them ; provided it be verified 
 by afiidavit, that the defendant's attorney has not from that cause been 
 able to find them, and make the requisite inquiries into their sufiiciency : 
 But where that is not the case, and there is no ground to suspect fraud, 
 objections of this sort are in general overruled, or the court will give time 
 to correct them. 
 
 Thirdly, Bail may be opposed, on account of some defect in the/orm, or 
 irregularity in the service of notice of justification ; or in the affidavit of 
 such service. (7i) In the King's Bench, we have seen,(i) the christian and 
 surnames of the bail should regularly be inserted in the notice of justifi- 
 cation, as well as in the notice of their being put in:(Z:) And it is a good 
 ground of rejection, that one of the bail referred to in the notice, as the 
 bail put in before, is described by a diiferent christian name from that 
 which was before given him.(/Z) But it is no ground for rejecting bail, 
 that the plaintifi"'s and defendant's names are transposed, in the notice of 
 justification. (ww) It is said, that the notice of justification ought to con- 
 tain the addition of the bail:(w?i) but this, it is conceived, only applies to 
 
 (/) 1 Chit. Rep. 83 ; but see 2 Chit. Rep. 98, semb. contra, 
 {m) 4 Taunt. 666. {n) 1 Chit. Rep. 79. 
 
 (o) Id. 9. 
 
 (a) 1 Bos. & Pul. 31. 4 Moore, 65; and see 1 Price, 385. 2 Chit. Rep. 81. Ante, 252, 3. 
 {b) 1 Chit. Rep. 88. {cc) 2 Chit. Rep. 109. 
 
 {(Id) LoflFt, 237. [ee) Id. 187. 1 Moore, 126; but see 4 Dowl. & Rjl. 30. 
 
 (/) Lofft, 72, 195 ; and see 1 Chit. Rep. 492, 3, 4. Ante, 253, 4, 5. 
 {gg) Lofft, 187, 281 ; and see 2 Taunt. 173, 4. 1 Chit. Rep. 494, in notis. 
 (h) Ante, 2Q4:. (i)Ante,2bQ. 
 
 [k) Taylor v. Halliburton, M. 55 Geo. III. K. B. 1 Chit. Rep. 351, («), 494, in notis. 9 
 Moore, 579, 80. , 
 
 {U) 1 Chit. Rep. 494, in notis. 
 {mm) 2 Chit. Rep. 86. 
 {n)i) Id. 351, [a).
 
 OF SPECIAL BAIL. 265 
 
 added bail ; for it seems that, in the King's Bench, when the same bail 
 are regularly put in and excepted to, the defendant need not describe 
 them in his notice of justification. (o) And wliere the notice of justifica- 
 tion did not state the addition of the bail, but described him, contrary to 
 the fact, as bail of whom notice had before been given, time was allowed 
 to justify, on condition that the defendant should produce an 
 affidavit that the error was accidental. (^j) In the *Common [ *266 ] 
 Pleas, we have seen(a) that, by a late rule of court, the names 
 and descriptions of the original, or added, bail must in all cases be in- 
 serted in the notice of justification. And bail by aflidavit were rejected 
 in that court, on the ground that one of them was described in the notice 
 of justification as J. M. generally but in the affidavit of justification, as J. 
 M. the younger.(6) But, previously to the above rule, where bail had 
 been misnamed in the notice of justification, and was sworn accordingly, 
 the court of Common Pleas permitted him to justify, on his swearing that 
 he had sufficient property; it appearing that he had been found by the 
 party inquiring after him, with reference to his becoming bail :((•) And 
 the want of a description in the notice of justification of bail already put 
 in, was holden to be waived by the plaintift's having excepted to them; as 
 he must have seen, when he entered his exception in the filacer's book, 
 where the bail lived, so as to give him an opportunity of inquiring after 
 thera.((/) When there is a wrong christian name in the notice of justifi- 
 cation, the bail court will allow time to amend and justify :(e) And where, 
 in the case of bail by affidavit, the name of the bail were omitted in the 
 notice of justification, through the neglect of the attorney in the country, 
 the court gave two day's time to serve fresh notice, there being no sug- 
 gestion that the omission was for the purpose of delay,(/) But the bail 
 court will not allow time to correct a misnomer, in the notice of justifica- 
 tion of bail by habeas corpus.{g) In the King's Bench, notice of justifi- 
 cation by three bail, has been holden good ;(A) though it is otherwise in 
 the Common Pleas :(z) but notice that A. B. and C, or tivo of them, will 
 justify, is irregular. (/c) And, in the latter court, special bail are allowed 
 to justif}'-, although they did not actually become bail, before the notice of 
 their justification was delivered to the plaintifi"s attorney or agent, (/) 
 
 It has been already shown, in what manner the notice of justification 
 should be served :(??i) and if the service of such notice, or the affidavit 
 thereof, be defective, the bail will be rejected ; unless time be askctl by 
 counsel to rectify the mistake, which is in general granted, on condition 
 of putting the plaintiff in the same situation as he Avould have been in, if 
 the mistake had not happened. Indeed, this is quite a matter of course, 
 if the bail be not opposed, and the objection arise from a mere mistake or 
 clerical error, as where the aflidavit of service is not properly entitlcd.(7j) 
 
 (o) Imp. K. B. 10 Ed. 127. Arclib. Forms, 50. Ante, 259. 
 {p) 2 Chit. Rep. 86. (a) Ante, 259. 
 
 (6) 5 Taunt. 854. 1 Marsh. 386, S. C. (c) 7 Moore, 282. 
 
 \d) 1 Taunt. 17, 18. (e) 1 Chit. Rep. 351, (a). 
 
 {f)Id.2b\. {ff)Id.1G. 
 
 (A) LofiFt, 26. Forrest, 138. Wigbtw. 110. Ante,245. 
 (t) 2 Blac. Rep. 1122. 1 Chit. Rep. 601, 2, (a). Ante, 245. 
 {k) Lofft, 26. 
 
 (/) R. M. 37 Geo. III. C. P. 1 Bos. & Pul. 6G0. R. M. 18 Geo. lU. C. P. IH. Blac. 291, 
 contra. 
 
 (m) Ante, 2G1. (n) 1 Chit. Rep. 1.
 
 20(3 OP SPECIAL BAIL. 
 
 And where there were tivo different notices of justification, one being of 
 added bail, and the affidavit of service did not designate which of the 
 notices had been served on the plaintiff's attorney, it was holden that the 
 affidavit was defective and must be amended and re-sworn, before the bail 
 
 could justify. (o) An *affidavit however, of the service of notice 
 [ *267 ] of justification, wherein the deponent was described by mistake 
 
 as agent for the plaintiff, instead of the defendant, was allowed 
 to pass conditionally, provided, before the rule for allowance should be 
 draAvn up, a fresh affidavit was filed, in which the mistake should be cor- 
 rected. (a) 
 
 Fourthly, When bail are taken before a commissioner, they may be op- 
 posed on account of a defect in the affidavit of caption, or justification : 
 And an affidavit of justification, stating the names and places of residence of 
 the bail, without the addition of their degree, has been deemed insufficient ;{b) 
 but time was allowed to amend the affidavit :(5) And the like indulgence 
 was given, where one of the bail was named Lloyd, with a double LI in the 
 notice of bail, and Loyd with a single L in the affidavit of justification. (c) 
 In the King's Bench, where the same persons are bail in more actions than 
 one, it is sufficient for them to swear, in the affidavit of justification in each 
 action, that they are worth double the amount of the sum sworn to in that 
 action, afterpayment of all their just debts ;((/) but, in the Common Pleas, 
 each affidavit ought to state, that they are worth double the amount of the 
 debts, in all the actions wherein they offer to become bail ;(e) unless where 
 actions are brought against different parties, on the same bill of exchange or 
 promissory note ;(/) And, in the Exchequer, where one indorser had be- 
 come bail for another, on the same bill, and both of them were also bail in 
 other actions, the court held, that they ought to swear themselves worth 
 double the sum sworn to, over and above all, their just debts, and the sums 
 for which they had justified in the other actions ; and the bail, who was an 
 indorser, should also have included in his affidavit, the amount of the bill on 
 which the action was brought. (^) An affidavit of the caption, or justifica- 
 tion of country bail must state, in the jurat, the names of all the depo- 
 nents,(7i) and the place at which it was sworn :(^') but time will be allowed 
 to amend the defect. (z) It is said, however, that on bail by affidavit, time 
 will not be given to amend a mistake in i\\e jurat, occasioned by the error 
 of the commissioner in the country, unless the defendant produce an affi- 
 davit of merits :(,^) And it is a rule, in these cases, that the defendant's 
 attorney must pay the costs of the amendment. 
 
 Fifthly, It is a good ground for opposing bail, that he is a peer of the 
 realm, or member of the house of commons ;(Z) or an attorney, or attorney's 
 clerk ;(?) or a sheriff's officer, or bailiff, or other person concerned in the 
 execution of process.(Z)[A] And where one of the bail was an attorney, 
 
 (o) Id. 43. (a) 1 Chit. Rep. 496, [a). [b) Id. 292. (c) Id. 495, 6. 
 
 {d) Per Grose, J., after referring to the Master, M. 42 Geo. III. K. B. 1 Chit. Rep. 305. 
 
 (e) 3 Bos. & PuL 39. 
 
 (/) 7 Taunt. 324. 1 Moore, 29, S. C. ; and see 1 Chit. Rep. 306, (a). 
 
 Ig) 3 Price, 261 ; and see 1 Chit. Rep. 306, {a). 
 
 (h) 11 Price, 509. 
 
 (i) 1 Chit. Rep. 10, 495 ; and see id. 495, (a). 1 Price, 662. 
 
 (k) 2 Dowl. & Rjl. 362 ; and see 2 Chit. Rep. 83, {a). (Z) Ante, 247. 
 
 [a] In Vermont, the sheriff may himself become bail, by indorsing his name on the back 
 of the writ in the manner required by statute. Meriam v. Armstrong, 7 Washb. 26. And in 
 North Carolina and Tennessee, where he lets a prisoner go at large without taking bail, or
 
 OF SPECIAL HAIL. 267 
 
 the bail court refused time to add and justify another ; holding, 
 that the ^defendant ought to have known that circumstance, he- [ *2G8 ] 
 fore notice was given. (tf) But an attorney or his clerk, ^ve have 
 secn,(<^) may he put in as bail, thougli he is n<jt in general allowed to jus- 
 tify : and an attorney who had not practised for sir years, has been per- 
 mitted to justify as bail.(t') So, the husband of a defendant, who had 
 married after the arrest, and before the return of the writ, has been allowed 
 to be bail.((/) 
 
 Sixthly, it is a rule in the Common Pleas,(g)and has become the settled 
 practice of the King's Bench, (/) that "no person shall be permitted to 
 justify himself as good and sullicicnt bail, if he shall have been indemnified 
 for so doing, by the attorney concerned for the defendant." Under this 
 rule, the court of Common Pleas rejected bail, who had received a verbal 
 promise of indemnity from the defendant's attorney, though they allowed 
 the defendant time to put in fresh bail:(^) In the King's Bench, bail was 
 rejected, where he was to receive a commission on the amount for which 
 he proposed to justify. (/t/i) And where it appeared, after bail had justified, 
 that money had been given to one of them for his trouble and loss of time 
 in coming up to justify, the court, though they did not set aside the allow- 
 ance of bail, imposed terms upon the defendant, of producing an affidavit of 
 merits, bringing the sum sworn into court, and taking short notice of 
 trial. (n) But it is no objection to bail, that they are indemnified by the 
 sherifi"8 o^cer,{kk) or a third person. "(/^) 
 
 Seventhly, One of the principal objections to bail is, that they are not 
 housekeepers, or freeJiolders.{m) And bail cannot justify as a housekeeper, 
 in respect of a house which he has taken, if prevented from obtaining pos- 
 session by a death in the family of the former tenant ;(») or who has ceased 
 to be a house-keeper, since he agreed to become bail:(o) nor the occu- 
 pier of a tap connected with a tavern, the license being taken out in the 
 name of the tavern-keeper ;(p) nor the occupier, under a lease of every 
 room in a house except one, which is reserved for his landlord, who pays 
 the taxes :{q) Also, bail was rejected, who had rented a house, and under- 
 let the same to another, who paid the taxes, and let the first floor to the 
 bail ; but the landlord refusing to accept the undertenant, the rent for the 
 Avhole house was paid by the latter to the bail, who paid it over to the 
 landlord.(r) If the bail however are housekeepers, the rent of their houses 
 is immaterial, though it be under ten pounds ;(8) nor is it necessary that 
 they should have been assessed to the poor s rate:(0 though bail have been 
 
 ((/) 1 Chit. Rep. 8. (h) Ante, 247. 
 
 (c) 1 Chit. Rep. T14, ((/). Ante, 247, (w). {'/) 2 Chit. Rep. 94. 
 
 (c) R. H. 37 Geo. III. C. P. 
 
 (/) Preston v. BunUey, M. 24 Geo. III. K. B. 
 
 ((/) 1 Bos. & Pul. 103 ; and see 8 Jloore, 51G. 1 Bing. 423, S. C. 
 
 \hh) 7 Dowl. k Ryl. 783. (») 2 Dowl. & Ryl. 253. 
 
 (kk) 1 Chit. Rep. 714, {a). (II) 1 Bos. & Pul. 21. 
 
 \m) 1 Chit. Rep. 7, 88, 144. Ante, 246. (n) 1 Chit. Rep. 288. 
 
 (o) Id. 6. (p) Id. 316. (q) Id. 502. 
 
 (r) Id. (a). (s) Lofft. 148. 
 
 (<) Id. 328. 
 
 takes a bail bond and does not assij^n it; or takes insufficient bail, and exception is made 
 thereto, it is said he becomes himself special bail. Hart v. Lanier, 3 Hawks. 244. Gray 
 V. Hoover, 4 Dev. 473. Sluart v. Fitzgerald, 1 Car. Law Reps. 236. MKrc v. Love, 2 Overt. 
 243. In New Hampshire, a deputy shcrilT may become bail. Plunimer v. Brewster, 2 New 
 Hamp. 473 ; but, generally speaking, the Knglish rule prevails. Coster y. Watson, 15 Johns. 
 535. Bailey v. Warden, 20 lb. 129. Craii/ v. Scott, 1 Wend. 35. Brown v. Lord, Kirby, 209.
 
 2G8 OF SPECIAL BAIL. 
 
 rejected, for not paying arrears of Icing's taxes. (m) In the Com- 
 [ *269 ] mon Pleas, the court allowed *a person to justify as bail, in re- 
 spect of a house kept by him and his partner, who carried on 
 business therein, where the rent and taxes were paid by them jointly, and 
 his partner resided in the house, though he lodged himself at a considera- 
 ble distance therefrom :(a) And where a person had taken a house, occu- 
 pied by several tenants or lodgers, from one of whom he had received 
 rent, he was holden to be qualified to justify as bail, although he had not 
 occupied the house himself.(Z>) The plaintifi" also, in that court, may 
 waive the qualification of the bail being housekeepers, &c. in which case 
 they only swear, in justifying, to the amount of their property. (c) In the 
 Exche(![uer, a person employed by the commissioners in the repair of 
 water-works, who was allowed a house to live in during the period of his 
 employment, for which he paid no rent or taxes, was permitted to justify 
 as bail.(f?) But a person living in lodgings in London^ was not allowed to 
 justify as bail, although he was a housekeeper in 8cotland.{e) Where a 
 bail has ceased to be a housekeeper, at the time he comes up to justify, 
 the bail court will give time to add and justify another in his stead :(/) 
 but where notice had been given of bail, one of whom was notoriously not 
 a housekeeper, and had refused to become bail on that ground, after he 
 had agreed to do so, the bail court refused time to add and justify ano- 
 ther.(^) 
 
 Eighthly, It is a good objection to the sufficiently of bail, that they are 
 not respectively worth double the amount of the sum sworn to, or 07ie 
 thousand pounds beyond that sum, if it exceed one thousand pounds, after 
 payment of all their debts. To this head may be referred banJcriqyts, who 
 have not obtained their certificates,(7i) or such as have been twice bankrupts, 
 and not paid fifteen shillings in the pound under the second commission, (e) 
 and insolvent debtors, discharged under the general insolvent act, who are 
 not allowed to be bail, until they have paid all their debts. (A") And a bail 
 who had been recently a bankrupt, was not permitted to justify, although he 
 swore that he had since acquired property, by the bounty of his friends, to 
 the requisite amount. (Z) So, where one of the bail admitted on examina- 
 tion that he was a certificated bankrupt, but had since been arrested, and 
 could not remember how often, but admitted that it was at least six times, 
 the court rejected both, and would not grant further time to add and justify 
 other bail.(?w) And a bail was not permitted to justify, who had recently 
 been bankrupt, and obtained his certificate, but did not know whether his 
 estate had paid any dividend ;(?i) or who could not say whether, during the 
 interval between his bankruptcy and certificate, he had or had not 
 [ *270 ] justified as bail.(o) But the bankruptcy is of itself an *objection, 
 when the party has obtained his certificate ;{aa) and an insolvent 
 
 (u) 1 Chit. Rep. 309. 
 
 {a) 1 Moore, 529; and see 8 Moore, 525. 1 Bing. 430, S. C. accord. 
 
 (b) 8 Moore, 365. (e) 5 Taunt. 174. 
 
 (d) 2 Price, 8 ; and see 1 Chit. Rep. 502. (e) 11 Price, 158. 
 
 {/) 1 Chit. Rep. 6 ; and see id. 288, 316. 11 Price, 158. 
 
 iff) 1 Chit. Rep. 7 ; and see id. 144. (A) Id. 9. Ante, 247. 
 
 (?) Mountain v. Wilkins, M. 21 Geo. III. K. B. Ante, 247. 1 Chit. Rep. 293. 
 
 {k) 1 Chit. Rep. 9; and see id. 143. Ante, 247. 
 
 (/) 2 Chit. Rep. 78. (m) 1 Chit. Rep. 3. 
 
 (n) Id. 288. (o) Id. 289. 
 
 {aa) 1 Chit. Rep. 9 ; but see id. 3.
 
 OF SPECIAL BAIL. 270 
 
 debtor discharged under the insolvent act, may l)e bail, after he has paid 
 all his debts.(i) 
 
 A bail has also been rejected, on the grouml of insiifTiciency, who ad- 
 mitted that he had been bail before, but did not know in how many 
 actions, or for what sums ;{c) or swore, that he did not know whether ho 
 had Keen arrested or not, during the space of two years ;{d) or who had 
 Buffered his father to receive parochial relicf,(t?) or his children to be in the 
 workhouse, without assigning a sufficient reason ;(/)or because his name was 
 on the book's of the King's Bench prison as a prisoner, and the action, 
 though supersedeable, was not actually superseded. (7) And it seems, that 
 when the court orders the bail to submit their property to inspection, in 
 order to ascertain its sufficiency to enable them to justify, the plaintiff may 
 cause it to be appraised by a broker.(/i) But it is no objection to bail, that 
 he had been transported thirty years before. (e) And it seems, that the cir- 
 cumstance of not knowing the defendant, being only a mark of suspicion, 
 may be explained away.(/c) So, it is no objection to bail, that thev are 
 liable asindorsersof the bill of exchange on which the action is browjht.{l) 
 But it is said to be a general rule, that so long as there are outstandmg dis- 
 honoured bills which are not renewed, nor the right of proceeding upon 
 them suspended, a person liable thereon cannot justify as bail.(??j) And a 
 bail was rejected, who had been liable to the sheriff in a former action, and 
 not excepted to, it appearing that his property was not sufficient for both 
 actions ;(n) though time was allowed to add and justify another bail.(/<) It 
 has been doubted, in the Common Pleas, whether it is a sufficient objection 
 to bail, that he lives within the verge of the court ;{oo) but it seems that 
 this, without other suspicious circumstances, such as his being much in 
 debt and the like, is not sufficient. (/>) In the case of bail by affidavit, 
 they will not be allowed to justify, if an affidavit be produced on the part 
 of the plaintiff, that they have declared themselves to be insufficient. (^) 
 
 Ninthly, Foreigners, it seems, are not admitted to be bail, merely in 
 respect of property abroad, which is not liable to the process of the court ;(r) 
 though it has been said, that merely having no property in England, is not 
 of itself a sufficient objection, without other auxiliary circumstances :{s) 
 And where one of the bail was a Portuguese, and owned a ship, 
 which *had for two years before traded between London and Por- [ *2T1 ] 
 tugal, and was then gone to Cadiz, whence she was expected to 
 return, and was insured in London; the court of King's Bench permitted 
 the bail to justify, although he did not swear to any effects in Etigland.{a) 
 So, bail have been allowed to justify, in respect of property consisting partly 
 of cash, and partly of a freehold house at Gibr altar. [bh) And the distinc- 
 
 (i) /rf. 116. 
 
 (c) Loflft, 72, 194. ((/) 2 Chit. Rep. 95. 
 
 \e)Id.1i. {f)Id.n. 
 
 Iff) Per Cur. M. 21 Geo. III. K. B. (h) 2 Chit. Rep. 80. 
 
 (t) Id. 98. (k) Id. 97, 8. 
 
 (/) 2 Bo3. & Pul. 526. 1 Chit. Rep. 287, 305. 
 
 (m) 2 Chit. Rep. 79. (n) Id. 287. 
 
 (oo) 2 Blac. Rep. 956, 7. (p) 1 Sel. Pr. 2 Ed. 161. (7) 1 Chit. Rep. 373, (a). 
 
 (r) 4 Bur. 2.^26, 7. Lofft, 34, 147. Forrest, 138. 1 Chit. Rep. 2a5. 
 
 Is) 1 Blac. Rep. 444. And see 2 Blac. Rep. 1323, 4, where a foreijjner, long domiciled in 
 En<jl(ind, and having properly abroad, was allowed to justify as bail for another foreigner. 
 
 (a) Colxnn V. Curltordi/, T. 22 Geo. III. K. B.; and see the case of WelsJ'ord'i bail, M. 57 
 Geo. III. K. B. 1 Chit. Rep. 286, in nnti.i. 
 
 (bh) 4 Maule k Sel. 173, per Dampier, J., on the authority of Chri.ilic v. Filleul, 2 Blac. Rep. 
 1323. 4 Maulc & iSel. 371, IS. P. per Buy!nj^ J. But the cases upon this subject being con-
 
 fy--^ or SPECIAL BAIL. 
 
 tion seems to be hct-ween foreigiiers and British subjects resident in this 
 country : The former are not allowed to justify, in respect of property 
 abroad ; but with regard to the latter, it is said that the circumstance of 
 their not having property in this country, subject to the process of the 
 court, constitutes no objection to their becoming bail.((?) 
 
 Lastly, it is a rule in the King's Bench, that " whenever two or more 
 notices of justification of bail shall have been given, before the notice on 
 which bail shall appear to justify, no bail shall be permitted to justify, with- 
 out first paying, or securing to the satisfaction of the plaintiff, his attorney 
 or agent, the reasonable costs incurred by such prior notices, although the 
 names of the persons intended to justify, or any of them, may not have 
 been changed, and whether the bail mentioned in any such prior notices 
 shall not have appeared, or shall have been rejected. "((7) Prior to the 
 above rule, which does not apply to country bail,(e) the costs of the former 
 oppositions were not allowed, although there had been three notices of justi- 
 fication, where one of the notices was merely of bail put in for the pur- 
 pose of a render.(/) And where, upon the removal of a cause by habeas 
 corpus from an inferior court, three notices were given of the sayne bail, to 
 justify in vacation, before different judges, the plaintiff had incurred the 
 expense of three oppositions, the bail court held that, on their appearing to 
 justify upon a, fourth notice, they had no authority to compel the payment 
 of the costs incurred in consequence of the former notices; though it might 
 be the subject of an application to the court, against the attorney, for vexa- 
 tious proceedings.(^) In the Common Pleas, bail were not permitted to 
 justify, till the costs of a former opposition were paid to the plaintiff, though 
 the defendant was in custody.(/i) But if bail are opposed and rejected, and 
 the defendant is surrendered on the next day, he may in that court justify 
 new bail, without paying the costs of the former opposition. (^■) And 
 [ *272 ] where the defendant refused to move that his bail might ^justify, 
 till they had paid certain costs, the court permitted them to justify 
 on their own motion. (aa) In the Exchequer, a too general description of 
 bail, although a sufficient ground for opposing their justification, is not of 
 itself enough to call upon the court to fix the defendant with the costs of 
 the opposition at the time ; but the consideration of costs will be reserved 
 till the bail justify.(65) 
 
 If the bail do not attend to justify at the time appointed, and no further 
 time be given, they are said to be out of court.((?c) But further time is 
 sometimes given, on the motion or suggestion of counsel, either to justify 
 the same bail, or to add and justify others. And it is a rule, in the King's 
 Beuchjidd) that " when a motion is made for further time to justify bail, it 
 
 tradictory, it must not (be observed,) be taken for granted, that a party can justify in re- 
 spect of property abroad, when he has no other property. Id. ibid. 
 
 (c) 1 Chit. Rep. 285, 6, (a). 
 
 (\/) R. H. 2 & 3 Geo. IV. K. B. 5 Barn. & Aid. 559. 2 Chit. 376. 1 Dowl. & Ryl. 196 ; and 
 see I Chit. Rep. 658. 3 Barn. & Aid. 759. 5 Barn. & Aid. 533. 1 Dowl. & Ryl. 142, S. C. 
 1 M'Clel. & Y. 40. 
 
 (e) Fennell v. Gardner, E. 8 Geo. IV. K. B.,per Bayley, J. 
 
 {/) 1 Chit. Rep. 658, («). 
 
 (g) Id. 44. And see id. 80, where, on an application to the court for costs, against the 
 attorney, the matter was referred to the Master. See also 2 Chit. Rep. 89. 
 
 (A) 1 Taunt 57. (0 1 Bos. & Pul. 32. 
 
 {aa) 7 Taunt. 47. 2 Marsh. 365, S. C. 
 
 (66) 11 Price, 379. And see further, as to the grounds of objection to bail, Petersd. 322, &c. 
 
 (ec) 7 Mod. 50. 1 Cromp. 3 Ed. 64; and see 7 Durnf. & East, 297. 1 Chit. Rep. 446, (a). 
 
 {dd) R. M. 36 Geo. III. K. B.
 
 OF SPECIAL BAIL. 272 
 
 must be supported by an affidavit of the special facts alleged in excuse of 
 tlie bail not attendin<^ at the time mentioned in the notice of justification ; 
 or, in case further time be given upon suggestion of counsel, then the bail 
 shall not be permitted afterwards to justify, unless, at the given time, 
 such an affidavit be produced as before described." The affidavit in such 
 case should state, in the King's Bench, that the persons not attending 
 had consented to become bail, and were believed to be competent to jus- 
 tify •,{c) 1)ut that for some reason they had not been able to attend, or that 
 the reason of their non-attendance is unkno-\vn : in the latter case, it is 
 not unusual for the judge in the bail court to suspend giving time, till an 
 affidavit satisfactorily explaining the non-attendance, has been laid before 
 him.(/) And when the court granted indulgence for a particular day, to 
 add and justify bail, and the party do not attend on that day, he cannot 
 justify on a subsequent one, so as to prevent proceedings on the bail bond, 
 or against the sheriff, for any previous default, -without a fresh rule for 
 that purpose. (r/) In the Common Pleas, where bail were put in in time, 
 but did not come to justify pursuant to notice, and the defendant's attor- 
 ney gave a new notice for the next day, the court in one case permitted 
 the bail to justify, on payment of the costs of the first attendance. (7^) But 
 from subsequent cases it seems, that nothing but the act of God, such as 
 sudden illness, or some unforeseen accident, of a serious nature, will be 
 deemed a sufficient excuse for the non-attendance of the bail, or a good 
 ground for allowing time to substitute other persons in their stead. (f) 
 
 "When an error or defect is discovered in the bail-piece, or notice of bail, 
 or in the notice of justification, (.t) or service thereof, or in the affidavit of 
 such service, the court, we have seen,(^) will give time to amend or rectify 
 the proceedings : And time is frequently granted for rectifying 
 ^mistakes in country affidavits, of the caption or justification of [ *273 ] 
 bail; as where the jurat omits to name all the deponents,(a) or 
 contains any interlineation or erasure,(a) or, in the case of an illiterate 
 person, does not notice that the affidavit was read to the deponent, and 
 that he seemed perfectly to understand its contents, and wrote his signa- 
 ture in the presence of the commissioners. (a) But the court, in these 
 cases, will sometimes, require an affidavit of merits. (i) So, when bail are 
 ])revented from justifying, by circumstances happening after they were put 
 in, as by their subsequent bankruptcy,(6'c) or insolvency,(t?tZ) or by their 
 having given up housekeeping, (ce) kc, the court will in general allow fur- 
 ther time to add and justify other bail.(^) And, in the Common Pleas, 
 when the court gave time to one of the bail to justify before a judge at 
 chambers in vacation, a judge's summons for further time, returnable 
 before the original time has expired, operates as a stay of proceedings. (^<7) 
 But when bail offer themselves, and are rejected on account of some per- 
 sonal insufficiency, existing at the time they were put in, as by their being 
 
 (e) 1 Chit. Rep. 292. 2 Chit. Rep. 82. Append. Chap. XII. § 32. 
 (/■) 1 Chit. Rep. 292. (,7) IJ. 42. 
 
 (h) M'Cormick v. Foulger, M. 33 Geo. III. C. P. Imp. C. P. 7 Ed. 128. 
 (0 8 Moore, 208. Id. 378. 1 Hinp. 359, S. C. 
 
 (Ar) Lofft, 72, 187. Per Cur. M. 25 Geo. III. K. B. ; and sec 1 Chit. Rep. 2, (J), 351, 492, 
 (a). Ante, 2G5, 6. (/) Ante, 2G5, 6, 7. 
 
 («) 1 Chit. Rep. 495, [a) ; and see 2 Chit. Rep. 92. 11 Price, 509. 
 th) 2 Chit. Rep. 83, (a) ; and sec 2 Dowl. & Rji. 3G2. Ante, 267. 
 t^cc) 1 Chit. Rep. 11. (dd) Id. 3. 
 
 (ee) Id. G ; and see id. 88, 288, 316. Ante, 268, 9. 
 (/) 1 Chit. Rep. 2, [b). Ante, 259. {gg) 6 Taunt. 240.
 
 273 
 
 OF SPECIAL BAIL. 
 
 then attorneys, (A) bankrupts, (^') or insolvent debtors, or by tbeir not being 
 then housekeepers,(A;) &c., the court will seldom allow time to add and 
 justify others :(/) And it is a rule never to allow time to justify bail in 
 error,(m) or on a habeas corpus,{n) on account of the delay, except in case 
 of unavoidable accident, such as the unexpected illness of the bail ;(o) or 
 where they are prevented from coming up, by any misconduct of the 
 opposite party. (p) If the plaintiff, on the other hand, has been taken by 
 surprise, not expecting that the bail intended to come up to justify,(5') or 
 the bail on examination give evasive answers,(r) or the account given by 
 them of their sufficiency is suspicious, (s) the bail court will in general give 
 the plaintiff further time to inquire into their character and circumstances: 
 And when the plaintiff has been allowed time for that purpose, the defen- 
 dant is at liberty to put in fresh bail.(^) But, in the case of bail by affi- 
 davit, where time was given to answer an affidavit on the part of the 
 plaintiff, that the bail was a prisoner for debt ; the court held, that the 
 defendant could not give notice of and justify fresh bail, before the affi- 
 davit was answered. (t«) A judge will not interfere with another 
 [ *274 ] *judge's order for time:(a) And a mistake in drawing up a 
 rule for further time to justify bail on a wrong day, is imma- 
 terial, (a) 
 
 The bail may be opposed, either by their personal examination or by 
 affidavit. When the former method is adopted, the counsel should endea- 
 vour, by a rigid examination, to obtain from the bail an acknowledgment 
 of their real situation. When the latter mode is pursued, an affidavit 
 should be produced, disclosing such facts as will convince the court, that 
 there has been some irregularity or defect in the proceedings, or that the 
 bail are incapable of fulfilling their engagement. A foreigner may be 
 sworn and examined by an interpreter. (Z») And, in opposing bail, they 
 may be asked any questions respecting their qualifications as house- 
 keepers, &c., and the nature and amount of their property, to the extent 
 of the sum for which they are required to be answerable, but no further ; 
 and questions are not allowed to be asked, which will unnecessarily 
 expose the circumstances of the bail, or of other persons. But where 
 one of the bail was asked, whether he had not stood in the pillory 
 for perjury, which question was objected to as tending to criminate 
 him, the court overruled the objection, saying there was no impropriety 
 in the question, as the answer could not subject him to any punish- 
 ment; and the bail admitting the fact, he was of course rejected.((?) In 
 opposing bail by affidavit^ the affidavit must be put in and read, before 
 they are examined ; as it is a settled rule, than an affidavit impugning their 
 sufficiency cannot be read, or the substance stated to the court, after any 
 
 {h) 1 Chit. Rep. 8. Ante, 247, 267. [i) Id. 3. Ante, 247, 269, 70. 
 
 \k) Id. 7 ; and see id. 88, 144. Ante, 268, 9 ; but see 1 Chit. Rep. 288, 316. 
 
 \l) Per Cur. T. 24 Geo. III. K. B. 1 Chit. Rep. 2, {b). 
 
 (to) Per Bayley, J. E. 55 Geo. III. K. B. 1 Chit. Rep. 76, {a), but see 1 Dowl. & Rjl. 9. 
 
 (n) 1 Chit. Rep. 76, [a); but see 8 Taunt. 126. Ante. 266. 
 
 (o) 2 Chit. Rep. 107. Ante, 272. 9 DowL & Ryl. 6. 
 
 (p) 1 Dowl. & Ryl. 9. 
 
 {q) 1 Chit. Rep. 289 ; and see 2 Chit. Rep. 98. Ante, 264. 
 
 (r) 1 Chit. Rep. 354, {a). (s) Id. 309, (a). 
 
 (/) Id. 354, [a). 2 Chit. Rep. 84, S. C. {ii) Id. 354. 
 
 («) 2 Chit. Rep. 83. 
 
 [h) 2 Blac. Rep. 957, 1324. 
 
 [c) 4 Durnf. & East, 440.
 
 OF SPECIAL BAIL. 274 
 
 questions have been asked them.(cZ) It must set forth the particular objec- 
 tion intended to be relied on, with certainty and precision ; merely sug- 
 gesting matters of report and general opinion, without alleging any par- 
 ticular fact, from which a distinct inference of incompetency can be col- 
 lected, will be of no avail. (t;) Affi<lavits containing general statements 
 of slanderous matter, injurious to the character of the bail, cannot be 
 received. (/) And, in the Common Pleas, if the justification of bail by affi- 
 davit be opposed by another affidavit, stating the insolvency of one of the 
 bail, the court will not allow the matters of the latter affidavit to be 
 answered. (</) 
 
 When the bail, on cross examination, are guilty of gross prevarication 
 they may be committed to the custody of the marshal, (A] or to Neicgate^{i) 
 for a contempt of the court ; and if they forswear themselves, they may be 
 indicted for perjury. (A;) But the court of Common Pleas will not set aside 
 the justification of bail, on account of perjury subsequently discovered, but 
 will leave the party to his indictment for perjury. (^) Where a man who 
 had offered himself as bail confessed, on being examined by the court, that 
 he had forsworn himself, he was presently adjudged to be com- 
 mitted to *prison, and to stand upon the pillory, with a paper [ *27o ] 
 mentioning the cause, vi2. "for false bail," and to be brought into 
 the courts of King's Bench, Common Pleas and Exchequer ; and this, upon- 
 his confession, was recorded in court, without other proceedings against 
 him.((?) And, where bail had assumed feigned names, the court of Com- 
 mon Pleas ordered them and the attorney to be set in the pillory. (5) Also,, 
 by the statute 21 Jac. I. c. 26, § 2, " if any person shall acknowledge or 
 procure to be acknowledged, any recognizance or bail, in the name of an- 
 other person, not privy or consenting to the same ; or, (by the statute 4 & 
 5 W. & M. c. 4, § 4,) before a commissioner, shall represent or personate 
 another person, whereby he may be liable to the payment of any debt or 
 damages, he shall, on conviction, suffer death as a felon, without benefit of 
 clergy." And, where bail had been personated, the court of King's Bench 
 made the attorney pay costs to the plaintiff, and to the personated bail, 
 and procure good bail, besides setting aside the execution that had issued 
 against the personated bail.(c) But the courts will not vacate the pro- 
 ceedings against the party personated, until the offender be convicted ;{dd) 
 nor can a conviction take place, until the bail-piece be filed.(e<?) 
 
 When bail are opposed, they are either rejected, or alloioed by the court, 
 unless further time be given to justify, or inquire into their circum- 
 stances '.{ff) And bail may be rejected, after having been permitted to 
 pass, before the rule of allowance is drawn up, if sufficient cause be shown, 
 as that they were afterwards rejected in another action. f^/^^/) The rejection 
 of one bail is a rejection of both: therefore, where one bail only had been. 
 
 (d) 1 Chit. Rep. 373, (a). Imp. K. B. 10 Ed. 134, (a). 
 
 (e) 1 Chit. Rep. 676; and see id. 321. (/) Id. G76. 
 
 (g) 5 Moore, 482. Ante, 264. (A) 1 Chit. Rep. 110. 
 
 (i) Id. 117. 8 Dowl. & Rvl. 41. 
 
 \k) 1 Chit. Rep. 116; and see 5 Taunt. 776. 
 
 \l) 5 Moore, 321. 2 Brod. k Biag. GIO, S. C. 8 Moore, 381. 1 Bing. 365, S. C. accord. 
 
 (a) Cro. Car. 146. 
 
 (b) 1 Str. 384. But the punishment of the pillory is now abolished, except for perjury 
 and subornation of perjury, by the statute 56 Geo. III. c. 138. 
 
 (c) Keble v. Markham, E. 20 Geo. III. K. B. 
 
 (dd) T. Jon. 64. 1 Vent. 301. 3 Keb. 694. 1 Ld. Raym. 445. (ee) 2 Sid. 90. 
 
 (/) Ante, 272, 3 ; and see 1 Chit. Rep. 287, 8 ; 292, 3 ; 316, 334,(a). 
 (ffi) 1 Chit. Rep. 307. 
 
 Vol. I.— 18
 
 275 
 
 OF SPECIAL BAIL. 
 
 rejected, and notice was given of adding and justifying another, the court 
 held that the cjriginal notice was a nullity, and that there should have been 
 a fresh notice of putting in and justifying de novo.{h) And, when bail are 
 rejected, the plaintiff is at liberty to take an assignment of the bail bond, 
 or proceed against the sheriff by attachment for not bringing in the body; 
 unless further time be given to add and justify other bail. But bail who 
 have been rejected are still competent to render the defendant, in the 
 King's Bench, so long as they remain on the bail-piece ;(^) though it is other- 
 wise in the Common Pleas, where they must enter into a fresh recogni- 
 zance, before they can render the defendant. (A;) To detect frauds by hired 
 bail offering themselves to justify, after they have been rejected in other 
 actions, a book is kept by the master in the King's Bench ; in which the 
 
 names and descriptions of rejected bail are entered: And it is an 
 [ *276 ] established rule, that if bail has been once rejected, and entered 
 
 in the *master's book, the circumstances under which the rejec- 
 tion took place, cannot, on a subsequent occasion, be inquired into ; and 
 consequently, the party afterwards continues incompetent to become bail, (a) 
 So, bail were rejected in the King's Bench, it appearing that one of them 
 had been before rejected in the Palace court.(6) And where bail, of whom 
 notice had been given, having been rejected in another cause on the day 
 in which they were intended to justify, were not offered for justification, 
 according to the notice ; and on the next day, the defendant applied for 
 time to add and justify, and to stay proceedings against the bail below; 
 the bail court held that this could not be done, in the absence of the plain- 
 tiff, who was unapprized of the motion. (c) The general rule, however, that 
 bail once rejected are always rejected, must be understood to apply only 
 to cases where they have been rejected for insufficiency of property, or 
 other good cause ; and therefore, where bail had been rejected on a former 
 occasion, merely on the ground of their having been indemnified by the 
 defendant's attorney, they were allowed to justify.((^) 
 
 When bail are alloived, a rule or order of allowance should be drawn up, with 
 the clerk of the rules in the King's Bench, (.t?) or secondaries in the Common 
 Pleas,(/) and a copy of it served on the plaintiff's attorney, or on the plain- 
 tiff himself, if he has not appointed an attorney : And where a plaintiff sued 
 in person, and his residence was unknown to the defendant, and his servant 
 refused to disclose it, the court of Common Pleas ordered, that the affixing 
 a copy of the rule of allowance, and of that order, in the prothonotaries' 
 office, should be deemed good service.(^^) The rule of allowance, in the 
 King's Bench, must be served on the plaintiff's attorney, even though 
 he has opposed the justification of bail ;{hh) or though the bail justified after 
 opposition of counsel, in the presence of the plaintiff's attorney :(n) and if 
 it be not served, he may take an assignment of the bail bond,(^A;) or proceed 
 by attachment against the sheriff.(Z) When bail justify at chambers by 
 
 (h) 5 Barn. & Aid. 704. 1 Dowl. & Rvl. 350, S. C. 
 
 138, (a). 1 Chit. Rep. 446, (a). 
 , 240, (a). 1 Chit. Rep. 446, (a). 
 
 Rep. 676. " ' (c) Id. 290, per Best, J. 
 (d) 1 Dowl. & Ryl. 488. (e) Append. Chap. Xll. ? 33, 4, 5. 
 
 {/) Id. ?i 36. (ffff) 7 Taunt. 145 ; and see 1 Chit. Rep. 675, (a), 
 
 (hh) 4 Durnf. & East, 493. 2 Bos. & Pul. 341 ; and see 3 Maule & Sel. 145. 
 {ii) 2 Chit. Rep. 99. {kk) 2 Bos. & Pal. 341. 
 
 (Z) 4 Durnf. & East, 493.
 
 OF SPECIAL BAIL. 276 
 
 consent, the practice of the court requires that the defendant should serve 
 a rule for their allowance, or at least give notice that they have justi- 
 fied. (7?i) And where a bail described himself as having property to a 
 great amount, and the court directed an incjuiry, which the bail eluded by 
 running away, they would not permit the rule of allowance to be entitled 
 of the term he came up to justify, but discharged the application with 
 costs. (?j) If bail has been improperly allowed, the court, we have seen,(o) 
 will set aside the rule of allowance: And, in the King's Bench, 
 it is a good ground for setting aside the allowance of bail, that [ *277 ] 
 they *were afterwards rejected in other causes.(a) And a rule 
 for the allowance of bail was discharged with costs, to bo paid by the 
 defendant on an affidavit that the bail had perjured himself on his justi- 
 fication, in swearing that an action in wliich he had been bail, had been 
 compromised. (i) It also seems, that the justification of bail may be set 
 aside in that court, under circumstances of gross imposition and fraud, on 
 the part of the bail ;((?) and where the defendant's attorney is privy to 
 their misconduct, the court will make him pay the costs of the applica- 
 tion. (c?) But if the bail have sworn to the false account of their pro- 
 perty, without the privity of the defendant or his attorney, the plaintiff 
 it seems has no other remedy tlian by indictment for perjury ;(t') though 
 if the plaintiff can by any means connect the defendant, or his attorney, 
 with the false swearing of the bail, the court will punish them; and they 
 have the means to do so, for the one is a suitor, and the other the officer 
 of the court.(f^) 
 
 After service of the rule or order of allowance, the bail-piece, in the 
 King's Bench, should be obtained from the judge's chambers, and filed 
 with the master ; which should regularly be done the same term in which 
 they were allowed :(/) And in filing the bail in that court, it should be 
 observed, that every bail taken on or before the continuance day, is a bail, 
 and to be filed of the prececli7ig term ; and every bail taken after the con- 
 tinuance day, is a bail, and to be filed of the subsequent term :{g) and it 
 is said, that where new bail arc added to other bail taken on or before 
 the continuance day, the new bail shall be taken and filed as of that term 
 in which the first bail was put in. (A) But although bail, when added and 
 justified in vacation, are filed as of the preceding term, yet bail acknow- 
 ledged and justified in a subsequent term are not so filed, even when sub- 
 stituted for other bail put in of the preceding term.(?') 
 
 The bail-piece being filed in the King's Bench, or bail perfected in the 
 Common Pleas, an entry should be made of the recognizance on a roll, 
 called the recognizance roll ; which should be docketed, (^) and carried 
 into the treasury chamber ; And this should regularly be done, before any 
 
 (m) 1 Barn. & Cres. 285. 2 Dowl. & RyL 436, S. C. 
 
 (n) 1 Chit. Rep. 131. (o) Ante, 235, 6. 
 
 (a) 1 Chit. Rep. 144, {h) ; and see id. 307. 3 Dowl. & Ryl. 6. 
 
 {b) 1 Chit. Rep. 372 ; and sec 2 Barn. & Aid. 768 ; but see 2 Brod. k Wing. 619. 
 
 (c) I Chit. Rep. 143. [d) Id. 144. 
 
 [e] Per Cur. T. 22 Geo. III. K. B. 5 Taunt. 776. 6 Moore 321. 2 Brod. k Bing. 619, S. 
 C. Ante, 274. 
 
 (/) R. II. 1650, reg. 3 K. B. 
 
 [g) R. E. 5 Geo. II. reg. 1, {h), K. B. And as to the continuance day, sec R. E. 11 W. III. 
 reg. 2, K. B. 2 Str. 1215. 1 East, 406, 409. 
 
 {h) R. E. 5 Geo. II. reg. 1, [b), K. B. 1 Salk. 100, semb. contra. 
 
 (i) 3 Barn. & Aid. 515. {k) Append. Chap. XII. { 43.
 
 277 
 
 OF SPECIAL BAIL. 
 
 proceedings are had against the bail ;{ll) or at least before they are called 
 upon to plead; for otherwise they may plead 7iul tiel record: and if the 
 recognizance roll be not carried in till afterwards, it seems that they may 
 •withdraw their plea, and the plaintiff must pay the costs of it.(w) In the 
 King's Bench, the recognizance of bail by bill is entered by the plaintiff's 
 
 attorney, after the declaration, with a meinorandum of the term 
 [*278 ] it is of ;(w) *but by original^ it is entered by the filacer, after a 
 
 recital of the process. (a) And in this court, the course is always 
 to enter it as taken in court, though it be actually taken by a judge in his 
 chamber,(5) or by a commissioner in the country ; neither is it a record 
 till entered :(Z») And if, in a joint action against two defendants, the re- 
 cognizance of bail be entered by mistake as in an action against one only, 
 and the plaintiff, after two writs of scire facias against the bail, and nihil 
 returned to them, sign judgment against the bail, and take out execution, 
 the court will set aside the judgment and execution for irregularity. (c) 
 In the Common Pleas, the filacer enters the recognizance on the roll,((i) 
 and dockets it : And in that court, when it is taken by a judge in his 
 chamber, or by a commissioner in the country, it may be entered specially ; 
 it being a record immediately upon the first caption, and binds the lands, 
 before it is filed at Westminster. {e) Where the plaintiff was called by a 
 wrong name in the recognizance roll, the court would not rectify the mis- 
 take, but gave judgment for the defendants, on an issue of nul tiel re- 
 cord.[f) So, they would not amend a clerical error, in the spelling of 
 the plaintiff's name in the recognizance, without the consent of the bail :(^) 
 And where an original capias was issued into a county palatine, and the 
 defendant was arrested and put in bail as upon a testatum, which was en- 
 tered in Middesex, and a declaration was afterwards delivered, in which 
 the venue was laid in Lincolnshire, the court refused to interfere, after a 
 considerable length of time, at the instance of the bail, by ordering the 
 entry of the recognizance to be made conformable to the facts of the 
 case.(7<) But, in scire facias against bail, if there be a failure of record, 
 through a misprision of the officer, the court will permit the entry of the 
 recognizance to be amended. (z) And, in a subsequent case, the entry 
 was amended, at the instance of the bail, where the plaintiff's name had 
 been mis-stated.(A;) 
 
 Such arc the means of putting in and perfecting bail above, when the de- 
 fendant is at large, in order to prevent an assignment of the bail-bond, or 
 proceedings against the sheriff. Bail above may also be put in and per- 
 fected, at any time pending the action, where the defendant is in custody of 
 the sheriff, or of the marshal of the King's Bench, or warden of the Fleet 
 
 {II) R. E. 5 Geo. II. reg. 3, (a), K. B. (m) 1 Moore, 431. 
 
 (h) R. E. 5 Geo. II. reg. 3, (a), K. B. Append. Chap. XII. | 41. 
 
 (a) Append. Chap. XII. I 42. 
 
 (6) 2 Salk. 564, 600, 659. 6 Mod. 42, 132. 1 Mod. 120, 21 ; and see 5 East, 461. 2 
 Smith R. 14, S. C. 
 
 (c) 1 Maule & Sel. 199. 2 Chit. Rep. 78, (a). 
 
 \d) For the form of the entry of a recognizance of bail in C. P. see Append. Chap. XII. 
 g 44, 5, 6, and for the entry of a recognizance of bail in the Exchequer, see id. ^ 47, 8. 
 
 (e) 2 Salk. 504, 600, 659. 6 Mod. 42, 132. 7 Mod. 120, 21; and see 5 East, 461. 2 
 Smith R, 14, S. C. 
 
 (/) 3 Taunt. 263. (y) 5 Taunt. 814 ; and see 1 Chit. Rep. 323, (a). 4 Moore, 65. 
 
 (h) 1 Moore, 514. 
 
 (i) 1 Taunt. 221 ; and see Cas. Pr. C. P. 74, 5. Barnes, 69, S. C. Id. 415; but see 1 
 Bos. & Pul. 481. 
 
 (k) 4 Taunt. 875; and see 8 Moore, 33. 1 Bing. 206, S. C.
 
 OF SPECIAL BAIL. 278 
 
 prison. And it may even be put in, for liberatinf^ the defendant, after final 
 judgment against him, and before he is charged in execution ;(/) 
 *othcrwise, on a writ of error being brouglit, whicli is a supcrsc- [*270 ] 
 deas of execution, he must lie in custody until it be determined. 
 But bail who have rendered the defendant, in their discharge, cannot af- 
 terwards justify, so as to release him from imprisonment, without entering 
 into a fresh bail-piece. (a) A doubt having arisen, whether a prisoner couhl 
 be bailed in vacation^ it was enacted by the statute 4:} (ico. III. c. -10, § 6, 
 that "if any defendant shall be taken, detained or charged in custody, at 
 the suit of any person or persons, upon mesne process issuing out of any of 
 bis majesty's courts of record at Westminster or Duhlin, and shall be impri- 
 soned or detained thereon after the return of such process, it shall and 
 may be lawful for such defendant, in vacation time only, and upon due 
 notice thereof given to the attorney for the plaintiff or plaintifis in such 
 process, to put in and justify bail, before any one of the justices or barons 
 of the court out of which such process shall have issued ; who may, if he 
 shall think fit, thereupon order a rule to issue for the allowance of such 
 bail, and may further order such defendant to be discharged out of cus- 
 tody, by writ of supersedeas or otherwise, according to the practice of such 
 court, in like manner as the same is and may be done by an order of court 
 in term time." This statute only applies to arrests on mesne process, issu- 
 ing out of the superior courts ; but it seems that an habeas corjms, for the 
 removal of a cause from an inferior court, is considered as mesne pro- 
 cess. (6) To discharge a defendant out of custody on this statute, bail 
 above must be put in before a judge,(c) and notice thereof given to the 
 plaintiff's attorney, and that the bail will justify themselves on a certain 
 day, at a judge's chambers ;{d) and an affidavit made of the service of 
 such notice: and when the bail have justified, the judge will grant his 
 fiat{e) for a rule to be drawn up for their allowance, and for the discharge 
 of the defendant, if in custody of the marshal, or for a writ of super- 
 sedeas to issue, if in custody of the sheriff, or warden of the Fleet prison ; 
 and thereupon a rule being drawn up by the clerk of the rules in the 
 King's Bench, (/) or secondaries in the Common Pleas,(^) and a writ of 
 super sedeas[h) issued when necessary, and delivered to the sheriff or warden, 
 the defendant will be discharged out of custody.(/) 
 
 Before we dismiss the subject of bail, it may be proper to consider the 
 nature and extent of their Uabiliti/, and the means by which they are dis- 
 charged. 
 
 By the terms of the recognizance of bail it is stipulated, that if the de- 
 fendant be convicted in the action brought against him, he shall pay 
 
 {I) mil V. Stanton, II. 55 Geo. III. K. B. 2 Chit. Rep. 73, 4. M'Clcl. 310. 13 Price, 589, 
 S. C. Ante, 248. 
 
 (a) 2 Chit. Rep. 76. 
 
 (6) Per Ilolroijtl, J. ; and on conference with Ahbott, Ch. J., he discharged a defeDdant on 
 justifying bail thereon, in vacation : but see 1 Chit. Rep. 44, srmb. contra. 
 
 (c) For the form of the bail-piece, see Append. Chap. XII. g 6. 
 
 (rf) Id. § 14. (e) Id. ? 38. 
 
 (/) «• ? 39. (y) /,/. § 40. 
 
 (A) Append. Chap. XV. ? 35, &c. 
 
 (i) For the form of the oiin/ of a recognizance of bail on the above statute, when taken 
 before a commissioner, after final judgment, see Append. Chap. XII. g 46.
 
 279 
 
 OF SPECIAL BAIL. 
 
 [ *280 ] the *clcbt, or damages, and costs recovered, or render his body 
 to the custody of the marshal of the King's Bench, or warden of 
 the Fleet prison :(«) and therefore if the plaintiflF declare in due time, for 
 the cause of action expressed in the process and affidavit to hold to bail, 
 and proceed thereon to judgment against the defendant, Tvhether by con- 
 fession, 71071 sum infoinnatus, or Tniliil dicit, or on a demurer, nul tiel 
 record, or verdict, the bail are in general liable to pay the condemnation 
 money, or render the defendant. 
 
 In the King's Bench, the ancient course of the court "was, that if a man 
 became bail for another upon a latitat, &c. in any sum of money, however 
 trifling, he was bail for him in all actions brought by the same plaintiff, 
 during the same term, were the sums ever so great. (&) To rectify this 
 extraordinary practice, a rule was made, that if the plaintiff should declare 
 against the defendant, upon any bail by him put in, for a greater sum than 
 was expressed in the process upon which the defendant was arrested, then 
 the bail so put in should not be chargeable in that action. (c) Still, how- 
 ever, the bail were liable to all actions, wherein the plaintiff declared for 
 and recovered a less sum than was expressed in the process ;(<:?) and where 
 he declared for and recovered a greater sum, the bail were totally dis- 
 charged, (e) At length it was resolved, that as on the one hand, there was 
 no colour to subject the bail to more than they were bound in, let the 
 plaintiff's demand be ever so much more; so, on the other hand, there 
 was no reason why the plaintiff should suffer by his moderation in taking 
 bail; but the recognizance should be considered as an agreement to pay 
 to the extent of the sum sworn to and costs, or render the defendant. (/) 
 And accordingly it is now settled, in the King's Bench, that where the 
 plaintiff declares for or recovers a greater sum than is expressed in the 
 process upon which he declares, the bail shall not be discharged ; but be 
 liable for so much as is sworn to, and indorsed on the process, or for any 
 less sum, which the plaintiff in such action shall recover,(^^) together with 
 the costs of the original action. (A) And there is no distinction in prac- 
 tice, between actions commenced by hill and by original writ ; but the 
 court, in either case, will enter an exoneretur on the bail-piece, on pay- 
 ment of the sum sworn to and costs, though less than the sum acknow- 
 ledged to be due.(i) The bail, however, are not liable to pay the costs of 
 a writ of error ;(A;) nor is the plaintiff entitled to levy equitable costs, out of 
 the penalty of the recognizance. (?) In the Common Pleas, each of the bail 
 
 is separately liable for the sum recovered, to the full extent of the 
 [ 281 ] penalty of the recognizance, *being double the amount of the sum 
 
 sworn to, or indorsed on the writ under a judge's order.(aa) But 
 the bail are not liable, in that court, to the payment of interest on the sum 
 
 (a) A7ite, 250, 51. {b) Cro. Jac. 449. 2 Sid. 163. 1 Mod. 16. 
 
 (c) R. T. 22 Car. II. K. B. 6 Mod. 267. (rf) 3 Keb. 16. 
 
 (e) 6 Mod. 266. 1 Salk. 102, S. C. (/) 2 Str. 922. 
 
 {g) R. E. 5 Geo. II. reg. 2 K. B. Lofft, 545. Doug. 330. 8 Durnf. & East, 28, 9. 1 East, 
 90. 5Maule &Sel. 511. 
 
 {h) The rule of E. 5 Geo. II. K. B. is silent as to the costs : But, in the case of Peterken v. 
 Sampson and another, M. 25 Geo. III. K. B. it was determined by the court, that the bail are 
 liable to pay them, as well as the sum sworn to : and see 6 East, 313. 
 
 (t) 6 East, 312. 2 Smith R. 402, S. C. 5 Maule & Sel. 511. 
 
 (k) 6 Durnf. & East, 288. 
 
 (I) 2 Str. 826. 1 Barnard. K. B. 125, S. C. 
 
 (aa) Barnes, T6. 1 Bos. &Pul. 205; and see 5 Maule & Sel. 511. 4 Moore, 167. 1 Brod. 
 & Bing. 490, S. C.
 
 OF SPECIAL BAIL. 281 
 
 recovered, subseciucnt to the ju(];Tnient.(W) And althougli bail, liavlng ren- 
 dered tlie defendant, instigate him to vexatious attempts to obtain his dis- 
 charge under an insolvent act, that court Avill not compel them to pay the 
 costs of the plaintiff's resisting those attempts. (f) In the E.xchcqucr it is a 
 rule,((;?) that "upon a recognizance of bail, in any action brought in that 
 court, the bail therein arc not jointly or severally liable in such action, for 
 more in the whole than the amount of the sum sworn to in the affidavit of 
 the cause of action, together with the costs of such action, unless any pro- 
 ceeding be had upon their recognizance, in M'hich case they will also be 
 subject to such other costs as they are by law liable to." 
 
 The bail to the action are discharged, hy performing the condition of the 
 recognizance, or by some matter operating in excuse of performance: and 
 the condition of the recognizance is performed, either by paying the debt, 
 or damages, and costs for which the bail are liable, or (which is more usual,) 
 by rendering the defendant to the custody of the marshal of the King's 
 Bench, or warden of the Fleet prison. 
 
 In treating of the render in discharge of bail, it may be proper to con- 
 sider by whom, or what bail, the render may be made, with the time and 
 manner of making it. The render may be made not only by the bail put 
 in by the defendant himself, but also by such as are put in by the sheriff, 
 or his bail, for their own indemnity.((^) And, on an exception to bail, if 
 notice be given of other bail, only one of whom justifies, and the names 
 of the former still remain on the bail-piece, the first bail may render the 
 principal, in the King's Bench. (/) Even bail who have been rejected 
 have in that court been holden, so long as they remain on the bail-piece, 
 competent to make a surrender :{g) And where one bail only had justified, 
 and time had been refused by the court to justify another, the court held 
 the render sufficient. (A) In the Common Pleas, w'hen bail above were 
 excepted to and could not justify themselves, they were formerly con- 
 sidered as no bail, and therefore could not have rendered the defendant 
 to prison ; but other fresh bail might have been put in, and before any 
 exception taken to them, they might have surrendered him to prison in 
 discharge of themselves :(/) And it is now holden, that bail, who have 
 been rejected may enter *into a new recognizance, for the pur- 
 pose of rendering the defendant.(a) But bail surreptitiously [ *282 ] 
 put in are not allowed to render him. (J) 
 
 The defendant having put in bail, may render himself, or be taken and 
 rendered in their discharge, at any time pending the action; or after judg- 
 ment for the plaintiff, and before the return of the capias ad satisfacien- 
 dum, or even after such return, and before the expiration of the time allowed 
 for that purpose by the indulgence of the court. [a] But above, we have 
 
 (bb)3 Taunt. 503. (c) 4 Taunt. 192. 
 
 (d) R. H. 38 Geo. III. in Scac. Man. Ex. Append. 223. 8 Price, .'')02. And see further, as 
 to the nature and extent of the liability of bail, Petersd. Part I. Chap. X. 
 
 (e) Anli>,2iG. (/) B Durnf. & Kast, 633; and see 2 Blac. Rep. 1179. 
 (<7) Per Cur. E. 40 Geo. TIL K. B. 1 New Rep. C. P. 138, (aju 1 Chit. Rep. 445. Ante, 275. 
 [h) 1 Chit. Rep. 446, (a). 
 
 (i) 3 Wils. 59; and see 1 11. Blac. 638. 1 Bos. & PuL32. 1 New Rep. C. 137. 
 (n) 1 Taunt. 163,;)cr Heath, J. Imp. C. P. 7 Ed. 136. Ante, 275. 
 (6)2 Blac. Rep. 1179. 
 
 [a] Bail, may at any time during the return term of the writ against them, surrender their 
 principal, in discharge of their liability on payment of the costs of the writ up to tliat time, 
 and thercupoa all proceedings shall be stayed, and an exoneretur be entered on the bail
 
 282 OF SPECIAL BAIL. 
 
 secn,(<^t') may be put in before the return of the writ, for the purpose of ren- 
 dering tlie defendant; and it is not necessary, in either court, for the bail to 
 justify, in order to render, even after they are excepted to, or though the 
 shcriir has been ruled to bring in the body,(c^(^) or the plaintiff has taken an 
 assignment of the bail bond.((.'e) The render of the defendant is deemed 
 equivalent to perfecting bail :(/) And, in the King's Bench, the sheriff is 
 not liable to an attachment, when the defendant is rendered at any time 
 before the expiration of the day allowed for bringing in the body •,{g) or 
 even after the rule for bringing it in is expired ;{Ii) And the bail to the 
 shcrift' are entitled, in that court to the benefit of a render made without 
 justifying, after the regular time of justification is expired, so as to stay 
 the proceedings against them on the bail bond, upon payment of costs. (2) 
 But where the defendant was rendered after the time for putting in bail 
 had expired, but within the further time allowed him for that purpose by 
 the indulgence of the court, it was holden that the render was out of 
 time, and that an attachment issued after notice thereof was regular, and 
 could not be set aside, without an affidavit of merits :{h) And where the 
 rule for the allowance of bail was discharged, on account of perjury in 
 one of the bail, and, pending the motion for setting aside the allowance, the 
 defendant was rendered, the court of King's Bench held, that the plain- 
 tiff might notwithstanding proceed on the bail bond.(Z) In the common 
 Pleas, where the sheriff had suffered a person who had been arrested to 
 go at large, without taking a bail bond, the court would not allow him to 
 render the defendant, after an action commenced against him 
 [ *283 ] *for an escape, though he had not been ruled to return the writ, 
 ^ or bring in the body, before the action commenced. (a) 
 
 ^ After judgment, it was anciently the course of the courts not to allow a 
 / render, subsequently to the return of non est inventus to a capias ad satis- 
 faciendum. [b) But great mischief resulted from this practice : for the plain- 
 tiff would sue out a capias returnable the next day, so that the bail had little 
 or no time to bring in the body :(<?) To remedy which, when the plaintiff 
 proceeded by scire facias the judges indulged the bail so far, as to permit 
 them to render the body, upon the return of the first scire facias^ if the 
 capias were returnable de di in diem:{d) but if it were returnable the next 
 
 (cc) Ante, 248. 
 
 (dd) Ashton v. King and another, M. 21 Geo. III. R. T. 33 Geo. III. K. B. 5 Durnf. & 
 East, 368. Barnes, 111, 117. 2 Blac. Rep. 758, 1179, 80. 1 H. Blac. 638. Wardle, one 
 ^c. V. Boidand, M. 24 Geo. III. C. P. Imp. C. P. 7 Ed. 126. 
 
 (ee) 5 Durnf. & East, 401. 
 
 (/) 4 Taunt. 669. 2 Maule & Sel. 562. 3 Maule & Sel. 283. 1 Chit. Rep. 446, (a), 498. 
 
 iff) 7 Durnf. & East, 527. 8 Durnf. & East, 464; and see 1 Price, 103. 
 
 (h) 2 Maule & Sel. 562. 8 Dowl. & Ryl. 137. 
 
 («') 5 Durnf. & East, 534. 2 New Rep. C. P. 85, in which latter case, the proceedings were 
 set aside, without payment of any costs, except those of the assignment: but see 7 Durnf. & 
 East, 297, se7nb. contra. This latter case, however, appears to have been overruled. Id. 
 529; and see 11 Price, 633. 
 
 (k) 1 Chit. Rep. 567 ; and see 8 Durnf. & East, 29. 9 East, 468, S. C. cited. 1 Chit. 
 Rep. 356, 496, (a) ; but see 2 Maule & Sel. 562, sonb. contra: and see 1 H. Blac. 9. 1 Bos. 
 & Pul. 325. 2 Bos. & Pul. 3%, by which it seems, that the practice is diiferent in the Com- 
 mon Pleas. 
 
 (l) 2 Barn. & Aid. 768. 1 Chit. Rep. 496, S. C. ; but see 1 1 Price, 633. 
 
 (a) 6 Taunt. 554. 2 Marsh. 261, S. C. ; and see 6 Moore, 111; but see 1 Price, 103, 
 contra; and see 5 Barn. & Cres. 244. Ante, 236. 
 
 (b) Cro. Eliz. 738. (c) 1 Ld. Raym. 157. (d) Cro. Eliz. 618. 
 
 piece, and during that term the court may in its discretion grant further time to make the 
 surrender. Breese v. Elmore, 4 Rich. 436,
 
 OF SPECIAL BAIL. 283 
 
 term, the bail were strictly holden to rentier the principal by the return of 
 it.(t') Fupham, Ch. J. extended this indulgence still farther and permitted 
 the bail to render anytime before the return of the second scire facias, or 
 upon the return, scdente eurid{ff) This practice, however, appears to have 
 been disallowed by Lord Coke:{</i/) but it was soon after revived, in the 
 time of Crolce Ch. J. :{JiIt) and accordingly, it is now fully settled, that in the 
 King's Bench, the render may be made at any time before the rising of the 
 court, on the return day of the second scire facias, or of the first, when 
 scire feci is returned, by biU,{ii) or by original in that court, as well as in 
 the Common Pleas, at any time before the rising of the court on the appear- 
 ance day, or quarto die j^ost of the return, of the second scire facias,{k) 
 or of the first, where scire feci is returned, (^) and not after. (??j) Before 
 the return of the capias ad satisfaciendum, the render is a matter of right, 
 and may be pleaded.(w) 1 But afterwards it is allowed by the grace and 
 favour of the courts,fnjPand not ex dehito justitiae ; for the condition of 
 the recognizance is broken, upon the return of non est inventus to the 
 capias : and therefore a subsequent render cannot be pleaded ;( p) though, 
 if made in time, the bail may be relieved by motion. (j:)) If the bail, at 
 any time after the return of the cajnas, render the principal at a judge's 
 chambers, and he be committed to a tipstaff, from whom he escapes or is 
 rescued, that will not be a good render ;{q) for the courts will not suffer 
 the plaintiff to be prejudiced, by their indulgence to the bail. 
 
 When the plaintiff proceeds by action of debt on the recognizance, the 
 render may be made, in the King's Bench, by the space oi eigltt 
 entire days, *in full term, next after the return of the latitat, or [ *284 ] 
 other process against the bail: (a) and an intervening ^S'ltwc^ay 
 is to be reckoned as one of the eight days allowed for rendering the 
 defendant. (J) If there be not the full number of days in the same term, 
 they must be made up in the following one : And if an action be brought 
 here against bail, on a recognizance taken in the Common Pleas, they 
 have the same time allowed them for rendering the principal, as if the 
 recognizance had been taken in this court. (c) Where an action Avas com- 
 menced, and afterwards discontinued, and then the bail rendered the prin- 
 cipal before the bringing of a new action, the court held the render to be 
 good, it being before the return of the process in this suit ; and it was the 
 fault of the plaintiff not to begin right at first.(fZ) So, where the plaintiff 
 sued the bail on their recognizance, who did not render the principal 
 within eight days, and then the plaintiff died, and his executors brought 
 another action against the bail, it was ruled that the bail had eight days 
 from the return of the process in the second action, to render the princi- 
 pal. (tf) In the Common Pleas, the render must be made before the rising 
 
 (c) Id. 738. (/) Cro. Jac. 109. [gg) Moor, 850. 3 Bulst. 182, S. C. 
 
 (M) W. Jon. 139. Sty. Rep. 134. 8 Mod. 32. 
 
 (tV) 1 Ld. Raym. 157. 6 Mod. 238. 8 Mod. 340. R. T. 1 Ann. rfg. 2, {a). R. E. 5 Geo. 
 II, reg. 3, (a), K. B. ; and see 1 Barn. & Cres. 247. 2 Dowl. k Ryl. 385, S. U. 
 
 m 1 Wils. 270. (/) 4Bur. 2134. 
 
 (m) Per Cur. T. 21 Geo. III. K. B. 3 Bur. 13C0. 1 Hlac. Rep. 393, S. C. K. B. R. M. 
 1654, § 12, {a). Cas. Pr. C. P. 63. Barnes, 82. 2 H. Blac. 593, C. P. 
 
 (n) 1 Ld. Rayra. 15G, 7. Ihalqi v. Medley, M. 24 Geo. III. K. B. 
 
 (o) R. T. 1 Ann. reg. 2, (fl), K. B. 
 
 (;>) llcnUy V. Mcdhy, M. 24 Geo. III. K. B. Barnes, lOG, 7. 
 
 iq) 6 Mod. 238. R. T. 1 Ann. rcg. 2, ('/), K. B. 
 
 (a) R. T. 1 Ann.rfy. 1, K. B. 1 Salk. 101. 1 Ld. Raym. 721. 6 Mod. 132. 
 
 (h) 14 East, 537, (c) 7 Durnf. & East, 355. * 
 
 {d) 2 Str. 915. (<■«) 8 Durnf. & East, 422.
 
 284 
 
 OF SPECIAL BAIL. 
 
 of the court,(/) on the quarto die post of the return of the process •,{g) 
 which must be served on the bail four days at least before the return. (A) 
 And in that court, they are allowed the same time for rendering the 
 defendant on an attachment of privilege, as on a common capias.{i) And 
 if a bail be served with process on his recognizance, and die before the 
 quarto die post, and fresh process issue against his executors, they have 
 until the quarto die post of the return of the second writ, to surrender the 
 principal. (Z:/;;!) In the Exchequer, on\j four days are allowed the bail to 
 surrender their principal, when the plaintiff proceeds by subpoena ;{U) 
 though eigJit days are allowed, when the proceeding is by quo miiius :{m) 
 In calculating the four days, one is reckoned inclusive, and the other 
 exelusive.[n) And if an action be brought in this court, against bail, 
 upon their recognizance entered into in the King's Bench, they must 
 render their principal, as if the recognizance had been taken in the 
 Exchequer, (o) 
 
 It was not formerly usual for the courts to enlarge the time for bail to 
 surrender their principal : And, in one case,(ji?) the court of King's Bench 
 refused to enlarge it, on an affidavit that the principal could not be 
 removed, without endangering his life; and in another,(^) on the ground 
 of the unwarrantable arrest and detention of the principal by a foreign 
 enemy. So they refused to enlarge the time for the bail to 
 [ *285 ] render their *principal, on an affidavit that he was a lunatic ; it 
 not appearing that he was in such a state as to occasion any im- 
 mediate peril of life, either to himself or those about him. (a) But in a 
 later case,(5) time was allowed for the bail to surrender their principal, 
 where, the latter being in custody under the process of another court, it 
 appeared on the return made to a habeas corpus issued by the bail in 
 order to render him, that he could not be removed out of such custody, 
 without danger to his life, and that such impossibility still continued. 
 And where the return to a writ of latitat stated, that the defendant was 
 insane, and could not be removed without great danger, and continued so 
 till the return of the writ, the court refused an attachment against the 
 sheriff. (c) So, where the principal has become bankrupt, the courts will 
 enlarge the time for surrendering him, till after he has finished his last 
 examination. ((^) So, where the defendant was in the criminal custody of 
 the court of King's Bench for a conspiracy, the court of Common Pleas, 
 though they would not take him out of such custody, enlarged the time 
 for the bail to render him in their discharge. (e) And time has been 
 enlarged, in the Exchequer, for the bail to surrender their principal, till 
 a week after the expiration of the term of his imprisonment in a county 
 gaol, under a conviction and sentence for a misdemeanour.(^) The court 
 
 (/) Gas. Pr. C. P. 53. Barnes, 82. 2 H. Blac. 593. 
 
 [g) R. M. 1654, ? 12, C. P. 2 H. Blac. 118. 
 
 [h] Cas. Pr. C. P. 18. Pr. Reg. 83. Barnes, 62. 6 Taunt. 286. 
 
 (i) 2 H. Blac. 117. [hk) 1 Bos. & Pul. 61. 
 
 {It) 2 Price, 296. 1 Younge & J. 15. 
 
 (m) Wightw. 79. 5 Price, 170. 1 Younge & J. 15 ; and see Forrest, 26. 
 
 (ra) 2 Price, 298, («)• (o) 1 Younge & J. 15. 
 
 {p) 4 East, 102; and see 10 Moore, 170. 8 Dowl. & Ryl. 606. {q) 4 East, 189. 
 
 (a) 13 East, 355 ; and see 2 Chit. Rep. 104. 4 Barn. & Aid. 279. 
 
 h] 16 East, 389. (c) 4 Barn. & Aid. 279. 
 
 \d) 3 East, 145, K. B. 1 Taunt. 320, 0. P. 1 Price, 74. Excheq. but see 4 Bing. 80. 
 
 \e) 3 Moore, 259. 1 Brod. & Bing. 23, S. C. 
 
 (/) 13 Price, 523, M'Clel. 252, S. C.
 
 OF SPECIAL BAIL. 285 
 
 of King's Bench, however, will not grant a rule for that purpose, unless it 
 be sworn that the application is made by the bail.(^) 
 
 When the defendant is at larfn\[h) he may come and render himself, or 
 be taken and rendered by his bail, either in court, if sitting, or before a 
 judge at his chambers ; and the court or judge will make out a committitur^ 
 or minute of the render(i) and commitment,(/(") an<l cause the defendant to 
 be sent therewith, in custody of a tip-staff, to the King's Bench or Fleet 
 prison. (Z)[a] When bail above are put in, tlie principal is supposed tube de- 
 livered into their custody by the court •,[mm) as is evident from the language 
 of the bail-piece, which states him to be delivered to bail, kc. : and it is 
 said that they have their principal always in a string, which they may pull 
 whenever they please, and render him in their discharge. (»ni) The bail may 
 also take their principal on a Sunday, in order to render him \{o) and they 
 may even take him, during his examination before commissioners of bank- 
 rupt, (p) or going to a court of justice. ((/) So, they may justify entering 
 the house of a third person, in which the principal resides, the outer door 
 being open, in order to seek after, for the purpose of rendering him, 
 although the principal was not in the house at the time.(?') When 
 the ^principal is taken, one of the bail, it is said, must always [ *28G ] 
 remain Avith him ; for they cannot depute their right of custody to 
 another, without the defendant's consent in writing, till he be rendered ;(a) 
 but it has been determined, that a third person may assist the bail in 
 taking their principal, and may lawfully detain him, although the bail do 
 not continue present. (5)[b] A render may be made by the party himself, 
 without an attorney :(c') and it is not necessary that the defendant should be 
 taken to a judge's chambers, for the purpose of rendering him in discharge 
 of his bail, unless he desire it -.{d) nor that a committitur should be entered, 
 when a principal is rendered in discharge of his bail, but the bail may 
 
 (^r) 2 Chit. Rep. 101. 
 
 (A) 6 Mod. 231. (0 R. T. 3 Ann. K. B. 
 
 \k) Append. Chap. XII. § 49. {I) 1 Chit. Rep. 3(34. 
 
 (mm) 4 Inst. 178. 2 Hawk. P. C. 88. (h«) 6 Mod. 231. 
 
 (o) Ante, 218. {p) Ante. 197, 201. 
 
 iq) 1 Sel. Pr. 2 Ed. 170 ; and see 3 Stark. Ni. Pri. 132. Dowl. k Ryl. Ni. Pri. 20. Ante, 
 197. 
 
 (r) 2 11. Blac. 120. 
 
 (a) 1 Scl. Pr. 2 Ed. 170. {b) 3 Taunt. 425. 
 
 (c) 2 Chit. Rep. 99. (d) /rf. 74. 
 
 [a] The surrender of a principal by the sureties on the bail bond must be by some dis- 
 tinct unequivocal act, accom[>anied by such declarations or acknowledgment, as show its 
 j>urpose and the case to which it applies, and be guarded by the means of clear proof. 
 Bomar v. Poole, 2 Speers, 119. Thus, it has been held that a voluntary surrender by the 
 principal to the sheriff without the knowledge of his bail, will discharge the bail ; and plac- 
 ing himself in the sherifTs power for the purpose of being detained, is a surrender. Deck v. 
 Stoker, 1 Dev. 91. So a surrender of the principal to the oflicer holding the execution before 
 it is returnable discharges the bail. Champion v. Koyes, 2 Mass. 485. Rice v. Carnes, 8 Id. 
 490. Collins V. Cook, 4 Day, 1. lit/an v. Watson, 2 Greenl. 382. So, pending an action, the 
 ]irinciplc may be surrendered in court in discharge of bail's liability. Cooledge v. Gary, 14 
 Mass. 115. A principal confined in prison for crime may be brought into court by habeas 
 corpus and surrendered in discharge of bail. Jiigelow v. Johnston, 16 Mass. 218. Bigncll v. 
 Forrest, 2 Johns. 482. Cathcart v. Cannon, 1 Johns. Cas. 28. Loflin v. Fowler, 18 Johns. 
 335. Rugglcs v. Corraj, 3 Conn. 419. Canhy v. Grijjin, 3 Harring. 333. Consent by the 
 plaintiff to the entry of an cxoneretur will discharge the bail. Kellogg v. Munroc, 9 Johns. 
 300. Hail are regarded as sureties and are entitled to the benefit of the general principles 
 applicable to sureties. Rathbonc v. Warren, 10 Johns. 587. Edwards v. Coleman, 6 Monr. 
 573. 
 
 [b] Special bail may arrest his principal anywhere. The State v. Mahon, 3 Harring. 568.
 
 286 
 
 OF SPECIAL BAIL. 
 
 enter an exoneretur, and be discharged. (c) In the King's Bench it is a 
 rule that " under every commitment should be entered the state of the 
 cause, at the time of the render : If before declaration, the sum sworn to 
 on the arrest ; but if after declaration, these words should be added, 
 declaration filed or deUve7'ed, issue, or interlocutor^/ judgment signed, as 
 the case is :(/) If after final judgment in debt, the debt and damages ; 
 in other cases, the quantum of the damagcs.'\g) In the Common Pleas, 
 the filacer attends with his book, at the judge's chambers, and takes the 
 render : And where it was made on the last day. the court ordered the 
 hour of the day, or true time of the defendant's surrender, to be entered 
 by the filacer, in order that it might appear whether the surrender was 
 made before or after the rising of the court.(7?) 
 
 When the defendant is in custody on civil process, there must be a 
 habeas corpus cum causd for bringing him up, in order to render him in 
 discharge of his bail. This writ may be issued in term or vacation, 
 returnable immediate ;[i) and the judge will, on the defendant's being 
 brought up, either commit him to the custody of the marshal in the King's 
 Bench, or warden of the Fleet, in the Common Pleas and Exchequer, or 
 remand him to his former custody. In general, when the crown is not 
 concerned, the court will commit the defendant to the custody of the 
 marshal, or warden : But where an impressed man, not being liable to be 
 taken out of the king's service, by any process, other than for some 
 criminal matter, was brought up by the keeper of the Savoy, to be sur- 
 rendered in discharge of his bail, the court of King's Bench first committed 
 him to the custody of the marshal, and then ordered him to be delivered 
 instanter to the keeper of the Savoy ; which was done,*and an exoneretur 
 entered on the bail-piece.(Z:) A certiorari will not lie, to remove the record 
 of a judgment obtained against a defendant in the county palatine of 
 Durham, for the purpose of enabling his bail to render him in the King's 
 Bench, though he be a prisoner for debt in the custody of the marshal. (?) 
 *When the defendant is in custody on a criminal account, the 
 [ *287 ] court of King's Bench will in some cases grant a habeas corpus 
 ad subjiciendum, for bringing him up ; as where he is in custody 
 under a charge of felony,(rt) or of obtaining money under false pretences, (6) 
 or has been committed to prison by commissioners of bankrupt, for not 
 answering questions to their satisfaction. («?) The habeas corpus, in these 
 cases, must be issued on the eroivn side of the court of King's Bench ; on 
 which side also must be taken out the subsequent rule for the defendant's 
 surrender in the action, his commitment pro for md to the marshal, and his 
 recommitment to his former custody, charged with the several matters 
 ao'ainst him:((f) And under this writ, the court will remand him to his 
 former custody. (eg) But if a defendant be in the criminal custody of the 
 
 (e) Humphries v. Ditcher, E. 21 Geo. III. K. B. 
 
 (/•) Append. Chap. XIL § 50. 
 
 (g) R. E. 8 Geo. III. K. B. Append. Chap. XII. g 51. 
 
 (h) Barnes, 69. (?) 3 Bur. 1875. 
 
 Ik) 1 Bur. 339 ; but see 7 East, 405, where the court, in a similar case, ordered an exoneretur 
 to be entered on the bail-piece, in the first instance. 
 
 (I) 2Dowl. &Ryl. 177. 
 
 (a) 7 Durnf. & East, 226. {h) 15 East, 78; but see 13 East, 457. 
 
 (c) Exparteredln/, T. 23 Geo. III. K. B.; and see 3 East, 232, stat. 5 Geo. II. c. 30, § 18. 
 6 Geo. IV. c. 16, ^ 39. 
 
 {d) 3 East, 232. 
 
 \ee) 2 Str. 1217 ; but see 4 Bur. 2034, 7 Durnf. & East, 227.
 
 OF SPECIAL BAIL. 287 
 
 court of King's Bench, the Court of Common Pleas will not take him out 
 of such custody, in order to surrender him in discharge of his huil;(/) 
 though, if the imprisonment in such case were only temporary, the court 
 would it seems relieve the bail, by enlarging the time for surrendcrin'T^ the 
 principal, until after the time of his imprisonment has expired.(,(7) 
 
 When the croivii is concerned, the courts will not, in general, chancre 
 the custody, without the express consent of its ofricers:(/i) Though where a 
 defendant, being charged in custody upon an extent or injur mat iu a, or for 
 a contempt in not paying the king's debt, is brought up to the court of 
 King's Bench on a habeas corpus, to be surrendered in discharge of his 
 bail, and it appears that the civil action in which he was bailed was com- 
 menced before the other proceedings, and the court are satisfied that it is for 
 ajustdebt, andthe application really made by the bail, they willcommit him 
 as their prisoner, to the custody of the marshal : For, by the '2-') Edw. 111. 
 Stat. 5, c. I'J, " the king's debtors shall not be protected from the proceedings 
 of their other creditors against them."(i!;') The attorney general, however 
 may have a habeas corpus^ to remand the defendant. (A;) lu the Common 
 Pleas, where A. was arrested and held to bail in a civil action, after which 
 an extent issued against him at the suit of the crown, and he was thereupon 
 committed to the custody of the sheriffs of London ; on an application to 
 the court by the bail for relief, it was holden, 1st, that the bail were not 
 entitled to enter an exoneretur on the bail-piece ;[a] 2dly, the crown 
 having refused its consent to the defendant's being surrendered, unless 
 he should be immediately remanded to the custody of the marshal, that 
 this court would have no authority so to remand him, after he had 
 *been surrendered to the warden of the Fleet ; and 3dly, that the [ *288 1 
 bail could not surrender the defendant by habeas corpus, as a 
 matter of right, without the consent of the crown :{a) But the court ex- 
 pressed their readiness to give the bail time for surrendering the defen- 
 dant.(a) 
 
 The defendant being rendered, notice thereof should be given, without 
 delay, to the plaintiff's attorney ;(6) to the end that the plaintiff, if he 
 think proper, may charge the defendant in execution, or at least that he 
 may not be at any further trouble or expense in proceeding against the 
 bail. If the plaintiff" therefore, through want of notice, continue to pro- 
 ceed against the bail, though this will not vitiate the render, yet they shall 
 not be relieved until they have paid the charges. (c) But the notice need 
 
 (/) 3 Moore, 259. 1 Brod. & Bing. 23, S. C. ; and see 13 East, 457. 
 
 (y) Ante, 285. 
 
 (A) Rejcy. Fedley, T. 23 Geo. IIL K. B. Barnes, 385, 388. 5 Taunt. 503. 1 Marsh, IGC 
 S. C. 8 Taunt. 148. 2 Moore, 33, S. C. 3 Moore, 259. 1 Brod. & Bing. 23, S. C. ; and 
 see West on Extents, 90, Ac, 95. 
 
 (i) Hob. 115. 1 Salk. 353. 1 Str. G41. 1 Wils. 248. 1 Bur. 339; and see West on 
 Extents, 91, &c. 
 
 (k) I Wils. 248. Barnes, 288. 
 
 {a) 5 Taunt. 503. 1 Marsli. 166, S. C. 
 
 \lj) 7 Uurnf. & East, 528. 8 Durnf. k East, 223. 3 Bos. & Pul. 232. 1 Price, 333. Append 
 Chap. XII. § 52. 
 
 (c) 11. T. 1 Ann, reg. 2, (a), K. B. 6 Mod. 238. 8 Mod. 231. 4 Bac. Abr. 420, 21. 5 
 Durnf. & East, 368. 8 Durnf. & East, 222. 3 Barn. & Cres. 112. 4 Dowl. & Uyl. 712, a. C. ; 
 and see Append. Chap. XII. ^ 53. 
 
 [\] But where the governor of one State in the Union delivered one, on requisition, to the 
 authorities of another State, who was under bail at the time on a criminal charge, it was 
 held that such delivery discharged the bail from bis recognizance. The Slate v. Allen 2 
 Humph. 258. '
 
 OQQ OF SPECIAL BAIL. 
 
 not be '^iven before the rising of the court, on the day of render :{d) And 
 if the principal be surrendered in time, but the bail omit to give regular 
 notice of it to the plaintiff, in consequence of which he proceeds upon the 
 bail bond, or against the sheriff, the bail may apply to set aside the pro- 
 ceedings, on payment of costs, even after the execution levied, and the 
 money is in the sheriff's hands. (e) After due notice of the render of the 
 principal, the plaintiff still proceeded against one of the bail, in an action 
 of debt on the recognizance, because no offer was made to pay the costs 
 in the suit against him, nor any rule obtained to stay proceedings on pay- 
 ment of costs; and the court of King's Bench held the subsequent pro- 
 ceedings to be irregular, being contrary to the rule of Trin. 1 Ann, which 
 declares that on such notice of render, all further proceedings against the 
 bail shall cease.(/) In the King's Bench, an affidavit is required to be 
 made of the service of notice of render ; [c) but this seems to be only for 
 the purpose of getting the bail-piece from the judge's chambers, and not 
 necessary in order to make the render complete, so as to discharge the 
 bail below, and prevent an attachment against the sheriff :(</) Therefore, 
 an attachment issued after notice of render, but before affidavit thereof, 
 is irregular, in the King's Bench ;(/t) and, in the Common Pleas, an affi- 
 davit of the service of notice of render is altogether unnecessary. (z) 
 
 The next step to be taken, in order to discharge the bail, in the King's 
 Bench, is to enter an exoneretur on the bail-piece :[a] to effect which, the 
 bail-piece, if not already got, should be obtained from the judge's cham- 
 bers, and a certificate(Z:) from the prison, that the defendant is in custody. 
 
 (d) Per cur. H. 26 Geo. III. K. B. 5 East, 533 ; and see 2 Smith, R. 242. 2 Chit. Rep. 
 103. 
 
 (e) 8 Durnf. & East, 222 ; and see 1 Price, 338. 2 Chit. Rep. 103, (a). 5 Barn. & Cres. 
 244. 
 
 (/) 3 East, 306 ; and see R. M. 1654, § 12, C. P. Humphries v. Ditcher. E. 21 Geo. III. 
 K. B. 16 East, 168, 9. 1 Maule & Sel. 742. 2 Chit. Rep. 100. 
 (c) Ante, 287, note (c). 
 
 lo) 1 Chit. Rep. 360. [h] Id. 359. 
 
 (t) Imp. C. P. 7 Ed. 529. (k) R. T. 3 Ann, (a), K. B. 
 
 [a] It has been held, that a statute abolishing imprisonment for debt operating to dis- 
 charge such as may be imprisoned at the time of its passage, operates to discharge a 
 recognizance of bail entered into before that time. Tousey v. Areny, 11 Ohio, 90; and 
 special bail may apply for an exoneretur, on the ground that the right to imprison the 
 principal was abolished previous to the expiration of the time within which the principal 
 might have been surrendered. White v. Blake, 22 Wend. 612. Harrington y. Hennie, 13 
 Mais. 94. Gillespie v. Heidings, 2 Barr, 492. Newton v. Tibbatts, 2 Eng. 150. Branson v. 
 Newbemi 2 Doug. Mich. R. 38. An exoneretur will also be entered where the principal has 
 been discharged as an insolvent debtor since the rendition of judgment against him. 
 Trumhall v. Healey, 21 Wend. 670; and generally a discharge of the principal under the 
 insolvent or bankrupt law before the bail ar-e fixed, entitles them to an exoneretur without 
 a surrender. Saunders v. Bobo, 2 Bailey, 492. Seaman v. Drake, 1 Caines, 9. Kane v. 
 Ingraham, 2 Johns. Cas. 403. Champion v. Noyes, 2 Mass. 481. Bailey v. Seal, 1 Barring. 
 367. irGlenscy v. M'Lear, Id. 466. Harrison v. Young, 1 Harr. & J. 102. 3ICauseland v. 
 Waller Id. 156. ilKing v. Marshall, Id. 101. Richmond v. De Young, 3 Gill. & Johns. 64. 
 Rotvland v. Stevenson, 1 Halst. 149. A discharge of the principal is in all cases equivalent 
 to a surrender and bail may avail themselves of it if it be obtained at any time before the 
 time allowed to surrender has expired. Olcott v. Lilly, 4 Johns. 407. Rathbone v. Black- 
 ford, 1 Caines, 588. Kenly v. Hughes, 1 Browne, 258. But if the principal neglects to avail 
 himself of his discharge, and suffers judgment to go against him, the court will not allow an 
 exoneretur to be entered. Mechanics' Bank v. IIazzard,9 Johns. 302. Fost v. Riley, 18 lb. 
 54. Campbell v. Palmer, 6 Cow. 596. 
 
 A judgment on the merits in favour of the principal, though it may afterwards be reversed 
 on error, discharges the bail. Butler v. Bissell, 1 Root, 102. Fleming v. Lord, Id. 214. 
 Ainsworth v. Peabody, Id. 469. Lockwood v. Jones, 7 Conn. 439.
 
 OF SPECIAL BAIL. 288 
 
 These bciri!]; carried to the master, he ^vill enter an exoneretur 
 on the *bail-piece, whicli should then be filed with the signer of [ *289 ] 
 the writs ; for if the bail-piece be filed without an cxom-retur, 
 the bail remain liable, though the defendant be actually in prison. (aa) 
 Yet, where the bail-piece has been previously delivered out to be filed, to 
 the plaintiff's attorney, who neglects to file it, he cannot proceed against 
 the bail, for want of an exoneretur :{hh) And Avhere the render is in other 
 respects regular, the court will not order an exoneretur to be entered on 
 the bail-piece, upon paying the costs that have accrued subsequent to the 
 render. (c) In the Common Pleas, the exoneretur is entered in the filacer's 
 book, on making the render at the judge's chambers.(fZ) And when judg- 
 ment having been entered up against a defendant in the Common Pleas, 
 he brought a writ of error in the King's Bench, where the judgment was 
 affirmed, and afterwards brought a writ of error in the House of Lords, 
 and pending such a writ surrendered himself in discharge of his bail to 
 the King's Bench prison ; the court of Common Pleas held, that the bail 
 were entitled to have an exoneretur entered on the bail-piece ; as the re- 
 cognizance of bail still remained in that court, where the action was origi- 
 nally commenced ; and that the defendant having been rendered to the 
 King's Bench prison, the terms of the recognizance could not be complied 
 with, as that court ■would not allow him to be delivered up or transferred 
 to any other custody.(g) It was formerly usual to make an entry of the 
 render in the marshal's book, kept in the King's Bench office ;(/) but this 
 is now holden to be unnecessary :[g) the practice being, when the bail 
 bring the defendant to the judge's chambers to be rendered, for the judge 
 to make out a committitur, w hich is delivered, together with the prisoner, 
 to the tipstaff, who carries him to the King's Bench prison, and there 
 delivers the prisoner, with the committitur, to the marshal or his officer ;(7i) 
 and it is the duty of the clerk of the papers there, to make an entry in 
 the marshal's book. (A) 
 
 The bail to the action are excused from the performance of the condi- 
 tion of the recognizance, by the act of God, as by the death of the prin- 
 cipal before the return of the capias ad satisfaciendum ;\_a] or by act of 
 laiv, as by his being made a peer of the realm, or member of the house of 
 commons, or becoming bankrupt and obtaining his certificate, or being 
 discharged under an insolvent debtors' act, or by his being under sentence 
 of transportation, or impressed into the king's service, or sent out of the 
 kingdom under the alien act, &c. ; or by act or default of the plaintiff, as 
 by his not proceeding in the action in due time, or proper manner, or by 
 his taking a cognovit, and giving time thereby to the principal, without 
 the consent of the bail. 
 
 *Wlien the defendant dies before the return of the capias ad [ *200 ] 
 satisfaciendum, as it is impossible for the bail to render him, 
 
 (aa) R. E. I Ann, reff. 2, (a), K. B. 1 Salk. 98. 8 Mod. 282. 
 {bb) 8 Mod. 280. Barnes, 68, S. P. 
 
 (c) Say. Rep. 7, 8. 1 Bur. 409. 
 
 (d) Imp. G. P. 7 Ed. 528. (<•) 9 Moore, G.'i. 2 Biiig. 18, S. C. 
 
 (/) R. T. 3 Ann, (a), K. B. ; and see 1 Salk. 272, 3. 12 Mod. 583, S. C. 2 Sir. 1215, 
 1226. 2 Bur. 1049. 2 Smith, R. 243. 1 Chit. Rep. 3GI. 
 
 (ff) 2 Barn. & Aid. 607. 1 Chit. Rep. 359, S. C. (h) 1 Chit. Rep. 364. 
 
 [a] See Arthur v. Antonio, 1 Nott & M'Cord, 251. Champion v. Noyes, 2 Mass. 485. 
 ^Vhi(c V. Cummins, 1 Overt. 224. IJank v. Pollock, 1 Ham. 35. Bulkky v. Cotton, 1 Johns. 
 515. GriJ/in v. Moor, 2 Kelly, 331.
 
 290 
 
 OF SPECIAL BAIL. 
 
 they arc discharged from their recognizance : But if the death happen 
 after the return of the capias ad satisfaciendum, and before it is filed, the 
 bail are fixed. (a) And the courts, we have seen, (6) will not discharge 
 them, on the ground of the insanity of their principal : although a com- 
 mission of lunacy may have issued, under which he has been found a 
 lunatic. In like manner, if the defendant be made a peer of the realm, (cc) 
 or member of the house of commons,(c^cZ) or become haiikruiJt and obtain 
 his certificate,(ee) or be discharged under an insolvent debtors' SLCt,{ff) 
 &c., at any time before the bail are fixed, they are in consequence dis- 
 charo-ed : And, in any of the above cases, the courts, on motion, will order 
 an exoneretur to be entered on the bail-piece, or in the filacer's book. 
 
 When the defendant has become bankrupt and obtained his certificate, 
 before the expiration of the time allowed to the bail, by the indulgence of 
 the court, for surrendering him, that is, (when the plaintifi" proceeds by scire 
 facias,) before the rising of the court on the return day of the second scire 
 facias,{g) or of the first, when scire feci is returned, by MUin the King's 
 Bench ;(/i) or by original in that court, as well as in the Common Pleas, 
 before the rising of the court on the appearance day, or quarto die ijost of 
 the return of the second scire facias, or of the first, when scire feci is re- 
 turned :{li) or, when the plaintiff proceeds by action of debt on the recogni- 
 zance in the King's Bench, within the space of eight entire days in full term 
 next after the return of the latitat or other process against the bail, (2) or, in 
 the Common Pleas, before the rising of the court on the quarto die post of 
 the return of the process ;(/{;) the court on motion, supported by an affidavit 
 of the facts, will order an exoneretur to be entered on the bail-piece by bill, 
 or in the filacer's book by original.ij) And, in the Exchequer, proceed- 
 in o-s were stayed in an action against bail, and an exoneretur ordered to be 
 entered on the bail-piece, after the defendant had obtained his certificate, on 
 payment of the costs of the action, and of the application ; although the re- 
 coo-nizance had been entered into for his discharge out of custody, after final 
 judo-ment, and the certificate had not been allowed by the chancellor, till 
 after the expiration of the time stipulated for making the render. (???) But 
 
 the court of Common Pleas would not relieve the bail of a bank- 
 [ *291 ] rupt, who were fixed after the appearance day *or quarto die 
 
 jjost of the return of the second scire facias, which happened be- 
 tween the signature of the bankrupt's certificate by his creditors and the 
 commissioners, and the time of its allowance by the Lord Chancellor. (aa) 
 And, in that court, where an action was commenced, and the defendant 
 became bankrupt and obtained his certificate, and afterwards permitted 
 judgment to be signed for want of a plea, after which the plaintiff pro- 
 ceeded against the bail, the court of Common Pleas would not relieve the 
 
 (a) 6 Durnf. & East, 284. (b) Ante, 216. 
 
 (cc) Doug. 45. 
 
 {dd) Lanffridje, one, c^c. v. Flood, H. 26 Geo. III. K. B. 4 East, 190, S. C. cited. 
 
 (ee) 1 Kea. 504. 1 Bur. 244, 5, S. C. Id. 436. Cowp. 824. 
 
 (/) 2 Chit. Rep. 105. 
 
 Iff) 1 Barn. & Cres. 247. 2 Dowl. & Ryl, 385, S. C. 
 
 (/() Ante, 283. (0 Ante, 283, 4. 
 
 [k] Ante, 284. 
 
 (l) Cleveland v. Dickenson c^ another, bail of Tomkins, E. 41 Geo. III. K. B. 2 Chit. Rep. 
 104. 14 East, 599. 1 Barn. & Aid. 332. 3 Barn, k Cres. 222. 5 Dowl. & Ryl. 258, S. C. 
 K. B. 2 New Rep. C. P. 180, 190. 8 Taunt. 28. 1 Moore, 457, S. C. 7 Moore, 5U6. 1 
 Bing. 1G4, S. C. C. P. M'Clel. 310, 399. Excheq. 
 
 (77j) M'Clel. 399. {aa) 7 Taunt. 589.
 
 OF SPECIAL BAIL, 291 
 
 bail on motion. (J) Anil it seems that in such case, they could in no ^yay 
 take advantage of the bankruptcy and certificate.(6) 
 
 The court of King's Bench would not relieve the bail, on the ground that 
 the debt was contracted while the defendant was resident in a foreign coun- 
 try, and before he became a bankrujjt by the laws of that country, though 
 he might have obtained his ccrtificale there. (e) And where the defendant 
 became bankrupt, before the statute 49 Geo. III. c. 121, § 14, and the plain- 
 tift' proved his debt under the commission, but did not otherwise proceed 
 under it, the court held that the bail were liable; though the plainiifT had 
 lain by two years before he brought his scire facias against them. (J) But 
 now, since the making of the above statute, if a [)laintiff, after judgment 
 obtained, prove his debt under a commission of bankrupt sued out iigainst 
 the defendant, and also proceed against the bail, the latter are thereby enti- 
 tled to their discharge ; and the court on motion will order an exoneretur 
 to be entered on the bail-piece. (c) Bail to the sheriff however, we have 
 seen,(/) woi-e not considered as sureties, or liable for the debt of a bank- 
 rupt, within the meaning of the statute 40 Geo. III. c. 121, § 8. And 
 therefore, where such bail, being fixed with the debt and having paid it, 
 sued the principal and obtained judgment, after a commission of bank- 
 rupt had issued against him, but before he had obtained his certificate, and 
 after he had obtained it the bail in the second action applied to be exone- 
 rated, on the ground that the plaintiffs, the bail in the original action, might 
 prove their debt under the commission, by virtue of the last mentioned sta- 
 tute, the court of Common Pleas refused to interfere in a summary way, but 
 left the bail to their writ of audita querela ;{g) upon which the bail rendered 
 the defendant, and the court, on a subsequent application, refused to dis- 
 charge him.(/i) But this case is now provided for; and the bail to the 
 sheriff, having paid the debt, or part of it in discharge of the whole, are 
 entitled to relief under the commission, by the statute G Geo. IV. c. 16, 
 §52. _ 
 
 The bail cannot plead the bankruptcy and certificate of their principal, in 
 their own discharge ; but must apply to the court on that ground, 
 to *be relieved on motion. (a) And formerly, if the defendant had [ *292 ] 
 become bankrupt, and obtained his certificate, before the bail were 
 fixed, the method was, for the bail to surrender him ; and then for the de- 
 fendant to apply to be discharged, upon an affidavit, stating his having be- 
 come bankrupt since the cause of action arose, and obtained a certificate of 
 his conformity under the commission. (i^>) But of late, when a bankrupt is 
 clearly entitled to his discharge, the court on motion, or a judge on sum- 
 mons, to avoid circuity, have ordered an exoneretur to be entered on the 
 bail-piece, or in the filacer's book, without the form of a regular surrender 
 by his bail.(cc') And the court of King's Bench will relieve the bail on mo- 
 tion, without directing an issue to try the fact of the bankrupt's being a 
 
 [b] 3 Taunt. 46 ; and see 4 Dowl. & Ryl. 373, accord; but see 3 Harn. k Cres. 222. 5 Dowl 
 & Ryl. 258, S. C.semb. contra. 
 
 (f) 8 Durnf. & East, 609 j and see 3 Moore, 244. 5 Moore, 331; but ii</c ante, 211, and the 
 cases there cited. 
 
 (rf) IIill V. Simpson, bail of Jackson, H. 26 Geo. III. K. B. ; but see 2 Blac. Rep. 1317. 
 
 (e) 2 Taunt. 246; and see stat. 6 Geo. IV. c. 16, g 59. Ante, 202, 3. (/) Ante, 208. 
 
 (ff) 6 Taunt. 329. 2 Marsh. 37, S. C. (A) 6 Taunt. 330. 2 Marsh. 192, S. C. 
 
 («) 1 Bos. & Pul. 448, 450, (h). 2 Bos. & Pul. 45. (hb) Cowp. 824. 
 
 (cf) Id. ibid. Barnes, 104. 1 Bos. & Pul. 450, (/■),j'(rIjullcr,J.; and see tlie cases referrtd 
 to, ante, 290, (1). 
 
 Vol. I.— 19
 
 292 
 
 OF SPECIAL BAIL. 
 
 trader- the certificate, by the statute G Geo. IV. c. 16,(tZ) being made suffi- 
 cient evidence of the trading, kc.{ee) But the court of Common Pleas would 
 not exonerate the bail, upon the defendant's having become bankrupt and 
 obtained his certificate, without giving the plaintifi" an opportunity of trying, 
 by an issue, whether the certificate were fairly obtained. (^') If the bail 
 do not apply to enter an exoneretur on the bail-piece, till after proceed- 
 ings have been had against them, they can only be relieved on payment 
 of costs. ((/</) 
 
 Where the defendant was under sentence of transportation for a felony, 
 the court permitted an exoneretur to be entered on the bail-piece.(7iA) So, 
 where the defendant being a seaman, and having been holden to bail on 
 mesne process, for a debt under 20Z., was impressed into the king's service, 
 the court, on application of the bail, ordered an exoneretur to be entered. (i) 
 So, whilst the alien act(k) remained in force, if a defendant had been sent 
 out of the kingdom under that act, the court of King's Bench would have 
 ordered the bail bond to be delivered up to be cancelled,(Z) or permitted 
 the bail above to enter an exoneretur ; unless they were indemnified, or 
 had money in their hands belonging to the defendant, sufficient to answer 
 the plaintiff's demand.(wi) But where the defendant was in custody under 
 a charge of murder committed in Ireland^ where a bill was found by the 
 grand jury against him, and application had been made to the secretary of 
 state, to send him over there in order to take his trial ; the court of King's 
 Bench, though they granted a habeas corpus to bring him up, in order that 
 
 he might be surrendered by his bail,(w) would not, without an 
 [ *29o ] actual surrender, allow an exo?ieretur to be entered on the *bail- 
 
 piece.(a) So, where the defendant was in custody of a messenger 
 under an order of the secretary of state, for the purpose of being sent out 
 of the kingdom by virtue of the alien act,{b) the court of King's Bench 
 refused to issue a habeas corpus, on the application of his bail, to bring 
 him up, that they might render him in their own discharge, on account of 
 the public inconvenience, and of the probable risk of his passage, which 
 had been taken in a ship immediately about to sail to his destined port : 
 and they also refused, while he was still in the kingdom, and might pos- 
 sibly be set at large again, to enter an exoneretur on the bail-piece ; but 
 they said that they would remember that the situation of the bail was 
 without any fault of theirs, if any proceedings were taken against them in 
 the meantime. (c) 
 
 The general rule by which the courts are governed, in the exercise of 
 an equitable interference in these cases, is said to be this : that wherever 
 by the act of the law, a total impossibility or temporary impracticability 
 to render a defendant has been occasioned, the courts will relieve the bail 
 from the unforeseen consequences of having become bound for a party 
 
 (d) ?j 126 ; and see stat. 5 Geo. II. c 30, ? 7, 13. Ante, 212. 
 
 \ee) 1 Barn. & Aid. 332. Willison v. Smith, E. 22 Geo. III. K. B. upon the authority of 
 another case, which had been determined on the construction of the statute 5 Geo. II. c. 30, 
 2 7, 13, after great argument, corilra. see Ed. B. L. 415. 
 
 (ff) 6 Taunt. 75; and see 5 Moore, 331. 
 
 (^^) 2 Chit. Rep. 104. 14 East, 599. 1 Barn. & Aid. 332. 8 Taunt. 28. I Moore, 457, 
 S. C. Ante,2?>i. 
 
 (hh) 6 Durnf. & East, 247. («) 7 East, 405 ; and see 1 Bur. 339. 
 
 {k) 33 Geo. III. c. 4. Ante, 215, 16. {I) 7 Durnf. & East, 517. 
 
 (m) 6 Durnf. &East, 50, 52, 246. (n) Ante, 287. 
 
 {a) 7 Durnf. & East, 226. 15 East, 78. {b) 43 Geo. III. c. 155. 
 
 (c) 13 East, 457. Ante, 287.
 
 OF SPECIAL BAIL. 293 
 
 whose condition has boon so changed, by operation of law, as to put it out 
 of their power to perform the alternative of their oblifiration, without any 
 default, laches, or possible collusion on their part.((/) The practical modes 
 of relief which the courts have adopted for that purpose, arc those three : 
 first, in cases of total impossibility, it is effected by ordering an exonerctur 
 to be entered upon the bail-piece, on motion for that purpose ; or, in the 
 case of bail below, that the bail bond be delivered up to be cancelled :[e) 
 That mode is consistent with the jurisdiction of all the three courts. A 
 second mode, (which is necessarily confined to the court of King's 
 Bench, )(/) has been, in cases of temporary impracticability arising from 
 the defendant being, at the time when he should be rendered, in legal 
 criminal custody, by ordering him to be brought up by habeas corpus, in 
 order that he may be formally rendered in discharge of his bail. A third 
 mode is, by the courts enlarging the time for making the render : This 
 also is within the power, and may be resorted to by all the courts. (^) 
 And the short result of all the determinations seems to be, that wherever 
 the court cannot absolutely exonerate the bail, and, cither from the con- 
 stitution of the court itself or the circumstances of the particular case,, 
 cannot enable them at once to make a formal render, they will, in all prac- 
 ticable cases of a temporary impossibility occasioned by act of law, and 
 even perhaps in other cases under special circumstances, enlarge the time 
 for making the render, in order to give the bail an opportunity of 
 rendering their principal, as soon as it shall be in their power to do so.(7t) 
 It remains to be considered, in what cases the bail are excused from the 
 performance of the condition of their recognizance, by the act or 
 default of *the i^laintiff. If the plaintiff do not declare against [ *294 ] 
 the defendant in due time, so that the cause is out of court,(a) his 
 bail are discharged. And it seems, that where there has been a great and 
 unnecessary delay in proceeding to trial, the bail may be relieved, on their 
 own application; though the court will not discharge them, at the instance 
 of the defendant. (?>) So, where the plaintiff declares by original, in the 
 King's Bench, in a different county from that where the action is brought, 
 his bail are discharged :[c) But in the King's Bench by hill, or in the Com- 
 mon rieas,((:ZcZ) the declaring in a different county from that in which the writ 
 issued, is not deemed a Avaiver of bail. So, the bail are discharged, if the 
 plaintiff declare against the defendant for a different cause of action from 
 what is expressed in the process. (ec) But, in the Common Pleas, a variance 
 between the writ and count, (the ac etiam being in case on j^i'omiseSy 
 but the. declaration in debt,) is not a ground for entering an cvoneretur 
 on the bail-piece, where the sum sworn to is under 4:0l.{ff) The affidavit 
 to hold to bail must also correspond in substance with the process :(////) and 
 therefore, if the plaintiff declare against the defendant by a different name,. 
 1 Moore & P. 24, or, for a different cause of action from what is expressed 
 
 (d) 13 Price, 525, in notU. 
 
 (e) 7 Duriif. & East, 517. (/) Ante, 287. 
 
 \g) 13 Price, 525, in notia. (A) Id. 532, 3, in nntis. 
 
 (a) 2 New Rep. G. P. 404. (6) 1 Chit. liep. 2S1. 
 
 (c) 3 Lev. 235. R. E. 2 Geo. II. (a), K. B. Barnes, 116. 
 
 \dd) R. H. 22 Geo. III. C. P. 
 
 \ec) Per Cur. M. 43 Geo. III. K. B. 3 Wils. 61. 2 H. Bloc. 278. 2 Bos. & Pul. 358. 5 
 Moore, 483 ; and see 2 East, 305 ; but see 2 Moore, 301. 8 Tuunt. 304, S. C. 1 Moore, 362. 
 1 Bing. G8, S. C. 8 Moore, 33. 1 Bing. 206, S. C. 
 
 (f) 1 H. Blac. 310. Ante, 150. (ffj) 1 Chit. Rep. 669, (a).
 
 294 
 
 OF SPECIAL BAIL. 
 
 in the aflTuiavit, his bail are discharged :{hh) But a trifling variance in the 
 names of the parties is not material, provided there be no doubt as to their 
 identity. (i) And it is too late to move to enter an exoneretur on the bail- 
 piece, on the ground of a variance between the declaration and affidavit to 
 hold to bail, after bail put in and justified, declaration delivered, plea de- 
 manded, and time allowed for pleading. (Z:) In the Common Pleas, bail are 
 not liable, where the declaration consists of several counts, unless the plain- 
 tiff recover for the cause of action specified in the affidavit.(?) And, in that 
 court, where the affidavit was for a certain sum, on a bill of exchange only, 
 and the plaintiff recovered a greater sum, as well on the bill as for goods 
 sold, the bail were holden to be liable only for so much as was recovered on 
 the bill of exchange. (m) And it seems, that if the sum recovered be under 
 a bailable amount, the bail are discharged. (?«) But where the plaintiff, hav- 
 in<T filed a bill in equity, and arrested the defendant for the same cause of 
 action, had, in consequence of an order out of Chancery, for that 
 [ *295 ] purpose elected to proceed in equity, the court refused *to dis- 
 charge the bail, but left them to move to set aside any proceed- 
 inf^s which might be taken against them. (a) 
 
 It was formerly holden, that a cognovit by the principal, without notice 
 to the bail, did not discharge them: (5) And accordingly, where the defend- 
 ant in the action gave a cognovit for the debt and costs, payable by seven 
 instalments, and afterwards the principal was discharged under an insolvent 
 debtor's act, which related to a certain day, when three only of the instal- 
 ments were payable : it was holden that the bail who had been fixed before 
 the passing of the act, though after the day to which it related, were liable 
 for the whole condemnation money, the entire debt, quel debt, being due 
 instanter ; with a stay of execution only for certain portions, at certain 
 times.(c) But where the plaintiff had taken a cognovit from the defendant, 
 •with an agreement to receive the debt by instalments, of which no notice 
 was given to the bail, the court of King's Bench set aside an execution 
 against them, sued out above a year after the judgment, without a scire 
 facias to revive it '.{d) And in general, although the bail are not discharged 
 by the plaintiff's taking a cognovit from the principal without their con- 
 sent, where judgment is to be entered up thereon instanter^{e) or the debt 
 is payable by instalments, within the time in which the plaintiff would have 
 been entitled to judgment and execution, had he gone to trial in the original 
 cause ;(/) yet where that is not the case, as where one or more of the instal- 
 ments are not payable till after the expiration of that time, it is now settled, 
 in both courts, that the bail are discharged. (<;) This doctrine was first intro- 
 duced in courts of equity ; and is founded on this principle, that every 
 surety has a right to come into a court of equity, and require to be per- 
 mitted to sue in the name of the original creditor : But if the creditor 
 
 {hh) 6 Durnf. k East, 363. T Durnf. & East, 80. 8 Durnf. & East, 27. 1 Chit. Rep. 659. 
 2 Taunt. 107. 5 Moore, 209. 3 Barn. & Cres. 1. 4 Dowl. & Ryl. 619, S. C. 
 
 (i) 1 Chit. Rep. 659, (a). [k) 3 Moore, 305. 1 Brod. & Bing. 48, S. C. 
 
 \l) 2 Taunt. 107 ; and see 4 DowL & Ryl. 245. (w) 7 Taunt. 304. 1 Moore, 51, S. 0. 
 
 (n) Per Lord Kenyan, in Lavender v. lulner, at Lancaster, May, 1797 ; but see 4 Dowl. & 
 Ryl. 194. 
 
 (a) 7 Taunt. 235. 2 Marsh. 548, S. C. (6) 5 Durnf. & East, 277. 
 
 (c) 8 East, 433. {d) 15 East, 617. 
 
 \e) 1 Taunt. 161. ( f) 5 Taunt. 319. 1 Marsh. 59, S. C. 
 
 {g) 15 East, 617. 4 Taunt. 456. 5 Taunt. 319. 1 Marsh. 59, S. C. 2 Marsh. 83, S. P. 
 7 Taunt. 53. 2 Marsh. 383, S. C. ; and see 2 Blac. Rep. 1317. 1 Taunt. 159. 5 Barn. & 
 Cres. 269. 8 Dowl. & Ryl. 22, S. G.
 
 OF PROCEEDINGS UPON THE BAIL BOND. 295 
 
 give time to the original debtor, he thereby prevents the surety from 
 using his name with effect. (c///) In like manner, the courts of la\Y have 
 hehl, that the bail are entitled to surrender the prineipal at any time, 
 whenever the plaintift' himself would not be precluded from taking a pro- 
 ceeding against him: But if the creditor give time to the principal, he 
 cannot during that time take or proceed against him; neither during the 
 same period can the bail, who are therefore discharged:! A) And this doc- 
 trine applies to bail to the sheriff, as Avell as bail above. (/) It is no 
 ground however, for setting aside a judgment, wiiich has been signed 
 against bail, that the plaintiff has accepted a composition from the defend- 
 ant, and suspended the execution of a capias ad satisfaciendum which 
 had been issued against him, though it were without the know- 
 ledge or consent of the bail; *as they are not prevented thereby [ *29G ] 
 from surrendering their principal. (aa) So, where a plaintiff re- 
 ceives bills of exchange from a defendant, with an agreement that he 
 shall not be precluded from proceeding while the bills are running, the 
 bail are not thereby discharged. (6) It is not any defence at law, to an 
 action on a bond against a surety, that by a parol agreement, time has been 
 given to the principal :(c) And the sureties in a replevin bond are not dis- 
 charged, by time being given to the plaintiff in replcvin.[d) 
 
 ♦CHAPTER XIII. [*297] 
 
 Of Proceedings against Bail to the Sheriff, upon the Bail Bond ; 
 and against the Sheriff, to compel him to return the Writ, and 
 bring in the Body. 
 
 If bail above, when necessary, be not put in and perfected in due time, 
 the bail bond is forfeited: and the plaintiff' may either take an assig)nnent 
 of it, (a) and proceed thereon against the defendant, and his bail to the 
 sheriff; or he may proceed against the sheriff himself, to compel him to 
 return the writ, and bring in the body of the defendant. (5i) 
 
 If the bail below be sufficient, it is usual for the plaintiff to take an assign- 
 ment of the bail bond; which it seems he may do, even after service of the 
 rule to bring in the body,(c?t') or moving for an attachment ; but after he has 
 sued out an attachment against the sheriff, he has made his election, and 
 
 (gg) 6 Dow, 238. Moore & P. 393, S. C. 
 
 (A) Holt, Ni. Pri. 84. 7 Taunt. 126; and see 2 Bos. & Pul. 61. 1 Taunt. 159. 15 E.ast, 
 617. 8 Taunt. 28. 1 Moore, 457, S. C. 7 Moore, 566. 1 Bing. 164, S. C. 5 B.irn. & Ores. 
 269. 8 Dowl. & Ryl. 22, S. C. 18Ve3.20. 3 Price, 216, 17. 1 Madd. Chan. 234, 5. 
 
 (i) 4 Barn. & Aid. 91. {aa) 5 Taunt. 614. 1 Marsh. 250, S. C. 
 
 (h) 7 Taunt. 126. And see further, as to when, and in what cases, bail to the action are 
 discharged, Petcrsd. Part I. Chap. XIV. 
 
 (c) 5 Barn. & Aid. 187. 2 Chit. Rep. 336, S. C. 
 
 (rf) 6 Taunt. 379. 2 Marsh. 81, S. C. 3 Price, 214, S. C. in Error: and sec 7 Taunt. 97. 
 2 Marsh. 392, S. C. 7 Price, 223, S. C. in Error. 
 
 (a) Append. Chap. XIII. § 1. 
 
 (66) Gilb. C. P. 20; and see 2 Wms. Saund. 5 Ed. 60, a.b. r. 61, a. b. kc. 
 
 (cc) Robinson, asitif/ner, i^'c. v. Owen, bail o( Dunkin, M. 36 Geo. III. Poidcvin v. Ilarvey, 
 bail of Martclli, M. 51 Geo. III. K. B. 7 Barn. & Ores. 478. 1 Man. & Ryl. 298. S. C. 3 
 Bos. & Pul. 5G4, C. P. Wightw. 40G. Man. Ex. Pr. 121. Eicheq.
 
 207 
 
 OF PROCEEDINGS 
 
 cannot afterw.arcls, whilst the attachment remains in force, take an assign- 
 ment of the bail bond :{dd) And, in the Common Pleas, if bail above be 
 put in and justified in due time after the sheriff is ruled to bring in the 
 body, the court will set aside the proceedings in an action upon the bail 
 bond, commenced previous to the time of justification :(e) So that the plain- 
 tiff, in that court, is not at liberty to proceed on the bail bond, pending 
 the rule to bring in the body. Jjut where the sheriff's ofiicer, on the 
 attachment being lodged, prevailed on the plaintiffs to withdraw it, and 
 take an assignment of the bail bond, which the plaintiffs, in order to 
 relieve the sheriff, accordingly took, and commienced an action thereon, 
 the court of King's Bench held, that the plaintiffs might abandon their 
 attachment in this case, and then take an assignment, and proceed on the 
 bail bond.(/) And, in the Exchequer, where the attachment against the 
 sheriff has been set aside for irregularity, it is no bar to an assignment of 
 the bail bond.(^) 
 Before the statute for the amendment of the law,(7i) the sheriff was not 
 compellable to assign the bail bond;(z) though if he had not as- 
 [ *298 ] signed it, the *court would have amerced him :{a) and the old way 
 was, first to give a rule for the sheriff to bring in the body, before 
 the plaintiff could take an assignment of the bail bond. (5) Another mis- 
 chief at common law was, that after an assignment of the bail bond, the 
 action thereupon must have been brought in the name of the sheriff, who 
 might have released it, and thereby driven the plaintiff into a court of 
 equity.(c) To remedy these inconveniences, it was enacted by the above 
 statute, that "if any person or persons shall be arrested, by any writ, bill 
 or process, issuing out of any of the courts of record at Westminster, at 
 the suit of any common person, and the sheriff or other officer take bail 
 from such person, against whom such writ, bill or process is taken out, 
 the sheriff or other officer, at the request and costs of the plaintiff in such 
 action or suit, or his lawful attorney, shall assign to the plaintiff in such 
 action, the bail bond or other security taken from such bail, by indorsing 
 the same, and attesting it under his hand and seal, in the joresence of two 
 or more credible witnesses, which may be done without any stamp : and 
 if the said bail bond or assignment, or other security taken for bail, be 
 forfeited, the plaintiff in such action, after such assignment made, may 
 bring an action and suit thereupon in his own name ; and the court where 
 the action is brought may, by rule or rules of the same court, give such 
 relief to the plaintiff and defendant in the original action, and to the bail, 
 upon the said bond or other security taken from such bail, as is agreeable 
 to justice and reason ; and that such rule or rules of the said court shall 
 have the nature and effect of a defeazance to such bail bond, or other 
 security for bail." This act, and all the statutes of jeofails, are extended 
 by the 24th section, to all courts of record in the counties palatine of 
 Lancaster, Chester, and Durham, and the principality of Wales, and to 
 all other courts of record within this kingdom. ((i) And, by the statute 6 
 
 (dd) Cunningham v. Chambers, E. 45 Geo. III. K. B. ; and see 1 Chit. Rep. 394, in notia. 
 
 {e) 3 Bos. & Pul. 564 ; and see 7 Moore, GOO. 1 Bing. 181, S. C. 
 
 (/) 15 East, 215. [g) Wightv^. 406. 
 
 (A) 4 & 5 Ann, c. 16, § 20. {i) 1 Mod. 228. 
 
 («) 1 Sid. 23. 2 Mod. 84. [h] 1 Salk. 99. (c) Gilb. C. P. 2. 
 
 {d) And see tlie statute 22 Geo. II. c. 4G, § 35, for the assignment of bail bonds, on pro- 
 cess issuing out of the court of Session of Chester, and the court of Common Pleas at Lan- 
 caster, and the proceedings thereon.
 
 LPON THE BAIL DOND. 298 
 
 Geo. IV. c. 108, § 00, where persons arrested by capias, at the king's 
 suit, give bail, the sheriflf is required to assign the bail bond to the king, 
 at the request of the prosecutor. 
 
 The bail bond, it is said, may bo assigned before it is forfeited, though 
 it cannot be ])Ut in suit till afterwards, (t')[A] And, in the King's Bench, if 
 the bail do not justify in four da^'s after exception, the plaintiff is at 
 liberty to proceed upon the bail bond ; although from the bail having been 
 put in sooner than was necessary, the rule for bringing in the bo<ly has 
 not expired, and the sheriff is not liable to an attachment :(/) And, in 
 that court, it has been holden, that [^ the fourth day for perfecting bail be 
 the last day of term, and the bail be not perfected before the rising of the 
 court on that day, an assignment of the bail bond to the plaintiff, in the 
 evening of that day, is regular.(,^) In the Common Pleas it is 
 a rule, that *"no bail bond taken in London or Middlesex, by [ *299 ] 
 virtue of any process issuing out of that court, returnable on the 
 first return of any term, shall be put in suit until after the fifth day in 
 full term ; and that no bail bond taken in any other city or county, by 
 virtue of such process, shall be put in suit until after the ninth day in full 
 term : and that no bail bond taken in London or Middlesex, by virtue of 
 any process issuing out of that court, returnable on the second or any 
 other subsequent return, shall be put in suit until after the end o^ four 
 days exclusive of the day on which such process shall be expressed to be 
 returnable; and that no bail bond taken in any other city or county, by 
 virtue of such last-mentioned process, shall be put in suit until after the 
 end of eiglit days exclusive of the day on which such last-mentioned pro- 
 cess shall be expressed to be returnable ; upon pain of having all proceed- 
 ings upon such bail bonds to the contrary, set aside with costs. "(«) After 
 default made in putting in special bail in time, it is not enough that bail are 
 afterwards put in : but the plaintiff may take an assignment of the bail 
 bond, and proceed thereon, unless the bail be also justified, though not 
 before excepted to.(i) And where the defendant had neglected to put in 
 and perfect bail above, the court of King's Bench held that the plaintiff 
 was not out of court, by omitting to declare in the original action, within 
 two terms after the return of the writ ; but he might still take an assign- 
 ment of the bail bond:(6') for he was not bound to declare de bene esse, 
 within the time limited for the defendant's appearance, and after that 
 time he could not declare, until the defendant had actually appeared. 
 But where the plaintiff is completely out of court, by not declaring in the 
 original action within a year after the return of the writ, or, in the Com- 
 mon Pleas, before the end of the vacation of the second term after it is 
 returnable, it seems that he cannot afterwards regularly take an assign- 
 ment of the bail bond :{d) And in the latter court, though the assignment 
 
 (c) Barnes, 77. 
 
 (/) 4 Barn, k Cres. 8G4. 7 Dowl. & Ryl. 374, S. C. {g) 8 Durnf. k East, 4. 
 
 {a) R. T. .{0 Geo. III. C. P. 1 II. Blac. 525, 6 ; and sec a former rule of H. <J Ann, reg. 4. 
 C. P. 2 Blac. Rep. 1009. (b) 7 East, 007. 
 
 (c) 2 Str. 12G2. Cnrmichael v. Chandler, T. 24 Geo. III. K. B. Imp. K. B. 10 Ed. 149 ; and 
 see 2 East, 442. Prac. Reg. 71. 3 Price, 259. 
 
 (rf) 2 Blac. Rep. 876 ; and see 4 Taunt. 715. 5 Taunt. 649. 
 
 [a] Where the plaintiff takes an assignment of the bail bond from the sheriff, and sues 
 the bail to insolvency, thi:* is no discharge of the sheriff's liability for taking insuflicient 
 bail, nor an eslOiipel of the plaiiUitTs right of action against him, Bcnnetl v. Brown, I 
 Strobh. 303,
 
 299 OF PROCEEDINGS 
 
 of the bail bond be regular, as being taken while the action was pending, 
 yet if the plaintiff be afterwards guilty of laches, to the prejudice of the 
 bail, the court will stay the proceedings thereon. (f') The plaintiff, how- 
 ever, may proceed against the bail, although the action be out of court, if 
 it do not appear that it was out of court before the plaintiff took an assign- 
 ment of the bail bond.(/) In the Exchequer, the court on motion will 
 stay proceedings against bail, on payment of costs, although the plaintiff 
 has neglected to proceed against them on the bond, as early as he might 
 have done, if the bail had any reason to think that the plaintiff did not 
 
 mean to proceed in the action, such as the bankruptcy of the 
 [ *300 ] defendant. But when a trial has been lost, the bail *bond will 
 
 be ordered to stand as a security, if the bail have not applied to 
 stay proceedings on the earliest opportunity. (««) 
 
 The assignment maybe made by the high sheriff, or by the under-sheriff 
 in his name, and even by the under-sheriff's clerk in his office :(^5) And as 
 the assignment may be made, so the action may be brought, in any county. (cc) 
 It was formerly usual for the plaintiff to bring several actions, against the 
 principal and his bail, upon the bail bond ; but this practice being considered 
 unnecessary and oppressive, was discountenanced by the court of King's 
 Bench in a recent case,((?tf ) where the assignee of a bail bond brought sepa- 
 rate actions thereon, without suggesting any sufficient reason for so doing ; 
 and the court, under the discretionary power vested in them by the statute 
 
 4 & 5 Ann. c. 16, § 20, stayed the proceedings in all the actions, upon pay- 
 ment of the costs of one of them. The action upon the bail bond must 
 necessarily be brought in the same court whence the process issued, on 
 which the bond was taken •,{ee) otherwise the parties could not have the relief 
 intended by the statute. This rule applies, in the King's Bench, to actions 
 brought on the bail bond by the sheriff himself, as well as his assignee '{ff) 
 but it is otherwise in the Common Pleas,(^) and Exchequer,(7i) where the 
 sheriff may sue on the bail bond in a different court : And although it be 
 irregular to bring an action on the bail bond, in a different court from that 
 in which the original action was commenced, yet the defendant cannot take 
 advantage of this, under the plea of oion est factum.{i) When the plain- 
 tiff has taken an assignment of the bail bond, he cannot proceed in the 
 original action, so long as he retains his right to sue upon ii.{k) 
 
 The proceedings on the bail bond may be set aside, with costs, if irregu- 
 lar ; or staged, if regular, upon terms, at the instance of the defendant,(?) 
 
 (f) 3 Bos. & Pill. 221. 
 
 (/) 4 Taunt. 715. And see furtber, as to the forfeiture and assignment of the bail bond, 
 Petersd. Part I. Chap. VI. § 3. 
 
 (aa) 3 Price, 257. And see 7 Price, 535. 13 Price, 115, 16. I Younge & J. 313, post, 
 302, 303, [1). 
 
 (hb) Per Lord Mansfield, in Harris v. Ashley, Sit. 3Iid. M. 30 Geo. II. French v. Arnold, T. 
 
 5 Geo. III. 1 Str. 60, (1). 4 Campb. 36 ; and see 5 Barn. & Aid. 243 ; but see Kitson ^~ Fagg, 
 1 Str. 60. 10 Mod. 288, S. C. contra. 
 
 [cc) 2 Str. 727. 2 Ld. Rajm. 1455, S. C. 
 
 {dd) 2 Barn. & Aid. 598. 1 Chit. Rep. 337, S. C. 
 
 (ee) 1 Bur. 642. 2 Ken. 369, S. C. 3 Bur. 1923. Barnes, 92, 117. 3 Wils. 348. 2 Blac. Rep. 
 838, S. C. 
 
 (ff) 8 Durnf. & East, 152 ; but the action in this case had been removed from an inferior 
 court. 
 
 [g] 1 H. Blac. 631, {h) 8 Price, 174. [i) 2 Campb. 396. 
 
 (k) Eaton V. Ueattie, E. 45 Geo. III. K. B. 2 Smith R. 489, S. C. 4 Taunt. 715. 1 Chit. 
 Rep. 394. in notis. 9 Price, 407. 
 (I) Barnes, 74.
 
 UPON THE BAIL BOND. 300 
 
 or of the slierilT or his bail, in order tliat there may he a trial in the original 
 action. And the rule for staying the proceedings may bo obtained on the 
 same day that tlie bail justified. (//?) The causes of irregularity are as vari- 
 ous as tlie different proceedings out of which tlie}' arise. In general, the 
 irregularity is in the Avrit, as that it Avas returnable on a day out of tcrm,(?i) 
 &c. ; or in the affidavit to hold to bail, arrest, bail bond, or exception to 
 bail ; or that the bond was put in suit before it was forfeited. 
 *When a bail bond has been improperly taken, the court will [ *301 ] 
 Order it to be delivered up to be cancelled : And the assignment of 
 a bail bond was set aside, as having been made pending a rule to set aside 
 proceedings for irregularity, and to staff proceedings m the mean tune; 
 the proceedings being suspended thereby for all purposes, till the rule was 
 discharged. (rt) So, the proceedings on the bail bond were set aside where 
 the assignment was taken after the defendant had given a cognovit, without 
 the knowledge of the bail, for payment of the debt and costs. (i) But when 
 a defendant obtains a rule which stays the plaintiff's proceedings, he is not 
 entitled, after it is discharged, to the same time for the purpose of taking the 
 next step, as he had when he obtained the rule ; though the defendant in such 
 case should have a reasonable time allowed him, for the purpose of taking his 
 next proceeding ; and it has been determined, that the whole of the day on 
 which the rule is disposed of, is a reasonable time for that purpose. (c) 
 Where the plaintiff' took an assignment of the bail bond, and afterwards 
 gave notice of exception to the bail, without entering it, the court of King's 
 Bench held that the plaintiff" 's irregularity, in not entering an exception, 
 was not waived by the defendant's having given tivo notices of justification, 
 under one of which the bail had justified, and therefore held that the pro- 
 ceedings should be stayed \[d) but they would not order the bail bond to 
 be delivered up to be cancelled. (tZ) 
 
 When the defendant has been arrested by a wrong name, the courts will 
 order the bail bond to be delivered up to be cancelled. (c) But it cannot bo 
 cancelled, in the King's Bench, on the ground of the plaintiff" 's attorney 
 having neglected to take out his certificate ;(/) or because the place where 
 the affidavit to hold to bail was sworn, is not mentioned in the jurat.{<j) 
 So, if a non-commissioned officer has been arrested and given bail, the court 
 of Common Pleas will not, after judgment recovered against the bail, set 
 aside the proceedings, and cancel the bail bond :(//) And, in that court, if the 
 plaintiff" sue out writs into two counties, and arrest the defendant, avIio gives 
 bail to the sheriff" in both, the plaintiff may regularly proceed on the first 
 bail bond.(/) In the Exchequer, when the bail do not appear to justify on 
 the day mentioned in the notice, but on a subsequent day according to fur- 
 ther notice, and the plaintiff", on the morning of the latter day, take an 
 assignment of the bail bond, and sue out process thereon, the proceedings 
 are regular, although the rule for the allowance of bail be served on the 
 
 (m) 2 Chit. Rep. 108. (n) 1 Str. 399. 
 
 \a) 4 Durnf. & East, 176. 
 (h) 4 Hiirn. & Aid. 91. Ante, 295. Posty 305. 
 
 (c) 5 Barn, k Cre?. 771 ; and see 4 Barn. & Cres. 970. 7 Dowl. & Ryl. 458, S. C. 
 (rf) 1 Chit. Rep. 174. 
 
 (e) 4 Miuile & t?el. 3G0. 1 Chit. Rep. 282. 2 Chit. Rep. 357. 8 Moore, 526. 1 Ring. 424, 
 S. C.jlhoiijrh it was formerly otherwise: 3 Durnf. & East, 572. 2 Bos. & Pul. 109. 
 (/•) 1 Dowl. & Uyl. 215. Ante, 11. (g) 1 Bos. & Pul. 105. 
 
 (h) 4 Taunt. 557. (») 2 Taunt. G7 ; and see 1 Chit. Rep. 392.
 
 501 
 
 OF PROCEEDINGS 
 
 same day : nor is it a waiver of the assignment, that the plaintiflf attended 
 to oppose tlic justification of bail.(/{;) 
 
 *In the King's Bench, by a modern rule of court,(a) "no rule 
 [ *302 ] can be drawn up for staying proceedings regularly commenced 
 on the assignment of a bail bond, unless the application for such 
 rule, if made on the part of the original defendant, be grounded upon an 
 affidavit of merits ;(J) or, if made on the part of the sheriff or bail,(c) or 
 any officer of the sheriff,(tM) be grounded upon an affidavit, showing that 
 such application is really and truly made on the part of the sheriff or bail, or 
 officer of the sheriff, (as the case may be,) at his or their own expense, and 
 for his or their only indemnity, and without collusion with the original de- 
 fendant." This rule, it will be observed, only applies to staying proceed- 
 ings regularly commenced on the assignment of a bail bond : And they 
 cannot be stayed, where the motion is made on behalf of the defendant, 
 without an affidavit of merits, although the plaintiff has opposed the justifi- 
 cation of bail, and received the costs of opposition, (ee) The affidavit, if 
 made on behalf of the defendant^ must expressly state, that he has a good 
 defence to the action upon the 7nerits ; ah affidavit that he has a good de- 
 fence to the action merely, not being sufficient '-{ff) And if the application 
 be made by the hail, after notice of render has been given, the affidavit 
 must state that the application is made bona fide, on their behalf :((/^) But 
 when an affidavit of merits is produced, it is not necessary to state on whose 
 behalf the motion is made.(/i7i) In the Common Pleas, on motion by the 
 bail to stay proceedings on the bail bond, or against the sheriff, on payment 
 of costs, the court do not require the bail to swear to merits ; nor is there 
 any distinction in this respect, whether a trial has been lost or not.(u') In 
 the Exchequer, Avhen a trial has not been lost, the court on motion will 
 stay proceedings on an assignment of a bail bond, the defendant having 
 since put in and perfected bail, without payment of costs, or any affidavit 
 of merits, or that the application is made in ease of the sheriff, or bail;(^^) 
 nor will they order the bail bond in such a case to stand as a security, but 
 only require that the plaintiff shall be put in the same situation as if the 
 bail had justified in due time.(Z) And where an attorney has become bail 
 to the sheriff, and the bail bond has been assigned, the court will upon the 
 usual affidavit, stay the proceedings upon the bail bond, upon payment of 
 the costs. 1 Younge & J. 367. And they refused to order a bail bond 
 to stand as a security, where the plaintiff had lost a trial by his own con- 
 duct, in not accepting reasonable terms offered him by the defendant.(m) 
 But when a trial has been lost, the bail bond must stand as a security. (n) 
 And the court will not stay proceedings on a bail bond, upon the ground 
 that the affidavit upon which the bail above were rejected was founded on 
 perjury, except upon the usual terms of paying the costs incurred by the 
 assignment and subsequent proceedings. 1 Younge & J. 403. 
 
 (k) 9 Price, 5, 9. 
 
 (a) R. M. 59 Geo. III. K. B. 2 Bara. & Aid. 240. 1 Chit. Rep. 348, (a), 572, 3, {a). 2 Chit. 
 Rep. 373,4. 
 
 (6) Append. Chap. XIII. § 3. (c) Id. § 4. 
 
 (dd) Id. I 5. he) 1 Chit. Rep. 677. 
 
 (/) 5 Bara. & Aid. 703. \gg) 1 Chit. Rep. 127. 
 
 {hh) Id. 572. {ii) 1 New Rep. C. P. 123. 
 
 {kk) 11 Price, 633, 636. 13 Price, 114. M'CIel. 44,S. C. 
 
 [l) 3 Price, 52. 13 Price, 114. M'CIel. 44, S. C. (m) 8 Price, 610. 
 
 [n) 13 Price, 115, 16. Ante, 299,300.
 
 UPON THE BAIL BOND. 302 
 
 • When the proceedings on a bail bond are irregular^ or against good 
 faith, it is not necessary to put in and perfect bail in the original action, 
 in order to set them aside :{o) And if the defendant be surroidcrcd by his 
 bail above, though Avithout justifying, after the time allowed them 
 for ^justification has expired, the court of King's Bench, we [ *303 ] 
 have seen, will stay the proceedings on the bail bond, upon pay- 
 ment of costs.(a) But when the proceedings are regular, and the defendant, 
 not having been surrendered by his bail above, applies to stay them upon 
 terms, he must in general put in and perfect bail above, before the appli- 
 cation is made :{b) Yet, upon particular occasions, the rule to stay the 
 proceedings may be, upon condition that the defendant shall put in and 
 perfect bail.(c) And, whenever the defendant is guilty of a neglect, in 
 not putting in bail in due time, by which the bail bond becomes forfeited, 
 the notice, in case the party mean to put in bail, (in order to stay the 
 proceedings upon the bail bond,) should be, that he will put in and ijcrfect 
 bail on such a day ; when the plaintiff' may oppose them in court, without 
 its being a waiver of the bail bond.((^) 
 
 Bail above, Avhen necessary, being put in and perfected, the court should 
 be moved in term time, or an application made to a judge in vacation,(e) 
 for a rule or summons to stay the proceedings on the bail bond, on payment 
 of costs, and that in the meantime all proceedings be stayed ; and it is usual 
 to draw up the rule for the allowance of bail, with the rule or summons for 
 staying the proceedings, and serve them both together. In the Common 
 Pleas, notice of the intended motion should be given to the plaintiff's 
 attorney, and " why in the meantime all proceedings should not be stayed ;" 
 otherwise the court will not add these words to the rule.(/) When the 
 plaintiff has not lost a trial, the court in term time, or a judge in vacation, 
 will stay the proceedings on the bail bond, upon putting in and perfecting 
 bail above, and paying the costs incurred by the assignment of the bail 
 bond, to be taxed by the master in the King's Bench, or prothonotaries in 
 the Common Pleas : and also, if necessary, or the cause require it,((/)upon 
 receiving a declaration in the original action, pleading issuably, and taking 
 short notice of trial, so that the cause may be tried the same tcrm.(Z() But 
 if the plaintiff has lost a trial, the court or a judge will further require the 
 bail to consent, that the bail bond shall stand as a security, even when the 
 defendant has been surrendered by his bail.(i) By losing a trial is meant, 
 that the plaintiff has been prevented, by the neglect of the defendant to 
 put in or perfect bail in due time, from trying his cause in, and obtaining 
 judgment of the same term in which the writ was returnable. (/.•) This of 
 course can only happen in toivii causes, or where the venue is 
 laid in London or Middlesex ; {I) and depends on the *state of [ *304: ] 
 
 (o) 4 Moore, 149. 
 
 (a) 5 Duruf. & East, 401, 534. 7 Durnf. & East, 297, 529; and sec 8 Durnf. & East, 222. 
 Ante, 282. 
 
 (6) 4 Moore, 149. (c) Per Buller, J. H. 20 Geo. III. K. B. 
 
 (d) Cowp. 769. (c) 1 Sel. Pr. 2 Ed. 188, 
 
 (/) Iiup. C. P. 7 Ed. 142. ' (y) 2 Smith, R. 13. 
 
 (A) R. M.8 Ann.rfiT. 1, (c), K. B. Cowp. 71. 1 Bos. & Pul. 334. 
 
 \i) 2 Barn. & Aid. 585. 1 Chit. Rep. 270, S. C. 
 
 \k) 1 Chit. Rep. 270, («), 357, (n) ; and see 1 Dowl. & Ryl. 450. 8 Dowl. & Ryl. 140. 9 
 Moore, 422. 2 Bing. 227, S. C. 
 
 {I) In country causes, it has not been usual, on staying proceedings on the bail bond, 
 when a trial hiis been lost, to require the bail to consent that the bond shall stand as a 
 security ; though there seems to be the same reason for it, as iu town causes : and see 1
 
 304 OF PROCEEDINGS 
 
 the proceedings, as when the writ was returnable, and declaration 
 delivered, and whether the defendant lives more than forty miles from 
 London ; for if he do, he is entitled to fourteen days' notice of trial. (a) 
 The plaintiff therefore, in opposing the rule for setting aside the pro- 
 ceedings on the bail bond, or for an attachment against the sheriff, must 
 show distinctly in his affidavit, the time when his writ was returnable, and 
 declaration delivered, (^>) or filed, &c. And it is observable, that there is 
 a difference in this respect, between actions by hill, and by original writ: 
 In the former, the jury process being returnable on a day certain, the 
 plaintiff may obtain judgment of the term, when the cause is tried at the 
 last sitting ; but in the latter, the jury process can only be made return- 
 able on a general return ; and therefore, when the cause is tried at the 
 last sitting, which happens after the last general return, the plaintiff 
 cannot have judgment till the following term.(c) 
 
 In the King's Bench, when the application is to set aside the proceedings 
 upon the bail bond, for an irregularity, in assigning it, or, if regular, to 
 stay them upon terms, the rule or summons and afHdavit should it is said 
 be entitled in the original cause :((Z) but when the application is to stay the 
 proceedings, for some irregularity in the process in the action upon the bail 
 bond, the rule or summons and affidavit ought to be entitled in that action, 
 and not in the original cause. (e) So, in the Common Pleas, the true and 
 proper distinction seems to be, that if a bail bond has been irregularly 
 assigned, the affidavit to set aside the proceedings upon it must be entitled 
 in the original action ; but if it has been assigned regularly, then in the action 
 on the bail bond :(/) And, in that court, the judgment in the original action, 
 as well as the judgments in the actions against the bail, may be set aside 
 upon one motion and affidavit, entitled in the original action. (^) When 
 the rule for staying the proceedings is made absolute, or a judge's order 
 obtained upon the summons, it is incumbent on the defendant immediately 
 to get an appointment thereon from the master in the King's Bench, or 
 prothonotaries in the Common Pleas, to tax the costs, and to serve a copy 
 of it upon the plaintiff's attorney ; and when the costs are taxed, to pay 
 the same without delay, (A) otherwise the rule or order will not operate as 
 a stay of proceedings. After the proceedings have been stayed on the 
 bail bond, the defendant cannot plead in abatement in the original 
 action ;(^) nor a plea of bankruptcy pit/s darrein continuance. [k) But, 
 in the Common Pleas, though it was formerly usual to give judgment, on 
 
 staying proceedings in an action on the bail bond, when *the 
 [ *305 ] bail consented that it should stand as a security, and execution 
 
 only was stayed,(aa) yet it is now holden, that the bail in such 
 
 Price, 535. 1 Younge & J. 373, by which latter case it appears that in a country cause, 
 where the plaintiff has lost a trial, the court of Exchequer will not stay proceedings upon a 
 bail bond, unless upon the terms of its standing as a security, 
 
 (a) Chit. Rep. 357, (a). 
 
 (6) /'/. 271, in notis. Append. Chap. XIII. § 6. (c) 1 Chit. Rep. 271. 
 
 {d) Webb V. Mitchell, M. 48 Geo. III. K. B. ; and see 4 Durnf. & East, G89. 8 Durnf. & East, 
 456. Keille v. Woodfidd, T. 40 Geo. 111. K. B.j but see 2 Chit. Rep. 109, by which it seems, 
 that the affidavit may be entitled, either in the original cause or in the action on the bail 
 bond. (e) Webb v. Mitchell, M. 48 Geo. III. K. B. 
 
 (/) 7 Moore, 521. 1 Bing. 142, S. C. ; and see Willes, 461. Barnes, 94, S. C. 1 Bos. & Pul. 
 337. 7 Moore, 600. 
 
 (g) 3 Bos. & Pul. 118. {h) Imp. K. B. 10 Ed. 149. 1 Sel. Pr. 201. 
 
 {i) 2 Salk. 519. Goss v. Harrison, T. 44 Geo. III. K. B. 2 Bos. & Pul. 465. 
 
 (k) 4 Barn.& Aid. 249. 
 
 (aa) Barnes, 85.
 
 UPON THE BAIL BOXD. 305 
 
 case arc at liberty to plead to the action on the Lail bond ; and conse- 
 quently are entitled to a rule to plead, and demand of a plea, before judg- 
 ment can be signed against them. (6) 
 
 The sheriff's bail are liable to pay what is really due to the plaintiff, 
 though beyond the sum sworn to and costs, to the full extent of the pen- 
 alty of the bond :{c) and they are liable for their own costs, as well as 
 those of the original action. And whore several actions are brought upon 
 the bail bond, it is usual, in suing out execution, to apportion the debt 
 and costs in the original action, amongst the different defendants, so as to 
 levy a part on each, together with his own costs. (rZ) But the bail, it 
 seems, are not liable beyond the pcnalt}'- of the bond, where they are let 
 in upon terms to try the cause, the bail bond standing as security ; although 
 tlic debt and costs exceed the penalty after the trial. (t') If the j^htintiff 
 die after the arrest, and before the return of the writ, the court will set 
 aside proceedings on the bail bond.(/) And where the defendant dies, 
 before the plaintiff could have had judgment against him, if there had 
 been no delay in putting in and perfecting bail, the courts will stay pro- 
 ceedings on the bail bond, upon payment of costs only :(/-///) But they 
 will not relieve the sheriff's bail, upon the death of the defendant, where 
 the plaintiff might have had judgment against him, if bail above had been 
 put in and perfected in time.(A/i) The bail cannot avail themselves of the 
 hankruptcij of the defendant :(«) And it seems, that rendering the defen- 
 dant to the King's Bench prison, before the return of the writ, will not 
 discharge his bail to the sheriff.(A;/f) But if the defendant or his bail 
 become bankrupt, after the bond is forfeited, the plaintiff's demand, being 
 proveable under the commission, is barred by the certificate. (Z) The bail 
 to the sheriff are discharged by the defendant's giving a cognovit without 
 the knowledge of the bail, for payment of debt and costs. (?>j) And, in the 
 case of a render in discharge of bail, the court will stay the proceedings 
 on a bail bond without costs, if the notice of render be given before the 
 assignment ;(n) otherwise not.(o) 
 
 *If there be no bail bond, or the plaintiff be dissatisfied with 
 the bail taken by the sheriff, it is usual to rule him to return the [ *306 ] 
 writ;(a)[A] and in the King's Bench, we have seen,(W) if the bail 
 
 {b) 1 New Rep. C. P. G3. 
 
 (c) .lavage v. West, 9 Geo. III. cited in Cowp. 71.8 Durnf. & East, 28. 1 East, 91, in notia. 
 K. B. 2 Biac.Rep. 816. 1 H. Blac. 76, C. P. 
 
 (rf) It is not in general necessary, however, to brinpj several actions on the hail homl ; 
 and, if brought without sufficient reason, the court of King's Bench, we have seen, will only 
 allow the costs of one action. Ante, 300. 
 
 (e) 2 Smith R. 354. (/) 8 Mod. 210. 
 
 \gg) Cowp. 71. Barnes, 61, 70, 99. 
 
 (M) R. M. 8 Ann. rc^. l,(c),K. B. Gilb. K. B. 302. Cowp. 71. Barnes, 99, 112. 
 
 [ii) I Ken. 504. 1 Bur. 244, S. C. /f/.43G. Carmichael v. Chandler, Imp. K. B. 10 Ed. 149. 
 2 East, 442 ; but see Barnes, 105. 
 
 {kk) Forster v. Ilgde, M. 41 Geo. III. K. B. ; but see 3 Bos. & Pul. 232. Ante, 226. 
 
 {I) Cowp. 25 ; and see 4 .Moore, 350. 2 Brod. & Bing. 8, S. C. 
 
 (m) 4 Barn. & Aid. 91. Ante, 295, 301. 
 
 (n) 2 Chit. Rep. 103 ; and see 2 New Rep. C. P. 85. 
 
 (o) 5 Durnf. & East, 401, 534. 7 Durnf. & East, 2D7, 529 ; and see 8 Durnf. k East, 222. 
 Ante, 282. 
 
 (a) Gilb. C. P. 21. R. M. G Geo. II. (a), K. B. 2 Wras. Saund. 5 Ed. 61, c, (7) ; and see 
 Append. Chap. XIII. § 7, 8, 9. {hb) Ante, 255. 
 
 [a] In Pennsylvania, since the act of 1836, the plaintilT excepting to the bail taken by the
 
 306 
 
 or PROCEEDINGS 
 
 to the slicrifF become bail above, the plaintiff cannot except to them, after 
 he has taken an assignment of the bail bond ; though it is otherwise in the 
 Common Pleas : In the King's Bench therefore, if the plaintiff be dissatis- 
 fied with the bail taken by the sheriff, he can only proceed by ruling hira 
 to return the writ, and bring in the body ; for if he were to take an 
 assignment of the bail bond he would admit the sufficiency of the bail to 
 the sheriff, and if they were afterwards put in as bail above, he could not 
 except to them. But a rule to return the writ cannot be had, after the 
 plaintiff has taken an assignment of the bail bond, if valid ; for, by taking 
 such assignment, he discharges the sheriff;(c) though if the bail bond be 
 void, it is otherwise.(tZ) And where there were three defendants, two of 
 whom were arrested and bailed, and the plaintiff took assignments of the 
 bail bonds, and as to the third, the sheriff returned non est inventus, the 
 court, under these circumstances, discharged the rule to bring in the 
 body.(e) So it has been holden, that if the sheriff appoint a special bail 
 to arrest the defendant, at the request of the plaintiff or his agent, he 
 cannot be ruled to return the writ:(/) but he is notwitstanding respon- 
 sible for the safe custody of the defendant after the arrest made.(^) The 
 proper course seems to be for the sheriff, when ruled to return the writ 
 
 (c) Gilb. 0. P. 21. 1 Salk. 99. 3 Bos. & Pul. 564; and see 2 Chit. Rep. 391. 
 
 (d) 1 "Wils. 223. Williams v. Jacques, M. 24 Geo. III. K. B. (e) 2 Chit. Rep. 391. 
 (/) 2 Blac. Rep. 952. 4 Durnf. & East, 119. 1 Chit. Rep. 613, 14. (a). 
 
 (g) 8 Durnf. & East, 505 ; and see 2 Esp. Rep. 591. 1 Chit. Rep. 614, iii notis. 9 Moore, 71. 
 2 Bing. 65, S. C. 
 
 sheriff, may rule him to bring in the body, and the court can compel obedience to the rule 
 by attachment. Wltite v. Fitler, 7 Barr, 533. "At the common law," says Chief Justice 
 Gibson in this case, p. 534, " the sheriff's return to a capias ad respondendum, was that he 
 had talceii the defendant, and had him ready in court at the return day of the writ ; and it 
 continued to be so after the enactment of the statute 23 Hen. VI., only because it was at 
 first supposed to be a private one, and the bond was consequently supposed to be the 
 sheriff's private security against the consequences of setting the prisoner at large, while he 
 was supposed to be potentially within the officer's grasp, though he would have been a 
 trespasser had he laid a finger on him. It was, therefore thought, that as the court could 
 not take notice of the statute where it was not pleaded, it could not recognize the validity 
 of a return exclusively grounded upon it. Hence the form of the return has continued to 
 be the same in England perhaps to this day, notwithstanding the grumbling of the judges 
 at the earlier decisions, and their entire overthrow in Samuel v. Uvans, 2 Term Rep. 569, 
 by which the statute of the 23 H. VI. was declared, as it ought to have been at first, a 
 public one. The history of the subject is condensed in a note to Benson v. Welby, 2 Saund. 
 155. What might have been the effect of a modification of the return on a question like 
 the present in the English courts, it is impossible to say; but, in Pennsylvania, where the 
 statute was always held to be a public one, the return in use, perhaps from the foundation 
 of the province, has been ' cepi corpus and bail bond,' and yet no one ever doubted the 
 power of the court to rule the sheriff to bring in the body. It was put exactly on a footing 
 with the vetu.ru par a him Jrnbeo, which every one knew to be a fiction where the defendant 
 was at large. Had the sheriff' not produced him, he could not have been successfully sued 
 for a false return in even the English courts ; for, in Laughton v. Gardner, Moor, 428, in 
 which it was held that, had he pleaded the statute as a justification, instead of confessing 
 the falsity of his return by a demurrer, he would have had judgment. He would have it 
 now without pleading. Under the practice in Pennsylvania, however, the return being 
 adapted to the truth of the case on the admitted basis that the statute was a public one, 
 there was no discrepancy. The return on the 23 H. VI. here was, as it is now, on the 
 statute of 1836, that the sheriff had taken the defendant and a bail-bond, which differed 
 from the one at present in use only in the form of the condition. This return to be sure, 
 showed no compliance with the command of the writ, which was to have the defendant in 
 court ; but it showed a compliance with the legal effect of it as modified by the statute 
 which authorized him to dispense with the letter of the mandate, and sustained the return 
 just as an aj)pearance within six weeks after the return of the writ, was held in Lynn v. 
 M-Millcn, 3 Penna. Rep. 170, to sustain by force of, 4 Anne, c. 10, s. 20, the plea of com- 
 peruit ad diem in an action on a bail bond."
 
 AGAINST THE SHERIFF, ETC. 30G 
 
 after a special bailiff has been appointed, instead of making a return, to 
 move the court to set aside tlie rule to return it.{Ji) 
 
 Tlie rule to return the writ is a side-har or treasury rule. In the King's 
 Bencli, it is obtained from the clerk of tiie rules ; and usually taken out on 
 the return day of the writ by hill, or quarto die pout by original, in order 
 that it may keep pace with the time to put in bail : But it cannot regularly 
 be taken out before, though dated on the return day,(/) or cjuarto die post 
 by original. (/f) In tlie Common Pleas, the rule to return the writ is obtained 
 from the secondaries, and usually taken out on the first day of term, when 
 the process is returnable on tlie first return ; or if returnable on the second, 
 or any subsequent return, it may be taken out on the return day of tiie pro- 
 cess ; being the periods from which the time for putting in bail is reckoned. 
 But by statute 20 Geo. II. c. 37, § 2, " no sheriff shall be liable to be called 
 upon to make a return of any writ or process, unless he be required so to 
 do, within six months after the expiration of his ofl^ce." Upon which 
 statute it has been holden, in case of sheriffs, that the months 
 are lunar months,(/) that the day of the *sheriff's quitting his [ *'"]07 ] 
 office is to be reckoned as one;(rt) and that the sheriff cannot be 
 ruled to return the writ, after the expiration of six months, though re- 
 quested before.(J) In the courts of Great Sessions inWales, the protho- 
 notaries are authorized, by a late act of parliament,((?) to grant rules for 
 sheriffs to return writs in vacation. 
 
 The rule to return the writ, being intended to bring the sheriff into con- 
 tempt must be personally served on the sheriff himself, or his under-sher- 
 iff;((7) except in London, Middlesex, and Surrey, where service on the 
 deputy secondary of the compters, sheriff's deputy, or under-sheriff 's agent 
 in town, is deemed sufficient ;(e) for as six days only are allowed, after 
 service of the rule, to return the writ, it might otherwise be impossible to 
 obey the rule in distant countries. In the King's Bench, the rule to re- 
 turn the writ expires in four da3's after service, in London, or Middle- 
 sex ;{f) and in six days, in any other city or county.(^) And the writ 
 should regularly be returned by the sheriff, on the day on which the rule 
 for returning it expires, if in term : but when the rule expires in vacation, 
 the sheriff need not return it till the first day of the ensuing term, and has 
 the whole of that day to file his return. (7J/) In the Common Pleas, the 
 sheriff had formerly in all cases six days after service of the rule, to re- 
 turn the writ;(n) but the time for returning it, in toivn causes, was after- 
 wards reduced io four days;(A:7t) so that now it is the same in both courts. 
 But, in the Common Pleas, when the rule to return a writ expires in vaca- 
 tion, the sheriff must file it at the return, and cannot wait till the ensuing 
 term ; the Common Pleas oflEice being open during vacation :(/^) And this is 
 also the practice in the Exchequer.(??i?;i) 
 
 The sheriff being ruled to return the writ, either does, or docs not re- 
 turn it. And where the writ is executed by the old sheriff while in office, 
 
 (/() 1 Chit. Rep. 614, in notig. 
 
 ((•) 1 Durnf. & East, 552. 2 East, 242. (A) Per Cur. M. 42 Geo. III. K. B. 
 
 (/) Doug. 403. 2 Wins. Saund. 5 Ed. 47, m. 
 
 \a) Doug. 463. 2 Wnis. Saund. 5 Ed. 47, q. (h) 2 Durnf. & East, 1. 
 
 ( c) Stat. 5 Geo. IV. c. 106, <i 7. (d) Cis. Pr. C. P. 123. Pr. Reg, 381, S. C. 
 
 (c) Doug. 420. 3 Durnf. & East, 351. (/) R. T. 6 Geo. III. K. B. 3 Bur. 1921. 
 
 Iff) Xolice, M. 6 Geo. II. K. B. (Iih) 5 East, 3S6. 1 Smith, R. 427, S. C. 
 
 {») R. H. 8 Geo. I. C. P. {kk) R. H. 7 Geo. III. C. P. Barnes, 494. 
 
 («) Taunt. 647. I Marsh. 270, S. C (m) 9 Price, 255.
 
 307 
 
 OF PROCEEDINGS 
 
 he oufflit to make his return to the same, and hand such writ and return 
 over to the neiv sheriff, -who comes into office hefore the return day; and 
 such new sheriff will return the writ, with the old sheriff's return thereon: 
 and if the old sheriff, after arresting a defendant, suffer him to escape, 
 and go out of office before the return day, he is answerable for the 
 escape. (w) The new sheriff, however, is not answerable for the escape of 
 a debtor taken in execution in the time of his predecessor, and not tleliv- 
 ered over to him by indenture, 1 ]Moody & M. 34. If there be no return, 
 it is a contempt ; for which the court, on a proper affidavit, (o)will grant a 
 rule for an attachment :(/)) and this is the constant mode of proceeding 
 against the late sheriff, ((/) as well as the present one ; for, as to the former, 
 he ought in strictness to have returned the writ before he was out of 
 office, and therefore the contempt Avas actually committed whilst 
 [ *308 ] he was a servant of the court. (^) But where the sheriff, on *be- 
 ing ruled to return a writ, gave notice to the plaintiff that the 
 writ was lost, and that the defendant was in custody, the plaintiff should 
 have proceeded as if the sheriff had returned cepi corpus ; and the court 
 of Common Pleas set aside an attachment issued against the sheriff, for 
 not returning the writ. (a) The writ should regularly be returned, by the 
 sheriff, on the day on which the rule for returning it expires ; and in de- 
 fault thereof, the plaintiff may move for an attachment on the next day :(5) 
 or, if the rule expire on the last day of term, he may move for an at 
 tachment at the rising of the court on that day ;((?) and the rule for the 
 attachment is regular, though the sheriff make his return on a subsequent 
 day in vacation, before he is actually served with the rule.(c) In order to 
 ascertain the time of making the return, in the King's Bench the custos 
 brevium is required to indorse on every writ, on what day, and at what 
 hour the same was filed. (c?) 
 
 The sheriff's return to a capias ad respondendum is either that the defend- 
 ant is not found in his bailiwick, (e) or that he has taken him ; and, in the lat- 
 ter case, it is either that he has him ready, [f) or in custody, {g) to answer 
 the plaintiff; or, by way of excuse, that he is sicJc,{h) (languidus est,) 
 or has escaped, or been rescued ;(^) or that the sheriff has discharged him, 
 or delivered him over to another custody, by direction of the plaintiff,(A;) 
 or by order of the court ;(?) or that he has been discharged from the arrest, 
 under the statute 43 Geo. III. c. 46, § 2, on depositing in the sheriff 's 
 hands, the sum indorsed on the writ, with ten pounds in addition to answer 
 costs, &c. And where the return to a writ of latitat stated, that the de- 
 fendant was insane, and could not be removed without great danger, and 
 continued so till the return of the writ to court, we have seen,(m) refused 
 an attachment against the sheriff. But where the return to a writ of latitat 
 
 {n) 4 East, 604 ; and see 6 Taunt. 231. 1 Marsh. 554, S. C. 
 
 (o) Append. Chap. XIII. § 10, 11. 
 
 (p) N. M. 6 Geo. II. R. T. 17 Geo. III. K. B. Append. Chap. XIII. § 12, 13. 
 
 Iq) Doug. 464. {a) 1 Marsh. 289. 
 
 \b) R. M. 32 Geo. III. K. B. 4 Durnf. k East, 496 ; and see 1 Price, 338. 1 Chit. Rep. 
 356, (a). 
 
 (c) 11 East, 591. 1 Chit. Rep. 356, (a). R. T. 38 Geo. III. C. P. Pos?, 312. 
 
 {d) R. T. 30 Geo. III. K. B. 3 Durnf. & East, 787. 
 
 (e) Append. Chap. XIII. ^ 14, 17. (/) Id. § 15, 17. {g) Id. ? 16. 
 
 [h) Id. § 21. But it does not seem to be a good return to a capias, that the defendant is 
 dead. 0. Bridg. 469. (;) Append. Chap. XITI. ? 18. 
 
 (k) 6 Moore, 497. (1) Append. Chap. XIII. ^ 19, 20. 
 
 [m) Ante, 216.
 
 AGAINST THE SHERIFF, ETC, 308 
 
 Stated tliat the defendant, upon being arrested in his own liouse, was con- 
 fined to his bed by illness, and eould not be removed without danger to 
 his life, and continued so ill at and after the return of the writ, and for 
 such cause the custody of the defendant was relinquished ; the court were 
 of opinion that this return was bad, though they allowed the sheriff time 
 to amend it upon payment of costs, (n) And where the sherifl' returned 
 as follows, " I have taken the body of M. N., and kept and detained her 
 in custody, till it appeared to me, that she had surrendered, in discharge 
 of her bail, into the custody of the marshal, and was in his custody, to 
 all intents and purposes, by virtue of the act for indemnifying the mar- 
 shal for escapes in consequence of prisons being burnt, "(o) the 
 court quashed the *return as bad, and would not give leave to [ '309 ] 
 amend it, (art) So, Avhere the sheriff had untruly returned to a 
 capias^ that he had taken the defendant, whose body remained in prison 
 under his custody, the court of Common Pleas refused to allow him to amend 
 his return, by striking it out, and making another, according to the 
 fact. (6) If the sheriff return non est inventus^ where he has or might 
 have taken the defendant, he is liable to an action for a false return ;(c) 
 and if he return cepi corpus, et paratum habeo, where he has taken the 
 defendant, and let him go at large without bail, he is liable to an action, 
 if the defendant be not in custody, or bail above be not put in and per- 
 fected, at the return of the writ,(cZ) But when the sheriff has taken 
 bail, he is not liable to an action, upon the return of cepi corpus et 
 paratum habeo ;{e) for it was his duty to take bail: and though the 
 latter part of the return be not strictly true, yet this, which was the 
 ancient return, is not altered by the statute 23 Hen. VI. c. 9. Still, 
 however, he might have been amerced by the courts, upon such return, 
 for not bringing in the body, or putting in and perfecting bail above ;(/) 
 and in the beginning of the reign of George the Second, the practice of 
 amercing the sheriff appears to have given way to the proceeding by 
 attachment, ((/) 
 
 If the defendant reside within a liherty, the bailiff of which has the 
 execution and return of writs, it is usual for the sheriff to return, that he 
 has made his mandate to the bailiff of the liberty, who has given him no 
 answer, or has returned that the defendant is not found in his bailiwick, or 
 that he has taken the defendant and has him ready, (7i) In the first case, 
 the plaintiff is entitled to a non omittas, by the statute Westm. "2, c, 39:(z) 
 In the second, if the return be false, the bailiff is liable to an action ; the 
 sheriff not being answerable at common law, for the false return of the 
 bailiff:(/c) In the last case, the ancient mode of proceeding was by dis- 
 tringas ;[l) but it seems that the bailiff may now be called upon by rule^ 
 
 {n) 8 Dowl. & Ryl. 606. 
 
 (o) Stat. 21 Geo. III. c. 1. {aa) Per Cur. T. 21 Geo. III. K'. 15. 
 
 (b) 7 Moore, 552. 1 Ding. 156, S. C, and see 8 Moore, 518. 1 Bing. 423, S. C. 
 
 (c) 2 Esp. Rep. 475. 
 
 ((/) Gill). C. P. 22. Noy. 39. 1 Mod. 228. 2 Mod. 178, S. C. 
 
 {c) Cro. Eliz. 624, 808, 852. Nov, 39, S. C. 1 Sid. 22, 439. 1 Vent. 55, 85. 2 Wms. 
 Saund. oEd.GO, 154. 1 Mod. 35, 5"" 227. 2Mod. 83,177. 3 Sulk. 314, 15. An(c,2:i5. 
 
 (f) Same cases as in the preceding note; and R. .M. 6 Geo. II., (<j), K. IJ. 1 Wils. 262. 
 1 H. Biac. 233, 4. 
 
 [g) 2 H. Blac. 434, [a) ; and see 2 Wms. Saund. 5 Ed. 58, (2). 
 (A) Off Brcv. 216. Ret. Bnv. 168, 9. Append. Cliap. XIII. J 22. 
 (i) Gilh. C. P. 26. 1 Barnard. K. B. 282. 9 East, 330. 
 
 (k) Gilb. C. P. 30. 
 
 {/) Id. 31. Brownl. Brev. Jud. 35. &c. Append. Cbap. XIII. J 23, 4. 
 
 Vol. I.— 20
 
 300 OF PROCEEDINGS 
 
 to bring in the body.(w) If the bailiflf make an insufficient return, he is 
 liable to he amerced for it, and not the sheriff, by the statute 27 Hen. 
 YIII. c. 24, § 9.(?i) 
 
 Upon the sheriff's return oi cepi corpus, et paratum habeo, if bail above 
 be not duly put in, or, if put in and excepted to, they do not justify in 
 due time, the plaintiff has his election, either to take an assignment of the 
 bail bond, or to proceed against the sheriff, by ruling him to 
 [ *310 ] bring in the body ;(o) *and if there be no bail bond, or the plain- 
 tiff be dissatisfied with the bail taken by the sheriff, it is usual, 
 and necessary in the King's Bench, for the plaintiff to rule him to bring in 
 the body, (a) But where, on the return of cepi corpus, the plaintiff brought 
 an action against the sheriff for an escape, and recovered damages, the 
 court of King's Bench held, that he could not afterwards rule the sheriff 
 to bring in the body, with a view to proceed in the original action for 
 costs.(66) The rule to bring in the body is a. four day rule in London or 
 Middlesex, and a six day rule in any other city or county ',[cc) and should 
 be served in like manner as the rule to return the writ. In the King's 
 Bench, it is a side bar rule, and obtained from the clerk of the rules ;(c?) 
 but, in the Common Pleas, it is given by the filacer who issued the pro- 
 cess, (e) on a note or extract of the writ and return from the custos bre- 
 vium, after which the rule is drawn up by the secondaries, (/) and 
 served. (</) And there should be no delay in giving the rule : for where 
 the sheriff had returned cejji corpus to a bailable writ in Hilary term, 
 upon which the plaintiff proceeded no further till 3ficJiaelmas term follow- 
 ing, and in the mean time the bail became insolvent, and the defendant 
 absconded, the court of King's Bench thought it unreasonable that the 
 sheriff should be called upon to bring in the body after such delay : and 
 they set aside an attachment which had issued against him for not doing 
 it.(A) 
 
 The intent of this rule, when the defendant is not in custody, is to com- 
 pel the sheriff to put in and perfect bail above ;{i) And it cannot in gene- 
 ral, be taken out until the time for putting in bail has expired ;[k) for it is 
 necessary that the proceedings against the sheriff should keep pace with 
 the times allowed for putting in and perfecting bail ; otherwise this incon- 
 venience might ensue, that the sheriff might be fixed with the payment of 
 the debt and costs, and upon his bringing an action against the defendant 
 or his bail, upon the bail bond, they might plead co7nperuit ad diem. In 
 the King's Bench, where the rule to return the writ is given on the return 
 day, a rule to bring in the body, dated on the day of the return by the 
 sheriff of cepi corpus, though issuing afterwards in the vacation, is irregu- 
 lar.(?) But where the writ, in a country cause, was returnable on the^rs^ 
 
 (m) 2 Durnf. & East, 5. (n) Gilb. C. P. 30. (o) Ante, 297. 
 
 (a) Wms. Saund. 5 Ed. 61, {d). (bb) 2 Barn. & Aid. 623. 1 Chit. Rep. 393, S. C. 
 
 (cc) N. M. 6 Geo. II. R. T. 6 Geo. III. 3 Bur. 1921, K. B. N. H. 7 Geo. III. C. P. 
 
 (d) Append. Chap. XIII. g 25. 
 
 (e R. T. 2 W. & M. reff. 1, C. P. Append. Chap. XIII. ^ 26. 
 
 (/) Append. Chap. XIII. ^ 27. And for the form of the rule in the Exchequer, see id. 
 §28. 
 
 (5')Imp. C. P. 7 Ed. 149, 155. 
 
 (h) 7 Durnf. & East, 452 ; and see 3 Bos. & Pul. 151. 9 East, 467. 
 
 {{) R. M. 6 Geo. II. [a), K. B. 1 Wils. 262. 1 H. Blac. 233, 4. 
 
 (k) 5 Durnf. & East, 479. 8 East, 525. Spicer v. Linnel, E. 23 Geo. III. C. P. Imp. C. 
 P. 7 Ed. 212. 2 H. Blac. 276. 1 Price, 3, 103. 
 
 {I) 2 East, 241.
 
 AGAINST THE SHERIFF, ETC. 310 
 
 of Juno, and the sheriff was ruled to return it on the second, and on the 
 eighth he returned cepi corpvs, upon which the plaintiff, on the same day, 
 served him with a rule to bring in the body, and on i\\Q fifteenth obtained 
 an attachment, the court held the proceedings to be regular; 
 although it was objected, that the sheriff had all the ehjhth to [ *311 ] 
 return the writ, and *conscqucnt]y, that the rule to bring in the 
 body should not have been served till the ninth: for in this case, the time 
 for putting in bail had expired, before the service of the rule to bring in 
 the body:(a) Agreeably to which it is now settled, that in all cases where 
 the time for putting in bail has expired, the sheriff may be ruled to bring 
 in the body, on the same day that he returns cepi corpms.[l>) 
 
 When the sheriff is called upon to bring in the body, he must either brin^ 
 it into court,(c') or put in and perfect bail above, within the time allowed 
 him by the rule:(c?(^) otherwise it is a contempt, for which the court will 
 grant an attachment, on an affidavit of the service of the rxx\(i,{ee) and that 
 no bail has been put in ; or that bail has been put in, but not perfected. (]^) 
 an affidavit that the plaintiff's attorney had received notice of bail, not 
 being sufficient :(^) And where, on a just cause of action against two^ 
 defendants, the sheriff was served with two different rules to bring in the- 
 bodies ; the court of Common Pleas held, that two writs of attachment 
 should be issued against the sheriff, on his non-compliance with such, 
 rules. (//) But the contempt is not incurred till the day is past, on which 
 the rule to bring in the body expires ; for the sheriff has the whole of that 
 day to bring it in, and therefore an attachment cannot be moved for till 
 the next day:(^) And, in the King's Bench, the sheriff, we have seen,(/c) 
 is not liable to an attachment, where the defendant is rendered at any 
 time before the expiration of the day allowed for bringing in the body ; 
 or even after the rule for bringing it in has expired. The sheriff, however, 
 is not entitled, in that court, to the benefit of a render made after the 
 original time for putting in bail has expired :{k) And where two days' 
 time to justify is given, if bail are not justified on the last of the two days, 
 an attachment may issue on that day.(^) 
 
 In the King's Bench, the plaintiff may move for an attachment against 
 the sheriff, at any time after the expiration of the rule to bring in the body ; 
 and if it be obtained before the service of the rule for the allowance of 
 bail, the sheriff is fixed. But an attachment obtained after a summons to 
 attend before a judge, for payment of debt and costs, which Avas not 
 attended by the plaintiff's attorney, is irregular -.{m) And, in the Common 
 rieas, though the rule to bring in the body has expired, yet if 
 the defendant justify bail *before the attachment against the [ *ol2 ] ' 
 
 (a) Parl-cr .j- ^yaU, M. 26 Geo. III. K. B, Goodwin v. Montague, E. 23 Geo. III. K. B. S. P. 
 
 (6) 4 Manic & Sel. 427. (c) B.arnes, 392. 
 
 \dd) I Wils. 2G2. R. M. 6 Geo. II. (o), K. B. 2 Wms. Saund. 5 Kd. CI, c. 
 
 {ee) 2 Miirsh. 251. 
 
 iff) Append. Chap. XIII. ^ 29, 30. And for the form of the rule for an attachment in K. 
 B. seeu/. ^ 32, and in C. P. id. ^ 33. The affidavit upon which a motion for an attachment is 
 founded, in tlie Common Pleas, must not merely state, that the officer of the sheriff was 
 served with a copy of the rule to bring in the body, but must likewise add, that the original 
 rule was at the same time shown to him. 1 New llep. C. P. 121. 
 
 (17) 2 Ken. 467. (A) 8 xMoore, 162. 
 
 (i) RiX. V. Slt>'rifo/ Essex, 11.36 Geo. III. K. B., cited in 7 Durnf. & East, 52a. 8 Durnf. & 
 East, 4(J4. 1 Price, 338. 1 Chit. Rep. 356. 
 
 (/■-) AiUc, 282. 
 
 {l) 1 Chit. Rep. 356 ; and see 2 Dowl. & Ryl. 225. (w) 5 Barn. & Aid. 746.
 
 312 
 
 OF PROCEEDINGS 
 
 sheriiF Is moved for, it is in time to prevent tlie attachment. (a) And 
 the former court will never allow any advantage to be taken of the 
 priority of motion on the same day :(«) Therefore, if bail be brought up 
 on the same day on which an attachment has been obtained against the 
 sheriff, the court will permit them to justify, and set it aside. (6) But the 
 plaintiff, in such case is entitled to the costs of moving for the attach- 
 ment.(6') So, if the plaintiff has incurred the costs of instructing counsel 
 to move for an attachment, before the defendant gives notice of his render, 
 though he render before it is actually obtained, the Court of Common 
 Pleas will order the costs of those instructions to be paid by the defendant, 
 upon setting aside the attachment. (t^) When a rule to bring in the body 
 expires on the last day of term, the plaintiff is at liberty, at the rising of 
 the court on that day, to move for an attachment in the King's Bench, (e) 
 as well as in the Common Pleas, (/) for not bringing into court the body 
 of the defendant : and such attachment may be accordingly issued on the 
 following day, provided bail shall not then be perfected, or the defendant 
 rendered in their discharge. In the Exchequer, as in the Common Pleas, 
 though the rule to bring in the body has expired, yet if the defendant 
 justify bail before the attachment against the sheriff' is moved for, it is in 
 time to prevent the attachment. (^^) But where bail was put in and per- 
 fected on the same day, but after an attachment had been granted against 
 the sheriff for not bringing in the body, that court refused to set aside the 
 attachment on payment of costs, except on the terms of the defendant 
 pleading issuably instanter ; taking short notice of trial, for the sittings 
 after term ; giving judgment as of the term, and letting the attachment 
 stand as a security to the plaintiff, in the event of his obtaining a 
 verdict. (7z) 
 
 In counties palatine, the attachment, or other process of contempt,(2) 
 issues against the party who is in fault ; as against the chancellor of Lan- 
 caste7', the bishop of Durham,['k) or the chamberlain of Chester, or their 
 officers,(Z) if they refuse to make a mandate to the sheriff, or to return the 
 writ into court, after he has made his return to them ; or against the 
 sheriff, if he will not return his mandate, or bring in the body of the 
 defendant, pursuant to his return of cepi coiyus, &c. ; for though the 
 sheriff is not the immediate officer of the court above, he is answerable to 
 it for contempts. 
 
 It was formerly usual, in the King's Bench, to proceed against the late 
 sheriff, for not bringing in the body, by distriyigasini) where the 
 [ *ol3 ] rule to *bring in the body had not expired before he went out of 
 office. If it had, the contempt being then complete, an attach- 
 ment was deemed the proper process -.{aa) But now, by rule of that court,(65) 
 
 (a) 1 H. Blac. 9, C. P. ; and see 1 Bos. & Pul. 325. 9 East, 468. 8 Dowl. & Ryl. 137. 
 
 (i) 2 Bos. & Pul. 38 ; and see 1 Bos. & Pul. 334. 
 
 (c) 2Bos. & Pul. 38, {a). 3 Bos. & Pul. 603. [d) 1 Taunt. 656. Ante, 305. 
 
 {e) 11 East, 591. 1 Chit. Rep. 356, (a). (/) R. T. 38 Geo. III. C. P. 
 
 {gg) 1 Price, 103, 338. {h) M'Clel. 83. 13 Price, 262, S. 0. 
 
 (i) Flight and others v. Stanley, M. 44 Geo. III. K. B. In this case, a distringas issued 
 against the bishop of Durham-i being a peer, instead of an attachment, for not returning 
 a writ. 
 
 [k) 1 Sid. 92. {I) Andr. 191 ; and see Doug. 749. 3 East, 131. 
 
 (m) Trye, 144, 5. 2 Lil. P. R. 510. 5 Bur. 2726. Doug. 464. For the form of a dis- 
 tringas against the constable of Dover Castle, being a peer, to compel him to bring in the 
 body, see Append. Chap. XIII. ^ 31. 
 
 [aa) Skeat v. Scrivens, M. 31 Geo. III. K. B. 
 
 [bb) R. T. 31 Geo. III. K. B. 4 Durnf. & East, 379 ; and see 2 Wms. Saund. 5 Ed. 01, e.
 
 A(3iAINST THE SHERIFF, ETC. 313 
 
 " where any sheriff, before his going out of office, shall arrest any defendant, 
 and a ce^^i corpus sliall afterwards be returned, he shall and may, Avithin 
 the time allowed by law, be called upon to bring in the body, by a rule 
 for that purpose, notwitlistanding he may be out of office, before sucli rule 
 shall be granted." A similar practice has also prevailed in the Common 
 Pleas \[c) And in that court, a sheriff who is ruled on the lust day of 
 term, but goes out of office before the next term, is liable to an attachment, 
 for not bringing in the body.((?) 
 
 The distringas against the late sheriff was a judicial writ, issuing out of 
 the King's Bench office by hill, or filacer's office by original, and directed 
 to his successor; commanding him to distrain the late sheriff, by all his 
 lands, &c., so that he might have the defendant's body in court, to answer 
 the plaintiff.(e) This writ must have been made returnable on a day cer- 
 tain or general return, according to the former proceedings ;(/) and must 
 have lain four days exclusive in the sheriff's office : but it need not have 
 been left there before the return, it being deemed sufficient to leave it on 
 the return day.((7) Upon the first distringas, the sheriff, to whom it was 
 directed, levied issues to the amount of forty shillings, which the plaintiff 
 moved to increase ; and if the debt were small, the court would order the 
 whole of it to be levied, with costs, upon an alias distringas; but otherwise 
 the plaintiff moved again to increase the issues, and sued out a. pluries dis- 
 tringas, &c. : and when issues were returned, to the amount of the debt 
 and costs, the plaintiff moved for a sale of them, under the statute 10 Geo. 
 III. c. 50 § 3.(70 
 
 By the statute 3 Geo. I. c. 15, § 8, it is enacted, that " if any high sheriff 
 of any county of England or Wales, shall happen to die before the expira- 
 tion or determination of his year, or before he be lawfully superseded, in 
 such case the under-sheriff, or deputy-sheriff by him appointed, shall never- 
 theless continue in his office, and shall execute the same, and all things 
 belonging thereunto, in the name of the deceased sheriff, until another sheriff 
 be appointed for the said county and sworn, in manner as therein is directed ; 
 and the said under-sheriff, or deputy-sheriff, shall be answerable 
 for the execution of the said office in all *things, and to all respects [ *314 ] 
 intents and purposes whatsoever, during such interval, as the high 
 sheriff so deceased would by law have been, if he had been living ; and the 
 security given to the high sheriff so deceased, by the said under-sheriff and 
 his pledges, shall stand, remain and be a security to the king, his heirs and 
 successors, and to all persons Avhatsoever, for such under-sheriff's due per- 
 formance of his office, during such interval." On this statute, a rule for an 
 attachment against an under-sheriff, on the death of the sheriff during his 
 year, is not absolute in the first instance.(a) And where two sheriffs had 
 been ruled to bring in the body, and then one of them died, the court granted 
 an attachment against the surviving sheriff only. (6) Before the making of 
 the statute 7 Geo. IV. c. 17, the office of sheriff in the county palatine of 
 
 (c) Barnes, 102. [d) 1 H. Blac. 629. 
 
 (e) Brownl. Brev. Jud. Thcs. Brev. and Off. Brev. tit. Distringas: and see Append. Chap. 
 XIII. I 23, 4. 
 
 (/) Trye, 144, 5. {g) Per Cur. E. 23 Geo. III. K. B. 
 
 (A) 5 Bur. 2726, 7. The mode of proceeding by distringas ajjainst the late sheriff, on 
 mesn« process, is obsolete, in consequence of the rule and practice before stated ; but it m.ay 
 Btill, it seems, be used against the bailiff of a liberty, for not bringing in the body. Ante, 
 309. 
 
 (a) 2 Chit. Rep. 389. * (6) TFj^ie v. Benwdl, T. 25 Geo. III. K. B.
 
 OJ4 OF PROCEEDINGS 
 
 Durlwm, being held by grant of the bishop of Durham for the time being, 
 durino- the pleasure of the same bishop, became vacant upon his decease : 
 But now, by that statute,(c) " no grant or appointment of or to any office 
 or employment, concerning the administration of justice in the said county 
 palatine, shall cease, determine or bo void, by reason of the death of any 
 such bishop ; but every such grant and appointment shall continue in full 
 force, for the term of six calendar months after any such death, unless in 
 the mean time determined by any succeeding bishop of the said see." 
 
 The attachment{d) is a criminal process, directed to the coroner, when 
 it issues against the present sheriff; or when against the late one, to his 
 successor : and, in the King's Bench, it must be made returnable on o. gene- 
 ral return, though the original process was at a day certain.{e) The 
 attachment may be moved for on the last day of term;(/) and until it be 
 granted, the proceedings, in the King's Bench, are on the plea side of the 
 court, and must be entitled with the names of the parties : But as soon as 
 the attachment is granted, the proceedings are on the croivn side, and 
 from that time the king is to be named as the prosecutor.(^) If the coro- 
 ner or sheriff, being called upon by rule,(7i7i) neglect to return the attach- 
 ment, he maybe attached himself; and the attachment against the coroner 
 should be directed to elisors, named by the master in the King's Bench, 
 or prothonotaries in the Common Pleas. (^) If cepi corpora be returned to 
 the attachment, the mode of proceeding, for obtaining payment of the debt 
 and costs, is by moving the court for writs of habeas corpora,{k) to bring 
 up the bodies of the sheriffs, before one of the judges at chambers, to 
 answer to such matters as shall be there alleged against them ;(?) which is 
 
 a motion of course, and may be made without an affidavit. (?) 
 [ *315 ] *When the sheriff" is fixed for a contempt, he is liable, in like 
 manner as his bail upon the bail bond, to the payment of what is 
 really due to the plaintiff", though beyond the sum sworn to and costs, to 
 the full extent of the penalty of the bond :(a) And he cannot relieve him- 
 self, by payment of the debt sworn to and indorsed on the writ, since the 
 statute 43 Geo. III. c. 46, § 2, having neglected to take the money at the 
 time of the arrest, as directed by that act ; but must pay the whole debt 
 and costs :{h) neither can he be relieved on the ground of the defendant's 
 death, after the contempt was incurred, and before the attachment issued. (cc) 
 But he is not liable beyond the penalty of the bond:(c?t^) And where an 
 attachment issues in an action against the acceptor of a bill of exchange, 
 the sheriff" is not liable thereon, to pay the costs in actions against the 
 drawer or indorsers.(ee) 
 
 If a party has a right to enforce payment of his debt against the sheriff", he 
 
 (c) I 2. {d) Append. Chap. XIII. ? 34, &c. 
 
 (e) 1 Str. 624. (/) 1 Bar. 651. Ante, 312. 
 
 {g) 3 Durnf. & East, 133, 253. 7 Durnf. & East, 439, 528. 2 East, 182. 12 East, 165 ; 
 and see 5 Barn. & Ores. 389. 8 Dowl. & Rjl. 149, S. C. 2 Bos. & Pul. 517, («}, C. P. 
 
 {hh) Append. Chap. XIII. I 37, 8. 
 
 (2")2Blac. Rep. 911, 1218. Append. Chap. XIII. ^ 42. 
 
 [k] Anpend. Chap. XIII. g 43, 4. {I) 1 Chit. Rep. 249. 
 
 (a) 7 Durnf. & East, 370. 8 Durnf. & East, 28. 1 H. Blac. 233, 543, C. P. 
 
 (6) 9 East, 316. (cc) 3 Durnf & East, 133. 
 
 {dd) 3 East, 604 ; and see Doug. 464. Starke?/ v. Poole, E. 25 Geo. III. K. B. Ui/rev. Bull, 
 same term, K. B. See also, 4 Durnf. & East, 433. 2 H. Blac. 36, 547. 1 Taunt. 218. 3 
 Stark. Ni. Pri. 168. 8 Moore, 27. 3 Bing. 56. 10 Moore 324, S. C. 1 Younge & J. 285, 
 as to the liability of the sheriff, in an action on the case, for taking insufHcieut pledges in 
 replevin. 
 
 (ec) 2 Barn. &Ald. 192.
 
 AGAINST THE SHEllIFF, ETC. 315 
 
 must pursue It within a reasonable time, and not lay by so long as tliatby 
 his laches the sheriff shall be deprived of his remedy over against the 
 debtor : Therefore, where the rule for an attachment against the sheriff, for 
 not bringing in the body, was obtained on the 1 Itli of Fclruary, which 
 attachment was returnable on the 4th of May, and tlie plaintiff did not issue 
 the attachment till the 3d of Ma;/, and in the mean time the defendant 
 became bankrupt on the 10th of March, by which means the sheriff lost his 
 opportunity of paying the debt, and proving it under the commission, the 
 attachment was set aside for such laches :(/) And on a similar ground, it is 
 holden that a cor/novit, for payment of the debt and costs by instalments, 
 discharges the sheriff': although it was agreed that the ri'jjht of moving for 
 an attachment a'j:ainsthim should remain with the plaintiff' as a security, in 
 case any of the instalments should not be paid.(f/) But where the phTintiff, 
 at the desire of the sheriff 's officer, forbore to enforce an attachment in the 
 first instance, and two days aftcrwai-ds applied to the sheriff for the debt and 
 costs ; the court of Common Pleas held, tliat the sheriff was not discharged 
 by the indulgence given to the officer.(A) So, where the rule to bring in 
 the body, served on the 5th Juli/, expired on the second day of 3Iichaebna8 
 term, two judges of that court held that the sheriff was not discharged, by 
 the plaintiff's having, on the 7th Juli/ preceding, and previously to the 
 justification of bail, consented to an order to stay proceedings, on 
 payment of debt and costs within a month. (i) *And in general, [ *316 ] 
 the court will not set aside an attachment against the sheriff on the 
 ground of delay, unless there have been gross laches on the part of the 
 plaintiff, to the prejudice of the sheriff'.(fl!) 
 
 If the proceedings against the sheriff are irregular, they may be set 
 aside, with costs ;{b) or, if regular, may be set aside or stayed upon terms, 
 by the favour and indulgence of the court, in order to let in a trial of the 
 merits, for the benefit of the sheriff",(c) or of the defendant, or his bail.(f?) 
 But, in the King's Bench, by a late rule of court,(e) " no rule can be drawn 
 up for setting aside an attachment regularly obtained against a sheriff", for 
 not bringing in the body, unless the application for such rule, if made on the 
 part of the original defendant, be grounded upon an affidavit of merits ;( /f) 
 or, if made on the part of the sheriff or bail,(^^) or any officer of the 
 8heriff,(_^) be grounded upon an affidavit, showing that such application is 
 really and truly made on the part of the sheriff or bail, or officer of the 
 sheriff", (as the case may be,) at his or their own expense, and for his or 
 their only indemnity, and without collusion with the original defendant;" 
 which rule was adopted, in a late case, by the court of Common Pleas. 1 
 Moore & P. 177, 4 Bing. 427, S. C. This rule applies only to motions 
 
 (/) n East, 467. 3 Bos. & Pul. 151. 1 Taunt. Ill, accord, and vitle ante, 310. 
 
 Ig) 1 Taunt. 159; and see 4 Taunt. Ar^G. 5 Taunt. 319. 1 Marsh. 59, S. C. Wightw. 
 121. 4 Barn. & Aid. 91. 1 Dowl. & Ryl. 163. 9 Moore, 695. 2 Bing. 366, S. C. Ante, 
 295, 301, 305. 
 
 (h) 1 Tiiunt. 489 ; and sec 1 Dowl. & Ryl. 388. 
 
 (t) Per Beift, Ch. J. k Gftselee,S. disnenticntibus Park <j- Burroughs Justices, 2 Bing. 366. 
 But on a subsequent day, it appears. Best, C. J. said, that upon payment of costs, the court 
 would consent to make the rule absolute, for setting aside the proceedings. Id. 369. 
 
 (a) 2 Chit. Rep. 58. {/,) An/e, '2^7. 310. 312, 315. (c) 2 II. Blac. 235. 
 
 (d) Goodwin v. Montague, E. 23 Geo. III. K. P.. 1 Chit. Rep. 237 ; and see 2 Wms. Saund. 
 5 Ed. 61,/. 
 
 (c)R. M. 59 Geo. TTI.K. B. 2 Barn. & Aid. 240. 1 Chit. Rep. 348, (rt), 572, 3, f«). 2 Chit. 
 Rep. 373, 4; and see 7 Diirnf. & East, 239. 3 Maule & Sel. 299. 1 New Rep. C. P. 123. 
 
 (/) Append. Chap. XIII. I 45. {gg) Id. § 46.
 
 3](3 OF PROCEEDINGS AGAINST THE SHERIFF, ETC. 
 
 fi)r scttin;^ aside attacliments regularly obtained :{Ji) And if the affidavit be 
 made on behalf of the sheriff or bail, it must comply with the terms of the 
 rule : Therefore, an affidavit which did not state that the application was 
 made at tlie expense of the bail, and for their o)ilij indemnity, was deemed 
 insufficient. (/) The affidavit in such case should regularly be made by the 
 defendant himsclf.(/i;) And, the court will not set aside an attachment 
 against the sheriff, for not bringing in the body, on payment of costs, upon 
 an affidavit that the plaintiff purposely prevented the defendant's being re- 
 taken after a rescue, and that the application was by the sheriff himself, 
 without negativing the fact of his having an indemnity. (^) If an affidavit 
 of merits however be produced, it is not necessary to state on whose behalf 
 the motion is made.(??t) 
 
 The practice, when the sheriff has been fixed, is to move for a rule to 
 show cause why, on putting in bail, the proceedings against him should 
 not be set aside ; and to have the bail ready to justify, when the rule is 
 disposed oL[n) If the plaintiff has not lost a trial, the court will set aside 
 the proceedings, upon putting in and perfecting bail above, and 
 [ *317 ] payment *of costs :[aa) But if a trial has been lost, the court will 
 further require, that the attachment shall remain in the office, 
 and stand as a security to the plaintiff for the sum recovered :(J6) And it 
 seems, that the attachment shall stand as a security, as well as the bail 
 bond, where a trial has been lost, although the defendant has been sur- 
 rendered in discharge of his bail.(cc) On setting aside a regular attach- 
 ment, on payment of costs, the question whether or not the attachment 
 shall stand as a security, depending upon the fact whether a trial has 
 been lost, it is for the plaintiff, who seeks to qualify the rule, to show by 
 his affidavit the necessary facts, such as the day of the delivery of the 
 declaration, &c. which may entitle him so to do:((i) And where the court 
 ordered an attachment against the sheriff, of which he had regular notice, 
 to stand as a security to the plaintiff for the debt and costs, and the sheriff, 
 in the next term, applied to discharge that part of the rule which related 
 to the attachment standing as a security, urging that he was no party to 
 the rule, the court held the application to be too late.(e) 
 
 When the sheriff has been guilty of a breach of duty, in discharging the 
 defendant out of custody, without the plaintiff's assent, upon his oivn un- 
 dertaking to appear and put in bail, or by taking money from him, instead 
 of a bail bond, the court will not assist the sheriff, by staying the proceed- 
 ings in an action for an escape, or by setting aside the attachment upon 
 an affidavit of merits, and payment of costs ;(/) and it is now decided, 
 
 (h) ] Chit. Rep. 446. Ante, 302. (?) 1 Chit. Rep, 347. 
 
 (k) Id. 722. {I) 1 Barn. & Aid. 192. 
 
 (m) 1 Chit. Rep. 572 ; and see id. 720, 21. Ante, 302. 
 
 [n] 1 Bos. & Pul. 334,/)e;- Buller, J. 
 
 [aa) 4 Durnf. & East, 352. 2 H. Blac. 235. Ante, 303. 
 
 (bb) Gravett v. Williams, T. 15 Geo. III. K. B., cited in 4 Durnf. & East, 352. 1 Chit. Rep. 
 237, 270, 357. 
 
 (cc) 1 Chit. Rep. 270, (a). Nias v. Gray, M. 57 Geo. III. K. B. there cited, contra : and see 
 8 Dowl. & Ryl. 137. 
 
 [d) 5 Taunt. 606. 1 Chit. Rep. 271, in notis. Ante, 304. And for what is meant by losing 
 a trial, see id. ibid. 
 
 (e) 1 Chit. Rep. 180. 
 
 ( f) 7 Duruf. & East, 109, 239. 2 Barn. & Aid. 354. 1 Chit. Rep. 68, S. C. ; and see 1 
 Chit. Rep. 567, (a), 721. 2 Chit. Rep. 93. 4 Dowl. & Ryl. 155. 1 Bos. & Pul. 225. 1 
 Taunt. 119. 6 Taunt. 554. 2 Marsh. 261, S. C. 6 Moore, 111. 7 Moore, 552. 1 Bing. 
 156, S. C; but see 1 Price, 103. 5 Barn. & Cres. 244, contra. Ante, 236, 282, 3.
 
 OF PROCEEDINGS IN ACTIONS, ETC. 3 17 
 
 that lie cannot, after paying tlie debt and costs, maintain an action against 
 the defendant, for money paid.((/) But, if he has taken a bail bond, he 
 may resort to the defendant or his bail, by putting it in suit against thera: 
 though, in general, the money is paid by the oiRcer, on issuing the attach- 
 ment, and he brings the action on the bail bond, in the sheriff's name.(/t) 
 In an action on a bail bond, if the issue depend on the date of the appear- 
 ance, the court of Common Pleas, upon an application by the plaintiff, 
 will order the day of the appearance, to be entered in the filacer's book; 
 although, before tlie application to the court, issue has been joined on the plea 
 of coiiijtendt ad diem ;(/) And where bail above were put in but not justified, 
 and the sheriff being fixed, brought an action on the bail bond, 
 *to which the defendant pleaded comperuit ad diem, that court, [ *318 ] 
 on motion by the sheriff, ordered the recognizance of bail in the 
 original action to be taken off the file; though the defendant alleged, that 
 the sheriff was fixed through his own negligence: for that should have 
 been the subject of a motion to stay proceedings on the bail bond.(rt) 
 
 ^CHAPTER XIV. [ *319 ] 
 
 Of the Proceedings in Actions, hy and against Attorneys and Offi- 
 cers, in the Courts of King's Bench, Common Pleas and Exche- 
 quer ; and of the Recovery and Taxation of their Costs. 
 
 The proceedings in actions against defendants when at large, and mode of 
 bringing thera into court, in ordinary cases, having already been considered ; 
 I shall next proceed to show whatever is jyeculiar to the proceedings in 
 actions by and against attorneys, \i\\o are supposed to be already in court, 
 and against prisoners in the actual custody of the sheriff, &c. or of the 
 marshal of the King's Bench, or ivarden of the Fleet prison. 
 
 Attorneys, we have seen, may sue by attachment of privilege, and must 
 be sued by hill.{aa)[^k\ In the King's Bench, the attachment of privilege, 
 
 («7) 8 East, 171. 
 
 (/() 2 Wins. Saund. 61,/. And see Petersd. Part I. Chap. XV. as to the right of the bail 
 agaiii.st their iirincipal, and against each other; and a surety's right against the bail, 
 (t) 1 Taunt. 23. Ante, 236 ; and see 9 Price, 406. 
 {a) 6 Taunt. 167. 1 Marsh. 520, S. C. 
 {aa) Ante, 80. 
 
 [a] By the common law, attorneys are privileged from arrest on mesne process, and are 
 entitled to be proceeded against by bill. Scott v. Ahtync, 9 Johns. 216. And this privilege 
 continues, unless it be taken away by rule, though the attorney do not show that he has 
 acted as such within a year. Ogden v. Hughes, 2 South. 718. If an attorney or coun- 
 sellor be taken on a ca. sa. during his attendance in court, having business to transact there, 
 he may be discharged on motion and affidavit, &c. Secor v. Bell, 18 Johns. 52. A judge, 
 at the circuit, may also discharge him, under the like circumstances. lb. So also a coun- 
 sellor of the Sii]>rcme Court is privileged from arrest during the sitting of the court, though 
 not in actual attendance. Sperr;/ v. WUlnrd, 1 Wend. ?>'2. Commonwealth v. Ronald, 4 Call, 
 97. But a counsellor is not privileged from arrest while attending a master, examiner, 
 or judi^e, out of court. Cole v. M-Lelhm, 4 Hill, 53 ; nor while he remains at home, though 
 such arrest prevents his contemplated attendance at court. Corey v. Ru.i.'ell, 4 Wend. 204. 
 
 Where an attorney on being arrested, does not mention his privilege, but requests the 
 officer to obtain a bail bond, and executes it, he waives his privilege. Cole v. M-Lellan, 4
 
 319 OF PROCEEDINGS IN ACTIONS, BY 
 
 at the suit of an attorney, is in nature of a latitat :{h) therefore, in reply- 
 ing it to a plea of the statute of limitations, the plaintiif must set forth the 
 continuances. (c') And an attachment of privilege is not a continuance of 
 a bill of lliddlesex, so as to avoid the statute of limitations.(cZ) In the 
 King's Bench, it is a rule, that " every attorney shall leave a prsecipe{e) 
 Avith the signer of the writs, containing the defendant's names, not exceed- 
 four in each writ,with the return, and day of signing such writ, and the 
 agent's or attorney's name who sued out the same: and that all such 
 prsecipes shall be entered on the roll, where the jy^'secijjes of latitats, and 
 all other writs issuing out of this court, are entered ; and the officer that 
 signs the writs in this court, shall not sign such attachment, till a prsecipe 
 be left with him for that purpose. "(/) But when an attorney sues by at- 
 tachment of privilege, his name need not be indorsed on the writ : for the 
 2 Geo. 11. c. 23, § 22, which requires the name of the plaintiff's attorney 
 to be indorsed on the writ, only extends to cases where the attorney sues 
 for another person. (^) And an attorney, plaintiff, may sue by com- 
 mon process, and indorse his own name on the copy as the 
 [ *320 ] *attorney, and may afterwards declare by another attorney.(aa) 
 If an attorney sue by attachment of privilege, for words spoken 
 in Wales, and the venue be laid there, and the plaintiff do not recover a 
 verdict for ten pounds, it may be suggested on the roll, that the defend- 
 ant was resident in Wales, &c. in order to entitle the defendant to enter a 
 nonsuit, under the statute 13 Geo. III. c. 51, § 1, 2:{bb) but if the venue 
 had been laid in Middlesex, it might have made a difference. (55) 
 
 In the Common Pleas, an attachment of privilege is in nature of an 
 original writ;(c?c?) and must have fifteen days between the teste and re- 
 turn. (c^tf) This writ should regularly be returnable on a day certain, in full 
 term :[ee) But where it was made returnable after the essoin day, and 
 before the quarto die post, the court allowed it to be amended, on payment 
 of costs. (ee) And, being in nature of an original writ, it is sufficient, 
 when replied to a plea of the statute of limitations, to show the teste of it, 
 without the continuances.(^) It is a rule in this Q,ovii%{gg) that " no 
 
 (b) 1 Show, 367; and see Append. Chap. XIV. ^ 2,4,6. 
 
 (c) Garth. 144. 1 Show. 366, 7. 2 Salk. 430, S. C. 
 
 (d) 3 Durnf. & East, 662 ; but see Willes, 259, (a). And for the entry of an attachment 
 of privilege on the roll, to save the statute, in K. B., see Append. Chap. XIV. § 7. 
 
 (e) Append. Chap. XIV. § 1, 3. 
 
 (/) R. H. 20 Geo. II. K. B. ; and see 1 Ken. 394. 
 
 (g) 4 Durnf. & East, 275. {aa) 7 Durnf. & East, 35. 
 
 [bb) 6 Durnf. & East, 500. This determination was before the stat. 5 Geo. IV. c. 106, 
 § 19, 20, by which the above act of parliament was repealed, and other provisions substi- 
 tuted in lieu thereof. 
 
 {cc) Append. Chap. XIV. § 10. {dd) Barnes, 410. Cas. Pr. C. P. 149, S. C. 
 
 (ec) 6 Moore, 113. 3 Brod. & Bing. 25, S. C. (/} 1 Wils. 167. 
 
 {gg) R. T. 9 W. III. C. P. ; and see R. T. 29 Car. II. reg. 3, C. P. 
 
 Hill, 59. The sheriff cannot take notice of his privilege, nor can he discharge him from his 
 custody under process of the court, on his producing a writ of privilege ; and if he do so, 
 he is liable, as for an escape for the amount of the debt, and interest, and also for the 
 poundage, if the plaintiff has paid any. Secor v. Bell, 18 Johns. 52. Sperry v. Willard, 1 
 Wend. 33. 
 
 Since the passing of the statute of New York, of April, 1813, all ofBcers of the Supreme 
 Court, courts of Common Pleas and Chancery, are liable (except during the actual sitting 
 of such courts,) to arrest on mesne process, and may be held to bail like other persons. 
 Secor V. Bell, 18 Johns. 52. And they now stand on the same ground as other persons, 
 with respect to costs ; and if sued by bill during term, and less than fifty dollars is reco- 
 vered, they are not liable for costs. Foster v. Gurnseg, 13 Johns. 465.
 
 AND AGAINST ATTORNEYS. 320 
 
 attorney shall sue out an attachment of privilege at his own suit, nor shall 
 the same be sealed, unless it be first stamped or signed by the clerk of the 
 warrants or his deputy, for which no fee is to be paid, to the intent to show that 
 such person is an attorney of this court duly entered and continued on the 
 roll of attorneys." And there is another rule,(/t) similar to that in the King's 
 Bench, that "every attorney, who shall sue out a writ of privilege against 
 any defendant, shall leave a prsecipe{i) at the prothonotaries' oilice, with 
 the defendant's names, not exceeding four in the whole, and the return 
 day thereto, and the day of signing the same, together with the agent's or 
 attorney's name who sues out the same ; and that such pnecipe shall be 
 entered by the prothonotaries upon a remembrance roll, in their respective 
 offices, to be kept for that purpose, without fee or reward; and that the 
 prothonotaries do not sign any attachment of privilege, without such 
 pnt'cipe be left in the office, at the time of signing thereof." Tlie practice 
 therefore, as governed by these rules, is to take the ptrvccipe and writ to 
 the prothonotaries' clerk, who will sign the yvv'it gratis, keping the prascipe ; 
 after which the writ is marked by the clerk of the warrants, and then 
 sealed. 
 
 An attorney was formerly permitted to hold the defendant to special 
 bail, upon an attachment of privilege, for fees or disbursements, however 
 trifling.(/c) But now, since the statutes for preventing frivolous and vex- 
 atious arrests, the defendant cannot be arrested and holden to special bail, 
 upon an attachment of privilege, or any other process, unless the cause of 
 action amount to tiventy pounds or upwards. Where it is under 
 that amount, *the defendant must be served with a copy of the [ *321 ] 
 process, and notice to appear, as in other cases. 
 
 In the King's Bench, the time allowed for declaring upon an attach- 
 ment of privilege, is the same as upon a bill of 3Iiddlescx or latitat, kc. 
 And if an attoi'ney sue out an attachment of privilege, and deliver or file 
 his declaration, (a) and give notice thereof, four days exclusive before the 
 end of the term wherein the attachment is returnable, the defendant must 
 plead as of that term ; the plaintiff having entered a rule to plead, and 
 demanded a plea: but if he do not declare within that time, the defendant 
 may imparl to the next term; and if he do not declare before the essoin 
 day, the defendant will have an imparlance to the term following. (6) In 
 the Common Pleas, if the attachment of privilege require only a common 
 appearance, it must be entered, on a proper pra'cipe,{c) with the prothon- 
 otaries; and if it require special bail, the clerk of the dockets prepares the 
 bail-piece,(cZ) and attends the court or a judge when the recognizance is 
 entered into, as the filacer docs in other cases, and the bail justify, or 
 fresh bail is added, in the same manner. (t?) In the Exchequer, the declar- 
 ation, at the suit of an attorney or side clerk, begins by stating the char- 
 acter in which he sues; and omits the quo minus clause, in the conclu- 
 sion. (/) 
 
 In proceeding against attorneys and officers of the court, the bill, which 
 
 (h) Pv. n. 11 Geo. II. reff. 2, C. P. 2 Blac. Rep. 919. 
 (i) Append. Chap. XIV. § 9. 
 
 (A) R. M. 1654, ? 9,K. B. R. M. 1654, ? 12, C. P. Gilb. K. B. 246. Gill). C. P. 36. 
 la) For the beginning of a declaration, at the suit of an attorney, in K. B., sec Append. 
 Chap. XIV. ? 8. In C. P. «V/. § 14. 
 
 (6) R. M. 5 Ann. rey. 3, a. K. B. Gilb. K. B. 346. 
 
 (c) Append. Chap. XIV. ^ 12. {d) Id. ? 13. 
 
 (e) Imp. C. P. 7 Ed, 541. (/) Append. Chap. XIV. ^ 17.
 
 321 OF PROCEEDINGS IN ACTIONS, BY 
 
 is the foundation of the action, is a complaint in writing, describing the de- 
 fendant as h am o^ jj7'es ent in court ;{g) and generally concludes with ?ip7'ai/er 
 of relief, though the declaration upon the bill is not demurrable for want 
 of it. (hh) In the King's Bench, the bill against an attorney could formerly 
 have been filed in term time only, sedente curia, and not in vacation. (2) 
 But now it may be filed in vacation, as well as in term time :{k) And 
 where the cause of action arises after term, there should be a special 
 memorandum, stating the day of bringing the bill into the office of the 
 clerk of the declarations.(?) If a bill however, filed against an attorney 
 of that court in vacation, be entitled of the preceding term, and the 
 defendant plead the statute of limitations, he may show when it was in 
 fact filed. (7?i) The filing of a bill is considered as the commencement of an 
 action against an attorney without notice being served upon him. [a] And 
 where, in an action against an attorney for goods sold, the plaintiff proved 
 
 that he filed his bill at a certain time in the forenoon, and the 
 [ *322 ] defendant gave in *evidence a receipt for the sum demanded, 
 
 dated the same day; the judge at 7iisi prius, held that this was 
 no answer to the action, without proof that the payment was made before 
 the filing of the bill. (a) Where the bill against an attorney was entitled 
 of the term generally, being before the cause of action accrued, the court 
 of King's Bench on motion allowed it to be amended, after a Avrit of 
 error brought, by inserting a special memorandum of the day of filing 
 the same ; and gave the plaintiff leave to carry in a new roll, agreeably 
 to the amended bill, and to make the transcript conformable to such new 
 roll, on payment of costs. (5) But such an amendment cannot be made, 
 after the proceedings are entered on record, without leave of the court :(c) 
 and in one case, they gave the defendant leave to plead de novo, upon 
 terms, (c?) 
 
 In the King's Bench, it is usual in practice to file the bill with the clerk 
 of the declarations, (g) in the King's Bench office ; and to deliver a copy 
 of it, to the defendant, or his known agent,(/) with notice thereon to 
 
 (g) 1 Wms. Saund. 5 Ed. 28, c. 202. 2 Wms. Saund. 5 Ed. 415,6; and see Append. Chap. 
 XIV. I 18, 19. 
 
 (M) Andr. 247. 
 
 {i) 2 Salk. 544. 12 Mod. 163. Gilb. K. B. 346. 
 
 {k) Doug. 313. Law, administrator, v. Wheat, M. 23 Geo. III.K. B. 5 Durnf. & East, 173 ; 
 and see 8 Durnf. & East, 643, 4. 2 H. Blac. 608. 1 Taunt. 126. 2 Wras. Saund. 5 Ed. 1, (1). 
 
 {I) 5 Durnf. & East, 325 ; and see 7 Baru. & Ores. 406. Append. Chap. XIV. § 21. 
 
 (m) Peake's Cas. Ni. Pri. 3 Ed. 275. (a) 3 Campb. 331. 
 
 [b) 7 Durnf. & East, 474. 
 
 (c) Id. ibid. 1 Chit. Rep. 336; but see 1 Maule & Sel. 232. 2 Barn. & Aid. 472. 1 Chit. 
 Rep. 277, S. C. 10 Moore, 194. 2 Bing. 469. 1 M'Clel. & Y. 202, S. C. 
 
 {d) 1 Chit. Rep. 45. 
 
 (e) This officer is appointed to receive and make an entry of declarations and bills filed 
 in this court ; to deliver out the former, and to file and keep the latter ; for which be is en- 
 titled to a fee of two shillings jaer term, from every attorney. R. M. 15 Car. II. reg. 3. E. E. 
 19 Car. II. K. B. 
 
 (/) Imp. K. B. 10 Ed. 501. But such agent is not bound to accept it. Fer Cur. E. 39, 
 Geo. III. K. B. 
 
 [a] Whether an attorney is sued by writ or by bill in New York, he was formerly equally 
 entitled to personal service of the declaration, and notices of all subsequent proceedings. 
 Bridgeport Bank v. Sherwood, 16 Johns. 43. New York State Bank v. Wood, 10 Wend. 594. 
 Broivn v. Childs, 17 Johns. 1. Lawrence v. Warner, 1 Cow. 198. Aliter, when a counsellor 
 is sued. Sperry v. Willard, 1 Wend. 32. But if an attorney be sued with another person, 
 he is not entitled to be served with the papers in the cause, if he do not give notice of de- 
 fending. Chenango Bank v. Root, 4 Cow. 126. Stetvart v. Salter, 1 Halst. Dig. p. 97, 2d Ed.
 
 AND AGAINST ATTORNEYS. 322 
 
 plead in /our (lajs;(</) ■which notice has been deemed sufficient, though he 
 reside more than ticenty miles from London :{h) Or, if the defendant's 
 name and place of abode be not entered in the master's book kept for that 
 purpose, a copy of the bill may be stuck up in the office; although his 
 name and place of abode bo entered in the book containing a list of cer- 
 tificates. (w) And if the bill be filed, and a copy thereof deli\-ered, /our 
 days exclusive before the end of the term, including >Vu/<(^;^,[a] the de- 
 fendant must plead as of that term ; thephiiniinft' having entered a rule to 
 plead, and demanded a plea: but if the bill be not filed, and copy delivered, 
 "within that time, the defendant is entitled to an imparlance :[kk) "and 
 where the defendant was served with a copy of the bill, before the h'\\\ 
 itself was filed, the proceedings were set aside for irregularity. (//) The 
 bill and copy were required, by the general stamp acts,(//«;/j) to be written 
 in the usual and accustomed manner : and therefore, the copy of a bill 
 filed against an attorney, partly printed and partly written, on one sheet 
 of paper, stamped with a/our-penny stamp, which contained several printed 
 counts, two of them being struck out, and was otherwise obliterated, and 
 exceeded seventeen common law folios, was held to be irregular; and it 
 appearing that the bill was framed in the same manner, with 
 the same obliterations, *the court set aside the proceedings alto- [*o23] 
 gether.(a) The rest of the proceedings, by and against attor- 
 neys of the King's Bench, are the same as in other cases. 
 
 In the Common Pleas, a bill may it seems be filed against an attorney, 
 to avoid the statute of limitations, in vacation, as well as in term time :{b) 
 And after it is filed, if the defendant do not, on being publicly called in 
 court, appear thereto, judgment is given against him, that he stand fore- 
 judged from exercising his office of attorney, for his contumacy :((?) upon 
 which he is struck oif the roll of attorneys ; and being no longer entitled 
 to his privilege, he may be proceeded against as a common person. For- 
 merly, no bill could have been filed against an attorney or officer of the 
 Common Pleas, to be called in court, in order to a forejudger, until the 
 bill was actually entered upon record, and a number roll put thereon. (c?) 
 This rule however appears to be disused :(e) and at present, the practice 
 is to prepare a bill(/) against the defendant, which is delivered to one of 
 the criers, by whom the defendant is to be thrice called in open court, with 
 an intimation that he will be forcjudgctl, if he do not appear: after which, 
 the bill is entered with the prothonotaries : and a rule being given thereon 
 by the secondaries, for the defendant's appearance, the bill should be filed 
 in the prothonotaries' office till the rule is out, and afterwards with the 
 custos brevium.{gg) And it is a rule, that " where any bill shall be filed 
 against an attorney of this court, no forejudger shall be entered against 
 
 {g) Append. Chap. XIV. § 20. (A) 5 Durnf. & East, 369. 
 
 ((■(•) V. Hough, one, cjc. T. 42 Geo. III. K. B. 
 
 (A-A-) R. M. 5 Ann. reg. 3 a. K. B. Gilb. K. B. 34G. 
 (11) Constahle v. Edwards, E. 40 Geo. III. K. B. 
 
 {mm) 48 Geo. III. c. 149. Sched. Part II. 55 Geo. III. c. 184. Sched. Part II. in princ.ipio. 
 But the stamp dutiea imposed by these acts, were repealed by the statute 5 Geo. IV. c. 41. 
 (a) 1 Maule & 8cl. 709 ; and see 12 East, 294. 1 Dowl. k Ryl. 5G2. 
 {b) Ante, 27. 6 Taunt. 347, 8, 355. 2 .Marsh. 50, 52, 56, S. C. 
 
 (c) For the form of the entry of this judgment, see Append. Chap. XIV. ^ 27. 
 
 (d) R. T. 21 Car. II. reg. 2, C. P. {() Imp. C. P. 7 Ed. 647. 
 (/) Append. Chap. XIV. § 24. (gg) Gas. Pr. C. P. 4. 
 
 [a] See Anong., 2 Hill's N. Y. Rep. 376, note by reporter. Woolrich on Legal Time. p. 66, 
 71,89.
 
 323 PROCEEDINGS IN ACTIONS AGAINST ATTORNEYS. 
 
 Iiim upon such bill, for want of appearance, if the action be laid in Lon- 
 don or dlidcUesex, and such attorney reside within twenty miles of Lon- 
 don, xxwiW four days after notice in writing, of filing such bill, be given to 
 such attorney or his agent, or left at his usual place of abode, and a rule 
 given for such appearance ; and if such attorney reside above twenty 
 miles from London, or the action be laid in any other county than Lon- 
 don or Middlesex, then no forejudger shall be entered, till eiglit days after 
 such notice shall be given, in such manner as aforesaid, and a rule to 
 appear as aforesaid : the said days to be exclusive of the day of giving 
 such notice."(/i) The notice of filing the bill ought to be given /ortr days 
 exclusive before the end of the term, or the defendant will be entitled to 
 an imparlance, and need not plead till the first four days of the next 
 term. (2) If the defendant appear, on being called in court, he enters his 
 appearance with the prothonotaries ; and the proceedings against him are 
 
 the same as in common cases. (A;) 
 [ *324 ] *If the defendant do not appear in due time, the proceedings are 
 
 entered on a roll, which is obtained from the prothonotaries, and 
 their clerk will sign the judgment of forejudger, on an incipitur he'mg first 
 made thereon. The roll is then taken to the clerk of the warrants, who will 
 strike the defendant off the roll of attorneys ; after which he may be pro- 
 ceeded against by the plaintiff, or any one else,(a) as a common person : 
 and he cannot be restored, unless he pay the debt and costs : But Avhen he 
 has made satisfaction to the plaintiff, he may obtain a rule of court in 
 term time, or judge's summons in vacation, to show cause why he should 
 not be restored ; and if it appear that the plaintiff has been satisfied, a 
 rule or order will be made, for the clerk of the warrants to restore him. (5) 
 It was formerly holden, that a bill could not be filed in vacation, against 
 the warden of the Fleet, for an escape.(c) But now, by the statute 59 
 Geo. III. c. 64, " it shall and may be lawful for any person or persons, 
 having cause of action against the warden of the said prison, for or in 
 respect of the escape of any person or persons in his custody, from and 
 out of the said custody, to commence his or their action against the said 
 warden, by filing his or their bill against him, at any time in vacation, in 
 the ofiice of the prothonotaries of the court of Common Pleas, or with the 
 clerk or deputy clerk of the pleas in the office of Pleas in the court of 
 Exchequer, for or in respect of such escape, and to entitle such bill as of 
 the preceding term ; a copy of which bill so filed shall, within twenty-four 
 hours after the filing thereof, unless a Sunday or public holyday intervene, 
 and in that case on the next day after such Sunday or public holyday, be 
 delivered to the said warden or his deputy, or to the turnkey or porter of 
 the said prison ; and the said warden shall appear and plead to the said 
 bill, within the first four days of the following term ; otherwise it shall be 
 lawful for such person or persons, having such cause of action as afore- 
 said, to sign judgment against him in such action. And, for the better 
 
 (/() R. H. 11 Geo. II. reg. 3, C. P. And for the /orm of notice of a bill filed against an at- 
 torney see N. T. 13 Geo. II. 3, C. P. Append. Chap. XIV. § 26. 
 
 [i) Morgan v. Beits, one, <j-c. T. 33 Geo. III. G. P. Imp. C. P. 7 Ed. 546. 
 
 {!() For the beginning of a declaration against an attorney, after appearance, by hill in 
 C. P. see Append. Chap. XIV. I 28. 
 
 (a) Barnes, 43. {b) Imp. C. P. 6 Ed. 523. 
 
 (c) 6 Taunt. 347, 352. 2 Marsh. 49, 54, S. C. ; and see the preamble to the statute 59 
 Geo. III. c. 64. For the beginning of a bill against the warden of the Fleet, see Append. 
 Chap. XIV. I 25.
 
 OF DELIVERING AN ATTORNEY'S BILL. 324 
 
 ascertaining as well the time of filing such bill, as of delivering such copy 
 thereof as aforesaid, the proper officer of the court in which such bill shafl 
 be filed, or his lawful deputy, shall, at the time of filing the same, indorse 
 thereon a memorandum of the time of filing such bill ; and the said warden 
 or his deputy, or the turnkey or porter of the said })rison, shall, at the 
 time of receiving such copy of the said bill, indorse ujion such copy a 
 memorandum of the time of receiving the same." In the construction of 
 this statute it has been holden, that the interval between the essoin day 
 and first day of the court's actually sitting, must be taken as part of 
 the term : and therefore, a bill may be filed against the warden of the 
 Fleet for an escape, on the day after the essoin day, entitled as of the 
 term generally ; and if the plaintifl' give a rule to plead on the first day 
 the court sits, he will substantially comply with the requisition 
 of the statute 8 & 9 W. III. c. 27, *§ 12, provided he do not [ *.325 ] 
 sign judgment within eleven days after the filing of the bill.(«a) 
 
 In the Exchequer, the bill against an attorney, or side clerk, befrins by 
 stating the character in which he is sued :{hh) and the proceedings thereon 
 are similar to those against an attorney of the King's Jiench. 
 
 As between attorney and client, the remedy given by law to an attorney, 
 for recovery of his bill' of costs, in an action of assumjjsit.\A~\ This action 
 
 {aa) 4 Moore, 425. 2 Brod. & Bing. 51, S. C. 
 {bb) Append. Chap. XIV. g 29, 30. 
 
 [a] An attorney or solicitor is entitled to have allowed to him, for his professional ser- 
 vices, what he reasonably deserves to have, with a proper reference to the nature of the 
 business performed by him for his client, and his own standing in his profession for learn- 
 ing and skill, whereby the value of his services is enhanced to his client. Vilas v. Downer, 
 6 Washb. 419. Webb y. Browning, 14 Missouri, 353. For the purpose of aiding in deter- 
 mining this, it is proper to receive evidence as to the prices usually charged and received 
 for similar services by other persons of the same profession, in the same vicinity, and prac- 
 tising in the same court. lb. And it has been held, that when an attorney, or solicitor, is 
 employed by a person who has lull knowledge of his rate. of charges, without stipulating 
 as to price, it may perhaps be fairly inferred, that he expected to pay at such rates, and be 
 equivalent to an express contract to that effect. But when the client is informed, during 
 the pendency of a suit, of the prices which his attorney is charging for his services, his 
 neglect to express dissatisfaction with the prices, or to dismiss the attorney from his em- 
 ployment, cannot be held as an acquiescence in those prices, or as binding him to pay after 
 the same rate for future services in the same suit. lb. But he cannot recover more than 
 he has agreed to receive by proof that his services were worth more. Coopwood v. Wallace, 
 12 Ala. 790. 
 
 On the other band, where a contract between an attorney and his client, by which the 
 attorney received a certain portion of a tract of land in litigation, as his fee for conduct- 
 ing the suit, had been acted upon by the parlies for nearly twenty years, the court refused 
 to disturb it, although, by reason of the enhanced value of the land, it appeared unreason- 
 able. Smith v. Thompson, 7 B. Mon. 305. He cannot, however, recover for his services with- 
 out proving a retainer; and proof of the actual performance of the services is not sufficient 
 where there is no proof of a knowledge or recognition of the services by the client. Burg- 
 hart V. Gardner, 3 Barb. .Sup. Ct. R. 64. The law implies a promise on the part of the 
 client, to pay his attorney, for his services, the statute rate of compensation. The burden 
 of proving that the attorney undertook to perform the services for a less rate, or without 
 charge, rests upon the client, and such an agreement should be made out by evidence equal 
 to a positive stipulation. Bradg v. Mayor, S;c., of Xcw York, 1 tfandf. Sup. Ct. K. 509. 
 
 In Pennsylvania and Delaware, an action can be supported by an attorney, or counsellor 
 at law, against his client, for advice and services in the trial of a cause, over and above the 
 attorney's fees allowed by act of assembly. Breckcnridgc v. JfFarlanc, Addis. 49. Gray v. 
 Brnckenridgc, 2 Pennsyl. 75, overruling Mooney t. Loyd, 5 S. A; R. 412, S. P. Foster v. Jack, 
 4 Watts, 384. Stevens v Monges, 1 Ilarring. 127.
 
 325 
 
 OF TAXING AN 
 
 lies for business done in other courts, as well as in the court of which the 
 plaintift" is an attornej.(c) But an attorney cannot recover a charge for 
 conducting a suit, in -which the party charged has not had the benefit of 
 
 (c) Cro. Car. 159, 60. 
 
 The remarks of Gibson^ Ch. J., in Foster v. Jack, page 337, deserve consideration : — 
 " Thougli dissatisfied with the decision of Mooney v. Loyd, on principle and for its conse- 
 quences, I did not dissent. On principle, because I was unable to comprehend why a 
 ■valuable consideration might not raise an implied promise as well as support an express 
 one; and for its consequences, because I felt assured it would be found entirely incom- 
 patible with the business and necessities of both counsel and client here. As anticipated, 
 it was received with almost universal disapprobation by the profession, not from the im- 
 pulse of interest, but a conviction of its artificial structure and practical injustice. Its 
 principle, if it can be said to have one, had its origin in the Roman law, when the practice 
 of forensic oratory was so elevated as to be fancifully thought to be incapable of stooping 
 to mercenary considerations without debasement. And the dignity of the robe, instead of 
 any principle of policy, furnishes all the argument that can be brought to the support of it 
 at the present day, for it is hard to imagine a principle of policy, that would forbid com- 
 pensation for services in a profession which is now as purely a calling as any mechanical 
 art. The English courts adopted it practically and professedly on the foundation of dig- 
 nity. They studiously restricted it to advocates, properly so called ; for actions for attor- 
 ney's fees are of daily occurrence. But the decision in Mooney v. Loi/d descended a step 
 lower, and, abandoning the ground of dignity altogether, gave the rule a much wider sweep 
 than it has in England. Though it might appear from the report that the cause of action 
 was compensation for services in the trial of a cause, it is an undeniable truth that all pre- 
 paratory services were included, though these are such as are rendered in England by the 
 class called attorneys in the strictest sense. No discriminatiop was made in the expres- 
 sions of the court, the rule of the decision being predicated of professional services gene- 
 rally. It is known to every member of the bar, how narrow is the compass of his duties 
 as an advocate. His most constant and efl'ective efforts are made in the preparatory stages; 
 and his agency in directing the process of execution is an invaluable one. In fact, a sub- 
 stantial, if not a preponderating portion of professional business never finds its way to the 
 ear of the judges at all ; and there are many gentlemen in honorable and lucrative prac- 
 tice who are seldom heard at the bar. They practice strictly as attorneys, and to apply 
 the rule of the Roman law to them, would be a perversion of it. Yet Mooney v. Loyd would 
 have done it; and the decision in Gray v. Brackenridge, by which it was overruled, seems 
 to be as deeply seated in justice as it is in legal analogy. It was held in the latter, that 
 an attorney's action may be maintained on an implied assumpsit, and without regard to the 
 quality of the services. The English rule was abolished by it without distinction between 
 advocates and attorneys, as its analogue had been abolished by universal practice and with- 
 out distinction between physicians and apothecaries. The subject was not susceptible of 
 distinction ; nor would there be the same propriety in it where the habits and circumstances 
 of ihe client require indulgenbe, as there is in England, where the barrister's fee is handed 
 to him with his brief." 
 
 " Whether it was originally wise," says Judge A'awf, "to invest the due compensation of 
 counsel with the incidents of a legal demand, and whether the dignity, and with it the use- 
 fulness of the profession, might not have been better secured by leaving its members to a 
 merely honorary recourse, has divided the opinions of intelligent and honest thinkers. But 
 the question is now, and has long been, a merely speculative one in Pennsylvania ; and our 
 courts have either to remodel the law, or to enforce it as it stands, by admitting the lawyer 
 to sue for his quantum meruit. 
 
 "So, too, of the practice, which has obtained to a considerable extent, of stipulating be- 
 forehand for professional fees, contingent on the result of the litigation. It is not a prac- 
 tice to be generally commended, exposing honorable men not unfrequently to misapprehen- 
 sion and illiberal remark, and giving the apparent sanction of their example to conduct, 
 which they would be among the foremost to reprehend. Such contracts may sometimes be 
 necessary in a community such as that of Pennsylvania has been, and perhaps as it is yet; 
 and where they have been made in abundant good faith — uberimmd fide — without suppres- 
 sion or reserve of fact, or exaggeration of apprehended difficulties, or undue influence ia 
 any sort or degree; and where the compensation bargained for is absolutely just and fair, 
 so that the transaction is characterized throughout by 'all good fidelity to the client;' the 
 court will hold such contracts to be valid. But it is unnecessary to say, that such con- 
 tracts, as they, can scarcely be excepted from the general rule, which denounces as suspi- 
 cious the dealings of fiduciaries with those under their protection, must undergo the most 
 exact and jealous scrutiny before they can expect the judicial ratification." Ex parte PUtt, 
 2 Wall. Junr. 479.
 
 ATTORNEY'S BILL. 305 
 
 the attorney's judgment and superintcndance.((?) It is also said, that an 
 attorney ought not to prosecute an action, to be paid in gross ; for that 
 will be champerty :((■) And an undertaking liy a tliird person, to pay an 
 attorney the further expenses of business alreaily commenced, must be in 
 writing, by the statute of frauds. (/) 
 
 By the statute 3 Jac. I. c. 7, § 1, "all attorneys and solicitors shall 
 give a true bill unto their masters or clients, or their assigns, of all charges 
 concerning the suits which they have for them, subscribed with their hands 
 and names, before such time as they, or any of them, shall cliarge their 
 clients with any the same fees or charges." Upon this statute it was a 
 good plea, to an action brought by an attorney for his fees, that no bill 
 had been delivered to the defendant ;(</) or the statute miglit have been 
 given in evidence, on non assu7npsit.[h) But if an attorney had delivered 
 his bill to the defendant, after the arrest and before the bill filed, it was 
 well enough :(/') and this statute did not extend to attorneys in inferior 
 courts, but only to those in the courts at Wcst7ni)ister.{k) It should also 
 seem, that an attorney's bill could not have been taxed, unless an action 
 was depending thereon, (^j nor without bringing the amount of it into 
 court. (m) 
 
 To remedy these manifold inconveniences, it was enacted by the statute 
 2 Geo. II. c. 23, § 23, (made perpetual by the 80 Geo. II. c. 19, § 75,) 
 that " no attorney of his majesty's court of King's Bench, Common Pleas, 
 or Exchequer, or duchy oi Lancaster^ or of any of his majesty's courts of 
 Great Sessions in Wales, or any of the courts of the counties palatine of 
 Chester, Lancaster, and Durham, or any other court of record in that part 
 of Great Britain called England, wherein attorneys have been 
 *accustomably admitted and sworn ; nor any solicitor in any [ *326 ] 
 court of equity, either in his majesty's high court of Chancery, 
 court of equity in the Exchequer chamber, court of the duchy chamber of 
 Lancaster, at Westminster, or courts of the counties palatine of Chester, 
 Lancaster, or Durham, or of the Great Sessions in Wales, or in any other 
 inferior court of equity, in that part of Great Bi'itain called England, 
 shall commence or maintain any action or suit, for the recovery of any 
 fees, charges, or disbursements, at law or in E(|uity, until the expiration 
 of one month or more, after such attorney or solicitor respectively shall 
 have delivered unto the party or parties to be charged therewith, or left 
 for him, her or them, at his, her or their dwelling-house or last place of 
 abode, a bill of such fees, charges and disbursements,(a) written in a com- 
 mon legible hand, and in the English tongue, except law terms and names 
 of writs, and in words at length, except times and sums ; which bill shall 
 
 {d) I Bing. 13. 7 Moore, 237, S. C; and see 3 Campb. 451. 3 Stark. Ni. Pri. 75. 1 Man. k 
 Ryl. 228. 7 Barn. & Cres. 419. 1 Alan. & Ryl. 238, S. C. 7 Barn. & Cres. 441. 1 .^[an. k Ryl. 
 241, S. C. 
 
 (e) Com. Dig. tit. Atfornn/, (B. 14,) Hob. 117 ; and see 2 Atk. 298. 4 Bro. Cban. Cas. 350. 
 18. Ves. 313, in Chan. 2 Marsh. 273. 
 
 (/) 1 Stark. Ni. Pri. 270. 
 
 (y) 3 Keb. 118, 514. T. Raym. 245. 3 Salk. 19, S. C. ; but see Carth. 57. 1 Show. 48. 
 Comb. 12G, S. C. 
 
 (h) 1 Show. 338. Bui. Ni. Pri. 145. 
 
 (/) 1 Lil. P. R. 145 ; but see 1 Sir. 633. Cas. Pr. C. P. 27, S. C. 
 
 (A) Ciirth. 147. 1 Show. 06. 1 Salk. 86, S. C. 
 
 (I) 1 Salk. 332 ; but see 2 Chit. Rep. 155. 
 
 (m) 2 Ves. 451, 2. 
 
 {a) Barnes, 243. Id. L23. 
 
 Vol. l— 21
 
 326 
 
 OF TAXING AN" 
 
 be subscribed with the proper hand of such attorney or solicitor respec- 
 tively. 
 
 " And, upon application of the party or parties chargeable by such bill, 
 or of any other person in that behalf authorized, unto the Lord High 
 Chancellor or Master of the Rolls, or unto any of the courts aforesaid, or 
 unto a judge or baron of any of the said courts respectively, in which 
 the business contained in such bill, or the greatest part thereof in amount 
 or value, shall have been transacted ;{b) and upon the submission of the 
 said party or parties, or such other person authorized as aforesaid, to pay 
 the whole sum that upon taxation of the said bill shall appear to be due to 
 the said attorney or solicitor respectively : it shall and may be lawful for 
 the said Lord High Chancellor, Master of the Rolls, or any of the courts 
 aforesaid, or for any judge or baron of any of the said courts respectively, 
 and they are thereby required, to refer the said bill, and the said attor- 
 ney's or solicitor's demand thereupon, although no action or suit shall be 
 then depending in such court touching the same, to be taxed and settled 
 by the proper officer of such court, without any money being brought into 
 the said court for that purpose : and if the said attorney or solicitor, or 
 the party or parties chargeable by such bill respectively, having due notice, 
 shall refuse or neglect to attend such taxation, the said officer may pro- 
 ceed to tax the said bill ex parte : pending which reference and taxation, 
 no action shall be commenced or prosecuted, touching the said demand. 
 
 " And, upon the taxation and settlement of such bill and demand, the 
 said party or parties shall forthwith pay to the said attorney or solicitor 
 respectively, or to any person by him authorized to receive the same, that 
 shall be present at the said taxation, or otherwise unto such other person 
 or persons, or in such manner, as the respective courts aforesaid shall 
 direct, the whole sum that shall be found to be or remain due thereon ; 
 which payment shall be a full discharge of the said bill and demand : 
 [ *327 ] and in default thereof, the said party or parties shall be liable *to 
 attachment or process of contempt, or to such other proceedings, 
 at the election of the said attorney or solicitor, as such party or parties 
 was or were before liable unto. 
 
 "And if, upon the said taxation and settlement, it shall be found that 
 such attorney or solicitor shall happen to have been overpaid, then the said 
 attorney or solicitor respectively shall forthwith refund and pay unto the 
 party or parties entitled thereunto, or to any person by him, her or them 
 authorized to receive the same, if present at the settling thereof, or other- 
 wise unto such other person or persons, or in such manner, as the respec- 
 tive courts aforesaid shall direct, all such money as the said officer shall 
 certify to have been so overpaid ; and in default thereof, the said attorney 
 or solicitor respectively shall, in like manner, be liable to an attachment 
 or process of contempt, or to such other proceedings, at the election of 
 the said party or parties, as he would have been subject unto, if that act 
 had not been made. 
 
 " And the said respective courts are thereby authorized to award the 
 costs of such taxations to be paid by the parties, according to the event of 
 the taxation of the bill, that is to say, if the bill taxed be less, by a sixth 
 part, than the bill delivered, then the attorney or solicitor is to pay the 
 costs of the taxation ; but if it shall not be less, the court, in their discre- 
 et) 1 Salk. 89 ; but see 2 Barnard, K. B. 182. Barnes, 122.
 
 ATTORNEY'S BILL. 327 
 
 tion, shall charge the attorney or client, in regard to the reasonableness 
 or unreasonableness of such bill." 
 
 The provisions of the above statute are confined to actions for the 
 recovery of fees, charges or disbursements, at law or in eciuity. But 
 though the statute applies only to particular cases, and to bills of a par- 
 ticular description, yet the court it seems still retains, and has always 
 exercised, a right, as at common law, to direct the taxation of other bills 
 of costs; and such is said to be the constant pr:ictice.((^) In making out 
 an attorney's bill on this statute, it is not sufficient to charge the costs of 
 an action brought by the attorney for his client, at one sum in the aggre- 
 gate, although the costs in that action had been taxed at that sum, as 
 between party and party :(i) But the plaintiff may nevertheless recover 
 the residue of his bill, as to which the provisions of the statute had been 
 complied with.(6') 
 
 It having been doubted, whether an attorney's bill could be delivered 
 with ahbrcviaiions{d) it was enacted by the statute 12 Geo. II. c. 13,(g) 
 that it shall and may be lawful to and for every attorney, clerk in court, 
 and solicitor, to write his bill of fees, charges and disbursements, with such 
 abbreviations as are now commonly used in the English language ; any 
 thing in any former law to the contrary notwithstanding." On this statute 
 it has been holden, that an attorney may deliver a bill of costs, containing 
 •such abbreviations of English words, as are usual and intelligible.(/) 
 And by § G, "the said act of the second year of George the Second for the 
 better regulation of attorneys and solicitors, or any clause, matter 
 or *thing therein contained, shall not extend to any bill of fees, [ *328 ] 
 charges and disbursements, due from any attorney or solicitor, 
 to any other attorney or solicitor, or clerk in court ; but every such 
 attorney, solicitor, or clerk in court, may use such remedies, for the 
 recovery of his fees, charges and disbursements, against such other attor- 
 ney or solicitor, as he might have done before the making of the said 
 act." 
 
 If the whole bill be for convey ancing ^{aa) it cannot be taxed. But if any 
 part of an attorney's bill, which has been delivered, be for business done in 
 court, the bill must be delivered a month before the action is brought other- 
 wise the plaintiff cannot recover. (6^) And a warrant of attorncy,{ec) or 
 dedimus potestatem,{dd) charged in an attorney's bill, is a suilicicnt item to 
 enable the court to refer the bill for taxation ; though, with this exception, 
 it be entirely for conveyancing. So, where one of the charges was for 
 drawing and engrossing an affidavit of debt, in order to hold a party to bail, 
 which appeared to have been sworn, the court of King's Bench held this to 
 be a charge for business done in court, which made the bill taxable. (ct') And 
 a charge in an attorney's bill, for attending at a lock-up house, and obtain- 
 ing the defendant's release, and filling up a bail bond, will render the bill 
 
 (a) 2 Chit. Rep. 155 ; and see 9 Price, 349. Fast, 320, 30. 
 
 h) 2 Car. & P. 69. 1 Ry. & Mo. 280, S. C. 
 
 (c) 1 Ky. & Mo. 280. (d) Pr. Reg. 37. 
 
 (e) § 5. (/) 4 Taunt. 193. 
 
 (aa)'M. 12 Geo. TL Anon. K.B. Barnes, 41,2, C. P.; and see BuL Ni. Pri. 145. 
 
 (bb) 6 Durnf. & East, 645 ; and see Pealie's Cas. M. Pri. 138. 3 E.sp. Rep. 149. 2 Bos. & 
 Pul.343. 1 Camp. 437. 3 Bro. Chan. Cas. 233. 1 Rv. & Mo. 284. 2 Car. & P. 71, 2, S. C. 
 
 (cc) 4 Campb. 68. 2 Stark. Ni. Pri. 538. 3 Barn. & Cres. 157. 4 DowL & Ryi. 736, S. C. 
 accord ; but see 3 Barn. & Aid. 488, 9, where the propriety of this dctisioa was questioned. 
 
 (dd) 1 New Rep. C. P. 266. 4 Campb. 69, n. 
 
 [ec) 6 Durnf. & East, 645.
 
 328 0^ TAXING AN 
 
 subject to taxation. (^) But a charge for preparing an affidavit of the 
 petitioning creditor's debt and bond to the Chancellor, in order to obtain a 
 commission of bankruptcy, was holden not to be a taxable item within the 
 statute, as being a charge at law or in equity, the affidavit not having been 
 sworn, nor a commission issued, (</) So, charges for searching to see whe- 
 ther satisfaction of a judgment was entered, or whether an issue was en- 
 tered and docketed, will not constitute taxable items in an attorney's bill, 
 so as to make it necessary to deliver it signed before action brought.(7«) 
 And where an attorney had paid money, in consequence of his undertaking 
 to pay the debt and costs, this was holden not to be a disbursement, by 
 him as an attorney, within the meaning of the statute. (i) 
 
 It has been made a question, whether an attorney may recover for 
 charges or disbursements not taxable when part of his demand is for busi- 
 ness done in court ; and the distinction that has been taken is, that he 
 may, where he has delivered no bill at all;(^) but that where he has deli- 
 vered a bill irregularly, he cannot. (/) And accordingly, in a modern case,(w) 
 an attorney not having delivered any bill to his client before 
 [ *329 ] action brought, *but having afterwards delivered a bill of par- 
 ticulars under a judge's order, was held to be entitled to recover 
 charges for money paid for his client's use, having no reference to his 
 business of an attorney, although other items in the bill of particulars were 
 taxable. An attorney having delivered two separate bills, one of which 
 was for fees and disbursements in causes, and the other for making con- 
 veyances, a rule was made, in the King's Bench, for taxing both. (a) And 
 so, where it was moved that the master might be directed to tax those 
 articles in an attorney's bill which related to conveyancing and parlia- 
 mentary business, the rest being for management of causes in the court of 
 King's Bench, Lord Mansfield said, "there was no doubt but the master 
 might tax the whole ; that he recollected a case, where the fees paid to a 
 proctor, for business done in the ecclesiastical court, made part of the 
 bill ; and it was determined, that as the whole bill had been referred to 
 the master, he might tax that part of it. "(5) So, where an attorney had 
 delivered three several bills, one for business done as an attorney, another 
 as agent, and a third for fees due to him as steward of a manor, for admit- 
 tances and holding courts, the court held, that the taxable items in the 
 bill, for business done as an attorney, would draw after them the fees due 
 to him as steward of the manor, so as to subject all the bills to taxa- 
 tion. (c) 
 
 The court of King's Bench will refer an attorney's bill to be taxed, 
 though all the business was done at the Quarter Sessions,((i) or in the in- 
 solvent debtors' court ;(e) and in these cases, an action cannot be main- 
 tained for the amount of the bill, unless it be signed, and delivered a 
 month before the bringing of the action. (/) And a bill was referred to 
 
 (/j 6 Barn. & Cres. 86. {g) 3 Barn. & Aid. 486. 
 
 (A) 2 Car. & P. 45. 1 Ey. & Mo. 262, S. C. («) 6 Taunt. 196. 1 Marsh. 539, S. C. 
 
 [k) Peake's Cas. Ni. Pri. 1 Ed. 102. 2 Bos. & Pul. 345. 11 East, 285 ; but see 3 Esp. Rep. 
 149. 1 Carapb. 437. 
 
 {I) G Durnf. & East, 645. 2 Bos. & Pul. 343. 1 Campb. 439, n. 
 
 [m] 11 East, 285. 
 
 (a) Say. Rep. 233. Say. Costs, 320, S. C. (5) Doug. 199, in nods. 
 
 (c) 5 Barn. & Aid. 898. 1 Dowl. & Ryl. 511, S. C. 
 
 (d) 4 Durnf. & East, 496 ; but see id. "l24. Barnes, 122, contra. 
 
 («) 1 Car. & P. ei5. 4 Barn. & Cres. 364. 6 Dowl. & Ryl. 510, S. C. 
 (/) 5 Durnf. & East, 694. 1 Esp. Rep. 137, S. C. '
 
 ATTORNEY'S LILL. 329 
 
 be taxed, for business done in a criminal suit, in the court of Great Ses- 
 sions at Carmarthen : and though it was objected that it would be impos- 
 sible for the master to tax the costs in Wales, not knowing the practice 
 there, yet the court held that he could as well tax these costs, as costs in 
 the spiritual court; and if he were at a loss, he might call in assistance. (^) 
 In the Exche(iuer, a crown solicitor's bill of costs, for business done under 
 an extent, is taxable :(/t) And if, on the taxation of his bill, a considerable 
 sum be disallowed, the court will not only order the costs of the taxation 
 to be paid to the defendant by the solicitor, but, if he have received the 
 whole amount of his bill by sums paid him on account, they Avill order him 
 to pay interest on the balance reported to be due from him.(i) But the 
 court cannot order a solicitor's bill of costs, for business wholly done in 
 the House of Lords, in the prosecution of an appeal, to be referred for 
 taxation; because their officer has no means whereby he may be 
 enabled to tax such a bill :(/c) and great difficulty is said *to have [ *330 ] 
 frequently occurred in the House of Lords, in not knowing how 
 directly to tax a solicitor's bill. This however has been done, under the 
 recognizance; and the house has called in the assistance of a master, to 
 determine what the amount ought to be : but that has been considered only 
 as putting the recognizance in force, not as a taxation independent of it, 
 by virtue of any inherent authority possessed by the House. (a) For 
 establishing a taxation of costs on private bills in the House of Lords, it 
 is enacted, by the statute 7 & 8 Geo. IV. c. 64, § 1, 2, that on application 
 made to the clerk of the parliaments, as to the costs and expenses of such 
 bills, he shall direct the same to be taxed, by such persons as he shall 
 appoint; and in actions against persons liable to pay the costs, the speak- 
 er's certificate shall have the effect of a warrant to confess judgment. 
 And there is a similar provision for the taxation of costs on private bills, 
 &c. in the House of Commons, by the statute 6 Geo. IV. c. 123, § 1, 2. 
 
 In Chancery, an order for taxing a bill of costs, entitled in the cause, 
 if obtained by a party to the cause, is regular, under the general jurisdic- 
 tion ; but a person not a party to the cause must apply ex parte, under the 
 statute 2 Geo. II. c. 23, § 23.(6) Whether a party, having obtained such 
 an order in a cause, may pursue it under the statute, is questionable ; but 
 if the order be acted upon, the irregularity is waived. (?*) An order has 
 been made in bankruptcy, for taxing a solicitor's bill, for striking the docket, 
 and previous business relating to the bankruptcy ;(e) and also, for business 
 done in bankruptcy and otherwise. (tZ) But it has been decided, that a 
 solicitor's bill of fees, for business done for a royal foundation, the office of 
 visitor being exercised by the Lord Chancellor, is not within the statute 2 
 Geo. II. c. 23, § 23 ; it not being for proceedings in law or equity, and it 
 is not in the court of Chancery that the king's visitatorial power is to be 
 exerciseil, but by the Lord Chancellor. (c) It has also been decided, that 
 the jurisdiction of the court of Chancery docs not extend to taxing a soli- 
 citor's bill of costs, for obtaining an act of parliament. {/) Where the 
 plaintiff was employed as a solicitor, to carry on proceedings in Chancery, 
 after which the defendent married one of the parties to the suit, and 
 
 (ff) Lloyd V. Maund, T. 25 Geo. III. K. B. ; but see 2 Mcriv. 600, in Chan. 
 
 (A) Rex V. Partridge, T. 5G Geo. III. in Scac. 3 Price, 2.'^0. West on Extents, 230, S. C. 
 
 (i) 9 Price, 349. {h) 4 Price, 279. 
 
 (o) 3 Ves. & Beam. 21. (6) 1 1 Vcs. 328. (c) 5 Ves. 706. 
 
 {d) 13 Ve3. 124. (e) 9 Ves. 547. (/) 3 Ves. & Beam. 21
 
 330 OF TAXING AN 
 
 eventually received a proportionate part of the property in dispute, in 
 right of his wife, under an order of that court; the court of Common 
 Pleas held, that he was liable to pay the plaintiff his proportion of his bill 
 of costs, after taxation by the master, although there had been no retainer 
 of the plaintiff by the defendant, and although the bill had not been de- 
 livered to the latter, but to a co-defendant, who had suffered judgment by 
 default. ((/) 
 
 By the statute 6 Geo. IV. c. IG, § l-l,(/0 " the petitioning creditor or 
 creditors shall, at his or their own costs, sue forth and prosecute the com- 
 mission, until the choice of assignees ; and the commissioners shall, at the 
 meeting for such choice, ascertain such costs, and by writing under their 
 
 hands, direct the assignees, (who are thereby thereto required,) 
 [ *331 ] to *reimburse such petitioning creditor or creditors such costs, 
 
 out of the first money that shall be got under the commission ; 
 and all bills of fees or disbursements of any solicitor or attorney employed 
 under any commission, for business done after the choice of assignees, 
 shall be settled by the commissioners, except that so much of such bills as 
 contain any charge respecting any action at law or suit in equity, shall be 
 settled by the proper officer of the court in which such business shall have 
 been transacted ; and the same, so settled, shall be paid by the assignees 
 to such solicitor or attorney : Provided, that any creditor who shall have 
 proved to the amount of tiventy pounds or upwards, if he be dissatisfied 
 with such settlement by the commissioners, may have any such costs and 
 bills settled by a master in Chancery : who shall receive for such settle- 
 ment, and the certificate thereof, twenty shillings, and no more." The 
 former part of this clause appears to have been taken from the statute 5 
 Geo. II. c. 30, § 25, upon which it has been holden, that the petitioning 
 creditor is liable to the solicitor, for the expense of conducting the com- 
 mission, up to the choice of assignees.(a) But, as between the solicitor 
 and messenger, there is no implied contract on the part of the former, to 
 pay him his expenses.(6) The solicitor is an agent merely, and is not to 
 be regarded as a principal, as respects the messenger ; and although he 
 make himself responsible to the messenger, the petitioning creditor will 
 not therefore be exonerated, without the express consent of the messenger 
 to discharge him.(c) And the messenger under a commission of bankrupt, 
 may recover from the petitioning creditor, his fees for his services before 
 the party be declared a bankrupt ; although the party was duly declared 
 a bankrupt, and the messenger's bill ordered by the commissioners to be 
 paid by the assignee out of the estate. (t?) The latter part of the above 
 clause of the statute 6 Geo. IV. c. 16, § 14, appears to have been taken 
 from the statute 5 Geo. II. c. 30, § 47, upon which it has been determined, 
 that the bill of costs of a solicitor, under a commission of bankruptcy, is 
 taxable, though approved by the commissioners, and stated and allowed in 
 the accounts of the assignees.(c) And an attorney's bill, for obtaining a 
 bankrupt's certificate, must be signed and delivered a month before he 
 
 (^r) 7 Moore, 467, [h] And see stat. 5 Geo. II. c. 30, ^ 25, 47. 
 
 (rt) 1 Rose, 449 ; and see Holt, M. Pri. 235, 376. 5 Moore, 290. 2 Brod. & Bing. 457, S. C. 
 3 Barn. & Ores. 43. 4 Dowl. & Ryl. 621', S. C. 
 
 [b) Holt. Ni. Pri. 247, in notis ; and see 2 Maule & Sel. 438. 2 Car. & P. 124. 5 Barn. & Cres. 
 330. 8 Dowl. & Ryl.52, S. 0. 
 
 (c) Holt. Ni. Pri. 376. And for the messenger's remedy against the assignees, see id. 247, 
 in notis. 
 
 {d) 2 Car. & P. 123. (e) 3 Madd. Rep. 49.
 
 ATTORNEY'S BILL. 331 
 
 can sue thereon. (/) But an action may be maintained by a solicitor 
 against an assignee, for business done under a commission of bankrupt, 
 one month after he has delivered a copy of his bill, although it has not 
 been taxed by a master in Chancery.(//) 
 
 The statute 2 Geo. II. c. 23, § 2o, does not, we have not 
 seen, (/Ji) extend "to any bill of fees, &c., due from any attorney [ *332 ] 
 or solicitor, to any other *attorney or solicitor, or clerk in court ; 
 but every such attorney, solicitor or clerk in court, may use such remedies, 
 for the recovery of his fees, (fcc, against such other attorney or solicitor, 
 as he might have done before the making of the said act." And there is 
 a case in Wilsons Report3,(a) where a judge of the King's Bench having 
 made an order to refer an agenfs bill to be taxed, ami the master not 
 having obeyed it, the court was applied to, and held that the order was 
 irregular ; the master declaring, that he had never taxed a bill for agency. 
 It is now the uniform practice, however, of all the courts, (^) to refer an 
 agent's bill to be taxed, on the application of his employer, and upon his 
 bringing into court the sum claimed by the plaintiff. But the bill of an 
 agent to the attorney employed by the party, in respect of whose business 
 the agency charges have been incurred, cannot be taxed, on the application 
 of the client. (c) It is not necessary that an agent's bill should be signed 
 or delivered, before the commencement of an action(tZ) And where busi- 
 ness has been done by an attorney, for a client who afterwards becomes 
 himself an attorney, the former need not deliver a bill signed, in order to 
 recover his costs.(c) 
 
 It is not necessary for the executor or administrator of an attorney to 
 deliver a bill of costs, for business done by his testator or intestate, before 
 the commencement of an action ;(^') the statute 2 Geo. II. c. 23, § 23, 
 being confined to actions brought by the attorney himself, and not extend- 
 ing to his personal representatives : But such a bill may be referred to be 
 taxed, on the defendant's undertaking to pay what is (\.we.{gfj) An attorney 
 delivered his bill, and after his death application was made to tax it, and 
 above a sixth part was taken off; it was moved that the executrix might 
 pay the costs ; but the court of King's Bench held that she should not : 
 for the words of the act, 2 Geo. II. c. 23, § 23, impose them upon the 
 attorney or solicitor only, and the executrix is not to blame, if she stand 
 upon his bill, or make out one from his books. (7t) 
 
 Before an attorney's bill has been settled and paid, it may be taxed as a 
 matter of course, at any distance of time.(0 But after it has been settled 
 and paid, and the payment has been long acquiesced under, the courts will 
 not refer it to be taxed as a matter of course ; nor, as it seems, unless a 
 
 (/) 2 Taunt. 321. 1 Rose, 1 1 9, S. C. 
 
 Iff) 1 Stark. Ni. Pri. 278 ; and see 2 Campb. 278. 2 Stark. Ni. Tri. 59. 3 Barn. & Aid. 486. 
 Ante, 323. 
 
 (hh) Ante, 327, S ; and see Dick. 112. 1 Cox, 49, in Chan. (a) 1 Wils. 2G6. 
 
 (t)) Doiip. i;t9, 200, and the cases there cited, in nolis. Groomc v. Symonds, E. 35 Geo. III. 
 K. B. ; and see Dick. 285, in Chan. 
 
 (c) 8 Price, 677. 
 
 {(l) Doug. 199, in notis. Peake's Cas. Nl. Pri. 3 Ed. 1,2; and see the case oi Jones, one, ^c, 
 V. Price, id. 2, (a). 1 Esp. Rep. 221. 
 
 (?) 1 Esp. 420. 2 H. Blac. 589, S. C. 
 
 (/) 1 Barnard, K. B. 433. Andr. 276. Cas. Pr. C. P. 58. 1 Car. & P. 3. 
 
 (ffff) 1 Sftlk. 89. 2 Str. 1056. Say. Costs, 324, 5. 4 Taunt. 724 ; but see Cas. Pr. C. P. 58. 
 Barnes, 119, 122, contra. 
 
 {h) 2 Str. 1056. Say. Costs, 327. (i) Per Cur. T. 34 Geo. III. K. B.
 
 332 OF TAXING AN 
 
 gross error or imposition be pointed out.{k) So, where a bond had been 
 given for the debt five years before, and the vouchers had been delivered 
 up, the court of Common Pleas would not refer the bill to be taxed ; saying, 
 
 an attorney at this rate could never be safe.(Z) But though an 
 [ *333 ] ^attorney's bill has been settled and paid, yet the courts, under 
 
 special circumstances, will refer it to be taxed ; for the client may 
 by affidavit show that the business charged was never performed, or that the 
 charges are fraudulent : and where that is the case, neither payment, nor a 
 release, nor a judgment for the money due, will preclude the court from 
 having the bill taxed. (a) But overcharges alone, without circumstances 
 showing fraud, do not seem to be sufficient.(J) An attorney's bill may 
 also be taxed, though there was a special agreement, between the attorney 
 and his client, that the former should be paid for his time, at a certain rate 
 by the day, besides his expenses :(<?) or though he has obtained a warrant of 
 attorney from his client, for confessing judgment for the money due upon 
 his bill, and has entered up judgment thereupon. (cZ) But the plaintiff, 
 having paid to an attorney the amount of his bill, cannot, after a reduc- 
 tion of the bill by taxation, maintain an action for the difference. (e) 
 And when a rule has been served for taxing an attorney's bill, the court 
 of King's Bench will not grant an attachment against the attorney, for 
 not paying the balance due to his client, until the costs have been taxed, 
 though the balance is admitted, and it has been agreed to dispense with 
 the taxation. (/) 
 
 Where an action is brought on an attorney's bill, the court will order it 
 to be taxed, at any time before trial, though after pleaded, and issue join- 
 ed. (^) But it is a general rule, that an attorney's bill cannot be taxed, 
 at the trial of an action brought upon it;(7t) nor after judgment by default, 
 and a writ of inc^uiry executed :(^■) for if the business was really done, 
 (which must be proved at the trial,) the delay of the defendant for more 
 than a month, in objecting to the quajitum, is an admission that he thinks 
 it to be reasonable. In a modern case however, an attorney's bill was 
 referred to the master for taxation, after an action had been brought upon 
 it and a verdict recovered on a suggestion that some of the itons in the 
 bill would not have been allowed by the master, had it been originally 
 referred to him for taxation ; but upon the terms of the defendant paying 
 the costs of the application, and of the taxation, with the costs of the cause 
 as between attorney and client, the plaintiff being at liberty to take out 
 the money forthwith, which had been paid into court. (M) 
 
 The statute 2 Geo. II. c. 23, § 23, only requires the delivery of a bill, 
 for the bringing of an action; and therefore, though an attorney cannot 
 bring an action on his bill, till it has been delivered a month, that circum- 
 stance is not necessary to enable him to set it off. But he must not pro- 
 
 (k) Say. Costs, 323. Doug. 199 ; and see 14 Ves. 2G2. 1 Ves. & Beam. 126. 3 Ves. & Beam. 
 lU, 5, iii Chan. 7 Moore, 496. 6 Dowl. & liyl. 339. 
 
 (I) Cas. Pr. C. P. 109. Pr. Reg. 37, S. C. ; but see 1 Barnard, K. B. 144, 5. 
 
 (a) Say. Costs, 323. Doug. 199, S. P.; and see 2 Atk. 295. Dick. 403. 14 Ves. 262. 3 
 Meriv. 285. Buck. Ill, in Chan. 5 Price, 42, in Scac. 
 
 {b) 14 Ves. 262. 3 Ves. & Beam. 174 ; and see 1 Anstr. 186. 
 
 (c) Say. Costs, 321 ; and see 4 Bro. Chan. Cas. 350; but see 2 Barnard, K. B. 164, contra. 
 
 [d) Say. Costs, 322. (c) 2 Stark. Ni. Pri. 85. 
 
 (/) 2 Chit. Rep. 66. (ff) Per Cur. T. 21 Geo. III. K. B. 
 
 (h) Dougl. 199 ; and see 2 Bos. & Pul. 237. 7 Price, 234. 2 Chit. Rep. 65. 1 Car. & P. 627. 
 (i) Barnes, 124. 
 (kfc) 2 Chit. Rep. 63 ; and see 3 Dowl. & Ryl. 33.
 
 ATTORNEY'S BILL. 333 
 
 (luce it at the trial by surprise: It is sufficient in sucli case, to 
 deliver *the bill time enough for the plaintiff to have it taxed [ •334 ] 
 before the trial. (aa) The delivery of a former bill is conclusive 
 evidence against an increase of charge in a subsequent bill, on any of the 
 items contained in it, and strong presumptive evidence against any addi- 
 tional items ; but if there were any real errors or omissions in the former 
 bill, they may be rectified. (^/y) And a mistake in the date of items in an 
 attorney's bill, which does not mislead, will not vitiate the delivery. (cc) 
 If a defendant be arrested by an attorney for fees, after a bill of costs has 
 been delivered to him, without being signed, he cannot be discharged out 
 of custody on entering a common appearance, in the Common Pleas ; as 
 the want of such signature will be a defence to the action, ou producing 
 the bill at the trial.((/) 
 
 The statute requires the bill to be delivered one month or more before the 
 commencement of the action ; which is construed to be a lunar month. (e) 
 And where a bill of costs is delivered to the party, it must be left with him, 
 and not taken back again. (/) When two persons are liable to an attorney, 
 for business done on their joint retainer, it is sufficient for him to deliver 
 a copy of his bill to one of them, from whom he received his instructions, 
 and to whom the management of the business was left by the other :(^) 
 but it seems, that the delivery of a copy of the bill in such case, to the one 
 who did not intermeddle, would not be sufficient; for he cannot be con- 
 sidered as having authority to receive it for both, nor is he likely to know 
 what foundation there is for the charges in the bill. (A) And where a party 
 in a cause having changed his attorney in the progress of it, a judge's 
 order was afterwards obtained by the second attorney, for the delivery of 
 a bill signed by the first, of his fees and disbursements, which delivery 
 was accordingly made to the second attorney, this was holden, by a ma- 
 jority of the judges of the King's Bench, to be a sufficient delivery of the 
 bill, to the 2)arty to he charged thereivith, within the words and meaning 
 of the statute, so as to enable the first attorney to bring his action against 
 the client, for the amount of such hi\\.{i) So, the delivery of a bill to the 
 attorney of the party to be charged, is deemed sufficient, if the party him- 
 self attend the taxation, or the bill be shown to have come to his hands. (A-) 
 If the bill be not delivered to the party, it must be left for him at his 
 dwelling house, or last place of abode; leaving it at the compting house 
 not being deemed sufficient. (Z) 
 
 In an action on an attorney's bill, it is sufficient to give in evidence a 
 judge's order to tax the bill, the defendants undertaking to pay what 
 should appear to be due, and the master's allocatur thereupon •,[m) and 
 the defendant will not be permitted to question the reasonable- 
 ness of the *item8 before a jury. (a) In such an action, the [ *33o ] 
 nisi prius record is good prima facie evidence, to show that the 
 action was not commenced till the expiration of a month after the delivery 
 
 (aa) Doup. 109, in notis. Martin S; WifCy administratrix, v. Winder, one, S;c., E. 23 Geo. III. 
 K. B. there cited. 1 Esp. Rep. 449, S. P. 
 
 {bb) 1 Bos. & Pul. 49. {cc) 4 Taunt. 806. 
 
 (rf) 4 Moore, 4. (c) 5 Esp. Rep. 1 08. (/) 1 H. Blac. 290. 
 
 (g) 2 Campb. 277 ; and see 1 Campb. 437. 2 Dowl. & Rvl. 461. 
 
 (A) 2 Campb. 277. (0 12 East, 372. 
 
 {k) 1 Gow, 71. 
 
 (/) 2 Bos. k Pul. 343 ; but sec 1 Stark. Ni. Pri. 324. 1 Gow, 73, n. 
 
 (m) 2 Campb. 496. (a) Doug. 199. Ante, 333.
 
 335 OF TAXING AN 
 
 of the bill. (5) And where it is material for the defendant to show that 
 the action Avas commenced earlier than it appears to have been by the 
 nisi prius record, the declaration delivered by the plaintiff is admissible 
 evidence.(c) When an attorney has regularly delivered a bill signed, he 
 may give a copy of it in evidence, without proof of notice to produce the 
 original. (tM) It may indeed be inferred from one case,(ee) that unless a 
 duplicate of the bill be kept, the plaintiff cannot give parol evidence of its 
 contents, without a notice to produce it : But in a subsequent case it was 
 decided, that a copy of an attorney's bill, not signed by the attorney, the 
 original of which, duly signed, has been delivered to the defendant, is 
 admissible in evidence, without proof of notice to produce the origi- 
 nal.(#) . 
 
 If an attorney refuse to deliver a signed bill to his client, the latter may 
 compel him, by taking out a summons before a judge, entitled in one of the 
 causes in which he was concerned; and, in the King's Bench, if the attor- 
 ney, on being served therewith, do not attend, an order will be made for 
 delivering it within a reasonable time. In the Common Pleas, three sum- 
 monses are necessary, in case of non-attendance, before an order can be 
 obtained. ((/) And, in either court, if the attorney still neglect to deliver 
 it, the order should be made a rule of court ; and on personal service of 
 the rule,(7i) and making affidavit thereof, the court on motion will grant 
 an attachment. The bill being delivered, a judge's summons may be 
 obtained for the attorney to show cause, why it should not be referred to 
 the master in the King's Bench, or one of the prothonotaries in the Com- 
 mon Pleas, to be taxed; upon which, if the attorney attend, and the judge 
 think it reasonable, be will make an order of course for taxing it, on an 
 undertaking signed by the client or his attorney, in the judges book, to 
 pay what shall appear to be due upon such taxation :(2) And, in the 
 King's Bench, a peremptory order will be made in like manner, upon the 
 first summons, in case of non-attendance ',{k) but, in the Common Pleas, 
 if the attorney do not attend, there must be three summonses taken out, 
 and an affidavit made of the service and attendance thereon, before the 
 judge will make an order ex parte. [1) But in neither court can the client 
 have a summons for delivery of the bill, and taxing it together. (wi) In 
 the Exchequer, the rule for an attachment against an attorney, for not 
 delivering his bill of costs, is not absolute in the first instance, 
 [ *336 ] but only a rule nisi:{n) *and where it appeared, on showing 
 cause, that the bill had been delivered since the rule was served, 
 and illness was assigned in the affidavit, as the cause of not obeying the 
 order, the rule was discharged, without costs, (a) 
 
 When the order is made, a copy of it should be served, with the mas- 
 ter's or prothonotary's appointment thereon, to tax the costs ; and there 
 is a rule in the King's Bench,(W) that "on every appointment to be made 
 
 (6) 1 Bos. & Pul. 263. (c) 2 Campb. 497, n. 
 
 {(Id) 2 Bos. & Pul. 237. 3 Esp. Rep. 167, S. G. Peake's Evid. 5 Ed. 104, 261. Ante, 35. 
 {ee) 2 Campb. 110. 
 
 (/) 6 Barn. & Cres. 394 ; and see 7 Moore, 112. 3 Brod. & Bing. 288, S. C. 
 \g) Imp. C. P. 7 Ed. 556. Append. Chap. XIV. | 31, 2. {h) 2 Chit. Rep. Q.Q. 
 
 \i) For the form of an undertaking to pay an attorney's bill on taxation, in the Exche- 
 quer, see Append. Chap. XIV. ^ 33. 
 
 (k) Imp. K. B. 10 Ed. 506. [I) Imp. C. P. 7 Ed. 556, 7. 
 
 (m) Imp. K. B. 10 Ed. 506. Barnes, 126. {n) 11 Price, 593. 
 
 [a) 11 Price, 593. 
 
 \bb) R. H. 32 Geo. III. K. B. 4 Durnf. & East, 580.
 
 ATTORNEY'S BILL, 330 
 
 by the master, the party on ^vliom the same is served, shall attend such 
 appointment, ■without waiting for a second; or in default thereof, the mas- 
 ter shall proceed ex parte, on the first appointment." But, in the Com- 
 mon Pleas, it is said there must be three appointments, in case of non- 
 attendance, before the prothonotary can proceed ex parte.(e) And that 
 court will not stay proceedings, in an action on an attorney's bill, brought 
 subsequent to the order of the judge of another court for its taxation, but 
 previous to its being taxed :{d) Nor will they require the attendance of a 
 third person before the prothonotary, on the taxation of a bill of costs, 
 which had been referred to him in aid of a master in Chancery, to whom 
 the reference had been previously made.(e) And where, more than one 
 sixth part of the attorney's bill having been taken off on taxation, the 
 defendant presented a petition to the Vice Chancellor, to allow the costs 
 of taxation, and, pending this proceeding, the attorney brought his action 
 for the residue of his bill, the court of King's Bench held, that tlie action 
 was well brought ; the statute 2 Geo. II. c. 23, § 23, having only prohi- 
 bited an action being brought pending the reference and taxation. (/) 
 
 If a sixth part of the bill be taken oif, the attorney is to pay the costs 
 of taxation ; but if less, the costs are in the discretion of the court.(^) 
 In the exercise of this discretion however, the courts are governed by 
 the statute : and accordingly, the costs of taxation have been always 
 reciprocally given to the client or attorney, as a sixth part has, or has not 
 been taken off.(7i) But, in the Common Pleas, an attorney is not liable to 
 pay the costs of taxing his bill, where the deduction of one-sixth is occa- 
 sioned, not by the particular items being taxed, but by a whole branch of 
 it being disallowed. (i) And where an attorney is entitled to the costs 
 occasioned by the taxation of his bill, he ought to apply for them at the 
 time ; and cannot recover them by motion, after making a subsequent set- 
 tlement. (/c) If a client, in the course of a cause, advance money to his 
 attorney, for specific disbursements in the cause, those disburse- 
 ments must nevertheless be included in the bill of costs: There- [ *837 ] 
 fore, where a sum was deducted *upon taxation, less than one- 
 sixth of the amount of the bill delivered, including those disbursements, the 
 court of Common Pleas ordered the client to pay the costs of the taxa- 
 tion. (a) And in that court, where an order is obtained for taxing an 
 attorney's bill, and delivering up all papers, &c. upon the back of which 
 the prothonotary, according to the usual practice, indorses his alloeatur, 
 the attorney is entitled in the first instance to the possession of it, for the 
 purpose of enforcing payment of his bill.(^') In the Exchequer, where a 
 solicitor engaged in various suits obtained payment out of court of a sum 
 of money standing in trust in the cause, and retained it towards his costs, 
 and upon a subsequent taxation of his bill, it appeared that at the time 
 he obtained payment of the money, he had in fact been already overpaid ; 
 the court refused, upon a motion for that purpose, to charge him with 
 interest, the parties having made considerable delay before they taxed the 
 
 (c) Imp. C. P. 7 Ed. 557. (d) 1 Bos. & Pul. 3G5. 
 
 (e) 8 Taunt. 670. 3 Moore, 3, S. C. (/) 2 Barn. & Aid. 745. 
 
 (g) See the statute, ante, 327 ; and Dick. 322, in Chan. 
 
 (h) 5 Barn. & Cres. 7G0. 8 Dowl. & Ryl. 589, S. C. K. B. Cag. Pr. C. P. 78. Pr. Reg. 36. 
 Barnes, 118, S. C. /(/. 147, 8, C. P. 1 M'Clel. & Y. 354, Exchcq. ; and see 14 Yes. 154. 3 Vcs. 
 & Beam. 141. 2 Madd. Rep. 329. Bacls, 129, in Chan. 
 
 (i) 2 H. Blac. 357. (^-) 1 Hing. 207. 8 Moore, 40, S. C. 
 
 (a) 1 Taunt. 536 ; but see Buck, 129, in Chan. (6) 1 Taunt. 38.
 
 337 OF AN ATTORNEY'S LIEN 
 
 costs, and there being no fraud or laches imputable to the solicitor. 1 
 Younge & J. 527. 
 
 To assist the attorney in recovering his costs, he has a lien for the amount 
 of his bill upon the deeds, papers and writings of his client, ■which come to 
 his hands in the course of his professional employment ;[a] and until his 
 
 [a] The attorney has a lien on a judgment recovered by his client, for his costs, and if 
 the defendant, after notice from the attorney, pay the amount of the judgment to the plain- 
 tift' without satisfying the attorney for his costs, it is in his own wrong, and he is liable to 
 the attorney for the amount of his bill. I'indar v. Morris, 3 Caines, 165. Ten Broeck v. 
 De Wilt, 10 Wend. 617. Martm v. Hawks, 15 Johns. 405. Power v. Kent, 1 Cow. 172. 
 Siveet V. Bartlett, 4 Sandf. Sup. Ct. R. 661. Smilh v. Lowden, I lb. 696. Gyon v. Fnjatt, 2 
 Id. 638. But he has no lien until judgment is entered. Potter \. Mayo, 3 Greenl. 34. 
 Eobson V. Watson, 4 Red. 20. Before judgment the client may settle the action, and dis- 
 charge the other party without the attorney's consent, or reference to his claim for fees, 
 &c. lb. Getchell v. Clark, 5 Mass. 309. Foot v. Teivksbury, 2 Verm. 97. The People v. 
 Ilardenburg, 8 Johns. 335. Pindar v. Morris, 3 Caines, 165. In Massachusetts and Maine, 
 an attorney's lien on a judgment is given by statute only. Baker v. Cook, 11 Mass. 236. 
 Hobson v. Watson, sup. Where the defendant settles with the plaintiff without notice from 
 the attorney of his claim, the court will not interfere in the absence of collusion. Grant y. 
 Ilazletine, 2 N. Hamp. 541. But the notice need not be personal; any notice, credible in 
 ordinary circumstances, that the lien will be insisted on, is suflBcient. Lake v. Ingham, 3 
 Verm. 149. Heartt v. Chipman, 2 Aik. 162. 
 
 The attorney has a lien upon an award of arbitrators, where a pending suit is referred, 
 to the full extent of all his just claims as attorney in the suit. Hutchinson v. Howard, 15 
 Verm. 544. Nor can this lien be defeated by attachment under the trustee process, lb. 
 
 In Maine, under the statute of 1821, c. 60, an attorney has a lien for his costs, upon the 
 judgment recovered in a suit conducted by him, which the creditor cannot discharge. Stone 
 V. Hyde, 9 Shep. 318. Potter v. iVayo, 3 Greenl. R. 34. Gammon v. Chandler, 17 Shep. 152. 
 And such lien is not discharged by a delay of several years to collect the demand, if there 
 is no negligence on the part of the attorney, and the debtor has notice of the claim. lb. 
 
 The lien of an attorney for advances made for his client, in the progress of the cause, oa 
 the judgment recovered, cannot be defeated by a judgment which the defendant has in set- 
 off. But the lien cannot extend beyond the fees legally accruing, and advances for accruing 
 costs. Hooper v. Brundage, 9 Shep. 460. Neither can it affect pre-existing rights of third 
 persons. Walker y. Sergeant, 14^ Y arm. I'^l. Scharlach y. Bland, I 'Rich. 20T. An attorney 
 has, as against his client, a lien for his general balance, upon a note deposited with him by 
 his client for collection. Bennett v. Cutts, UN. Hamp. 163. Pope v. Armstrong, 3 Smedes 
 & Marsh. 214. Cage v. Wilkinson, 3 Smedes & Marsh. 223. And where the client gave the 
 attorney a note, for the amount of such balance, it was held, that the lien was not dis- 
 charged, as it did not appear that the note was given or received in payment of the balance. 
 lb. Though an attorney may have a lien for costs, &c., which the court, after notice, might 
 protect, yet, where he sues his client, and obtains judgment therefor, and assigns the judg- 
 ment, the lien does not attach to the claim in the hands of such assignee. Beech v. Canaan, 
 14 Verm. 485. 
 
 An attorney has no lien for his fees on money in the hands of the sheriff; and payment 
 by the sheriff to him, after notice that his authority is revoked, will not avail the sheriff. 
 Irti'in V. Workman, 3 Watts, 357. Walton v. Dickerson, 7 Barr, 376. But he has a lien 
 upon the debt which he has prosecuted to judgment, for his fees, viz., for the term, attor- 
 ney, and travel fees, and for all moneys expended by him in prosecuting the suit. Heartt v. 
 Chipman, 2 Aik. 162. Although it has been held, that his lien on a judgment cannot vary 
 or affect the rights of a stranger. Rumrill v. Huntington, 5 Day, 163. Francis v. Rand, 7 
 Conn. 221. 
 
 The court will protect the attorney's lien for costs to the same extent as they would the 
 rights of an assignee. Bradt v. Koon, 4 Cow. 416. And whoever receives by the client's 
 assignment, the attorney's costs, &c., is liable therefor to the attorney in an action for 
 money had and received. Heartt v. Chipman, 2 Aik. 162. Sexton v. Pike, 8 Eng. Arkansas, 
 193. He has however no lien, on damages recovered, before they come to his hands, though 
 he have a claim against his client equal to the amount; and where the plaintiff has dis- 
 charged the defendant from payment of the damages, and the costs and ofiQcer's fees are 
 offered to be paid, the execution will be ordered to be returned satisfied. St. John v. Diefen- 
 dorf, 12 Wend. 261. He has a lien on his client's papers in his possession, but not any 
 thing belonging to his client, till it is in his possession. lb. But the Supreme Court of 
 Pennsylvania, in Walton v. Dickerson, 7 Barr, 378, held, that an attorney has no lien either 
 on the papers of his client, or the money collected for him, for his fees, and that the Eng- 
 lish rule is changed, inasmuch as the right is given him to recover for his services.
 
 FOR nis COSTS, 337 
 
 bill be paid, the court will not order them to be delivered up :{c) nor can an 
 action of trover or detinue be waintained for them. Tlierefore, Avhcre A. 
 gave his attorney a specific sum, for the purpose of satisfying a debt, for 
 which an execution had issued against lils goods, at the suit of B., and the 
 attorney paid the money to B., who thereupon delivered to him a lease 
 which had been deposited by A. with B. as a security for the debt, the court 
 held, that the attorney had a lien on it for his general balance due from A. ' 
 and that such lien was not extinguished, by his having taken acceptances 
 from A. for the amount of that balance, before the lease came to his hands 
 some of those acceptances having been previously dishonoured, and one of 
 them taken up by the attorney. (c?) An attorney has a lien upon papers 
 belonging to a bankrupt,not only for his bill for business done but for the 
 costs of an action brought against the bankrupt, subsequently to the issuin^^ 
 of the commission, to recover the amount of his bill.(6') And an a^-ent for 
 an attorney dying intestate and Insolvent, pending a suit wherein he was 
 plaintiff, has a lien for his costs upon a ^^ostea, of which the a^-ent has 
 obtained possession after the death of the intestate. (/) But the lien 
 which an attorney has on the papers in his hands, is only coramcnsurato 
 with the right which the party delivering them has therein : and there- 
 fore, where the delivery is unauthorized, the attorney cannot detain 
 t\iem.((/) And a solicitor has no lien in equity against a remainder-man 
 on deeds put into his hands by tenant for life. (7i) 
 
 An attorney has also a lien on the money recovered by his client, for 
 his bill of costs. (?) If the money come to his hands, he may retain it to 
 the amount of his bill : he may stop it 171 transitu, if he can lay 
 
 (r) 1 Lil.P. R. 142. 3 Durnf. &East, 275. (rf) 1 Maule & Sel. 535. 
 
 (e) 2 Barn. & Cres. 616. 4 Dowl. & Rjl. 125, S. C. 
 
 (/) Dowl. & Ryl. 384. (^r) 4 Taunt. 807. 
 
 (/() 2 Scho. & Lef. 279 ; and see 13 Ves. 161, 2. 16 Ves. 258, 275. 18 Ves. 282, 294. 2 Scho. 
 & Lef. 279 ; as to the lien of a solicitor in equity, on papers in his possession. Ante, 87. 
 
 (i) 3 Atk. 720. 4 Durnf. & East, 124 ; and see 2 P. Wms. 460. 2 Vez. 25. 2 Str. 1126. 3 
 Bur. 1313. 8 Moore, 229. 1 Bing. 277, S. C, as to the lien of ojkcrs of the court, and their 
 remedy for the recovery of their fees. 
 
 In England, an attorney has a general lien for the amount of his bill upon the deeds, 
 papers, and writings of his client, which come to his hands in the course of his jirofes- 
 sional employment, although his demand does not arise from services in relation to those 
 papers. This lien is, however, only commensurate with the right which the party deliver- 
 ing llio papers has in them. He has also a special lien upon the money of his client, which 
 may come into his hands, and upon a judgment procured by him for his client. If the 
 money is in his hands, ho may retain it; and if in the hands of the officers of the court, 
 the court will hold it until his lien is satisfied. .Var/>i>na/d v. Xapicr, 14 Geo. 89. Attor- 
 neys and counsellors at law in .Missouri, unlike attorneys and solicitors in England, are 
 allowed no fees which are ta.^ed as costs, luit look solely to their clients for remuneration, 
 the English doctrine of lien on papers and judgments having an extremely limite<l applica- 
 tion. A defendant will be protected in paying the money to the plaintilfin the judgment, 
 notwithstanding he may have notice that the fees of the attorneys are unpaid. Frhsdl r. 
 Jliiile, 18 Mis. (3 Bennett,) 18. 
 
 And it has been held in Connecticut, that the lien of an attorney for hi.!? fees and ex- 
 pense?; upon the judgment recovered, is subject to the judgment debtor's right of set-olT. 
 Bmj.nnin v. lifnjamin, 17 Conn. 110. Ami an assignment of a judgment, by the judgment 
 creditor, to his attorney, in payment of his fees and disbursements in the suit, is effectual 
 to ])revcnt a set-off against such judgment, of another judgment previously recovered hv 
 the judgment debtor against such judgment creditor, [h. [Church and ll'iiVr, J. J., dissenting.'] 
 This derision is founded on the authority of Ruinrill v. Huntington, 5 Day, 1G3, which con- 
 flicts with the uniform course of more modern decisions elsewhere, and makes an exception 
 to the well-established general principle, that a chose in action, not negotiable, is subject, 
 in the hands of the assignee, to all the efjuilies which existed against it between the original 
 parties, at the time of the assignment. lb.
 
 338 OF AN ATTORNEY'S LIEN 
 
 hold of it : *If he apply to the court, they will prevent its being [ *338 ] 
 paid over, till his demand be satisfied.(a) And Lord Mansfield 
 declared he was inclined to go still further ; and to hold, that if the 
 attorney give notice to the defendant, not to pay the money recovered by 
 his client, till his bill be satisfied, a payment by the defendant after such 
 notice, would be in his own wrong, and like paying a debt which has been 
 assigned after notice.(i) Accordingly it has been holden, that if the 
 defendant's attorney pay to the plaintiff the debt and costs recovered, 
 after notice from the plaintiff's attorney not to do so, till his bill has been 
 first satisfied, the former is liable to pay over again to the latter, the 
 amount of his lien on such debt and costs of the suit.{<7) An attorney has 
 also a lien upon a sum awarded in favour of his client, as well as if reco- 
 vered by judgment: and if, after notice to the defendant, the latter pay 
 it over to the plaintiff, the plaintiff's attorney may compel a repayment of 
 it to himself; and he will not be prejudiced by a collusive release from 
 the plaintiff to the defendant.(cZ) But the courts will not go beyond these 
 limits : and therefore, where the defendant, not having had any notice to 
 the contrary, compromised the debt and costs with the plaintiff, before his 
 attorney had been paid, the court of King's Bench would not oblige the 
 defendant to pay.(t;c) In the Common Pleas, if the defendant, after 
 action brought, pay the debt to the plaintiff, without knowledge of the 
 attorney, and without discharging the costs, the plaintiff has a right to 
 proceed in the action for the recovery of them.(^) And if a plaintiff 
 collude with the defendant's bail and attorney, to deprive the plaintiff's 
 attorney of his costs, by settling the debt and accepting a part payment, 
 without the intervention of the latter, the court of Common Pleas will not 
 restrain him from proceeding against the bail, in order to recover such 
 costs.igf/) But where there is no fraud, the plaintiff is allowed to com- 
 promise the action with the defendant, in that court, as w^ell as in the 
 King's Bench, without consulting his attorney. (7Ji) And if the plaintiff 
 and defendant collusively settle the debt and costs upon an execution, in 
 order to defraud the plaintiff's attorney of his costs, the latter cannot sue 
 out a second execution on the same judgment, to levy his costs, but must 
 apply to the court. (i) So, where the defendant had been discharged out 
 of custody of the sheriff, with the consent of the plaintiff, notwithstanding 
 a notice from the plaintiff's attorney to the sheriff's ofiicer, not to release 
 the defendant, until the costs were paid, the court held, that the sheriff 
 was not liable to pay those costs, nor bound to retain the defendant, after 
 the plaintiff was satisfied. (Z:) So where an attorney, without a regular 
 
 authority from the plaintiff, commenced an action o^ replevin, and 
 [ *339 ] the plaintiff, knowing of the proceedings, suffered the cause *to 
 
 be carried down to trial, but afterwards, concerting with the 
 defendant, entered up satisfaction on the record, without securing the 
 attorney his costs ; the court to refused to vacate the entry of satisfac- 
 tion.(a) And where the plaintiff's attorney was indebted to the plaintiff, 
 
 (a) Dong. 104. 1 H. Blac. 122. 
 (h) Doug. 238. 
 
 (c) 6 Durnf. & East, 361. 
 
 (d) 1 East, 4G4; and see 2 Rose, 237. 1 Madd. Rep. 49, in Chan. 
 
 (ee) Doug. 238. (if) 6 Esp. Rep. 40. 6 Price, 15. 
 
 iff!/) 2 New Rep. C. P. 99. (hh) 1 Taunt. 341. 
 
 (i) 5 Taunt 429. 1 Marsh. 113, S. C. 
 
 (k) 2 Barn. & Aid. 402. 1 Chit. Rep. 241, S. C. (a) 3 Ring. 132.
 
 FOR HIS COSTS. ' 339 
 
 in a greater sum than the amount of the attorney's costs in tlic cause, the 
 court of Common Pleas hehl that the agent, to whom the plaintifi"s attor- 
 ney was indebted on a general account, in a sum greater than the amount 
 of such costs, could not, as against the plaintiff, retain out of the sum 
 recovered by the latter, more than the charge fur agency in that parti- 
 cular cause. (^^) As a further security to the attorney, he cannot be 
 chanycd by his client, without leave of the court, or order of a judge, on 
 payment of his bill, to be taxed by the proper officer.(f) 
 
 In the King's Bench, when the defendant applies to set off the debt and 
 costs in one action, against those in another, the court in general will not 
 suffer it to be done, until the attorney's bill, for business done in the cause 
 wherein he was concerned, be first discharged :[d) But it is otherwise in the 
 Common Pleas; where the attorney's lien for his costs is held to be subject 
 to the ctpiitable claims that exists between the parties in the cause. (c) And, 
 in the King's Bench, it has been holden, that an attorney has a lien on the 
 judgment obtained by his client against the opposite party, to the extent of 
 his costs of that cause only ;(/) and the plaintiff, in that court, may set oft' 
 interlocutory costs in the same cause, payable by him to the defendant, 
 against the debt and costs recovered by him on the final result of the cause ; 
 notwithstanding the objection of the defendant's attorney, on the ground of 
 his lien, which only attaches on the general result of the costs, <S:c., of the 
 cause. (^) So where a defendant, being sued by bill as an attorney of that 
 court, pleaded by an attorney or agent who had not filed any warrant to 
 defend, and the plaintiff, being nonsuited, moved to stay the proceedings in 
 the action, undertaking to set off the defendant's costs against a judgment 
 debt due from him to the plaintiff, the court held, that the defendant's attor- 
 ney or agent had no lien upon the costs, for his own costs in defending the 
 suit. (A) Where the plaintiff, having charged the defendant in execution, 
 died, and the defendant's wife took out administration to the plaintiff, the 
 court of King's Bench ordered the defendant to be discharged 
 out of custody; saying, that the plaintiff's *attoruey had no lien [ *340 ] 
 on the judgment for his costs. (a) And where the plaintiff, after 
 judgment recovered, settled the action with the defendant, and employed 
 a new attorney to enter up satisfaction on the record, the court held that 
 the defendant was entitled to be discharged out of custody ; although the 
 lien of the plaintiff's attorney for the costs had not been satisfied.(A6) 
 
 {h) 1 Bing. 20. 7 Moore, 249, S. C. ; aud see 6 Price, 203. 2 Dowl. & Rjl. G. C Dowl. k 
 Ryl. 384. Ante,^l. 
 
 (c) 1 Lil. P. R. 141. Doug. 217, Ante, 94. 
 
 {d) 4 Duruf. & East, 123, 4. 6 Durnf. & East, 456. 8 Durnf. & East, 70. 1 Maule & Sol. 
 240. 8 Tauut. 52G. 
 
 (e) 2 Blac. Rep. 826. Say. Costs, 254, S. C. 1 H. Blac. 23, 217. 2 H. Blac. 440, 587. 2 Bos. 
 & Pul. 28. 1 New Rep. C. P. 22. 4 Taunt. 320. 8 Taunt. 526. 95 Moore, 5. 4 Bing. 16. 1 
 Price, 37G; and see Lee's Prac. Die. 1 Ed. 108, 9, 340, 41. 15 Ves. 72, 539. 2 Ball & Beat. 
 34, in Chan. 
 
 (/■) 3 Barn, k Ores. 535. 5 Dowl. & Ryl. 399, S. C. 4 Bing. 17, S. C. cited. 
 
 (g) 8 East, 362. 1 Price, 375. (/i) 1 Dowl. & Ryl. 1G8. 
 
 la) 8 Durnf. & East, 407 ; but see 8 Moore, 145, 529. 1 Bing. 431, S. C. 
 
 \bb) 4 Barn. & Aid. 466.
 
 *341 OF THE PROCEEDINGS 
 
 *CnAPTER XV. 
 
 Of the Proceedings in Actions against Prisoners, in Custody of the 
 'Sheriff, ^c. ; and of the Marshal of the King's Bench, or Warden 
 of the Fleet Prison : ivith the Relief they are entitled to, under the 
 Lords' Act, ^c. 
 
 Prisoners in general may be considered as they are in custody on a 
 civil or criminal account : and on a civil account, they are either taken or 
 detained in custody of the sheriff, &c. on mesne process before, or final 
 process after judgment ; or they are committed to the custody of the mar- 
 shal of the King's Bench, or warden of the Fleet prison, on a cepi cor- 
 pus,{aa) or habeas corpus, or surrender in discharge of bail. 
 
 In treating of prisoners, I shall consider, first, the mode of proceeding 
 in actions against them, when in actual custody of the sheriff, &c. previ- 
 ous to the plea ; secondly, the writ of habeas corpus, and manner of re- 
 moving prisoners under it, into the custody of the marshal of the King's 
 Bench, or warden of the Fleet prison ; thirdly, the bill against prisoners, 
 in the actual or supposed custody of the marshal, and how far it is con- 
 sidered as the commencement of the suit ; fourthly, the proceedings in 
 actions against prisoners, in the actual custody of the marshal or warden, 
 previous to the plea ; fifthly, the proceedings in actions against them, 
 when in actual custody of the sheriff, &c. or of the marshal or warden, 
 subsequent to the plea ; and lastly, the relief they are entitled to under 
 the Lords' act, and other acts for the discharge of insolvent debtors. 
 
 It has already been seen,{bb) that when the defendant is arrested, he is 
 either let out of custody, upon giving bail to the sheriff, or an attorney's 
 undertaking for his appearance, or depositing in the sheriflF's hands, the sum 
 indorsed on the writ, with 101. in addition to answer costs, &c. ; or he re- 
 mains in custody, or escapes, or is rescued, &c. And when he remains in 
 custody of the sheriff, the plaintiff in due time should declare against him 
 in such custody, unless he be removed by habeas corpus, to the custody of 
 the marshal of the King's Bench, or warden of the Fleet prison. 
 
 Before the making of the statute 4 & 5 W. & M. c. 21, there could have 
 been no declaration in either court, against a defendant in custody of the 
 sheriff, or other officer by whom he was arrested; but the plaintifi" 
 [ *342 ] was ^obliged to bring a habeas corpus cum causa, and so turn 
 him over to the custody of the marshal or warden, in order to 
 charge him with a declaration. («) But now, by the above statute,(J) which 
 was passed to relieve plaintiffs from the trouble and expense of bringing up 
 prisoners by habeas corpus,{c) " if any defendant be taken or charged in 
 custody, at the suit of any person, upon any writ out of any of the courts at 
 Westminster, and imprisoned for want of sureties for his appearance, the 
 plaintiff in such writ may, before the end of the next term after such writ is 
 returnable, declare against such prisoner, in the court out of which the writ 
 issued, whereupon the said prisoner was taken and imprisoned, or charged 
 
 {aa) Barnes, 392. {Ih) Ante, 221. 
 
 (a) See the preamble to the statute. R. M. 1654, g II, R. E. 5 W. & M. reg. 3, g 1, {a), 
 K. B. IWils. 120. 2 Bur. 1051. 1 Duruf. & East. 192. 
 
 (*) §2. (c) 1 Wils. 120. 1 Durnf. & East, 192.
 
 AGAINST PIUSONERS, ETC. 342 
 
 in custody; and may cause a true copy thereof to be delivered to such pri- 
 soner, or to the fjaoler or keeper of the prison or f^aol in whose custody 
 such prisoner shall be or remain ; to whicii declaration tlie said prisoner 
 shall appear and plead ; and if such prisoner shall not appear and plead to 
 the same, the plaintiff in such case shall have judgment, in such manner 
 as if the prisoner had appeared, and refused to answer or plead to such 
 declaration." 
 
 And, by the same statute, § 3, "in all declarations against any prisoner 
 detained in prison, by virtue of any writ or process issued out of the court 
 of King's Bench, it shall be alleged in custody of what sheriff, bailiff, or 
 steward of any franchise, or other person having the return and execution 
 of writs, such prisoner shall be, at the time of such declaration, l»y virtue of 
 the proces of the said court, at the suit of the plaintiffs :{d) which allegation 
 shall be as good and effectual, to all intents and purposes, as if such prisoner 
 or prisoners were in the custody of the marshal." If the declaration there- 
 fore do not allege, either expressly or by implication, in what custody the 
 defendant is detained, and at whose suit,(g) it will be bad on a general de- 
 murrer. This allegation however is only necessary, where the plaintiff 
 proceeds upon a bill of Middlesex or latitat, &c. or by attachmeyit of privi- 
 lege, in the King's Bench; and not where he proceeds by original writ 
 in that court, or by action in the Common Pleas. And, in a declaration 
 in debt, it is unnecessary to state at whose suit the defendant is in cus- 
 tody ; the words " of a plea that he render, &c.," being a sufficient allega- 
 tion, that he is in custody at the plaintiff's suit.(/) 
 
 Upon this statute, a defendant in the actual custody of the sheriff or 
 other officer, may be proceeded against by the same plaintiff at whose suit 
 he was arrested, or by a tliird person : by the former, upon the original 
 caption, by the latter upon a subsequent charge, and by either of them, 
 upon a re-caption by virtue of an escape warrant. (^) 
 
 When the defendant is a prisoner in custody of the sheriff, &c., a bill must 
 be filed against him, in the King's Bench, with the clerk of the 
 *declarations in the King's Bench office ; it being holden, that the [ *343 ] 
 delivery of a declaration against a prisoner, though within tivo 
 terms, is a nullity, if there were no bill filed before -.[aa) And, by rule of E. 
 5 W. k M. if the declaration be not filed in the King's Bench, (M) and Ex- 
 chequer,((?) or entered and left in the office in the Common Pleas, before 
 the end of the next term after the writ or process, by which the prisoner 
 was taken or charged in custody, is returnable, the prisoner shall be dis- 
 charged, in the King's Bench and Exchequer, on filing common bail ; or, 
 in the Common Pleas, upon entering his appearance with the proper offi- 
 cer, by writ of supersedeas, made by him, according to the ancient prac- 
 tice of that court. ((M) 
 
 The statute expressly provides, that the plaintiff may declare against a 
 defendant in custody of the sheriff, &c., before the end of the next term 
 after the process is returnable : But a subsequent rule, of the court of 
 
 (rf) Append. Chap. XV. g 1, &c. [f) 2 Ld. Ravm. l."?62. 1 Wils. 119, 20. 
 
 (/) Id. ibid. 1 Ken. 114. (^) Ante, 233, 4, 5. 
 
 (^aa) 4 E;ist, IG ; and see 1 Chit. Rep. 389. 
 
 (bb) R. E. 5 \V. k .M. rejj. 3, g 6, K. B. ; and sec Carth. 469. 1 Salk. 98, S. C. 
 (c) R. E. 5 W. & M. rcg. 3, § 6, in Scac. Man. Ex. Append. 208. 
 
 (dd) R. E. 5 W. & M. re^. 3, ^ 6, C. P. And for tho form of the writ of aupersedeat. see 
 Append. Chap. XV. g 35, &c. 
 
 Vol. I.— 22
 
 o J3 OF THE PROCEEDINGS 
 
 King's Tiench,{e) having rather ambiguously required, that if the defen- 
 dant should remain in custody for two terms, and the plaintiff should not 
 declare against him within that time, the defendant should be discharged 
 out of custody, after the end of the second term after such imprisonment ; 
 the judges of that court, in favour of liberty, determined, that Avhere a 
 defendant was arrested in one term, on a writ returnable the next, the 
 term in which the defendant Avas arrested should be reckoned as one of 
 the two terms ; and consequently, that the defendant should be discharged, 
 for want of a declaration, after the end of the same term in which the 
 writ was returnable. (/) This practice however has been since altered ; 
 and it is now settled, agreeably to the letter and intention of the statute, 
 that in all cases where a prisoner is taken or charged in custody, by mesne 
 process issuing out of the King's Bench, the plaintiflf may declare against 
 him, before the end of the next term after the return of the process, by 
 virtue whereof he was taken or charged in custody. "(^) And a plaintiff 
 need not declare against a prisoner, until the term next after the return 
 of the writ, even though there was time in the term in which the W'rit was 
 sued out, to have made it returnable in that term, and it be not in fact 
 made returnable until the next term. (7i) The term however, in which the 
 process whereon the defendant was arrested is returnable, is still accoun- 
 ted one of the two terms ; although it be returnable on the last day of the 
 term :(i) and the plaintiff cannot declare before the return of the process, 
 upon which the defendant was taken or charged in custody.(A;) 
 
 If the defendant be taken and detained, or charged in custody of the 
 
 sheriff, &c., for a bailable cause of action, a copy of the declara- 
 [ *34:4: ] tion should *be delivered personally to the defendant, or left for 
 
 him with the gaoler or keeper of the goal or prison in whose 
 custody he is confined, before the end of the next term after the return 
 of the process :{a) And if any gaoler or keeper of a prison, having 
 received a copy of a declaration against any prisoner in his custody, shall 
 suppress the same, and not deliver it forthwith unto such prisoner, an 
 attachment shall be issued against him. (J) It is not sufficient, where the 
 defendant is a prisoner in custody of the sheriff, &c., to file or enter a 
 declaration in the office, to which the defendant is not obliged to plead, 
 and on which the plaintiff cannot take a regular judgment :(<?) And, in 
 the Common Pleas, if a defendant in custody employ an attorney, merely 
 for the purpose of putting in bail, the delivery of a declaration to such 
 attorney is not sufficient. ((i) But it is not necessary, in that court, to 
 enter the declaration with the prothonotary, before the delivery thereof 
 to the prisoner ; it being sufficient, if it be entered at any time before the 
 giving of a rule to appear and plead. (ec) And, in the King's Bench, if the 
 defendant be served in custody of the sheriff, &c., with a copy of process, 
 at the suit of the sa?ne or a differeiit plaintiff, it is not necessary that a 
 
 (e) R. T. 2 Geo. I. K. B. 
 
 (/) 3 Bur. 1448. 4 Bur. 2060. Cookmn v. Forstcr, T. 23 Geo. III. K. B. 
 
 Iff) R. H. 26 Geo. III. K. B. 2 Blac. Rep. 1242, 3, C. P. accord. 
 
 (h) 6 Durnf. & East, 547. (i) R. T. 2 Geo. I. (a), K. B. 
 
 (k) R. E. 5 W. & M. reff. 3, § 1, K. B. C. P. & Excheq. 
 
 (a) Slat. 4 & 5 W. & M. c. 21, § 2. 1 Bos. & Pul. 535. 
 
 (b) R. E. 5 W. & M. reff. 3, | 7, K. B. C. P. & Excheq. 
 
 (c) 1 Str. 474. 1 Bos. & Pul. 535 ; and see 1 Chit. Rep. 386, 720. 
 
 (d) 1 Taunt. 493 ; and see 5 Durnf. & East, 35. 
 
 (ee) Barnes, 372. Pr. Reg. 329. Cas. Pr.' C. P. 114, S. C. 1 Bos. & Pul. 539.
 
 AGAINST PRISONERS, ETC. 344 
 
 copy of the declaration should be delivered personally to the defendant, 
 or left for him with the gaoler or turnkey : but it may be delivered or 
 filed, absolutely or de bene esse, and the plaintift" may proceed thereon, as 
 if the defendant were at large. (/) 
 
 The plaintiff having declared, an ajfuhivlt should be made, and filed with 
 the clerk of the rules, in the King's Bench, before the first day of the 
 ensuing term \{g) stating the delivery of a copy of the declaration, and 
 the time when, and person to whom, the same was delivered ;(/i) if to a 
 gaoler or turnkey, that he acknowledged the defendant was then a prisoner 
 in his custody ;(i) and that the defendant was arrested, or charged in cus- 
 tody, by process of this court, returnable before the delivery of the copy.(/cj 
 The time when such affidavit was filed should be entered thereon, by the 
 clerk of the rules, and a copy of it produced to the master in the King's 
 Bench, or clerk of the pleas in the Exchequer,(?) before judgment. (yt) 
 Hence it is necessary, and usual in the King's Bench, when the defendant 
 is in custody of the sheriff, &c., to make three copies of the declaration : 
 one to be delivered to the defendant, or left for him with the gaoler or 
 turnkey, who should be asked if the defendant be a prisoner at the plain- 
 tiff's suit ; another, to be annexed to the original affidavit of 
 such *delivery, and filed with the clerk of the rules ; and a [ *345 ] 
 third, to be annnexed to an office copy of such affidavit : On 
 this last copy, a rule is given with the clerk of the rules, for the defen- 
 dant to appear and plead ; and in default thereof, judgment may be 
 signed.(^<) In the Common Pleas, the affidavit of the delivery of a copy 
 of the declaration, &c., should be made and filed with one of the secon- 
 daries, within twentij days after the end of the next term after that in 
 which the writ or process is returnable, Easter term excepted, and within 
 ten days after Easter term :{h) therefore, if a declaration against a 
 prisoner bo delivered on the last day of the term in which the writ is 
 returnable, the affidavit of the delivery need not be filed till tioenty days 
 after the expiration of the following terra. (<?(?) And in that court, the 
 production of a copy of the affidavit to the prothonotary being dispensed 
 with,(cZ'?) it is only necessary to have two copies of the declaration ; one 
 to be delivered to the defendant, or left for him with the gaoler or turn- 
 ke}', and the other to be annexed to an affidavit of such delivery ; upon 
 which latter copy, the secondary will give a rule for the defendant to 
 appear and plead. 
 
 The mode of charging a defendant in actual custody of the sheriff, &c. 
 for a bailable cause of action, is by making an affidavit thereof, and suinf^f 
 out process ; which should be duly marked or indorsed for bail, and left 
 at the sheriff's office. But if the cause of action be not bailable, the same 
 plaintiff or a tliird person may proceed against the defendant, as if he were 
 at large, by serving him with a copy of process ;(e) and if he do not appear, 
 by filing a declaration in the office, and giving him notice thereof. But 
 
 (/) 1 Durnf. & East, 192 ; but see Barnes, 392. 
 
 (y) R. H. 2G Geo. III. K. B. 
 
 \h) R. E. 5 W. & M. rcg. 3, § 2, K. B. ; and see Append. Chap. XV. g 6. 
 
 (i) R. E. 5 \V. & M. Tcg. 3, <( 2, {a), K. B. 
 
 \k) R. E. 5 W. k M. reg. 3, § 2, K. B. ; and see Append. Clinp. XV. I G. 
 
 \l) R. E. 5 W. & M. reg. 3, <j 2, in Scac. Man. E.x. Append. 207. 
 
 (rt) Same rule, ^ 2, (h), K. B. (h) R. E. 5 W. & M. reg. 3, q o, C. P. 
 
 {cc) 3 Moore, 230. {dd) Imp. C. P. 7 Ed. 6CG, 672. 
 
 (e) 1 Darnf. & East, 192; but see Barnes, 392.
 
 345 <^F THE PROCEEDINGS 
 
 neither the plaintiff nor a third person can charge a prisoner with a decla- 
 ration, or execution, (/) in a civil action, when he is in custody of the 
 sheriff, or in any other custody, on a criminal account without leave of 
 the court,{^) or a judge : and a prisoner in custody on an attachment for 
 a contempt, is holden to be a prisoner in custody on a criminal account, 
 within the meaning of this rule ;{A) though if he accept a declaration, and 
 suffer judgment to go against him without complaining, he has waived the 
 advantage which he might have taken of the irregularity, and shall be 
 bound by it.(^') A person in custody however, under an attachment, for 
 non-payment of costs, may be charged with an execution in a different 
 action as a matter of course :(/c) And one who is attainted of felony, or 
 even treason, may be charged with a civil action, by leave of the court or 
 a judge; so as it be not to defeat the effect of the king's pardon, by dis- 
 abling him from going abroad.(Z) But the court of Common 
 [ *o4G ] Pleas will not grant a habeas "^corpus, to bring up a prisoner in 
 custody on a criminal account, in order to have him charged with 
 a declaration, (a) or execution, (5) in a civil action. 
 
 When a defendant, being a prisoner in custody of the marshal, upon 
 mesne process, shall be taken and detained in custody of any sheriff, by 
 virtue of a judge's warrant for an escape, the plaintiff' shall declare 
 against him in custody of such sheriff, before the end of the second term 
 after such taking and detaining; otherwise a supersedeas may be made 
 for such defendant :((?) And, in the Common Pleas, when the defendant 
 had been previously rendered to the Fleet prison, the court held that the 
 time of his recaption, or coming again into prison, should be looked upon 
 as the time of the render,(c?) 
 
 The times for appearing and 'pleading^ when the defendant is in custody 
 of the sheriff, &c. are regulated as follows : That " upon every arrest by 
 mesne process out of either court, returnable the first day of Easter or 
 3Iichaelmas term, if a copy of the declaration be delivered against the 
 defendant, before one month from the day of Easter, or the morrow of 
 All Souls," (that is, before the third return of Easter term, or of Michael- 
 mas term, as it then stood,)(eg) "and affidavit thereof made and filed, and 
 the defendant do not appear before the end of ten days after those terms 
 respectively, judgment may be entered against him, if rules have been 
 given: but if he appear within that time, he shall imparl until the next 
 term ; unless the action be in London or Middlesex, and the defendant 
 be in prison within /or^?/ ™iles of London or Westminster ; in which case, 
 though he appear before the expiration of that time, he shall plead two 
 days before the essoin day of the next term: and in default thereof, 
 
 (/■) Pr. Reg. 325. 
 
 \g) T. Raym. 58. 1 Sid. 90, S. C. 1 Lev. 124. 1 Sid. 154, S. C. 1 Lev. 146. 1 Salk. 
 354. R. T. 2 Geo. L (a). 
 
 (A) Cas. Pr. C. P. 27. Pr. Reg. 325. 
 
 {i) Cas. Pr. C. P. 31 ; and see 1 Durnf. & East, 591. 1 Chit. Rep. 386. 
 
 {k) 4 Durnf. & East, 316. 
 
 [1] 2 Salk. 500. 7 Mod. 153. 2 Ld. Raym. 848, S. 0. Id. 1572. 2 Sir. 873, S. C. Cas. 
 temp. Hardw. 190. 1 Blac. 30. 1 Wils. 217. Fost, 61, S. C. 2 New Rep. C. P. 246. 
 
 {a) 2 New Rep. C. P. 245 ; and see 1 Marsh. 166. 3 Moore, 259. 1 Brod. k Ring. 23, S. 
 C. Ante, 287. 
 
 (6) 8 Moore, 81. 1 Ring. 221, S. C. 
 
 (c) R. T. 6 Ann. K. B. ; and see 6 Mod. 21 254. 
 
 (rf) Barnes, 382 ; and see 4 Moore, 380. 2 Brod. & Bing. 35, S. C. 
 
 (ce) This term having been since shortened, by the statute 24 Geo. IL c. 48.
 
 AGAINST PllI.SONERS, ETC. 3-46 
 
 rules having been given, judgment may be entered against him as afore- 
 said. "(/) And where the essoin day of tiie term fell on a Monday^ and 
 on the Saturday preceding, defendant not having pleaded, the phiintiff 
 signed judgment as for want of a plea, the court of King's liench refused 
 to set aside the judgment for irregularity.(r/) 
 
 " If a copy of the declaration bo delivered against such defendant, on 
 or after one month from the day of Easter in Easter term, or the morrow 
 of All Souls in Mi'-Iiaclmas term, or in Hilary or Trinity term, and there- 
 upon the plaintifl' give rules to appear and answer, then if the defendant 
 appear two days before the essoin day of the next term, he shall imparl 
 until the next term; but if he do not appear within that time, judgment 
 may be given against him."(/() 
 
 *And "if a writ be returnable in a7iy term, and a copy of [ *347 ] 
 the declaration have been delivered before the ession day of the 
 next term, the plaintiff in such next term may give rules to appear and 
 answer : and if the defendant do not appear and plead upon the expira- 
 tion of the rules, judgment shall be given against him. "(a) 
 
 "When the defendant is in custody of the sheriff, &c. the demand of a 
 plea is unnecessary. (^/) And when a plea is filed by the defendant, at an 
 earlier time than by the rules of the court he is compellable to plead, he 
 must, in order to prevent surprise, give notice of his plca:(6') but no such 
 notice is required where the plea is filed in regular time ;(<;/) and, in the 
 Common Pleas, where declaration was delivered to a prisoner in gaol, 
 indorsed with a notice to plead in eight days, a plea pleaded before the 
 declaration was filed is good.(e) In other respects, the proceedings sub- 
 sequent to the declaration, against a defendant in custody of the sheriff, 
 &c. are similar to the proceedings against him when in custody of the 
 marshal or warden ; which will be treated of in a subsequent part of this 
 chapter. 
 
 It will next be proper to consider the writ of Jiabeas co7yus, and the 
 manner of removing prisoners under it, into the custody of the marshal of 
 the King's Bench, or warden of the Fleet prison; after which, the remain- 
 ing subjects of this chapter will be treated of in their proper order. 
 
 The writ of habeas corpus lies in civil or criminal cases. In criminal 
 cases, this writ, and the proceedings thereon, principally depend on the sta- 
 tute 31 Car. II. c. 2, the provisions of which are extended by the statute 
 5<j Geo. III. 0. 100, "for more effectually securing the liberty of the sub- 
 ject." But this writ, whether at common law or under the 31 Car. II. c. 2, 
 does not issue as a matter of course, upon application in the first instance, 
 but must be grounded upon afTidavit, on Avhich the court are to exercise 
 their discretion, whether the writ shall or shall not issue.(^') A prisoner 
 in execution, in the King's Bench, may be charged there criminally, by a 
 justice of peace's warrant ;(^^) but no such justice can take a prisoner of 
 
 ( f) R. E. 5 W. & M. reg. 3, § 3. K. B. C. P. & Excheq. (y) 2 Dowl. & Ryl. 538. 
 
 (h) K. E. 5 \V. & M. reg. 3, § 4, K. B. C. P. k Excheq. 
 
 (a) R. E. 5 W. & M. reg. 3, § 3, K. B. C. P. & Excheq. 
 
 (6) 1 Durnf. & East, 591. 6 Durnf. k East, 524 ; but see 2 Bos. k Pul. 367. 
 
 (c) 4 Durnf. & East, 664. 8 Durnf. k East, 596. (rf) 5 Durnf. & East, 473. 
 
 (e) 4 Taunt. 545. (/) 2 Chit. Rep. 207. 
 
 (yy) 2 Str. 828.
 
 347 *^^ T^^ PROCEEDINGS 
 
 this court out of tlio custody of the court, and send him to the county 
 gaol.(^) The court, however, will j];rant a habeas corpus, to the warden 
 of the Fleet, to take the body of a debtor confined there, before a magis- 
 trate, to be examined from time to time, respecting a charge of felony, or 
 misdemeanour. (A) And where a prisoner is brought up under a habeas 
 corpus, issued at common law, he may controvert the truth of the return, 
 by virtue of the statute 56 Geo. III. c. 100, § 4.(^') In civil 
 [ *348 ] cases, *thc writ of habeas corpus is used to remove the defen- 
 dant from one custody to another, as from the custody of the 
 sheriff, or other officer by whom he was arrested, into the custody of the 
 marshal or warden ; or from the custody of the marshal into that of the 
 warden, or vice versa ; or from the prison of an inferior court. If the 
 defendant be a prisoner in the King's Bench or Fleet prison, by process 
 of the same court, he may be brought up by rule ; but if he be in custody 
 under the process of another court, there must be a habeas corpius.{a) 
 
 The writ of habeas corpus, in civil cases, is a judicial writ, supposed to 
 issue out of the King's Bench, (6) or prothonotaries' office ; commanding 
 the sheriff, or other officer to whom it is directed, to have the body of the 
 defendant, together with the day and cause of taking and detaining him, 
 before the court or a judge, on a day certain in term time, or immediate, 
 to ansiver or satisfy the plaintiff, or generally, to do and receive what the 
 court or judge shall consider of him. Hence it is called, according to the 
 subject matter, a writ of habeas corpus ad respondendum, ad satisfacien- 
 dum, or ad faciendum et recipiendum ;{c) though the latter is more com- 
 monly called a habeas corpus cum causd : and it is grantable of common 
 right, at all times, whether in term or vacation, without any motion in 
 court. (cZ) [a] 
 
 (g) 2 Str. 828. (A) 5 Barn. & Aid. Y30. 
 
 [i) 4 Barn. & Ores. 136. 6 Dowl. & Ryl. 209, S. C. 
 
 («) Barnes, 385; and see the case of the Kii)g v. Umfrevilh, T. 31 Geo. III. C. P. Imp. C. 
 P. 7 Ed. 552. 
 
 {b) 2 Bur. 777. (c) Off. Brev. 110, 112. Thes. Brev. 131. 
 
 {d) 1 Lev. 1. 2 xMod. 306. 
 
 [a] "The Constitution of the United States provides that 'the writ of habeas corpus shall 
 not be svspended unless when, in cases of rebellion or invasion, the public safety may 
 require it.' It has never yet been suspended in the United States. In January, 1807, a bill 
 passed the Senate for its suspension, but was rejected in the House of Representatives by a 
 large majority. 
 
 " By the 14th section of the act of Congress of Sept. 24, 1789, the courts of the United 
 States have power ' to issue writs of scire facias, habeas corpus, and all other writs not 
 specifically provided for by statute, which may be necessary for the exercise of their 
 respective jurisdictions, and agreeable to the principles and usages of law. And that either 
 of the justices of the Supreme Court, as well as the judges of the district courts, shall have 
 power to grant writs of habeas coipus for the purpose of inquiry into the causes of commit- 
 ment: Provided, that writs of habeas corpus &ha\\ in no case extend to prisoners in gaol, unless 
 when they are in custody under or by colour of the authority of the United States, or are 
 committed for trial before some court of the same, or are necessary to be brought into court 
 to testify.' In construction of this act, it has been held that the phrase, ' the writs shall be 
 agreeable to the principles and usages of law,' means those general principles and those 
 general usages which are to be found, not in the legislative acts of any particular State, but 
 in that generally recognized and long established law which forms the substratum of the laws 
 of every State. 
 
 " The Supreme Court may grant the writ of habeas corpus ad subjiciendum, also, the writ ad 
 proseqitendu)n, testificandum et deliberandum, but not the writ ad respondendum, nor ad satisfacien- 
 dum, nor the habeas corpus cum cauna. Habeas corpus lies to a Circuit Court of the United 
 States sitting in a State. Or to the Circuit Court of the District of Columbia. As the juris- 
 diction of the Supreme Court is appellate, it must be shown to the court that they have
 
 AGAINST PRISONERS, ETC. 348 
 
 The writ of habeas corpus cum caus(i{e) lies for tlie defendant to remove 
 himself, or for the plaintiff' to remove him, from the custody of the sheriff 
 or other officer by ^vhom he was arrested, into the custody of the marshal 
 of the King's Bench, or warden of the Fleet prison. At common law, 
 when a defendant was arrested, and detained or charged in custody of the 
 sheriff or other officer, for want of bail, upon mesne process, if the plaintiff 
 did not, within two terms, cause him to be brought up, by writ of Itahcas 
 corpus cum causa, and committed, so that he might declare against him in 
 custody of the marshal or warden, the dcfemlant was entitled to his dis- 
 charge, on common bail or appearance. (j^) This mode of proceeding was 
 altered by the statute 4 & 5 W. <& M. c. 21, § 3, which enables the plain- 
 tiff to declare against the defendant, in custody of the sheriff, or other 
 
 (c) Append, ("hap. XV. ? 8, 9. 
 
 (/T) R. M. IGJ4, g 11. li. E. 5 W. & M.rcy. 3, § 1, («),K. B. 1 Wils. 120. 2 Bur. Uiol. 
 1 Durnf. & East, 192. 
 
 power to award the writ before it will be granted. The authority of the United States 
 courts to grant the writ, is restricted by the act giving the power to cases where the prisoner 
 is confined under or by colour of the authority of tlie United Slates, or is necessary to be 
 brought in to testify. It extends to inciuirj- into the cause of commitment of a person in 
 custody under a commitment of the Circuit Court of the District of Columbia ; or any other 
 United States court. It is said of tliis writ in ex jntrle Tobias Watkinx^ 'tlie Supreme Court 
 will not grant a habeas corjnis to a prisoner in confinement under conviction by the Circuit 
 Court of the United States of the District of Columbia, when it is alleged that the proceed- 
 ings in that court were coram non juilicc ; the power of the Supreme Court to award writs of 
 habeas corpus, is conferred expressly on the court by the fourteenth section of the judi- 
 ciary act, and has been repeatedly exercised ; no doubt exists respecting the power; no 
 law of the United Stales prescribes the cases in which the writ shall be issued, nor the power 
 of the court over the party brought up by it; the terra is used in the Couslitulion as one 
 which was well understood; and the judiciary act authorizes the Supreme Court and all the 
 courts in the United States to issue the writ, ' for the purpose of inquiring into the cause of 
 the commitment.' The writ o( habeas corpus is a high prerogative writ known to the common 
 law; the great object of which is the liberation of those who may be imprisoned without 
 sufficient cause; it is in the nature of a writ of error to examine the legality of a commit- 
 ment; it brings up the prisoner with the cause of his confinement, and the court can un- 
 doubtedly inquire into the sufficiency of that cause ; but if that cause be the judgment of a 
 court of competent jurisiiiction, esi)ecially a judgment withdrawn by law from the revision 
 of the Supreme Court, it is conclusive, and they will not inquire into it.' The writ does not 
 lie to bring up a person confined in the prison bounds upon a capias ad satisfaciendum issued 
 in a civil suit. The Supreme Court will not grant ahabr'as corpus when the party has beea 
 committed for contempt by a court of the United States of competent jurisdiction ; and if 
 granted, the court will not inquire into the sufficiency of the cause of the commitment; the 
 adjudication of the court below is a conviction, and the commitment in consequence is aa 
 execution ; and the exercise of the power of revising the case on a habeas corpus, would be 
 the exercise of an appellate jurisdiction in criminal cases, wiiich is an authority not granted 
 by the laws of the United States, except by a certificate that the opinions of the judges are 
 opposed, and the court will not do indirectly what they cannot do directly. Upon a habeas 
 corpus, the court are only to inquire, whether the warrant of commitment with the evidence 
 returned, states a sufficient prol)able cause to believe that the jicrson charged has committed 
 the offence stated. If the court go into an examination of the evidence upon which tb« 
 commitment was grounded, it is unimjiortant whether the commitment be regular in point 
 of form or not ; they will proceed to do what the court lielow ought to have done. On 
 a return to a habeas corpus before the Circuit Court, the prisoner was discharged on the 
 ground that the writ of capias by which he was detained, had imitroperly issued ; Init there 
 appearing to the court upon the hearing, a sufficient ground for his arrest, he was ordered 
 into custody upon a bench warrant. An application to the Supreme Court for a habeas cor- 
 pus to discharge from this latter custody, was refused. A discharge on habeas corpus, dis- 
 charges the party only from such process under the same indictment, or a new one. Neither 
 the Supreme Court nor anj' other court of the United States, or judge thereof, can issue a 
 habeas corpus to bring up a prisoner who is in custody under sentence or execution of a State 
 court under criminal or civil process, for any other purpose than to be used as a witness.* 
 IngersoU on Habeas Corpus, S-l-.'SS. Vaux on Hab. Corp. Recorder's Decisions, p. 168 
 Phila. 184G. 4 Amer. Law Reg. 257. Phila. 1856.
 
 348 OF THE niOCEEDINGS 
 
 officer wlio arrcsteil liim.(^^) He is still at liberty, however, to remove 
 the (Icfeiiihuit, by writ of habeas coi'jnis cum causa, from the eustotlj of 
 the sherill" or other officer, into the custody of the marshal or warden, at 
 any time before or after judgment, (A) This writ also lies for the bail of 
 the defendant to bring him up, and surrender him in their discharge, to 
 the custody of the marslial'of the King's Bench, or warden of the Fleet 
 prison ; and may be granted, in the King's Bench, whether the defendant 
 be in custody in a cn'iV suit, or on a criminal account :(^) and 
 [ *349 ] under it, we have *seen,(«) the court will either commit the de- 
 fendant to the custody of the marshal or warden, or remand him 
 to his former custody. 
 
 The writ of habeas corpus cum causd should be directed to the sheriff 
 or other officer in whose custody the defendant is detained ; and there is 
 an old rule of both courts,(^) directing it to be made returnable in court, 
 at a day certain in term, unless directed to the sheriffs of London or 3Iid- 
 dlesex, or unless it be to deliver over the defendant in discharge of his 
 bail. But this rule having fallen into disuse, the writ is now made re- 
 turnable, before the chief justice at his chambers, immediate : and under 
 it the defendant should be brought in custody, according to the writ, in 
 due and convenient time,(c) without being permitted to wander abroad, 
 under pretence of such writ :[d) And though the writ be returnable before 
 the chief justice, yet any of the other judges, in his absence, may commit 
 the defendant to the prison of the court.(e) A tipstaff is entitled to take 
 a fee of six shillings, and no more, for conducting a prisoner from the 
 judge's chambers to the King's Bench :(/) And the usual allowance to the 
 sheriff, for bringing up a defendant on a habeas corpus from the county 
 gaol, is one shilling per mile ;{fj) and if the defendant will not pay the 
 sheriff his charges, the court will remand him,(/i7i) 
 
 When the defendant, being charged with process issuing out of the court 
 of King's Bench, is removed before declaration, from the custody of the 
 sheriff or marshal to the Fleet prison, the plaintiff cannot proceed further in 
 that court ; but must either declare against him in the Common Pleas, or 
 remove him into the custody of the marshal, by writ of habeas corpus ad 
 respondendum,{ii) in order to charge him with a declaration. (Z:) So where 
 the defendant, being charged with process issuing out of the court of Com- 
 mon Pleas, is removed before declaration, from the custody of the sheriff or 
 warden "to the King's Bench prison, the plaintiff cannot proceed further in 
 the latter court ; but must either declare against him in the King's Bench, 
 or remove him into the custody of the warden, by writ of habeas corpus 
 ad respondenduyn. This writ also lies for a tliird person to remove a de- 
 fendant from the Fleet, or prison of an inferior court, in order to charge 
 him with a declaration in the King's Bench. (Z) But then, there must be 
 something to charge him with, either in the body of the habeas corpus or 
 
 {gg) Ante, 342. 
 
 {h) 1 Salk. 354. 2 Str. 1262. Say. Rep. 154. 3 Bur. 1875. 
 (t) 7 Durnf. & East, 226. 15 East,"78. (a) Ante, 286. 
 
 (6) R. M. 1654, g 7, K. B., § 10, C. P. (c) 3 Bur. 1875, 6. 
 
 {d) R. IVI. 1654, \ 7, K. B. ; and see R. M. 28. Car. 11. K. B. R. M. 1654, | 10, C. P. 
 (e) Barnes, 20. ( /") 5 Barn. & Aid. 266. (^/Barnes, 377. 
 
 {hh) 1 Str. 308. 2 Str. 1262. Cas. Pr. C. P. 110. 
 {ii) Append. Chap. XV. ^ 10, &c. 
 (k)b Durnf. & East. 36. Barnes, 384, 5, 402. 
 
 (I) 3 Bac. Abr. 2. 2 Lil. P. R. 4 Sty. P. R. 330. 1 Mod. 235. 2 Mod. 193. S. C. 1 
 Salk. 351. 2 Str. 936. 2 Bur. 1049.
 
 AGAINST PRISONERS, ETC. 349 
 
 return, or ready in court upon bringing him up :(m) And under this "^rit, 
 a defendant may be committed to tlic custody of the marshal, on a special 
 original. («) The writ of habeas corpun ad responleiuhnn should be di- 
 rected to the tvanlcn oHhc Fleet, or keeper of an inferior prison, returnable 
 at a day certain in court; and "will be as good cause of detainer, 
 as a *writ of capias ad respondendum. {a) But this writ does [ *350 ] 
 not lie for the plaintiff in an inferior court, to remove the body 
 of the defendant into the King's Bench, to answer to a new action there 
 for the same debt. (6) And a prisoner under criminal process in the house 
 of correction, (S:c. cannot be brought up by Jialeas corpus ad respondendum, 
 for the purpose of being charged with a declaration on a bailable writ, 
 and re-committed to his former custody, so charged. (c) 
 
 When the defendant is removed after declaration, from the custody of 
 the sheriff* or marshal, to the Fleet prison, the plaintiff" should proceed to 
 judgment against him in the King's Bench, and then remove him into the 
 custody of the marshal, by writ of habeas corpus ad satisfaciendum, in 
 order to charge him in execution. (fZ) And so, vice versd, if a prisoner in 
 the Fleet, charged with a declaration in the Common Pleas, remove him- 
 self by /mJe«« corjnis to the custody of the marshal, the plaintiff" must pro- 
 ceed to judgment in the Common Pleas, and then carry him by habeas cor- 
 jnis ad satisfaciendum, to charge him in execution. ((') This writ is also 
 used as the ordinary mode of charging the defendant in execution, in the 
 Common Pleas, when a prisoner in the Fleet : and it should be directed 
 and returnable in the same manner as the writ of habeas corpus ad respon- 
 dendum ; and the number of the judgment roll indorsed thereon, by the 
 attorney who sues it out.(/) But where the defendant, a prisoner, after 
 the issuing of a writ of habeas corpus for bringing him up to be charged 
 in execution, sues out and obtains the allowance of a writ of error, he can- 
 not be charged in execution, but must be remanded to his former custody. (^) 
 
 Under one or other of these writs, a defendant may be removed from 
 any civil custody, into that of the marshal or warden. If he be already 
 in custody of the sheriff, under process of the same court, he has only to 
 sue out a writ of habeas corpus cum causd, and deliver it to the sheriff"; 
 under which he will bo removed, as a matter of course, on paying the 
 usual fees : And he may be removed, in like manner, from the prison of 
 an inferior court. But if he be in custody of the sheriff, under the process 
 of another superior court, a bailable writ must be taken out against him, 
 in the court to the prison of which it is intended to remove him, and lodged 
 in the sheriff"s office, as a foundation for his commitment on the habeas 
 corpus. AVhen he is in custody of the marshal or warden, under process 
 of both courts, he may be removed, as a matter of course, on suing out a 
 writ of habeas corpus cum causd ; but where ho is detained upon process 
 
 ( m) 2 Lil. p. R. 35r>. (n) 3 Barn. & Aid. 601. 
 
 (a) R. M. 1G54, I 1, K. B. ^ 10, C. P. 
 
 (b) Cowp. 116; and see Cas. Pr. C. P. 5 Pr. Reg. 216. 
 
 (c) 9 East, 154. 4 Dowl. & Ryl. 271. 
 
 (d) 1 Sid. 100. R. T. 2 Geo. "l. (h), K. B. 2 Str. 1153. Barnes, 3S5 ; and see Append. 
 Chap. XV. g 15, &c. 
 
 (e) R. T. 2 Geo. I. (6), K. B. 
 
 (/) R. M. 1654, ? 7. R. T. 2 Geo. I. (f>), K. B. R. M. 1C54, ? 10, C. P. 
 
 ((j) 1 Barn. & AJd. 676. And see 6 Moore, 200. 3 Brod. & Binp. 0.1, S. C, where the 
 court of romnion Pleas, under particular circiinisfances, discharged tiie rule for an attach- 
 ment against the warden, for disobeying a writ of habetu corpus, on his paying all costs.
 
 350 OF THE PROCEEDINGS 
 
 of another court only, the practice is, to sue out a bailable writ 
 [ *351 ] against him, and put *in bail above thereon, in the court to the 
 
 prison of which he is intended to be removed ; and then to bring 
 a writ of habeas corpus cum causa, in order to surrender him in discharge 
 of his bail : or he may be removed, in term time, by writ of habeas corpus 
 ad respondendum, returnable in court on a day certain; upon which he 
 must be charged in court with a declaration, an affidavit being first made 
 of a bailable cause of action. 
 
 If a prisoner be removed from the custody of the warden of the Fleet 
 to the King's Bench prison, by writ of habeas corpus, he must remain in 
 such prison, and shall not be set at liberty, until he has paid the prison fees 
 due to the warden of the Fleet. («) On a removal by writ of habeas corpus 
 ad respondendum to the King's Bench or Fleet prison, the prisoner cannot 
 be removed elsewhere, till he has answered to the cause depending against 
 him in the King's Bench or Common Pleas :(5) And it is a general rule, 
 applicable to all writs of habeas corpus returnable in the King's Bench, 
 that " every prisoner, who, by virtue thereof, shall be committed to the 
 custody of the marshal, shall remain there for t^vo days next after such 
 commitment, notwithstanding any other writ of habeas corpus, to the said 
 marshal delivered and allowed, "(c) 
 
 In an action for an escape out of execution, the declaration alleged that 
 the prisoner was, by habeas corpus, brought before a judge of the King's 
 Bench, and by him committed to the custody of the marshal, " as by the 
 said writ of habeas corpus, and the said commitment thereon, now remain- 
 ing in the said court, more fully appears ;" and the court of Common Pleas 
 held, 1st, that evidence of a commitment by a judge of the King's Bench, 
 not filed of record, would not support the action ; and 2dly, that the above 
 allegation, even if unnecessary, must be proved as laid.(cZ) But in a subse- 
 quent case(e) which was an action against the marshal, for an escape on 
 mesne process, it being alleged in the declaration that the prisoner was 
 arrested on mesne process, and brought before a judge at chambers, by virtue 
 of a writ of habeas corpus, and was by him thereupon committed to the cus- 
 tody of the marshal, as by the record thereof, noio remaining in the court 
 of King's Bench, appears, ^c. it was determined by the court of King's 
 Bench, that such allegation is either impertinent and surplusage, for, pro- 
 perly speaking, such documents are not records, nor capable of becoming 
 so ; or considering them as quasi of record, the allegation is sufficiently 
 proved, by the production of them from the office of the clerk of the papers 
 of the King's Bench prison, with whom they are properly deposited. And 
 that court will not compel the marshal to affile of record a writ of habeas 
 corpus cum causa, by virtue of which a person is committed to his custody 
 in execution. (/) In the Common Pleas, the distinction seems to be between 
 
 commitments by a single judge, on mesne process, and commit- 
 [ *3o2 ] ments by the court, in execution; the one is said to *be a matter 
 
 of record, the other not ; for the court can only act by record •.{aa) 
 and accordingly, where the bill, in an action against the warden for an 
 escape, alleged that the prisoner was brought to the bar of this court by the 
 
 [a] R. H. 14 Car. I. K. B. : and see 8 Moore, 157. 1 Bing. 255, S. C. Ante, 53, (/). 
 
 (b) 1 Salk. 350. ' (c) R. H. 5 W. & M. K. B. 
 {d) 3 Bos. & Pul. 456. 5 Esp. Rep. 8, S. C. 
 
 (e) 5 East, 440 ; and see 3 Barn. & Cres. 2. 4 Dowl. &Ryl. 624, S. C. 
 
 (/) 2 Maule& Sel. 202. 
 
 {aa) Per Blosset, Serj. arg. 2 Moore, 562, 3.
 
 AGAINST PRISONERS, ETC. 352 
 
 defendant, by virtue of a writ o^ habeas corpus, vixid was by the same court 
 re-committed to prison in execution, as by the commitment more fully and 
 at large appears ;" the plaintiff, on special demurrer, assigninf]: for cause that 
 it was not averred in the bill that the commitment was of record, had leave 
 to amend, on payment of costs. (W*) The prison books of the King's Bench 
 and Fleet prisons, though admissible evidence to prove the period of the 
 commitment and discharge of a prisoner, are not admissible to prove the 
 cause of his commitment.(c) 
 
 When a defendant is committed to the custody of the marshal, (t?) or has 
 put in bail upon a cepi corjms^ie) or habeas corpi(s,{f) the plaintiff, or any 
 other person, may exhibit a bill, and declare against him in the King's 
 Bench, as a prisoner of the court, in whatever action, and charge him with 
 whatever injury he thinks proper.(^) 
 
 AVhen the defendant is in actual custody of the marshal, he has the 
 privilege of the court, and cannot be compelled to answer elsewhere ; so 
 that if he were not to answer here, none could have remedy against him. (A) 
 And even where he is not in actual custody, yet still, when he appears and 
 puts in bail, he is supposed to be in custody of the marshal, and may be 
 proceeded against accordingly. But an appearance alone, without bail is 
 not sufficient ;{i) it being clearly settled, that when the defendant is not in 
 actual custody, no action can be legally commenced against him as a 
 prisoner, until he has filed bail.(^) It is the entry of bail in such case, 
 which gives this court jurisdiction :{l) and therefore, where no bail is 
 entered for the defendant,(?n) or where bail is entered for him by a wrong 
 namc,(?t) or there are several defendants, and no bail is entered for one of 
 thcm,(o) the proceedings are void, and coram nan judice. But it is said, 
 that by the practice of the King's Bench, though the defendant's bail be 
 not taken and entered till the last day of term, and the bill be put in 
 before, any time that term, it is well enough : yet from the time 
 of the bail, the defendant *is answerable as in custody of the [ *353 ] 
 marshal, and not before, in strictness of law.(a) 
 
 The bill against a prisoner, in the King's Bench, is a complaint in 
 writing, supposed to be exhibited to the court, but really filed, when neces- 
 sary, with the clerk of the declarations in the King's Bench office ; and, 
 except where the action is brought for a trespass committed in Middle- 
 8ex,{b) or other county where the court sits, or the defendant is a prisoner 
 in custody of the sheriff, kc, should allege the defendant to be in custody 
 
 (bb) 2 Moore, 561. 8 Taunt. 512, S. C. 
 
 (c) 3 Bos. & Pul. 188. And see further, as to the cviilcnce in an action against the u-ar- 
 diii, for an escape, 9 Moore, 778. 
 
 (f^) 7 Hen. VI. 42. 27 Hen. VI. G, a. 2 Inst. 23. 4 Inst. 72. 2 Bulst. 207, 8. 
 
 (e) 31 Hen. VI. 10. 32 Hen. VI. 4. 21 Hen. VII. 33. Hob. 264, 5. Cro. Jac. 450. 
 Godb. 339. Cro. Car. 330. 
 
 ( /•) Cro. Jac. 621. 1 Salk. 352. 
 
 (ff) R. E. 15 Geo. 11. rry. 1. K. B. Cowp. 455. 2 Wm?. Sannd. 5 Ed. 1, (1). 
 » (/() 2 Bulst. 123. Carth. 378. 1 Salk. 1, 2, S. C. 2 Bur. 1051. 1 Durnf. & East, 592. 
 
 (0 7 Hen. VI. 41. Cro. Eliz. 605. 
 
 {k) I Sid. 373. 2 Keb. 368, S. C. 1 Vent. 135. 2 Leb. 13. 2 Keb. 790, S. C. 
 
 (7) 1 Vent. 135. (m) Cro. Eliz. 605. Moor, 694. Cro. J.ac. 620. 
 
 («) Cro. Eliz. 223. (o) Poph. 145. 
 
 (a) Hob. 70. Cro. Jac. 384. Jenk. 295, S. C. (6) Djer, 118, (a).
 
 353 OF THE PROCEEDINGS 
 
 of the marslial. When the defendant is in actual custody, the bail should 
 be filed, before a copy of it is delivered to the defendant, or left for him 
 Avitli the gaoler or turnkey :[ec) the delivery of a declaration against a 
 prisoner, though in due time, being a nullity, if there be no bill filed 
 against him, and he is entitled to his discharge. (rZt/) But when a prisoner 
 is in custody upon process by original, it is sufficient to deliver a declara- 
 tion thereon, without filing a hill against him.(ee) And a declaration 
 against a defendant at large upon hail is good, although a bill has not been 
 filed ; because, if the bringing of a writ of error, or any other reason, 
 make the filing of a bill necessary, it may be filed at any time.(/) 
 
 When the defendant is in the actual or supposed custody of the marshal, 
 upon a bill of 3Iiddlesex or latitat, &c., the hill exhibited against him in 
 the King's Bench, as a prisoner of the court, is considered as the com- 
 mencement of the suit, and the bill of Middlesex or latitat, &c., merely as 
 process to bring him into court. (^) Such process therefore, we have 
 seen, (A) might formerly have been sued out, though the defendant could 
 not have been arrested upon it, before the cause of action ; and the plain- 
 tiflf is still allowed to give in evidence a cause of action arising after it is 
 sued out, and before the exhibiting of the bill. 
 
 A prisoner, in actual custody of the marshal or warden, may be pro- 
 ceeded against by the same plaintifi" at whose suit he was arrested, or 
 charged in custody by a third person : and the same plaintiff may proceed 
 against him, either for the cause of action expressed in the process, or for 
 a different cause of action. 
 
 In the King's Bench, when a defendant is committed to the custody of 
 the marshal, on a bill o^ Middlesex or latitat, kc, or on an attachment of 
 privilege, (z) the plaintiff must in due time file a hill{h) against him, as a 
 prisoner of the court, with the clerk of the declarations in the 
 [ *354 ] King's Bench *office; and deliver a copy of it to the defendant, 
 or turnkey at the King's Bench prison. But when a defendant 
 renders in discharge of his bail, after a declaration has been filed condition- 
 ally, and notice served upon him, and rule to plead given, it is not necessary 
 to deliver another declaration for the defendant in custody.(a) If a prisoner 
 be turned over from one custody to another, it is considered as a continu- 
 ance of the same imprisonment :(5) Therefore, where a defendant, having 
 been taken or charged in custody of the sheriif or other officer by mesne 
 process, is afterwards removed by haheas corpus, and committed to the 
 custody of the marshal, the proceedings against him are to be reckoned 
 from the time of his having been so taken or charged in custody. (<?) In 
 general, however, it is a rule, that when the defendant is committed to the 
 
 (cc) R. E. 5 W. & M. reg. 3, | 1, {h), K. B. 8 Mod. 226, 7. 
 
 {(Id) 4 East, 16. 1 Chit. Rep. 389. Ante^ 343. {ee) 4 East, 17. 
 
 (/) Say. Rep. 49. 
 
 {g) 1 Wils. 40, 144, &c. 2 Bur. 960. 2 Wms. Saund. 5 Ed. 1, (1) ; but see 3 Bur. 1244. 
 (h) Ante, 145. (i) Cro. Car. 330. 
 
 {k) 4 East, 16. Append. Chap. XV. § 19. 
 {a) 1 Chit. Rep. 720. 
 
 (i) 1 Bur. 439. 2 Ken. 173, S. C. 5 Durnf. & East, 36. 6 Durnf. & East, 524. 
 (c) R. H. 26 Geo. III. K. B. ; and see R. T. 26 & 27 Geo. II. § 11, in Scac. accord. Man. Ex. 
 Append. 216.
 
 AGAINST PRISONERS, ETC. 354 
 
 custody of the marshal, upon a cepi corjjUS,{d) or habeas cor]JUS,{e) &c., 
 before declaration, the phaintiff sliould declare against him, in the King's 
 Bench, before the end of the term next after sucli commitment ; or, in case 
 of a surrender to the marshal in discliarge of bail, before the end of the 
 term next after such surrender, and due notice thereof.( //') But the term of 
 the commitment or surrender is to be accounted one, altliough the defend- 
 ant was not committed or surrendered till the last day of vacation. (^) 
 The defendant was formerly brought into court by rule, in order to be 
 charged with a declaration ; there being no occasion for a habeas corpus, 
 when it was in the same court :(/<) but this practice is now disused. And 
 there is no occasion for an affidavit of the delivery of the declaration, 
 where the defendant is in custody of the marshal. (/) 
 
 In the Common Pleas, if the defendant be committed to prison liy pro- 
 cess out of this court, or habeas corpus, the prisoner entering his appear- 
 ance with the prothonotary, in case of a plaint or attachment of privilege, 
 or with the filacer on other process, and giving rules to declare, the ])lain- 
 tiff not declaring before the end of the next term after the comniiimcnt, 
 the defendant, in reference thereunto, is entitled to be discharged of his 
 imprisonment by supersedeas, in the end of the next term ; with liberty 
 for the plaintiff to declare upon that appearance, the next terra after that 
 at the furthest.(/c) And "if any defendant shall render him or herself, 
 or be rendered to the Fleet prison, in discharge of his or her bail, at the 
 suit of any plaintiff, where no further proceedings by declaration have 
 been had against such defendant so rendered, before such render, unless 
 the plaintiff shall declare against such defendant Avithin two terms after 
 such render, such defendant may be discharged out of custody 
 by supersedeas, to be allowed *by one of the justices of this [ *355 ] 
 court, if cause shall not be shown to the contrary, by the plain- 
 tiff or his attorney, upon notice to either of them given by the defendant's 
 attorney or agent, and oath made of such notice given. "(a) 
 
 It was formerly necessary in this court, as well as in the Exchequer, to 
 bring up the defendant by habeas corpus, to the bar of the court, in order 
 to charge him with a declaration at the suit of the plaintiff.(/>) But now, 
 by the statute 8 & W. III. c. 27, § 13, for the more easy and quick 
 obtaining of judgment against prisoners in the Fleet, " it shall and may 
 be lawful for any person or persons, having cause of action against any 
 prisoner or prisoners committed to the said prison of the Fleet, after filing 
 or entering a declaration in such action with the proper officer, to deliver 
 a copy of such declaration to the defendant or defendants in any personal 
 action, or to the turnkey or porter of the said prison :(c') and al'ter rule 
 given thereupon to plead, to be out in eight days at most after delivery of 
 such copy of declaration, and affidavit made of such delivery, (tZti) before 
 
 (,/) R. M. 1654, 2 11. R. E. 6 W. & M. rcg. 3, I 1, (a), K. B. G Mod. 254. R. T. 2 Geo. I. 
 K. B. and note («). 8 Mod. 306. 
 
 (e) R. M. 16 Car. II. (6), K. B. 6 Mod. 21. 
 
 (/) R. H. 26 Geo. III. K. B. ; and see R. T. 1 Ann. rcg. 2, K. B. 
 
 (g) R. T. 2 Geo. I. (a), K. B. 
 
 (h) 2 Sel. P. 2 VA. 259. 2 Bur. 1051, 2. AiUe, 348. 
 
 (t) R. E. 5 W. & M. rcg. 3, ? 2, (n), K. B. 1 (M.it. Rep. 300. 
 
 H) R M. 1654, ? 15, C. P. ; and see R. II. 14 & 15 Car. II. reg. 3, C. P. 
 
 [a) R. E. 8 Geo. I. C. P. {(>) R. H. 14 & 15 Car. II. reg. 3, C. P. 
 
 (c) For the beginning of a declaration against a prisoner in custody of the warden, iu C. 
 P. see Ajtpcnd. Cliap. XV. g 21. 
 
 {(Id) Id. I 22.
 
 355 
 
 OF THE PROCEEDINGS 
 
 the Lord Chief Justice or one other of the justices of the Common Pleas, 
 or before the Lord Chief Baron or some other of the barons of the coif of 
 the Exchequer at Westminster, to sign judgment in such action against 
 such defendant or defendants, as if he or they had been actually charged 
 at the bar of the Common Pleas or Exchequer, with such action." The 
 practice, as regulated by this statute, is to make two copies of the declara- 
 tion, and take the same to the prothonotaries' office, where the clerk, on 
 being paid for entering the declaration, will mark both copies ; one of 
 whicli should then be delivered to the turnkey at the Fleet prison ; and if 
 he acknowledge the defendant to be his prisoner at the plaintiff's suit, an 
 affidavit is made of the delivery, and sworn before a judge, the other copy 
 of the delivery being annexed thereto ; after which the affidavit is taken 
 to the secondaries' office, and the secondary will give a rule thereon, for 
 the defendant to appear and plead : and if he do not plead within the 
 time limited by the rule, the plaintiff may sign judgment, and give notice 
 of inquiry, if necessary, to the prisoner or turnkey, and proceed as in 
 other cases. (t;) The declaration, however, must be entered with the pro- 
 thonotaries, before it is delivered to the defendant :(/) And where the 
 defendant has put in special bail by attorney, and afterwards renders in 
 discharge of his bail, the declaration it seems should be delivered to him- 
 self personally, or the turnkey of the prison, and not to his attorney. (^) 
 So where the defendant, whilst at large, was served with a copy of pro- 
 cess, with notice to appear, but before a declaration became a prisoner in 
 the Fleet, and the plaintiff, by virtue of an affidavit of service, entered an 
 appearance for the defendant, left a declaration in the office, and gave 
 
 him notice thereof; the court set aside the declaration and sub- 
 [ *356 ] sequent *proceedings, on the ground that as he was a prisoner 
 
 at the time of the declaration, it ought to have been delivered to 
 the turnkey of the Fleet.(a) 
 
 In the Exchequer it is a rule,(6) that " in all cases where a prisoner is 
 or shall be taken, detained or charged in custody, by mesne process issu- 
 ino- out of that court, and the plaintiff shall not cause a declaration to be 
 delivered to such prisoner, or to the gaoler or turnkey of the gaol or 
 prison where he is detained or charged in custody, before the end of the 
 next term after the return of the process, and cause an affidavit to be 
 made and filed in the office of pleas, of the delivery of such declaration, 
 and of the time when, and person to whom, the same was delivered, by the 
 first day of the next term after the delivery of such declaration, the pri- 
 soner shall be discharged out of custody, by writ of swpersedeas, to be 
 granted by the court or one of the barons, upon entering an appearance, 
 unless, upon notice given to the plaintiff's attorney or clerk in court, good 
 cause shall be shown to the contrary : And in case of a commitment or 
 surrender to the Fleet prison in discharge of bail, before a declaration 
 delivered, unless the plaintiff shall cause a copy of a declaration to be 
 delivered as aforesaid, before the end of the term next after such commit- 
 ment or surrender shall be made, and due notice of such surrender given, 
 the prisoner shall be discharged out of custody, by writ of supersedeas, to 
 
 (e) Imp. C. p. 7 Ed. 667. 
 
 (/•) Ciis. Pr. C. P. 114. 
 
 {g) 2 Blac. Rep. 786; and see Barnes, 392. 1 Chit. Rep. 386, 720. A7ile, 344, 354. 
 
 [a] Barnes, 392 ; but see 1 Durnf. & East, 591. 
 
 {h) 11. T. 26 k. 27 Geo. II. § ll, m Scac. Man. Ex. Append. 214, 15.
 
 AGAINST PRISONERS, ETC. 356 
 
 be granteil as aforesaid, upon entering an appearance, unless, upon notice 
 given to the plaintift"'s attorney or clerk in court, good cause shall be 
 shown to the contrary," 
 
 A\ hen the defendant, being charged "with process issuiiK' out of the 
 King's ]jcnch, is removed before declaration, from the custody of the 
 sheriff or marshal to the Fleet prison, the plaintiff, we have seen,(c) cannot 
 proceed further in the King's 13ench, without removing him to the prison 
 of that court, by habeas corpus ad respondendum ; but he may declare 
 against him in the Common Pleas, in the same manner as if he had been 
 arrested by process out of tiuit court, and proceed to final judgment : and for 
 default of declaring, &c., in due time, that is the proper court to be applied 
 to, for discharging the defendant out of custody. ((?) In that case however 
 there having been already an affidavit of the debt, when the plaintiff took 
 out the process upon which the defendant was arrested, it is not necessary 
 to make any further affidavit, in order to charge him in custody ;(c) jmd it 
 seems that the defendant, after such removal, may put in and justify bail 
 in either court. (/) But where a defendant is removed to the Fleet prison 
 after declaration, the action must proceed in that court wherein the plain- 
 tiff declares; and the defendant is to be superseded by that court, for 
 want of subsequent prosecution, though detained in the prison of the other 
 court. ((/) 
 
 *A prisoner once committed to the custody of the marshal or 
 warden, is liable to be charged with a civil action, either by the [ *8o7 ] 
 satne plaintiff for a different cause of action, or by a third per- 
 son, so long as he remains in actual custody. For though it be a rule 
 that a prisoner once supersedeable, is always 8o,(a) yet this holds only 
 with regard to the same plaintiff, at whose suit he was in custody, for the 
 original cause of action ;(/*) and even with regard to him, it must be under- 
 stood with this qualification, that the prisoner is only supersedeable, so 
 long as he remains in the same custody, and under the same process ; for 
 the moment the nature of the custody is changed, the rule ceases : There- 
 fore, if a prisoner upon mesne process be supersedeable for any irregula- 
 rity, as for want of the demand of a plea, he cannot take advantage of it, 
 after he is charged in execution; supposing he had any opportunity of 
 applying on that ground, before he was charged in execution. (c) So, 
 where a prisoner is supersedeable, for want of filing a bill against him in 
 due time, he waives the irregularity, by afterwards pleading.(cZ) And it 
 has been holden, that a creditor may lawfully enter a detainer against his 
 debtor, who is in fact resident within the walls of the King's ijcnch,(ee) 
 or Fleet prison, (//') though he be not there by compulsion. But a fugi- 
 tive, surrendering himself to the warden, in order to take the benefit of an 
 insolvent act, was not considered as a prisoner, nor liable to be charged 
 as such with a declaration. (^(/) 
 
 (c) Ante, 349. (d) Barnes, 384, 5, 402. 
 
 (e) Pr. Reg. 330. Barnes, 75. Cas. Pr. C. P. 144, S. C. 
 
 (/) 1 Bos. & Pul. 311. Ante, 246. (//) Barnes, 384, 5. 
 
 {n) Barnes, 368, 9, 499. 1 II. Blac. 251. 1 Bos. & Pul. 301. 
 
 (/>) 2 Bur. 1048. Cookson v. Fv^tcr, T. 23 Geo. III. K. B. 
 
 (c) 1 Durnf. k East, 591 ; but see 7 Moore, 154. 3 Brod. & Bing. 301, S. C. 
 
 \,l) 1 KMSt, 77 ; and see 1 H. Blac. 251. 1 Chit. Rep. 387, 8. 
 
 {<v) 3 Maiile & Sel. 144; but see 1 Chit. Rep. 579. 
 
 (/) 3 Diirnf. k East, 392 ; but vide ante, 219. 
 
 (yy) Barnes, 380. Pr. Reg. 320, S. C. 2 Blac. Rep. 970.
 
 357 
 
 OF THE niOCEEDINGS 
 
 In the King's Bench, the mode of charging a prisoner with an action, 
 in custody of the marshal, in term time, is by filing a bill against him, as 
 beino- in such custody, and delivering a declaration, which is a mere copy 
 of the bill, to the turnkey. In vacation^ there was formerly no way to 
 charge him, but by making an entry in the marshal's book in the King's 
 Bench office, that he should remain in custody, at the suit of the intended 
 plaintiff, which was deemed sufficient to charge him, provided he were 
 then in actual custody ; for if he were at liberty, he might have been ar- 
 rested. (/i) But in a modern case,(^■) where this matter was fully discussed, 
 the court of King's Bench were of opinion, that the right method of 
 charging the defendant with a new suit in vacation, is to file a bill, as of 
 the preceding term ; and then deliver to, or leave for the defendant in 
 custody, a copy of the declaration, as of the preceding term, and to make 
 an affidavit thereof.(^) And when the defendant is charged in vacation, 
 upon a cause of action arising after the last term, there should be a spe- 
 cial memorandum, similar to that against an attorney under the 
 [ *o58 ] like *circumstances,(a) stating the day of bringing the bill into 
 the office of the clerk of the declarations. For preventing, 
 however, the detainer of prisoners charged with declarations in custody 
 of the marshal, where the cause of action against them does not amount 
 to a bailable sum, it is a rule,(6) in the King's Bench and Exchequer, that 
 " no declaration shall be sufficient cause of detaining such prisoner in 
 custody, unless an affidavit, that the plaintiff's cause of action against hira 
 does amount to ten pounds or upwards, (since increased to tiventy pounds 
 or upwards, by the statute 7 & 8 Geo. IV. c. 71, § 1,) shall bo first made 
 and filed with the clerk of the rules in the former court, or in the office of 
 pleas in the latter, and the sum specified in such affidavit indorsed by him 
 on such declaration, before the same is left with the turnkey." 
 
 In the Common JPleas there seems to have been formerly a difficulty in 
 proceeding against prisoners in the Fleet prison, at the suit of a third 
 person; to obviate which, a rule was made, that "if a capias were re- 
 turned in court non est inventus, against a prisoner in the Fleet, he 
 should be compellable to appear upon a habeas corpus ad respondendum^ 
 as well at the suit of a stranger, as at his suit whereupon he was impri- 
 soned, and to answer to a declaration according to the rules of the court, 
 or that judgment might be entered against him:"(c) and at length, by 
 the statute 13 Qar. II. stat. 3, c. 2, § 5, it was enacted, that " every per- 
 son or persons, having cause of personal action against any prisoner in 
 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 per- 
 sons, 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 term, to answer the said plaintiff or plaintiffs, upon his or 
 their said cause of action; and that if the said plaintiff or plaintiffs, at 
 
 Ui) 6 Mod. 254. 1 Salk. 213, 14, 345. 3 Salk. 150. 
 
 (j) 2 Bur. 1052 ; and see SDurnf. & East, 643. 2 Wms. Saund. 5 Ed. 1, (1). 
 
 Uc) Qu. as to the affidavit ? which does not seem to be necessary, when the defendant is in 
 custody of the marshal. Ante^ 354. 
 
 (a) 5 Durnf. & East, 325. 8 Durnf. & East, 643, Ante, 321 ; and see 7 Barn. & Cres. 406. 
 Append. Chap. XV. I 20. 
 
 {h) R. E. 15 Geo. II. reg. 3, K. B. R. T. 26 & 27 Geo. II. I 3, in Scac. Man, Ex, Append. 
 210. 
 
 (c) R. M. 1654, I 13, C. P.; and see id. § 10.
 
 AGAINST PEISOXERS, ETC. 358 
 
 the said day, put into the said court his or their declaration, according to 
 the said original writ, against the said prisoner being present at the bar, 
 the said prisoner shall be bound to appear in person, or to put in an at- 
 torney to appear for him in the said action; and unless the said defen- 
 dant plead upon a rule given, to be out in eiijld days at the least after 
 such appearance, judgment hy nihil dicit maybe entered against such 
 defendant, as appearing in person, which shall be good and effectual in 
 law ; and such charge in court by declarations, signified by rule unto the 
 said warden, shall be a good cause of detention of such prisoner in his 
 custody, from which he shall not be discharged, without a lawful superse- 
 deas or rule of court : and if the said warden shall do otherwise, he shall 
 be responsible to the court, and to the party grieved for damages, by action 
 upon the case, to be brought against him for discharging such prisoner." A 
 rule of court was made, soon after the passing of this statute,(cZ) 
 limiting '*'the times within which prisoners should be brought to [ *oo9 ] 
 the bar of the court by habeas corpus, to be charged with de- 
 clarations : but the statute 8 & 9 W. III. c. 27, § 13, having dispensed 
 with the necessity of bringing them to the bar of the court for that purpose, 
 the mode of charging them with a declaration, at the suit of a third 
 person, is now similar to that used by the same plaintiff, at whose suit 
 they were originally arrested : And they may, it seems, be charged with 
 a declaration in vacation, as well as in term time. (a) But a rule was made 
 in this court,(6) as well as in the King's Bench, in consequence of the 
 statute 5 Geo. II. c. 27, that " no copy of a declaration, delivered at the 
 Fleet prison, against any prisoner there, shall be a sufficient charge to 
 hold such prisoner to bail, or to detain such prisoner in custody for want 
 of bail, unless an affidavit that the plaintiff's cause of action amounts to 
 ten pounds or upwards, (since increased to twenty pounds, by the statute 
 7 & 8 Geo. IV. c. 71, § 1,) be first made and filed in the proper prothono- 
 tary's office, and an indorsement made by the said prothonotary, or his 
 deputy, upon such copy of a declaration, signifying the sum of money 
 specified in such affidavit ; for which sum so indorsed, bail shall be 
 required, and for no more." On this rule, it is necessary that the 
 original declaration, indorsed by the prothonotary, should be delivered, 
 and not a copy of such declaration and indorsement :{c) but the rule is 
 confined to cases where the prisoner is charged with a neiv action ; and 
 does not apply, where he is proceeded against by the same plaintiff, for 
 the cause of action expressed in the process '.[dd) And the^ court will not 
 discharge a defendant out of custody, on the ground of the affidavit of the 
 delivery of the declaration not having been filed within twenty days after 
 the delivery, if it be by way of detainer. (e) 
 
 When a bill is filed against a prisoner in custody of the marshal, if a 
 copy of it be delivered for him to the turnkey, /oi<r days exclusive before 
 the end of the term, a rule to plead given, and a plea demanded, the 
 defendant must plead as of that term ; but if the bill be not filed, and copy 
 delivered, /(9 If r days exclusive before the end of the term, the defendant 
 may imparl until the next term ; and in default of pleading in due lime, 
 
 (rf) R. H. 14 & 15 Car. II. reg. 3, C. P. 
 
 (a) 2 Marsh. 55, 6. (i) R. H. 8 Geo. II. reg. 1, C. P. 
 
 (r) Pr. Reg. 331. Barnes, 434, S. C. 
 
 \dd) Barnes, 75. Pr. Reg. 330. Cas. Pr. C. P. 144, S. C. (f) 2 Bos. & Pul. T2. 
 
 Vol. I.— 23
 
 359 OF THE PHOCEEDINGS 
 
 judgment may be signed. (/) In the Common Pleas, tlie defendant must 
 plead within the time limited by the rule given by the secondary ; and a 
 demand of plea is necessary, when the defendant is in custody of the 
 marshal of the King's Bench prison ',[g) which demand may, it seems, be 
 made at the time of delivering the declaration -.{It) but when the defendant 
 is in custody of the warden of the Fleet, a demand of plea is in general 
 unnecessary •,{i) though if a prisoner, in the Common Pleas, be prevented 
 
 from justif}ang bail, by the plaintiff's desiring further time to 
 [* 360 ] inquire into their sufficiency, he is, from the time of his notice 
 
 of *justification, entitled to a demand of plea, before judgment 
 can be signed against him.(art) 
 
 After the delivery of the declaration against a prisoner in custody of the 
 sheriff, &c., or against a prisoner in custody of the marshal, the plaintiff, in 
 the King's Bench, should proceed to trial or final judgment, within three 
 terms next after such declaration delivered, if by the course of the court 
 he can so proceed ; of which three terms, the term wherein the declaration 
 ■was delivered is oxxe;{bh) and should cause the defendant to be charged in 
 execution, within two terms next after such trial or judgment ; of which 
 two terms, the term wherein the trial was had, or judgment obtained, is 
 also one ;{h) in case no writ of error be depending, nor injunction obtained 
 for stay of proceedings : And if any writ of error be depending, or injunc- 
 tion obtained, then within tivo terms next after the judgment is affirmed, 
 the writ of error non pressed or discontinued, or the injunction dissolved ; 
 including the term of the affirmance, no7i pros, discontinuance, or dis- 
 solving the injunction. (5) 
 
 In case of a surrender to the marshal in discharge of bail, after 
 declaration, the plaintiff, in the King's Bench, should proceed to trial, or 
 final judgment, within three terms next after such surrender, and due 
 notice thereof, if by the course of the court he can so proceed ; of which 
 three terms, the term of the surrender is one ;((?) or, in case of a surrender 
 in discharge of bail, after trial had or final judgment obtained, he should 
 cause the defendant to be charged in execution, within tivo terms next 
 after such surrender, and due notice thereof; of which two terms, the 
 term of the surrender is also one ':((?) in case no writ of error be depending, 
 nor injunction obtained for stay of proceedings : And if any writ of error 
 be depending, or injunction obtained, then within tivo terms next after the 
 judgment is affirmed,(c) &c. This rule does not attach in a case where 
 there are two defendants, one of whom suffers judgment by default, and 
 the other pleads to issue ; the trial of such issue being had within the 
 third term, though the costs are not taxed, nor final judgment in fact 
 signed, till after that term, but then entered, according to the course of 
 the court, as of that iQvva..{d) The final judgment mentioned in the above 
 rule, means final judgment without a trial, as upon an interlocutory judg- 
 ment, demurrer, or nul tiel record : Therefore, if there be a trial against 
 a prisoner, he is supersedeable, nnlcss charged in execution within two 
 
 (/) R. E, 5 "W. & M. reg. 3, («), K. B. ; and see 1 Dowl. & Ryl. 186, 
 (g) 1 Durnf. & East, 591. (h) 1 Dowl. & Ryl. 186. 
 
 (0 Imp. C. P. 7 Ed. 231, 667. \aa) 2 Bos. & Pul. 367. 
 
 {bb) R. H. 26 Geo. TIL K. B. ; and see R. T. 2 Geo. I. K. B. and the notes thereon. 
 \b) R. H. 26 Geo. III. K. B. ; and see R. T. 2 Geo. I. K. B. and the notes thereon. 
 
 (c) Id. ibid. 1 Wils. 297. 2 Wils. 325. 3 Bur. 1787. 4 Bur. 2060. 6 Durnf. & East, 776. 
 8 Taunt. 674. 3 Moore, 8, S. C. ; and see 3 Dowl. & Ryl. 31. 
 
 [d] 13 East, 167.
 
 AGAINST rRISONERS, ETC, 300 
 
 terms afterwarJs.(c') But when a defendant surrenders in discharge of 
 bail, in the same vacation as the trial was had and verdict obtained against 
 him, the preceding term is not reckoned as one of the two ; but the plain- 
 tift" is allowed the the two following terras to charge him in 
 execution. (/) After declaration, plea, and issue, which was [ *361 ] 
 joined in Trinity term, the defendant *on the 6th November 
 gave a cognovit for the debt and costs, and on the 11th surrendered in 
 discharge of his bail ; in IlUary term, the plaintiff entered up final judg- 
 ment; and the court held, that he might charge the defendant in execution 
 in Easter term, though the latter might have been previously supcrsede- 
 able.(rt) And where the plaintiff obtained final judgment in Hilary 
 term, against a defendant who surrendered in discharge of his bail, on the 
 day preceding the essoin day of Easter term, but notice of the surrender 
 was not given until two days afterwards ; it was holden, that the two 
 terms allowed for charging the defendant in execution, were to be calculated 
 from the time of giving notice of the surrender ; and of course, that the 
 plaintiff might charge him in execution in Trinity tcrm.(W) A person, 
 when at large, was sued by A., and was afterwards in custody at the suit of 
 B., the court held, that he need not be charged in execution at the suit of 
 A., within two terms after judgment, but might be so charged at any time ; 
 for though in custody at the suit of another person, he was not in custody 
 at the suit of A.(c) 
 
 In the Common Pleas, in like manner, " if any plaintiff shall declare 
 against any defendant, in custody of the warden of the Fleet prison, or of 
 any sheriff or other officer, by virtue of any process of this court and shall 
 not further proceed to judgment, within tlirce terms after such declaration 
 delivered, inclusive of the term in which it is delivered, the defendant hav- 
 ing appeared ; or if any plaintiff, having obtained judgment in this court, 
 in any action against any defendant being a prisoner as aforesaid, shall 
 not charge such defendant, so remaining a prisoner, in execution upon the 
 judgment so obtained, within two terms next after such judgment so had 
 and obtained, including the term in which the said judgment shall be 
 signed, then such defendant, so remaining in prison, may be discharged 
 out of custody where he shall be so detained, by supersedeas[d) to be 
 allowed by one of the justices of this court, if cause shall not be shown 
 by the plaintiff or his attorney, why such plaintiff had not proceeded 
 before that time to judgment and execution as aforesaid, upon notice to 
 either of them given by the defendant's attorney or agent, and oath made 
 of such notice given." 
 
 And " if any defendant shall render him or herself, or be rendered to 
 the Fleet prison, in discharge of his or her bail, at the suit of any plain- 
 tiff, where any declaration hath been delivered against such person so ren- 
 dering him or herself, or being rendered, or judgment has been had against 
 him or her before such render, unless, the plaintiff shall proceed to judg- 
 ment upon such declaration delivered, within tJiree terms after such ren- 
 der, the defendant having appeared, and charged such defendant in exe- 
 cution within two terms after such judgment obtained, such defendant may 
 be discharged out of custody, by supersedeas to be allowed by one of the 
 
 (e) 4 East, 349. 13 East, 169, {a). 
 
 If) 6 Durnf. & East, 776; aud see 8 Taunt. 674. 3 Mooro, 8, S. C. 
 
 \a) 3 Dowl.& Jiyl. 31. {bb) 3 Bara. & Cres. 738. 
 
 (c) Per Cur. M. 22 Geo. III. K. B. {d) Append. Chap. XV. § 49, 50, 53, 4.
 
 361 OF TUE PROCEEDINGS 
 
 justices of this court, if cause shall not be shown to the contrary as 
 
 aforesaid, by the plaintiff or his attorney, upon notice to either 
 [ *362 ] of them given *by the defendant's attorney or agent, and oath 
 
 made of such notice given, "(a) 
 Upon these rules it is necessary that the plaintiff, in the Common Pleas, 
 should proceed to final judgment, within three terms inclusive after decla- 
 ration, unless he can show that it was out of his power to proceed so fast ;(6) 
 and, if final judgment be signed in the vacation of the third term, it will 
 not be sufficient to prevent a supersedeas. [cc) There is a distinction how- 
 ever between these rules, and those of the King's J^ench, as to the time 
 allowed for proceeding against prisoners : In the latter court it is required 
 that the plaintifi" shall proceed to trial or final judgment, within three 
 terms inclusive after declaration, and shall cause the defendant to be 
 charged in execution, within ttvo terms inclusive after such trial or judg- 
 ment ; of which the term in or after which the trial was had, is reckoned 
 as one :{dd) but, in the Common Pleas, no notice is taken of the ti'ial; the 
 rule(e) being, that the plaintifi" shall proceed to judgment within three 
 terms inclusive after declaration, and charge the defendant in execution, 
 within fwo terms inclusive z^hev judgment against him. And where the 
 plaintifi" had omitted to charge the defendant in execution within two terms, 
 the court held, that the defendant was supersedeable, although in the 
 mean time he had removed himself to the King's Bench prison, by habeas 
 corpus, in another action. (/) 
 
 In the Exchequer it is a rule,((7) that " in all cases, after a declaration 
 delivered at the Fleet, or any other gaol or prison, unless the plaintifi" 
 shall proceed to judgment theupon, within three terms next after such 
 declaration delivered, if by the course of the court he could so proceed, 
 (of which three terms the term wherein the declaration was delivered 
 shall be taken to be one) ; or in case of a surrender in discharge of bail 
 after declaration delivered, unless the plaintifi" shall proceed to final judg- 
 ment thereupon, within three terms next after such surrender and due 
 notice thereof, if by the course of the court he could so proceed, (of which 
 three terms the term wherein the surrender was made shall be taken to 
 be one,) the prisoner shall be discharged out of custody, by writ of super- 
 sedeas, upon entering an appearance ; unless, upon notice given to the 
 plaintifi" 's attorney or clerk in court, good cause shall be shown to the 
 contrary: And in all cases, after final judgment obtained against any pri- 
 soner in the Fleet, or any other gaol or prison, unless the plaintifi" shall 
 cause such prisoner to be charged in execution upon the said judgment, 
 within two terms next after such final judgment obtained, (of which two 
 terms the term wherein final judgment was obtained shall be taken to be 
 one,) in case no writ of error shall be depending on such judgment ; but 
 
 if any writ of error shall be depending thereupon, then within 
 [ *363 ] two terms next*after the judgment shall be affirmed, or the writ 
 
 of error non-prossed or discontinued, including the term of the 
 affirmance, no7i-pros or discontinuance ; or, in case of a surrender in dis- 
 charge of bail, after final judgment obtained, unless the plaintifi" shall 
 
 (a) R. E. 8 Geo. I. C. P. Imp. C. P. 6 Ed. 644, 5. {h) Barnes, 383. 
 
 {cc) Id. 379. {dd) 4 East, 349, 
 
 (e) R. E. 8 Geo. I. C. P. 
 
 (/) 7 Moore, 154. 3 Brod. & Bing. 301, S. C. 
 
 {g) R. T. 26 & 27 Geo. H. § II, in Scac. Man. Ex. Append. 215, 16.
 
 AGAINST PRISONERS, ETC. oC3 
 
 proceed to cause the defendant to be charged in execution upon the said 
 judgment, within two terms next after such surrender, and due notice 
 thereof, (of which two terms the term wherein the surrender was made 
 shall be taken to be one), in case no writ of error shall be depending on 
 such judgment; but if any writ of error shall be depending thereupon, 
 then within two terms next after the judgment shall be affirmed, or the 
 writ of error non-prossed or discontinued, including the term of the affirm- 
 ance, non-pros or discontinuance ; the prisoner shall be discharged out of 
 custody by supersedeas, unless, upon notice given to the plaintiff's attor- 
 ney or clerk in court, good cause shall be shown, in either of the said 
 cases, to the contrary." 
 
 The mode of proceeding to trial and final judgment against a prisoner, in 
 all the courts, is pretty much the same as in common cases. The plea is 
 usually pleaded in person ; but it may be pleaded by attorney, as is com- 
 monly done, where the defendant surrenders after appearance in discharge 
 of his bail : The issue in that case is delivered to the attorney, but otherwise 
 to the defendant or turnkey :(a) and formerly, where a prisoner appeared 
 by attorney, he was bound to pay for the issue, or judgment might be 
 signed ; though it was otherwise, where he appeared in person :(6) and 
 notice of trial to the gaoler or turnkey is deemed sufficient.(c) In the Com- 
 mon Pleas, ten days notice of trial was formerly required to be given to a 
 defendant in the Fleet prison ;{<£) but now, the same notice of trial is 
 usually given as in other cases. 
 
 In order to charge a defendant in execution, in the King's Bench, the 
 proceedings must be entered on record, and the judgment roll docketed and 
 filed -.{e) after which, if the defendant be a prisoner in the county gaol, a 
 writ of capias ad satisfaciendum, must be sued out, directed to the sheriff 
 of the county in whose custody he is, if the venue be laid in that county ; or 
 if not, a ca. sa. must be sued out into the county where the venue is laid, 
 and a testatum ca. sa. directed to the sheriff of the county where he is a 
 prisoner, and sent to the under-sheriff, with directions to charge him in cus- 
 tody :(/) or if he be detained in the King's Bench prison, at the suit of the 
 8ame plaintilT, the plaintiff's attorney should obtain a side-bar rule from the 
 clerk of the rules, for the marshal to acknowledge him in his custody ;{g) 
 and the marshal, being served with a copy of the rule, will write his ac- 
 knowledgment at the bottom of it, which ought to be of the sa7ne 
 term in which the *defendant is charged in execution, and not [ *3G4 ] 
 of a preceding term. (a) A committitur piece(?)) should be then 
 drawn up on parchment, in the form of a bail-piece, and filed with the 
 clerk of the judgments, in order that he may enter the committitur on 
 record :{c) And it is usual, before this is done, to enter the committitur 
 in the marshal's book, kept at the King's Bench office. (t?(?) If the defen- 
 
 (a)Imp. C. P.7 E^. 672. 
 
 (i) Cas. Pr. C. P. 35. 2 Wils. 11. But now, judgment can in no case be ."signed, for non- 
 payment of the issue money. R. H. 35 Geo. III. K. B. & C. P. 6 Duruf. & East, 218. 2 H. 
 Blac. ocl. ed. 551. 1 Bo3. & Pul. 292, [b). 
 
 (c) 1 Str. 248. ((f) R. II. 14 & l.-i Car. 11. reg. 3, C. P. 
 
 \e) Imp. K. B. 10 Ed. G19. Lee's Prac. Die. 1 Ed. 940. 2 Arcbb. K. B. I'lT. 
 
 (/) Imp. K. B. 10 Ed. 619. 
 
 {g) R. T. 2 Geo. I. § 2. (i), K. B. Append. Chap. XV. ? 25. 
 
 (a) 1 Durn. & East, 464; and see 10 East, 46, accord, where the reason is given for this 
 practice. (i) Append. Ubap. XV. § 26. (c) Jd. g 27. 
 
 {dd) 2 Bur. 1049 ; and see 1 Salk. 272, 3. 2 Str. 1215, 1 226. 2 Smith, R. 243. 1 Chit. Rep. 
 364, 5. Ante, 239.
 
 3(54 OF THE PROCEEDINGS 
 
 daiit be not detained in custody at the suit of the same plaintiff, the proper 
 mode of proceeding is, to sue out a writ of habeas corpus ad satisfacien- 
 dum, and bring the defendant into court thereon, in order to charge him 
 in execution. 
 
 It was formerly holden, that the committitur must be actually entered 
 on record, before the end of the second term inclusive after trial or judg- 
 ment, otherwise the defendant Avas supersedeable ; and there was no ex- 
 tension of the time, to the continuance day after term ; nor was an entry 
 in the marshal's book in time sufficient. (ee) But it was afterwards deter- 
 mined, that if the plaintiff's attorney signed judgment, and filed the com- 
 mittitur piece with the clerk of the judgments, within the second term 
 after trial and verdict against a prisoner, that was a sufficient charging 
 him in execution within tivo terms, pursuant to the rule of court ; though 
 the final judgment and committitur were not entered of record, by the 
 officer of the court, till the continuance day after the second term, pro- 
 vided the entries were then complete.(^) And a rule of court is now 
 made, ((/^) that "the committitur on every judgment obtained against a 
 prisoner in this court, shall be filed with the clerk of the dockets, on or 
 before the last day of the term in which the prisoner is charged in execu- 
 tion : and the said clerk shall enter such co7nmittitur on the judgment roll, 
 within four days next after the end of such term, exclusive of the last 
 day of term ; unless the last of the four days be Sunday, and in that case 
 within five days next after the end of such term ; and in default thereof, 
 the prisoner shall be entitled to be discharged." In the construction of 
 the above rule it has been holden, that where a prisoner is charged in 
 execution, it is not sufficient for the plaintiff's attorney to file a commit- 
 titur piece in due time with the clerk of the dockets; but he must also see 
 that the latter enters the committitur on the judgment roll, within the 
 time prescribed by the rule ; and if that be not done, the prisoner is en- 
 titled to be discharged. (A) But this rule does not extend to the case of a 
 prisoner committed under a habeas corpus, in which no committitur piece 
 was ever necessary.(/) It is usual for the clerk of the judgments, at the 
 end of every term, to send to the marshal a docket or list of the commit- 
 
 titurs which have been entered in that term, stating therein 
 [ *365 ] *the names of all the plaintiffs at whose suit the defendant is 
 
 charged in execution ; from which docket or list an entry is made 
 by the marshal. And where the clerk of the judgments had made a mis- 
 take, in omitting the name of one of several plaintiffs, in his docket trans- 
 mitted to the marshal, it was rectified by the court, at the instance of the 
 clerk. (a) When the defendant has been once committed, a second com- 
 mitment for the same cause, before the first is discharged, or notice given 
 that it is abandoned, is clearly informal. (J) But where the defendant 
 being acknowledged by the marshal to be in his custody, at the suit of A. 
 it was moved that he might be charged in execution also, on a judgment 
 of outlaivry in another action at the suit of B. the court ordered the same 
 in the first instance. (c) In the Exchequer, where a prisoner was charged 
 
 (c€) 2 Str. 1215, 1226. 3 Bur. 1841. (/) 1 East, 405. 
 
 {gg) R. E. 41 Geo. III. K. B. 1 East, 410. 
 (A) 2 Barn. & Cres. 342. 3 Dowl. & Ryl. 597, S. C. 
 (0 Pitcher v. Faucett, T. 43 Geo. III. K. B. ; and see 1 Chit. Rep. 365. 
 («) Gage and a?iother v. Parsons, M. 36, Geo. III. K. B. (b) 1 Durnf. & East, 227. 
 
 (c) Amos V. 3Iartm, T. 36 Geo. III. K. B. ; but see Imp. K. B. 10 Ed. 625, (a), where it is 
 said, that a habeas corpus ad satisfaciendum in this case -would have been proper.
 
 AGAINST PRISONERS, ETC. 365 
 
 in execution in Triniti/ terra, for a sum ^^•]lich was wrongly stated in the 
 judgment roll and sub.seciuent proceedings, the court, in the following 
 term, ordered the judgment roll and committitur to be altered, according 
 to the facts appearing by the postea, and master's allocatur. {d) 
 
 If the defendant be removed, after declaration, to the Fleet, or found 
 in the prison of an inferior court, the mode of charging him in execution, 
 in the King's ]>ench, is by writ of habeas corpus ad satinfacie7idum, re- 
 turnable in that court, on a day certain in term ; and the number of the 
 judgment roll must be indorsed on the habeas corpii8.{c) Nor is the pri- 
 soner bound to give notice of his removal ; but the plaintiff must take 
 notice of it at his peril : Therefore, where a prisoner, who had been sur- 
 rendered in discharge of his bail, and afterwards removed to the Fleet, 
 without giving any notice to the plaintiff, was charged in execution as a 
 prisoner in the King's Bench, the court granted a supersedeas ; for the 
 plaintiff should have demanded to sec the prisoner, and if not produced, 
 would have known where to find him, and bring him back by habeas cor- 
 pus, to charge him ; and it would be putting difficulties upon prisoners, to 
 oblige them to give notice. (/) 
 
 In order to charge the defendant in execution, in the Common Pleas, 
 when he is a prisoner in the county gaol, it docs not seem to be necessary 
 that the proceedings should be first entered on record ; that court having 
 refused to discharge a prisoner out of execution, where there was no judg- 
 ment against him docketed, and entered upon the rolls of the court. (^) In 
 other respects, the mode of charging a defendant in execution in the county 
 gaol, is tlio same in the Common Pleas, as in the King's Bench. (////) Where 
 the defendant is a prisoner in the Fleet, the proceedings being first entered 
 on record, and the judgment roll docketed and filed, a habeas corpus ad 
 satisfaciendum should be sued out, directed to the warden, and returnable 
 in court on a day certain. ({) On this writ, the number roll of 
 *the judgment should be indorsed, by the attorney who sues it [ *3G6 ] 
 out :(a) and the writ being signed by the prothonotaries, allowed 
 by a judge and sealed, should be taken to the clerk of the papers of the Fleet 
 prison, four days before the return ;(6) upon which, the defendant being 
 brought into court, with the judgment roll, the court will commit him to 
 the custody of the warden, charged in execution at the plaintiff's suit ; and 
 the secondary marks the habeas corpus and commitment by the court, in 
 the margin of the judgment roll, and afterwards enters the award of the 
 writ and committitur thereon. (c) If a defendant be brought into court 
 upon a habeas corpus ad satisfaciendum, he is to be charged in execution 
 upon that judgment only on which the habeas corpus issued; and there- 
 fore, if there be several judgments on which he is to be charged, there 
 must be a habeas corpus ad satisfaciendum in each cause. (JrZ) 
 
 AVhen the defendant is charged, by any of these means, the execution 
 is considered as executed ; and therefore, where the plaintiff afterwards 
 died, it was holden that his executors were not bound to revive the judg- 
 
 {d) 11 Price, 410. 
 
 (c) 1 Sill. 100. R. M. 1654, g 7, R. T. 2 Geo. I. (6), K. B. 
 
 (/) 2 Str. 1153. {g) 2 Boa. & Pul. 163. 
 
 (hh) Imp. C. P. 672 ; and see Barnes, 389. 
 
 (?) R. M. 1054, § 10, C. P. 
 
 (a) R. M. 1654, § 10, C. P. (i) Imp. C. P. 7 Ed. 668. 
 
 (c) Id. 707. Append. Chap. XV. g 28, {dd) Barnes, 223.
 
 366 
 
 OF THE PROCEEDINGS 
 
 ment by scire facias ; or to charge the defendant in execution de novo.{e) 
 But where the plaintiff, having charged the defendant in execution, died, 
 and the defendant's wife took out administration to the plaintiff, the court 
 ordered the defendant to be discharged out of custody ; and held that the 
 plaintiff's attorney had no lien on the judgment for his costs. (/) And 
 the court of Common Pleas discharged a defendant out of custody in exe- 
 cution, after the plaintiff's death, it appearing that the next of kin did not 
 intend to take out administration, on service of the rule ^lisi on the next 
 of kin.((7) But they would not discharge a defendant out of custody in 
 execution, at the suit of a plaintiff, although the application was not made 
 until eighteen months after the death of the latter ; it appearing that he 
 had appointed executors who were still alive, and had not assented to the 
 discharge.(7i) 
 
 By the statute 8 & 9 W. III. c. 27, § 8, " if the marshal or warden, or 
 their respective deputies, or keeper of any other prison, shall, after one 
 day's notice in writing given for that purpose, refuse to show any prisoner 
 committed in execution, to the creditor at whose suit such prisoner was 
 committed or charged, or to his attorney, every such refusal shall be ad- 
 judged to be an escape in law." And, by § 9, " if any person or persons, 
 desiring to charge any person with any action or execution, shall desire to 
 be informed by the said marshal or warden, or their respective deputies, or 
 by the keeper of any other prison, whether such person be a prisoner in his 
 custody or not, the said marshal or warden, &c. shall give a true note in 
 
 writing thereof, to the person so requesting the same, or to his law- 
 [ *367 ] ful attorney, upon demand at his *ofl5ce for that purpose ; or in 
 
 default thereof, shall forfeit the sum o^ fifty pounds ; And if such 
 marshal or warden, &c. shall give a note in writing, that such person is an 
 actual prisoner in his or their custody, every such note shall be accepted 
 and taken as sufficient evidence that such person was at that time a 
 prisoner in actual custody." 
 
 If the defendant be superseded or supersedeable, for want of proceedings 
 Je/bre judgment, the plaintiff may nevertheless take or charge him in exe- 
 cution, at any time a/i(gr judgment :(a) but he cannot do so, if the defend- 
 ant be superseded, or supersedeable, for want of being charged in execu- 
 tion ',{h) his only remedy in that case, for charging the person of the defend- 
 ant, being by action of debt upon the judgment, w'herein the defendant can- 
 not be holden to special bail :(<?) And it is a rule in the Common Pleas that 
 " if prisoners discharged by supersedeas, for want of prosecution, be after- 
 wards arrested or detained in custody, by action of debt upon the judgment 
 obtained in the former cause, a common appearance shall be accepted. "(t^) 
 The supersedeas however, in the first action, cannot be pleaded in bar of 
 the second :{e) and, after judgment obtained in the second action, the 
 defendant is again liable to be taken in execution. (/) 
 
 [e) King v. Millett, H. 22 Geo. III. K. B. Combrune y. , T. 42 Geo. III. K. B. M. 43 
 
 Geo. III. K. B. S. C. accord ; but see Barnes, 258, 366. 1 Bos. & Pul. 176. 
 (/) 8 Durnf. & East, 407. Ante, 339, 40. [g) 2 New Rep. G. P. 240. 
 
 {h) 8 Moore, 145; and see id. 529. 1 Bing. 431, S. C. 
 
 (a) R. T. 2 Geo. I. ^ 1, (c), K. B. 1 Durnf. & East, 591, (a). 7 East, 332. Barnes, 376, 
 Cas. Pr. C. P. 136, S. C. Davies ^ Broicn, in the Exchequer, M. 27 Geo. III. S. P. 
 
 (b) R. T. 2 Geo. I. g 1, (c), K. B. Barnes, 376. Cas. Pr. C. P. 136, S. C. 7 East, 330. 
 
 (c) Cowp. 72. 
 
 (d) R. H. 8 Geo. II. reg. 2, C. P. ; and see Cas. Pr. C. P. 34. Barnes, 376, 390. 1 Bos. & 
 Pul. 361. Ante, 177; but see 1 Durnf. & East, 592. 
 
 (e) 1 Durnf. & East, 273. (/) Cowp. 72. 2 Blac. Rep. 982.
 
 AGAINST PRISONERS, ETC. 367 
 
 In the King's Bench it is a rule,(^) that " the marshal present to the 
 judges, in their chamber atWestminster Hall, within the fivst four days of 
 every term, a list of all such prisoners as are supersedcable ; showing as to 
 what actions, and on what account they are so, and as to what actions, (if 
 any,) they still remain not supersedeable," And by another rule(/<) it is 
 ordered, that " if, by reason of any writ of error, special order of the court, 
 agreement of parties, or other special matter, any prisoner, detained in the 
 actual custody of the marshal, be not entitled to a supersedeas or discharge, 
 to which such prisoners would, according to the general rules and practice 
 of the court, be otherwise entitled, for want of declaring, proceeding to 
 judgment, or charging in execution, within the times prescribed by such 
 general rules and practice, then and in every such case, the plaintifl'or plain- 
 tiffs, at whose suit such prisoner shall be so detained in custody, shall, with 
 all convenient speed, give notice in writing of such writ of error, special 
 order, agreement, or other special matter, to the marshal, upon pain of losing 
 the right to detain such prisoner in custody, by reason of such special mat- 
 ter : and the marshal shall forthwith, after the receipt of such notice, cause 
 the matter thereof to be entered in the books of the prison ; and shall also 
 present to the judges of the court from time to time, a list of all 
 the prisoners to whom such special matter shall *relate, showing [ *3G8 ] 
 such special matter, together with the list of prisoners supersedea- 
 ble, as required by the first-mentioned rule." And, by a previous rule,(aa) 
 " all prisoners who have been, or shall be, in custody of the marshal, for the 
 space of six months after they are supersedeable, although not superseded, 
 shall be forthwith discharged out of the King's Bench prison, as to all such 
 actions in which they have been or shall be supersedeable." There is also 
 a similar rule in the Common Pleas,(66) for discharging prisoners out of 
 the Fleet prison. 
 
 If the declaration be not delivered, and an affidavit thereof duly made 
 and filed, when the defendant is in custody of the sheriff, &c., or if the 
 plaintiflf do not proceed to trial or final judgment, or cause the defendant 
 to be charged in execution, in due time, the defendant, we have seen,(c) 
 may be discharged out of custody, by writ of supersedeas^ or otherwise, 
 according to the course of the court, on filing bail by hill^ or entering a 
 common appearance by original, in the King's Bench ;(tZ) or, in the Com- 
 mon Pleas, he may be discharged by writ of supersedeas^ on entering an 
 appearance with the proper officer ;(<3) unless, upon notice given to the 
 plaintifi"s attorney, good cause be shown to the contrary.((/) And the 
 defendant may also be discharged out of custody, when bail above has been 
 put in and justified for him, and allowed; or when the action is abated, 
 discontinued or decided in his favour. But where B., being in custody at 
 the suit of A., in a joint action against B. and C, justified bail in an 
 action entitled by mistake A. against B. only, and a rule so entitled was 
 served on the marshal of the King's Bench, who thereupon discharged B. 
 out of custody, he not being charged in more than one action at the suit 
 
 {g) R. T. 56 Geo. III. K. B. 5 Maule & Sel. 522. 
 (A) R. M. 57 Geo. III. K. B. 5 Maule & Sel. 522. 
 
 {aa) R. T. 19 Geo. III. K. B. {bb) R. H. 6 & T Geo. IV. C. P. 3 Bing. 442. 
 
 (c) Ante, 343, 260, &c. 
 
 {(i) R. H. 26 Geo. III. K. B. ; and sec R. E. 5 W. & M. rcj. 3, I G. R. T. 2 Geo. I. K. B. Say. 
 Rep. 111. 
 
 (e) R. E. 5 W. & M. reg. 3, g 6. R. E. 8 Geo. I. C. P. Ante, 343, 361.
 
 3G8 OF THE PROCEEDINGS 
 
 of A. ; it was holden that the marshal was liable in an action for an 
 cscape.(/) 
 
 To discharge a prisoner, for not declaring, or for not proceeding to final 
 judgment or execution, in due time, his attorney or agent should obtain 
 a ccrtificatc,{g) or copy of the causes wherewith he stands charged, from 
 the gaoler or keeper of the prison in which he is confined, (7i) if in custody 
 of a sheriff, &c. ; or, if in custody of the marshal or warden, from the 
 clerk of the papers of the King's Bench or Fleet prison ; and in the for- 
 mer case, an affidavit must be made, of the gaoler having signed the 
 same ;(z') upon which a summons(A") should be taken out, and served on the 
 plaintiff's attorney or agent, to attend a judge, and show cause why a writ 
 of sujyersedeas should not issue to discharge the defendant, if in 
 [ *3C9 ] ^custody of a sheriff, &c., or warden of the Fleet ; or, if in cus- 
 tody of the marshal, why he should not be discharged out of 
 such custody,(a) on filing common bail by bill, or entering a common 
 appearance by original. 
 
 At the time appointed by the summons, the plaintiff's attorney or agent 
 either attends and consents to an order, shows cause against it, or does 
 not attend. In the latter case, an affidavit being made of the service and 
 attendance, (6) the judge will make an order^cc) for the defendant's dis- 
 charge on the first summons, if the application be not for declaring, in the 
 King's Bench; but in the Common Pleas, the order on the first summons, 
 if not consented to, is only an order nisi, unless cause be shown within 
 six dajs;{dd) and in either court, if it be for not proceeding to judgment 
 or execution in due time, there must be three summonses, before the judge 
 will make an order for non-attendance ; and in a country cause, the order 
 on an attendance is not absolute in the first instance, but only an order 
 oiisi, unless cause be shown within a limited time, to give the agent an 
 opportunity of writing to his client for instructions. 
 
 When an order is made for the defendant's discharge, common bail 
 should be filed with the clerk of the common bails by hill,{e) or a common 
 appearance entered with the filacer by original : and if the defendant be 
 in custody of the marshal, a certificate from the clerk of the bails or fila- 
 cer, of the bail being filed, or an appearance entered, will be a sufficient 
 ground for discharging him, without a super sedeas.{ff) But if the defen- 
 dant be in custody of a sheriff, &c. or of the warden of the Fleet, a writ 
 of supersedeas is necesssir J •,[gg) for issuing wdiich, in the King's Bench by 
 bill, the bail-piece, signed by one of the judges, is a warrant to the officer, 
 with whom it is to be left ; and he delivers it over to the clerk of the com- 
 mon bails to be filed. (/iA) By original, the writ of supersedeas is made out 
 
 (/) 5 East, 292. 
 
 (^g) It was formerly necessary to get a certificate from the clerk of the declarations, in 
 the King's Bench, that no bill or declaration was filed in his office against the defendant. 
 R. T. 2 Geo. I. g 1, (^^),K. B. 1 Str. 474. But this certificate is now dispensed with, except 
 in cases where a declaration has been delivered, but no bill filed. 
 
 {h) R. T. 2 Geo. I. ^ 1, (6), K. B. Append. Chap. XV. § 30. 
 
 [i) Append. Chap. XV. ^ 31. [k) Id. § 32. 
 
 (a) R. E. 16 Car. II. reg. 1, K. B. ; and see 3 Maule & Sel. 144, 5. 
 
 (b) R. E. 16 Car. II. reg. 1, K. B. Append. Chap. XVIII. I 14, 15. 
 
 {cc) Append. Chap. XV. | 33. (dd) Imp. C. P. T Ed. 677. 
 
 (e) R. T. 9 W. III. K. B. 
 
 ( /) R. T. 2 Geo. I. § 2, (J), K. B. 
 
 {99) Append. Chap. XV. § 35, &c. .4?2<e, 343, 361. 
 
 (M) R. T. 2 Geo. I. § 2, [h), K. B.
 
 AGAINST PRISONERS, ETC, 369 
 
 l)y the filacer :(/) and, in the Common Pleas, it is signed by the prothono- 
 taries.(/i;) 
 
 A fraud having been attempted to be practised, in o])taining the dis- 
 charge of a prisoner from the custody of the Avarden, by altering the sum 
 for ^vhich bail was allowed, in the order for the writ of 8Ujtir8edea8,{I) a 
 general rule was made in the Common I'leas, that "in every rule, and 
 also in every judge's order, for the allowance of bail, which contains also 
 an order for a supciscdeas to discharge the defendant out of custody, 
 there be inserted in the body of such rule or order, in words at length, the 
 sum for which such bail was allowed ; and that the same sum be also 
 written in figures, in the margin thereof: And that there be inserted in 
 the body of every such supersedeas, in words at length, the sum 
 for which such bail *was allowed: and that the prothonotary or [ *370 ] 
 his clerk, who signs the siqjersedeas, shall indorse the same sum 
 in figures on the said writ ; which indorsement shall be attested by the 
 initials of such prothonotary or clerk : And that the said sum so directed 
 to be inserted in the body of such rule or order, and in the body of the 
 said writ, and the said sum also directed to be written in figures in the 
 margin of the rule or order, and to be indorsed on the writ of supersedeas, 
 shall in no case be written on an erasure : and every such rule and order 
 shall be retained and filed in the prothonotaries' oflice."(rt) 
 
 Having thus shown in what manner the defendant is to be discharged, 
 it w^ill be proper to consider what causes will be sufficient to prevent his 
 discharge, for not declaring, proceeding to trial or final judgment, or 
 charging him in execution. We have already seen,(/>) that where a pri- 
 soner is supcrsedeable, for want of filing a bill against him in due time, he 
 waives the irregularity by afterwards pleading. When there are two 
 defendants, and one of them is arrested and detained in prison, but the 
 other absconds, so that the plaintifl:' is obliged to proceed to outlawry 
 against him, this seems to be a good cause for not declaring against the 
 defendant who is in prison, until the other defendant be outlawed :(6') But 
 the plaintiff in such case must move for time to declare against the defen- 
 dant in custody. (t?) 
 
 After declaration, if the venue be laid in a county where the assizes are 
 holden but once a year, it may be impossible, by the course of the court, 
 for the plaintiff to try his cause in three terms: this therefore, when it hap- 
 pens, is allowed to be a good cause for not proceeding to trial. (f) So 
 where the writ, in a country cause, was returnable in Mieltaelmas term, 
 and the plaintiff declared in Hilary, and the defendant imparled till 
 Easter term, by which means the plaintifi" was disabled from proceeding 
 to trial till the next summer assizes, a judge refused to grant a superse- 
 deas.{f) And in like manner, where the court take time to give judg- 
 ment on demurrer, &c. they will not sufi'er the plaintiff to be prejudiced, 
 but will allow this to be a good cause for not proceeding to final judg- 
 ment. (^) Where a prisoner, who had been charged with a declaration as 
 
 (»■) Trye, in pref. 
 
 {k) Imp. C. V.'l Ed. G77, 681. {I) 7 Taunt. 437. 1 Moore, 144, S. C. 
 
 (o)Jl. E. 57 Geo. III. C. P. 1 Moore, 25G. 2 Chit. Rep. 379; and see 7 Taunt. 551. 
 \h) An(e,3bl. 
 
 (c) Barnes, 401. 2 Blac. Rep. 759 ; but see Pr. Ref?. 327, semb. contra. 
 
 (d) Per Cur. E. 12 Geo. III. K. B. 2 Cromp. 3 Ed. 8. Barnes, 396, 401. 2 Blac. Rep. 759. 
 2 New Rep. C. P. 404. (e) Barnes, 383. 
 
 (/) Cripps .j- Wiffffin, T. 28 Geo. III. K. B. (y) Barnes, 383 ; and see 1 Ken. 376.
 
 370 OF THE PROCEEDINGS AGAINST PRISONERS, ETC, 
 
 of Trinity term, absconded during the long vacation, and did not return 
 into custody till Hilary term following, the court of Common Pleas would 
 not discharge him, though the plaintiff had not signed judgment before 
 the end of Hilary term. (A) 
 
 After trial or final judgment, a writ of error and injunction are, whilst 
 they continue in force, good causes for not charging the defendant in exe- 
 cution. (^') So, a writ of error has been deemed a good cause for 
 [ *371 ] not ^charging him in execution, although the bail thereto do not 
 justify.(a) And where the plaintiffs, being assignees of a bank- 
 rupt, were prevented from charging the defendant in execution, by his 
 pleading a bad plea to a scire facias^ the court of Common Pleas would 
 not grant a supersedeas. [b) And in that court, it seems that a prisoner 
 in custody on mesne process may be charged in execution, after judgment 
 against him, notwithstanding the allowance of a wu'it of error. (c) A regu- 
 lar treaty of accommodation, or agreement for a compromise, is, in any 
 stage of the action, a good cause for not declaring, kc.:{d) But no treaty 
 or agreement is sufficient to prevent a supersedeas, unless it be in writing, 
 signed by the defendant or his attorney, or some person duly authorized 
 by the defendant ; and it be expressed therein, that proceedings are stayed 
 at the defendant's request. (ge) 
 
 It is also a rule in all the courts, (_^) for preventing unnecessary ex- 
 pense to plaintiffs, in case of notice given by prisoners of their intention 
 to apply for their discharge, under any act made for the relief of insolvent 
 debtors, that "after such notice given to any plaintiff, no prisoner shall 
 be superseded or discharged out of custody, at the suit of such plaintiff, 
 by reason of such plaintiff's forbearing to proceed against him, according 
 to the rules and practice of the court, from the time of such notice given, 
 until some rule or order shall be made in the cause in that behalf, by the 
 court, or one of the judges thereof." And, by the statute 7 Geo. IV. 
 c. 57, (gg) "no prisoner who shall have petitioned the court for relief under 
 that act shall, after the filing of his or her petition, be discharged out of 
 custody, as to any action, suit or process, for or concerning any debt, sum 
 of money, damages, or claim, with respect to which an adjudication in the 
 matter of such petition can under the provisions of that act be made, by or 
 by virtue of any supersedeas, judgment of non pros, or judgment as in the 
 case of a nonsuit, for want of the plaintiff or plaintiffs in such action suit 
 or process proceeding therein." Where the defendant, after surrendering 
 in discharge of his bail, in an action in the Common Pleas, was committed 
 to criminal custody for a misdemeanor, and continued in such custody, the 
 court would not discharge him from the action, because the plaintiff had 
 omitted to charge him in execution within ttvo terms after his surrender. (ZtA) 
 And where the defendant, after verdict, applied for his discharge under 
 
 (A) 4 Moore, 380. 2 Brod. & Bing. 35, S. C. (?) R. H. 26 Geo. III. K. B. 
 
 (a) 6 Maule & Sel. 139. 
 (6) 2 Wils. 378. 
 
 (c) 1 Bos. & Pul. 292; and see Barnes, 316. Sedqucere? and see 2 Wils. 380. 
 
 (d) 4 Bur. 2063. 2 Blac. Rep. 918. 3 Wils. 455, S. C. 1 East, 18,innotis. 
 
 (ee) R. H. 26 Geo. III. K. B. R. H. 35 Geo. III. C. P. R. T. 26 & 27 Geo. II. ? 11, in Scac. 
 Man. Ex. Append. 216. 
 
 (/) R. E. 3 Geo. IV, K. B. 5 Barn. & Aid. 799. 2 Chit. Rep. 377 1 Dowl. & Ryl. 472. 
 R. M. 3 Geo. IV. C. P. 7 Moore, 459. 1 Bing. 120. R. M. 3 Geo. IV, in Scac. 11 Price, 422, 3, 
 
 iffff) I 15, and see stat. 3 Geo. IV. c. 123, § 11. 
 
 {hh) 1 Bing. 221. 8 Moore, 81, S. C; and see 4 Dowl. & Rjl. 216, 347, aw^e, 214.
 
 OF THE RELIEF OF PRISONERS, ETC. 371 
 
 the insolvent debtors's act, and was sentenced to ciglitecn months' 
 imprisonment, the court of Common Pleas heM, that though no [ *372 ] 
 *further proceedings had been taken, the death of the plaintiff" 
 did not entitle the defendant to be discharged at his suit. (a) 
 
 By the common law, a prisoner in execution was to be kept in salvd ct 
 arctd custodid, till he satisfied the plaintiff. But, in order to prevent any 
 unnecessary hardship or oppression, rules of court were made, in the 
 beginning of the reign of king George the second, for the better govern- 
 ment of the King's Bench and Fleet prisons,(fi) and the preservation of 
 good order therein ; which have been since extended and explaineil by 
 subsequent rules :{c) and tables o^ fees were settled and established, to be 
 taken by the marshal or warden, for any prisoner's commitment, or comin"- 
 into gaol, or chamber rent there, or discharge thence, in any civil action. ((Z) 
 By the statute 55 Geo. III. c. 50, all fees and gratuities paid or payable 
 by any prisoner, on the entrance, commitment or discharge to or from 
 prison, shall absolutely cease, and the same are thereby abolished and 
 determined ; with an exception of the King's Bench prison. Fleet, Mar- 
 shalsea, and Palace courts :(e) And, by the statute 56 Geo. III. c. IIG, 
 § 3, " the said recited act, and the provisions therein contained, shall 
 extend to all prisoners, as well civil as criminal, whether confined for debt 
 or crime, in any of the prisons in England, except as to the said prisons 
 in the said act excepted." There is also a clause in the Lords' act,(/) 
 for the further protection of prisoners against oppression of inferior 
 officers, and the exaction of gaolers to whose custody they may be com- 
 mitted. 
 
 For the subsistence of prisoners confined in county gaols, and in the 
 King's Bench, Fleet, and Marshalsea prisons, certain allowances are made 
 out of the county rates, by the statutes 14 Eliz. 5, § 37. 43 Eliz. c. 2, 
 § 14, 15, and 53 Geo. III. c. 113. By the 52 Geo. III. c. 160, justices of the 
 peace are enabled to order parochial relief to prisoners confined under mesne 
 process for debt, in such gaols as are not county gaols. By the 53 Geo. III. 
 0. 21, the commissioners of the customs and excise are authorized to make 
 allowance, for the necessary subsistence of poor persons confined under Ex- 
 chequer process, &c. And, by the last general insolvent act,(^7) "the 
 court for the relief of insolvent debtors may order and direct the assignees 
 to pay to any prisoner who shall have petitioned the court for relief under 
 that act, out of his or her estate aud eff'ects, such allowance for his or her 
 support and maintenance, during such prisoner's imprisonment, 
 and previous to the adjudication in the matter *of his or her [ *373 ] 
 petition, as to the said court shall seem reasonable and fit. And 
 in all cases where such prisoner shall, upon such adjudication, be liable to 
 further imprisonment, at the suit of his or her creditor or creditors, it 
 
 (a) 1 Bing. 431. 8 Moore, 529, S. C. 
 
 (6) R. M. 3 Geo. II. K. B. R. H. 3 Geo. II. C. P. Ante, 52, (</), 53, ( f). 
 
 (c) R. T. 19 Geo. III. R. T. 21 Geo. III. R. II. 57 Geo. III. R. M. 58 Geo. III. K. B. R. T. 
 53 Geo. III. K. B. 1 Bam. & Aid. 728. 2 Chit. Rep. 373. R. H. 59 Geo. III. K. B. 2 Barn. & 
 Aid. 403. 2 Chit. Rep. 374. 2 Barn. & Cres. 344. 3 Dowl. & Rvl. 599, S. C. 
 
 {d) Jan. 19. 3 Geo. II. C. P. Dec. 17. 4 Geo. II. K. B. An(e,'b3, (/). 
 
 (e) § 14. (/) 32 Geo. II. c. 28, ^ 12. Ante, 231, 2. 
 
 i^g) 1 Geo. 17. c. 57, § 17 ; and sec stat. 1 Geo. IV. c. 119, g 5.
 
 373 OF THE RULES OF THE PRISON. 
 
 shall be lawful at any time for the said court, on the application of such 
 prisoner, to order the creditor or creditors, at whose suit he or she shall 
 be so imprisoned, to pay to such prisoner such sum or sums of money, not 
 exceeding the rate of four shillings by the week in the whole, at such 
 times, and in such manner, and in such proportions, as the said court shall 
 direct : and that on failure of payment thereof, as directed by the said 
 court, the said court shall order such prisoner to be forthwith discharged 
 from custody, at the suit of the creditor or creditors so failing to pay the 
 same."(a) 
 
 The rigour of imprisonment is also considerably abated, by a prisoner's 
 being allowed, on giving security to the marshal or warden, the benefit of 
 the rules of the King's Bench or Fleet prison, or of living within certain 
 limits,(?>) out of its walls. This benefit is extended to prisoners in execu- 
 tion, as well as to those who are confined on mesne process ; and it may be 
 had by one in custody on an excommunicato cajnendo :{c) but it is never 
 granted, except under very special circumstances,((:Z) to a prisoner in 
 execution on a criminal account :(g) and, generally speaking, prisoners in 
 custody for a contempt are not entitled to the rules of the King's Bench 
 prison. (/) But where the marshal, in consequence of a surgeon's certi- 
 ficate that a prisoner in his custody for a contempt, in not paying money 
 pursuant to the master's allocatur, was dangerously ill, and would die if 
 closely confined, allowed the prisoner the rules until he got better, and 
 afterwards confined him again within the walls ; the court refused to pro- 
 ceed against the marshal, by ordering him to pay the money, for the 
 non-payment of which the prisoner was in contempt, and dismissed the 
 application with costs. ((/^) For preventing prisoners from breaking the 
 rules, it is ordered, that "whensoever it shall be made appear to the court, 
 that any person, having the benefit of the rules of the prison of the King's 
 Bench, shall, during such time as he has had the benefit of such rules, 
 have escaped and gone at large out of and beyond the limits of 
 [ *374 ] the said *rules, every such person shall thenceforth lose and be 
 deprived of the benefit of such rules : and be thereafter wholly 
 incapable of enjoying the same, under any grant thereof; and shall thence- 
 forth be kept and confined a prisoner, within the walls of the said prison, 
 unless the court shall otherwise order."(a«) And, by a late rule,(56) "no 
 clerk, turnkey, officer, or other person, employed by or under the marshal, 
 shall receive or take, except from the marshal, any fee, gratuity, or reward, 
 
 (a) T Geo. IV. c. 57, ^ 56; and see stat. 1 Geo. IV. c. 119, § 19. 
 
 (6) For the limits of the rules of the King's Bencli prison, see R. E. 30 Geo. III. K. B. 3 
 Durnf. & East, 583. R. E. 35 Geo. III. K. B. 6 Durnf. & East, 305. R. T. 36 Geo. III. K. B. 
 6 Durnf. & East, 778. And for the limits of the rules of the Fleet prison, see 9 Moore, 283. 
 
 2 Bing. 163. 
 
 (c) I Str. 413. And for the nature of this writ see 7 Durnf. & East, 153. See also the 
 statute 53 Geo. III. c. 127, by which excommunication is discontinued, except in certain 
 cases ; and a writ de cotitumace capiendo is given, instead of the writ de excommunicato capiendo, 
 for non-appearance in, or disobeying the orders of, any ecclesiastical court, or for a con- 
 tempt committed in the face of such court. See also 5 Barn. & Aid. 791. 1 Dowl. & Ryl. 
 460, S. C. 3 Dowl. & Ryl. 570. The ecclesiastical court, however, has no jurisdiction over 
 trusts: and therefore where a party, sued as a trustee, was arrested on a writ de contumace 
 capiendo, the court of the King's Bench discharged him out of custody. 1 Barn. & Ores. 655. 
 
 3 Dowl. & Ryl. 41, S. C. 
 
 (d) 4 Dowl. & Ryl. 832. (e) 1 Str. 196. 2 Str. 845. 
 
 (/) 2 Str. 817. {(/g) 2 Dowl. & Ryl. 709 ; and see 4 Dowl. & Ryl. 832. 
 
 (aa) R. H. 57 Geo. III. K. B. 
 
 (bb) R. H. 2 & 3 Geo. IV. K. B. 5 Barn. & Aid. 560. 2 Chit. Rep. 376, 7. 1 Dowl. & 
 Ryl. 471.
 
 HELIEF OF PRISONERS, ON LORDS' ACT. 374 
 
 for or in respect of making inquiry into tlie sufficiency of any person or 
 persons proposed or intended to give security, ui)un the granting of the 
 rules of the King's ]5cnch prison, or otherwise in respect of the granting 
 of the said rules: and that the marshal do dismiss any person who shall 
 oflfend therein." 
 
 A prisoner likewise, whether he be detained in custody on mesne pro- 
 cess, or in execution, may, on petition to the court, (c) have day rules 
 allowed him, or the liberty of going out of the prison or its rules, for trans- 
 acting his business in term time. The petition for this purpose must be 
 signed by the prisoner, before he goes at large :(c^) and when the day rule 
 is made in the King's I3ench, it covers, by relation back, the liberation of 
 a prisoner who had signed the petition, but had gone out of prison before 
 the sitting of the court on the same day ; though the marshal was sued for 
 the escape before the sitting of the court. (c) But every prisoner having 
 a day rule, must return within the walls or rules of the prison, at or before 
 nine o'clock in the evening of the day for which such rule shall be 
 granted. (/) It was formerly a rule, that "no prisoner in the King's 
 Bench prison, or within the rules thereof, should have, or be entitled to 
 have, day rules, above three days in each terra;" and another rule was 
 made,(^) by which it was ordered, that "notwithstanding the above rule, 
 if any person in the King's Bench prison should thereafter state, by affi- 
 davit, any special cause, to the satisfaction of this court, for having an 
 additional day rule or day rules, be3'-ond those allowed by the aforesaid 
 rule, such additional rule or rules should be granted accordingly, for any 
 day or days ensuing such application." But, by a subsequent rule, (A) the 
 two former ones were repealed : so that the practice is now the same, as it 
 was before the three last rules were made upon the subject. (i) 
 
 Besides these indulgences, some permanent provisions were made for the 
 relief of prisoners in execution, b}'- the statute 32 Geo. II. c. 28, § 13, 
 which (originating in the House of Lords,) is called the Lords' act. By 
 this statute, " if any person shall be charged in execution, for any sum of 
 money not exceeding lOOZ.," (since extended to 200/. by the 2G Geo. III. 
 c. 44, § 1, and to 300Z. by the 33 Geo. III. c. 5, § 1, which is made per- 
 petual by the 39 Geo. III. c. 50, " and shall be minded to deliver 
 up to *his creditors, all his estate and effects; in satisfaction of his [ *375 ] 
 debts, he may, in order to entitle himself to the benefit of the 
 above acts, before the end of the first term next after he shall be charged in 
 execution, exhibit a petition to any court of law, from whence the process 
 issued, upon Avhich he was taken and charged in execution ; or to the court 
 into which he shall be removed by habeas corpus, or charged in custody ; 
 certifying the cause of his imprisonment, and setting forth a just and true 
 account of all the real and personal estate, which he, or any persons in 
 trust for him, was or were entitled to, at the time of his so petitioning, 
 and also at the time of his first imprisonment, and of all incumbrances and 
 charges (if any,) aflfccting the same, and likewise a just and true account 
 of all securities, deeds, evidences, writings, &c., concerning the same, and 
 
 (c) For the form of the pclilion for a day rule, iu K. B. see Append. Chap. XV. g 57; and 
 for the day rule thereou, id. \ 58. 
 
 {d) 1 Str. 503. (c) 9 East, 151 ; niul see S .Mod. 80, ante, 235. 
 
 (/) R. E. 30 Geo. ITT. K. B. 3 Durnf. & East, r)84. 
 
 (<7) R. M. 37 Geo. III. K. B. 7 Diirnf. & East, 82. 
 
 {h) R. H. 45 Geo. III. K. B. G East, 2. («) 2 Smith R. 340 ; and see id. 5, 27.
 
 375 RELIEF OF PRISONERS, 
 
 the names and places of abode of the witnesses, &c. ; upon which he shall 
 be entitled to his discharge, on complying with the requisites of the act." 
 And, by the statute 40 Geo. III. c. 6, " all persons who are or shall be in 
 custody for contempt of any court of equity^ by not paying any sum or 
 sums of money or costs, ordered to be paid by any decree or order of 
 any such court, shall be entitled to the benefit of the said several acts of 
 parliament, and shall be subject to all the said terms and conditions, as 
 are therein expressed and declared, with respect to prisoners for debt 
 only.'» 
 
 The humane provisions of the Lords' act were rendered as beneficial as 
 possible, by the liberality of the judges, who construed it to extend to pri- 
 soners in custody upon an attachment, for the non-performance of an 
 award. (6) or non-payment of costs,(c) &c. ; which construction has been re- 
 cognized by the statute 33 Geo. III. c. 5, § 4, whereby, after reciting that 
 persons are often committed on attachments, for not paying money awarded, 
 under submissions to arbitration by or made rules of court, and likewise for 
 not paying costs duly and regularly taxed and allowed, aftei' proper de- 
 mands made for that purpose, and also upon writs of excommunicato capi- 
 endo, or other process for or grounded on the non-payment of costs or 
 expenses, in causes or proceedings in ecclesiastical courts ; it is declared 
 and enacted, that " all such persons are and shall be entitled to the benefit 
 of this act, and subject to the same terms and conditions as are therein 
 expressed and declared, with respect to prisoners for debt only."(t^) And 
 a defendant in custody upon an attachment, who had been convicted on an 
 indictment for an assault and upon reference to the king's coroner and 
 attorney, was awarded to pay so much for cost8, and so much for compen- 
 sation to the prosecutrix, was held to be entitled to be discharged as an 
 
 insolvent debtor, under the Lords' act, without the aid of *the 
 [ *376 ] statute 33 Geo. III. c. b.{aa) It has also been determined, that 
 
 the Lords' act extends to prisoners charged in execution, on pro- 
 cess issuing out of inferior, as well as superior courts. (55) And it is no 
 objection to a prisoner's being discharged under it, that his creditor is 
 dead ;(cc) or that the defendant has agreed not to take the benefit of the 
 act.(tM) And where the defendant, in the Common Pleas, is charged in 
 execution with the penalty of a bond, it may be reduced to the principal 
 and interest, in order to entitle him to such benefit.(e) But the defendant 
 in a qui tarn action is not entitled to the benefit of the Lords' act;(/) nor 
 a defendant in custody under a writ de excommunicato cajnendo, for con- 
 tumacy in not paying a sum for alimony, and also for costs in the ecclesi- 
 astical court. (^) And a prisoner who is taken in execution for more than 
 
 (a) See also the statute 57 Geo. III. c. 117, § 6, by which persons imprisoned under any 
 writ of capias, on extents in aid, may apply to the court of Exchequer for their discharge. 
 3 Price, 95 ; and see stat. 1 Geo. IV. c. 119, § 41 ; and the last general insolvent act. (7 
 Geo. IV. c. 57,) ^ 15, post, 1066. 
 
 (6) 1 Durnf. & East, 266. 8 Taunt. 57. 1 Moore, 494, S. C. 
 
 (c) Cowp. 136. 1 Durnf. & East, 266. 4 Durnf. & East, 317, 809. 7 Durnf. & East, 156. 
 1 Bos. & Pul. 336. 13 East, 190. 8 Taunt. 57. 1 Moore, 494, S. C. 2 Barn. & Aid. 59. 
 M'Clel. 577 ; but see 10 East, 408. 
 
 (d) And see the statutes 52 Geo. III. c. 13. 53 Geo. III. c. 102, | 47. 1 Geo. IV. c. 119, 
 § 4, 16. 7 Geo. IV. c. 57, § 10,50. 
 
 (aa) 13 East, 190. (bb) 7 East. 84. 3 Smith, P.,. 102, S. C. 
 
 {cc} Barnes, 370. 1 Bos. & Pul. 336. (dd) 3 Smith, R. 51. 
 
 le) 2 Blac. Rep. 760 ; but see Barnes, 367, 369, 371. 
 
 (/) 3 Bur. 1322. 1 Blac. Rep. 372, S. C. (y) 11 East, 231.
 
 ON LORDS' ACT. 376 
 
 300?. and afterwards reduces his debt below that sum, is not entitled to be 
 discharged under it, in the next term after he has so reduced his debt, un- 
 less it be also the next term after he was taken in execution. (Zt) 
 
 It was also provided, by the statute 32 Geo. II. c. 2^, § 24, that '' no 
 person who should have taken the benefit of any act for tiic relief of in- 
 solvent debtors should have or receive any benefit or advantage under this 
 act, or be deemed to be within the meaning thereof, so as to gain any dis- 
 charge, unless compelled by any creditor to discover and deliver up his 
 or her estate or effects:" which clause was held to apply only to persona 
 having taken the benefit of general insolvent acts, and not to persons pre- 
 viously discharged under the Lords' act.(i) And, by a subsecjuent act of 
 parliament, (/c) this clause was altogether repealed. 
 
 The act requires that the petition should be exhibited before the end of 
 the first term next after the prisoner is charged in execution. (?) But if a 
 defendant be taken in vacation, on a writ returnable the following term, 
 the petition may be exhibited before the end of the next term after the 
 return of the writ :(m) xVnd where a defendant taken on a capias ad 
 satisfaciendum escaped, and was retaken and committed to the custody of 
 the marshal in a subsequent term, the court held, that he might apply to 
 be discharged under the Lords' act, in the term following. («) By the 
 statute o3 Geo. III. c. 5, § 5, " where any debtor shall have neglected to 
 take the benefit of the acts, within the time limited, and shall make it 
 appear to the court out of which the execution issued, that such neglect 
 arose from ignorance or mistake, such debtor shall then be entitled to take 
 the benefit of the acts, as if he had taken the same within the time so 
 limited as aforesaid." Upon which statute it has been holden, that a pri- 
 soner is entitled to the benefit of the acts, who has been prevented from 
 applying for it in due time, by the misconduct of his agent ;(o) 
 or by his ignorance *of the creditor's place of abode, till re- [ *o77 ] 
 cently before his application. (a) But where an insolvent debtor, 
 who had neglected to apply for his discharge under the Lords' act, in the 
 next term after he was charged in execution, afterwards applied, but was 
 prevented by poverty from proceeding until a subsequent term, the court 
 held, that he was not entitled to his discharge ; for the 33 Geo. III. c. 5, 
 § 5, only excuses delays occasioned by ignorance or mistake. (?») So, where 
 an insolvent had delayed his petition beyond the time limited, in expecta- 
 tion of being discharged by a commission of bankrupt, the court held, that 
 ho was not entitled to relief on the above statute. (c) 
 
 AVhen a prisoner intends to take the benefit of the Lord's act, he must 
 give to or leave for every creditor at whose suit he is in execution, or his 
 executors or administrators, at his or their usual place of abode, or, in case 
 they cannot be met with, to or for his or their attorney or agent last em- 
 ployed in the action, a notice in writing,(t^) signed with his proper name or 
 mark, importing that he intends to petition the court, and setting forth a 
 true copy of the account or schcdulc{e) he intends to deliver in ; which 
 notice must be given fourteen days at least before the petition is presen- 
 ted :(/) and though the court in one case held, in favour of liberty, that 
 
 (h) 1 Bos. & Pul. 423. (j) 2 Smith R. 24, 5 ; and see 2 Chit. Rep. 354. 
 
 (k) 52 Geo. III. c. 34, g 2. (/) Barnes, 378. 
 
 (to) 6 Taunt. 403. J .M.irsh. 200, S. C. (n) 4 Durnf. & East,3G7. (o) Id. 231. 
 
 {a) 13 East, I'JO; and see 2 Chit. Rep. 226. " (6) 1 Chit. Rep. 220. 
 
 (c) 1 Dowl. k Uyl. :<id. (./) Append. Ch.ap. XV. I 59 ; and see 2 New Rep. C. P. 67. 
 
 (e) Append. Chap. XV. | GO. {/) 32 Geo. II. c. 28, g 13. 
 
 Vol. I —24
 
 3yy OF THE KELIEF OF PRISONERS, 
 
 under circumstances, the day of giving the notice might be reclconed as 
 one ;( (/) yet in a subsequent case it was holden, that there must be four 
 teen clear days, exclusive both of the day of service and that of presenting 
 the petition. (/i) And notice of a prisoner's intention to apply to a wrong 
 court, is not cured by the plaintiff's opposing his discharge.(z) But the 
 notice is sufficient, tliough it do not specify the christian and surnames of 
 the parties -.{k) And leaving it with the agent of the plaintiff's attorney, 
 and with the shopman at the plaintiff's warehouse in town, when he resided 
 in the country, was deemed sufficient, the agent having appeared accord- 
 ing to the notice, and opposed the discharge. (Z) An affidavit is annexed 
 to the notice and schedule, made by some person who saw the defendant 
 sign them :{rn) and an affidavit of due service of the notice and schedule 
 is also to be made, on unstamped paper, and sworn before a judge in 
 town, or commissioner in the country. (h) Where the plaintiff had not 
 been served "\nth any notice, a prisoner discharged under the act was 
 allowed to be retaken in execution, although more than a year had elapsed 
 since the time of his being discharged. (o) 
 
 After the expiration of the time specified in the notice, the petition^i^) 
 is to be exhibited, with a certificate annexed, or copy of causes 
 [ *378 ] in which the *defendant stands charged, obtained from the 
 gaoler,(a) or from the clerk of the papers, if the defendant be 
 in custody of the marshal of the King's Bench, or warden of the Fleet 
 prison. If he be in any other custody, there must be an affidavit of having 
 seen the gaoler sign the certificate {(h) which affidavit must be sworn be- 
 fore a judge in town, or commissioner in the country: The petition, cer- 
 tificate, and affidavit of service of the notice, being left with the clerk of 
 the rules in the King's Bench, or one of the secondaries in the Common 
 Pleas, he will draw up a rule for bringing the prisoner into court, and 
 summoning the creditors to appear, personally or by attorney, at some 
 certain day to be therein specified :((?) a copy of which rule should be 
 served on each creditor, and also on the gaoler, and an affidavit made of 
 such service '.{d) or if the creditor abscond, so that he cannot be person- 
 ally served with a copy of the rule, the court will order that service upon 
 his attorney shall be deemed good service. (ge) 
 
 In the King's Bench, it is a rule, that "insolvent debtors petitioning 
 under the Lords' act, and subsequent acts for their further relief, shall be 
 brought into this court, during term time, on Mondays and Thursdays, 
 and upon no other days '.{ff) And an insolvent who does not appear in 
 pursuance of the rule he has obtained for coming up on a particular day, 
 to take the benefit of the act, cannot come up on another day, without a 
 fresh rule for that purpose ; and therefore a motion to discharge his rule 
 is unnecessary.(^(/) But, notwithstanding the above rule, the court will 
 permit insolvents to be brought into court on the last day of term, when 
 the notices expire too late for the last appointed day.(/Ji) And, by the 
 
 {g) 4 Barn. 2525. (A) 4 Barn. & Aid. 522. 
 
 (i) 1 Taunt. 64. {k) 1 Chit. Rep. 561, in notis. 
 
 [I) Id. 560 ; and see 4 Bing. 230. {m) Append. Chap. XV. I 61. 
 
 (n) Id. § 62. (o) 1 Chit. Rep. T40. [p) Append. Chap. XV. ^ 63. 
 
 (a) Append. Chap. XV. I 64, 5. {b) Id. ^ 66. 
 
 (c) 32 Geo. III. c. 28 § 13. Append. Chap. XV. § 67, 8. 
 
 \d) Append. Chap. XV. § 70. (ee) Barnes, 384. 
 
 (/) R. H. 37 Geo. III. K. B. {gg) 1 Chit. Rep. 214. 
 
 (M) Short's Rules and Orders, 66, n.
 
 ox LORDS' ACT. 378 
 
 statute 1 Geo. IV. c. 55, § 3, " all persons wlio are directecl to be brought 
 before the court of King's Bench, by the 32 Geo. II. c. 28, or any other 
 law for the relief of insolvent debtors, may be brought before some single 
 judge of the same court, sitting under the authority of the 57 Geo. III. 
 c. 11, and all orders made by, and all proceedings had before, such single 
 judge, shall be as good, valid and cfl'ectual, to all intents and purposes, as 
 if such orders had been made by, and such proceedings had before, the 
 said court of King's Bench." In the Common I'leas, by a late rule, 
 "insolvent debtors are to be brought into court on the following days, 
 that is to say, inHilary and Michaelmas terms, on the days appointed 
 for the London sittings at Nisi Frius, and on Saturdays ; and in Easter 
 term, on the days appointed for the London sittings at Nisi Prius on 
 Tuesdays^ and on the last Saturday in the term; and in Trinity term, 
 on the days appointtul for the London sittings, and on Tuesdays ; and 
 on no other days."(/) In the latter court, a rule cannot be had for the 
 next day, with only one day's notice, to discharge an insolvent 
 debtor, though it be prayed for on the last day *but one of the [ *370 ] 
 term.((/) In the Exchequer it is a rule, that applications for the 
 discharge of insolvent debtors can only be made at the rising of the court, 
 when the other business of the day is over.(6) 
 
 When the prisoner is charged in execution above twenty miles from 
 Westminster hall, or the court out of which the execution issued, the rule 
 requires him to be brought to the next assizes,{c) or (by statute 52 Geo. 
 III. c. 34, § 1,) before the justices assembled at any general or quarter 
 sessions of the peace, to be hoklcn within the distance of twenty miles of 
 the gaol in which the debtor is confined, and that the creditors be sum- 
 moned to appear there ; and a copy of such rule is to be served on every 
 creditor, his executors or administrators, or left at his or their dwelling 
 house or usual place of abode, or with his or their attorney, fourteen days 
 at least before the holding of such assizes. (rf) 
 
 On bringing up the prisoner, the court or judge of assize, or the justices 
 at sessions, are, in a summary way, to examine into the matter of the 
 petition; and after being sworn to the truth of his schedule, if no oppo- 
 sition be made, the court or judge, &c., will make a rule or order(e) for 
 discharging him, upon executing an assignment and conveyance of his estate 
 and effects, to and for the benefit of the creditor or creditors (if more than 
 one,) who shall have charged him in execution ; which is done by a short 
 indorsement on the back of the petition. (/) But if the persons, at whose 
 suit the prisoner is in execution, are not satisfied with the truth of his oath, 
 and either personally or by attorney desire further time, the court may re- 
 mand him ; and direct the parties to appear on somo other day, to be appoint- 
 ed by the court, within the first week of tlic next term at farthest,(/) or 
 sooner if the court shall think fit:(//) And where, on a prisoner's being 
 brought up to be discharged under the Lords' act, it appeared that a com- 
 mission of bankrupt had been issued against him since his arrest and impri- 
 sonment, and that he had not passed his final examination, the court ordered 
 him to be remanded, until such examination had taken place : On a sub- 
 
 (i) R. M. 47 Geo. III. C. P. ; and see R. M. 46 Geo. III. C. P. 2 New Rep. C. P. 9G. 
 
 (a) 4 Taunt. 588. (t) 5 Price, 648. 
 
 (c) Append. Chap. XV. g 69. (d) 32 Geo. II. c. 28, ? 15. 
 
 (e) Append. Cliap. XV. ^ 71. (/) 32 Geo. II. c. 28, g 13. 
 Iff) 3 Bur. 1393.
 
 379 OF THE RELIEF OF TRISONERS, 
 
 sequent day, however, it appearing that he had passed it to the satisfaction 
 of the commissioners, he was ordered to be discharged, on inserting an 
 assignment in his schedule to the plaintiff, of all his estate, title and 
 interest in the property therein mentioned, subject to the commission, and 
 the payment or satisfaction of his debts under it. (A) And where a pri- 
 soner came up to be discharged under the Lords' act, it was holden to be 
 no ground for opposing him, that he had forged an acceptance to a bill 
 of exchange, on which the plaintiff had obtained judgment, and taken 
 him in execution as the drawer.(z') 
 
 On the prisoner's being brought up, the creditors may file interroga- 
 tories for his examination, before he is admitted to take the benefit of the 
 
 act.(^) In such case, it is a rule in the King's Bench, that " the 
 [ *380 ] creditor do file *his interrogatories with the clerk of the rules, 
 
 and that the clerk of the rules do thereupon draw up a rule for 
 the debtor's examination before the master, to whom he shall also deliver 
 the original interrogatories ; and that the debtor having been previously 
 sworn in open court for the purpose, the master shall proceed to take 
 down in writing the examination of the debtor, in answer to the said 
 interrogatories ; and the same being signed by the debtor, shall be after- 
 wards filed by the master, with the clerk of the rules ; and the said inter- 
 rogatories and examination shall be produced by the clerk of the rules 
 and read, when the debtor shall, on a subsequent day, be brought up by 
 rule for that purpose. "(a) In the Common Pleas, the court will order 
 interrogatories for the examination of a defendant in custody, by one of 
 the secondaries ; which interrogatories must be filed with him. (5) 
 
 When a prisoner has been brought into court, to be discharged under the 
 Lords' act, and upon his examination the court have refused to discharge 
 him, they will not afterwards discharge him on that act, though he make 
 an affidavit of circumstances, in answer to the cause shown on his exami- 
 nation against his discharge, and that those circumstances were not then 
 disclosed, owing to a mistake.(c) And if a prisoner, brought up to be 
 discharged under the above act, deliver in a false schedule, and be 
 remanded, the court of Common Pleas will not, at the instance of a credi- 
 tor, even with the prisoner's consent, order him to be brought up a second 
 time, for the purpose of amending his schedule, and assigning over that 
 property which he had before concealed. (f7) But that court will not regu- 
 late their proceedings, as to the discharge of an insolvent, by what has 
 passed in the insolvent debtors' court ; therefore it is no ground for 
 opposing his discharge, that he has been remanded in that court for 
 fraud, (g) 
 
 All objections to the insufficiency of the schedule, in point of /orw, must 
 be made the first time the prisoner is brought up.(/) And if, on the 
 second day, the creditor shall make default, or shall appear and be unable 
 to discover any estate or effects omitted in the account, the court shall 
 immediately order the prisoner to be discharged, upon his executing an 
 assignment and conveyance of his estate and effects ; unless the creditor 
 
 (A) 8 Moore, 423. 
 
 {i) 9 Moore, 592. {h) 33 Geo. III. c. 5, § 5. 
 
 (a) R. E. 36 Geo. III. K. B. {h) 3 Moore, 317. 
 
 (c) 1 H. Blac. 101. {d) 1 Bos. & Pul. 143. 
 
 (c) 6 Taunt. 493. 2 Marsh. 200, S. C. ; and see 6 Moore, 573. 
 
 {/) 32 Geo. c. 28, § 13. Barnes, 372.
 
 ON LORDS' ACT. 380 
 
 insist upon his being dctaincil in prison, and sliall agree by writing, signed 
 with his name or mark, (or, if ho be out of EtujJaml, under the hand of 
 his attorney,) to pay and allow the prisoner weekly, a sum not Exceeding 
 3«. Qd. (or, if more creditors than one insist on his detention, not exceeding 
 28. a week each,)(^) to be paid on Monday in every week, so long as the 
 prisoner shall continue in execution ; and in every such case, the prisoner 
 shall be remanded. (//) And the court have no power to moderate the sum 
 to be paid to a prisoner, on his being remanded; but a note must 
 be signed for the *fiill sum directed by the act.(a) But if [ *3.^1 ] 
 failure be made in payment of the said weekly sums, the 
 prisoner, upon application to the court in term time, or in vacation to a 
 judge, may, by order of the court or judge, be discharged out of custody, 
 on executing an assignment and conveyance of his estate and effects. (/<) 
 
 The prisoner may be compelled to include in his schedule, every thing 
 that he can sell for his own benefit ;((?) and the place of a life-guardsman 
 being constantly sold, the court will compel a prisoner Avho holds such a 
 place to sell it, and insert the value in his schedule, before they permit him 
 to take the benefit of the act.(t?) But the full or half pay of an officer in 
 the army is not the subject of sale ; and therefore a prisoner cannot be 
 compelled to include it in his schedule. (t?) 
 
 If the prisoner be detained in custody, the note or security for payment 
 of his allowance,(/) must be signed by the plaintiff, if in England^ or 
 otherwise by his attorney ; it not being sufficient for the attorney to 
 sign the note, if his client can be met with.(^(/) And if the note be not 
 signed by the plaintiff in open court, it is the practice to require an 
 affidavit with the note, showing that it was duly signed ',[h]i) which affidavit 
 must be properly entitled : and where a note to pay a prisoner his six- 
 pences was written upon the same paper with an affidavit to verify the 
 plaintiff's handwriting thereto, it was holden, that the affidavit not being 
 duly entitled in the cause, though the note was so, could not be aided by 
 reference ; and therefore, as it could not be read, the prisoner was dis- 
 charged. (z) Where there are several plaintiffs, the note must be signed 
 by all of them,(A-) or, if they are partners, by one on behalf of himself 
 and the others ;(Z) a note signed by one of several lessors of the plaintiff 
 in ejectment ^{in) or by one of several executors,(n) without mentioning the 
 others, not being deemed sufficient. But where, by a deed of dissolution 
 of partnership, a power was reserved to the remaining partners, to use the 
 name of the retiring partner, in the prosecution of all suits brought for the 
 recovery of partnership property, it was holden that in an action, in which 
 judgment had been obtained by all the partners before the dissolution, the 
 remaining partners had authority, under that power, to give to the defend- 
 ant a note for payment of the sixpences, under the Lords' act, on behalf 
 
 {g) 37 Geo. III. c. 85, ? 3, 4 ; but sec Rarnes, 377, 389, 90. 
 
 (A) 32 Geo. II. c. 23, \ 13. And for the form of a rule of court, on defendant's being 
 remanded in the Exchequer, see Append. Chap. XV. § 7G. 
 (a) 1 Bos. <fe Pul. 336; but see Barnes 387, 397, semb. contra. 
 
 (6) 32 Geo. II. c. 28, g 13. (c) Durnf. & East, 681. 
 
 (rf) Id. ibid. Cidwa/ladrr Jone.i's case, M. 14 Geo. III. K. B. 
 (c) 3 Durnf. k East, 681. 1 H. Blac. 628. 3 Bos. & Pul. 324, Ac. 
 (/) Append. Chap. XV. g 73, &c. 
 
 (^7) Imp. K. B. 10 Ed. 643, (a) ; but see Barnes, 371, 382, 399. 1 Bos. & Pul. 337. 
 (hh) Edwards v. Carter, M. 36 Geo. III. K. B. (i) 2 Smith R. 393. 
 
 (k) 7 Durnf. & East, 156. 8 Durnf. k East, 325. (/) 8 Durnf. & East, 25. 
 
 (»j) 7 Durnf. & East, 156. (n) 8 Durnf. & East, 325.
 
 gg-j^ OF THE RELIEF OF CREDITORS, 
 
 of themselves and the retiring partner.(o) If a plaintiff hold the defendant 
 in execution in several actions, he need not give more than one note for 3s. 
 Gd. a week.(;j) And, in an action at the suit of a corporation, if 
 [ *382 ] the note be sealed "uith the ^corporation seal, it is deemed a suflB- 
 cient compliance with the act :(a) and the note is valid, though 
 it do not state the style of the court in which the action was brought. (6) 
 The payment is to be made, by the act, every Monday ; and the note must 
 be drawn up accordingly. (c) And, in the Common Pleas, it seems that 
 such note ought to contain an express promise to pay the allowance on a 
 3Ionday, although it be dated on that day of the week.((i) It was deter- 
 mined in one case,(e) that such a note ought to be stamped : but the judges, 
 upon a conference, afterwards held a stamp to be unnecessary.(/) 
 
 The act of parliament requires payment to the debtor ; but the courts, in 
 construing the act, have considered payment to the turnkey as payment to 
 the debtor : and payment to the person who opened the door of the prison, 
 has been considered, by the court of Common Pleas, as payment to the 
 turnkey. (^) If the payment be not made in time,(7i) or any part of the 
 money be paid in a spurious or foreign coin,(z) the prisoner has a right to 
 his discharge: And where the money was not paid before ten o'clock at 
 night of the day on which it became due, it was holden that the defendant's 
 right to his discharge was not waived, by the turnkey on the felon's side 
 accepting it after that time.(/c) But the defendant cannot, it seems, be dis- 
 charged for non-payment of the money, where he removes himself to the 
 prison of another court. (Z) The mode of obtaining a prisoner's discharge 
 for non-payment of the allowance, if by application to the court in term- 
 time, or to a judge in vacation : and where a note is given at the assizes, 
 the court will discharge him for non-payment of the allowance, upon a 
 record of the proceedings being sent to them, signed by the judge of 
 assize. (m) A judge's order for a prisoner's discharge under the Lord's 
 act, made out of term, has been held to be final :{n) But, in the Common 
 Pleas, this order cannot be made by a judge in term, though summonses 
 were taken out in vacation, and the order only delayed till the beginning 
 of term, by an irregularity in the affidavits. (o) 
 
 It sometimes happens, that persons who are prisoners in execution in 
 gaol, for debt or damages, will rather spend their substance in prison, than 
 discover and deliver up the same, towards satisfying their creditors their 
 just debts, or so much thereof as such substance will extend to pay : To 
 remedy which, there are compulsive clauses in the Lord's act,(^jip) by which 
 it is enacted, that "if any prisoner who shall be committed or charged in 
 execution, in any prison or gaol, for any debt or damages not exceeding one 
 hundred pounds, besides costs," (since extended to 200L by the 26 
 [ *383 ] *Geo. III. c. 44, § 2, and to 300/. by the 33 Geo. IIL c. 5, § 3, 
 which is made perpetual by the 39 Geo. III. c. 50,) " shall not 
 
 (o) 5 Barn. & Aid. 267. {p) Joiies v. Cox, M. 36 Geo. III. K. B. 
 
 (a) 1 New Rep. C. P. 306. {b) 2 Smith, R. 642. 2 Chit. Rep. 226. 
 
 (c) Blakemore v. Ronea, M. 36 Geo. III. K. B. 3 Bos. & Pul. 184, C. P. 
 
 (d) Id. ibid., and see 4 Bing. 230, (a). (e) 7 Dnrnf. & East, 530. 
 (/) Id. 670. 1 Bos. & Pul. 271. {g) 1 New Rep. C. P. 111. 
 
 {h) Say. Rep. 183. Doug. 60; and see 7 Durnf. & East, 157. (i) 7 Taunt. 7. 
 
 \k) 5 Durnf. & East, 36 ; and see 7 Durnf. & East, 156. 7 Taunt. 7. 
 
 {I) Barnes, 368. [m) Id. 382. 
 
 («) Doug. 68. Webster t. WilJcinson, H. 26 Geo. III. K. B. 
 
 (o) 1 Bos. & Pul. 92. [pp) 32 Geo. II. c. 28, § 16, 17.
 
 ON LORDS' ACT. 3S3 
 
 ■witllin three months next after every such prisoner shall be committed or 
 charged in execution, make satisfaction to his or her creditor or creditors, 
 who shall charge any such prisoner in execution, for such debt, damages 
 and costs, then such creditor or creditors may re(|uire every such prisoner 
 (on giving twenty days' notice{a) in writing to him or her, of such credi- 
 tor's design,) to give in to the court at law from which the writ or process 
 issued, on which any such prisoner shall be charged in execution, or into 
 the court in the prison of which any such prisoner shall be removed by 
 habeas corpus, or shall remain or be charged in execution, within the first 
 seven days of the term which shall next ensue the expiration of the said 
 twenty days, in respect to any prisoner charged in any prison belonging to 
 the courts in Westminster hall ; and at the second court which shall be 
 held by any other court of record, after the expiration of the said twenty 
 days, in respect to any prisoner charged in any prison belonging to such 
 other court : and where any such prisoner shall be chargeil in execution in 
 any county gaol, or other gaol or prison, above the space of tiventjj miles 
 distant from Westminster hall, or the court or courts out of Avliich the writ 
 or process issued, on which any such prisoner is or shall be charged in exe- 
 cution, then to give in upon oath, at the assizes or great sessions, and on the 
 crown side thereof, which shall be held for the county or place in the prison 
 of which any such prisoner shall be, next after the expiration of twenty days 
 from the time of giving any such notice, a true account in writing, to be 
 signed with the proper name or mark of every such prisoner, of all the real 
 and personal estate of such prisoner, and of all incumbrances affecting the 
 same, to the best of his or her knowledge and belief, in order that the estate 
 and effects of such prisoner may be divested out of him or her, and may 
 by the court, judge or judges, justice or justices aforesaid, be ordered to 
 be assigned and conveyed, in manner and for the purposes thereinafter 
 declared." 
 
 " And every such creditor or creditors shall also give tiventy days like 
 notice in writing, of such his her or their intention to require any such 
 prisoner to be brought up as aforesaid, to all and every other creditor and 
 creditors of every such prisoner, if any, at whose suit any such prisoner 
 shall be detained or charged in custody,(^;) if such other creditor or creditors 
 can be met with ; and if not, then to the attorneys last employed in the 
 actions or suits in which any such prisoner shall be so detained or charged 
 in custody, by any such other creditor or creditors : and shall likewise give 
 a like notice in writing to the sheriff or sheriffs, gaoler or keeper of the gaol 
 or prison in which any such prisoner shall be detained in custody, of such 
 his or her intention to have any such prisoner so brought up, and to require 
 such sheriff, &c. to bring up every such prisoner accordingly; and every 
 such notice which shall be so given to any such sheriff, &c. shall 
 be so given twenty days at least *before the time appointed for [ *884 ] 
 any such prisoner to be so brought up; and thereupon every such 
 sheriff, &c. shall, at the costs of such creditor or creditors, cause every such 
 prisoner to be brought, as by such notice in writing shall be required, to 
 such court, assizes or great sessions as aforesaid, together with a copy of 
 causes of his or her detainer there." 
 
 " And that every prisoner who, in pursuance of this act, shall be brought 
 up to any such court, assizes or great sessions as aforesaid, shall, on proof 
 
 (a) Append. Cliap.XV. g 77. (i) Id. I 78.
 
 gg^ OF THE RELIEF OF CREDITORS, 
 
 beino- there first made of such notices as aforesaid having been given, deliver 
 in there in open court, upon oath, within the time therein before for that 
 purpose prescribed, a full true and just account, disclosure and discovery in 
 writing, of the whole of his or her real and personal estate, and of all books, 
 papers, writings and securities, relating thereto, and of all incumbrances 
 then affecting the same, and the respective times when made, to the best 
 of his or her knowledge and belief, (other than and except the necessary 
 wearing apparel and bedding of such prisoner, and his or her family, and 
 the necessary tools or instruments of his or her respective trade or call- 
 ing, not exceeding the value of ten pounds in the whole) ; which account 
 shall be subscribed with the proper name or mark of the prisoner, who 
 shall so deliver in the same." 
 
 "And, on the delivering in of any such account, the estate and effects 
 of every such prisoner shall be by him or her assigned and conveyed, by a 
 short indorsement on the back of every such account, to such person or 
 persons as the court, judge or judges, justice or justices, in which or to 
 whom any such account shall be so given in, shall order or direct, in trust, 
 and for the benefit of the creditor or creditors who shall have required any 
 such prisoner to be brought up as aforesaid, and of such other creditor or 
 creditors (if any,) of every such prisoner, at whose suit any such prisoner 
 shall be charged in custody or execution, and who shall, by any memoran- 
 dum or writing, to be signed by such creditor or creditors, before any such 
 conveyance or assignment shall be made, consent to any such prisoner's 
 being discharged out of gaol or prison, at his her or their suit, and agree to 
 accept a proportionable dividend of such prisoner's estate and effects, with 
 the creditor or creditors who shall have required any such prisoner to be 
 brought up ; and if there shall be no other creditor or creditors, or there 
 being any such, if he, she or they shall not agree in writing to discharge 
 such prisoner, and accept such proportionable dividend as aforesaid, then 
 in trust for the creditor or creditors only, who shall require any such pri- 
 soner to be brought up for the purpose aforesaid : And, by such assign- 
 ment and conveyance as aforesaid, all the prisoner's estate and effects 
 shall be vested in the creditor or creditors, to whom the same shall be as- 
 signed and conveyed, in trust as aforesaid ; and if any overplus shall re- 
 main of any such prisoner's estate, after payment of the debt, or damages 
 and costs, which shall be due to any creditor or creditors, at whose suit 
 any such prisoner shall, in pursuance of this act, be discharged out of gaol 
 or prison, and all reasonable charges expended in or by means 
 [ *385 ] of getting in such estate or ^effects, the same shall be paid to 
 such prisoner, his or her exeecutors administrators or assigns." 
 
 And, upon every such discovery, assignment and conveyance being made 
 and executed, to the satisfaction of the court, judge or judges of assize, 
 justice or justices of great session, before whom the same shall be made, 
 every such prisoner shall, by such court, &c., be discharged and set at 
 liberty, in the actions and charges, at the suit of the creditor or creditors 
 who shall require him or her to be so brought up, and also, in the actions 
 and charges of every other creditor who shall sign such consent as afore- 
 said, for his or her discharge ; with the same benefit of making use of such 
 discharge, as is therein before provided for prisoners seeking, and who 
 shall obtain their discharge, under the provisions contained in the former 
 part of this act ; and no stamp shall be necessary on any such assignment 
 and conveyance, or any rule or order which shall be made for any such
 
 ON LORDS' ACT. 885 
 
 discharge. But, notwithstanding any discharge obtained by virtue of this 
 act, for the person of any prisoner, the judgment obtained against every 
 such prisoner shall continue and remain in force, and execution may at any 
 time be taken out thereon, against the lands, tenements, rents or heredi- 
 taments, goods or chattels of any such prisoner, other than and except 
 the necessary wearing apparel and bedding for himself and family, and the 
 necessary tools for the use of his trade or occupation, not exceeding 101. 
 in value in the whole,(a) as if he had never been before arrested, taken in 
 execution, and released out of prison. (i) 
 
 These clauses have been construed to extend to a prisoner in execution 
 on an attachment, for non-payment of costs, pursuant to an award. (c) 
 And it is competent for any one creditor, whose debt does not exceed -lOOl. 
 besides costs, to compel his debtor to make an assignment of his estate and 
 effects, for the benefit of all his creditors, although the aggregate of the 
 debts, for which he is in execution, exceed that sum.((:?) But a prisoner 
 in execution, at the suit of a creditor whose debt exceeds '300/,, is not 
 liable to be brought up, under the compulsory clauses of the Lords' act, to 
 make an assignment of his estate and effects. (r) And if a prisoner be 
 brought up by rule of court, under the above clauses, on a day after the 
 first 8cve7i days of the terra next ensuing the expiration of the twenty days' 
 notice required by the act, he cannot be called upon to give in upon oath 
 an account of his estate. (/) The notices required by the above act need 
 not be personally served on the detaining creditors : And Avhere the ser- 
 vice was sworn to be on the attorney of a creditor residing abroad, it was 
 deemed sufficient, although the affidavit did not state that he was the at- 
 torney last employed in the suit under which the insolvent was 
 detained ; the objection being *taken by the insolvent, and not [ *386 ] 
 on the part of the creditor.(aa) The act gives no authority to 
 remand a prisoner, refusing to give in an account of his property, other- 
 wise than generally. (i5) And where an insolvent was brought up at the 
 assizes, under the compulsory clauses of the Lords' act,(cc) to deliver in 
 a schedule of his estate and effects, and not being then prepared to do so, 
 was remanded generally, and more than sixty days would have elapsed 
 before the next assizes ; the court, at the instance of the prisoner, made 
 an order upon the gaoler, to bring him up at the subsequent assizes for 
 examination, notwithstanding the lapse of sixty days.((W) In another 
 case, where a prisoner, on being brought up, delivered in a schedule, in 
 which it was stated that he was entitled to an annuity after the death of his 
 mother, secured on a freehold estate, which he had sold to his brother for 
 1000/. which sum he had spent extravagantly and improvidently, the court 
 of Common Pleas allowed him to be discharged, on his consenting to amend 
 his schedule, by inserting that he was ready to assign his interest in the 
 estate to the plaintiff, if he had any, and that he would execute an assign- 
 ment accordingly ; although he had been before remanded by the insolvent 
 
 (a) In the compulsive clause, ? 17, the exception is general, and extends to all wearing 
 app.ircl, &c., without any restriction in point of value. 
 
 (6) 32 Geo. II. c. 28, ^ 20. (c) 8 Taunt. 67. 1 Moore, 494, S. C. 
 
 id) 5 Barn. & Aid. 5.37. 1 Dowl. & Ryl. 25, S. C. 
 
 (e) 2 Dowl. & Rvl. 166. (/) M'Clel. 6. 13 Price, 186, S. C. 
 
 \aa) .5 Barn, k Aid. 749. 1 Dowl. & Ryl. 394, S. C. 
 
 {bh) M'Clel. 6. 13 Price, 186, S.C. (cc) J 16, 17. 
 
 (rfrf) 7 Dowl. & Ryl. 234.
 
 386 OF THE RELIEF OF DEBTORS, 
 
 debtors' court, for not having satisfactorily accounted for tlie disposition 
 of his property.(ee) 
 
 For the relief of debtors, in execution for small debts, it is enacted by 
 the statute 48 Geo. III. c. 123, that " all persons in execution upon any 
 judgment, in whatsoever court the same may have been obtained, and 
 whether such court be or be not a court of record, for any debt or damages 
 not exceeding the sum of 20?., exclusive of the costs recovered by such 
 judgment, and who shall have lain in prison thereupon for the space of 
 twelve successive calendar months next before the time of their application 
 to be discharged as thereinafter mentioned, shall and may, upon his her 
 or their application for that purpose in term time, made to some one of 
 his majesty's superior courts of record at Westminster, to the satisfaction 
 of such court, be forthwith discharged out of custody, as to such execu- 
 tion, by the rule or order of such court : Provided always, that in the 
 case of any such application being made to be discharged out of execu- 
 tion, upon a judgment obtained in any of his majesty's superior courts of 
 record at Westminster, such application shall be made to such one of those 
 courts only, wdierein such judgment shall have been obtained ; and that, 
 whether the person so in execution shall then be actually detained in the 
 gaol or prison of the same of the same court, or shall then stand com- 
 mitted on habeas corpus to the gaol or prison of another court." 
 
 " Provided always, that for and notwithstanding the discharge of any 
 debtor or debtors by virtue of this act, t\ie judgment whereupon any such 
 debtor or debtors was or were taken or charged in execution, shall never- 
 theless remain and continue in full force, to all intents and purposes, ex- 
 cept as to the taking in execution the person or persons of such debtor 
 or debtors thereupon, as is thereinafter provided; and that it 
 [ *387 ] *shall and may be lawful for the creditor or creditors, at whose 
 suit such debtor or debtors had been, was or were so taken or 
 charged in execution, to take out all such execution or executions on every 
 such judgment, against the lands, tenements, hereditaments, goods and 
 chattels of any debtor or debtors, (other than and except the necessary 
 wearing apparel and bedding of and for him her or them, and for his her 
 or their family, and the necessary tools for his her or their trade or occu- 
 pation, not exceeding the value of lOZ. in the whole,) or to bring any such 
 action or actions on any such judgment, against such debtor or debtors 
 respectively, or to bring any such action, or use such remedy, for the 
 recovery and satisfaction or his her or their demand, against any other 
 person or persons liable to satisfy the same, in such and the same man- 
 ner, but in such and the same manner only, as such creditor or creditors 
 otherwise could or might have done, in case such debtor or debtors had 
 never been taken or charged in execution upon such judgment." 
 
 " Provided also, that no debtor or debtors who shall be duly discharged 
 in pursuance of this act, shall at any time afterwards be taken or charged 
 in execution, upon any judgment therein so as before declared to continue 
 and remain in full force, nor be arrested in any action to be brought on 
 any such judgment; and that no proceeding whatsoever by scire facias, 
 action, or otherwise, shall be maintained or had against the bail in any 
 action upon the judgment, wherein the defendant or defendants shall have 
 
 {ee) 7 Moore, 370.
 
 IN EXECUTION FOR SMALL DEBTS. 387 
 
 been charged in execution, and afterwards discharged by virtue of the 
 provisions of this act." 
 
 A phiintift" Avlio lias hiin in prison more than twelve months, umlcr an 
 execution, for the costs of a nonsuit not amounting to liO/., is entitled to 
 be discharged under the above statute. {«) And, in the Exchequer, a pri- 
 soner was discharged under it, notwithstanding he had previously been 
 brought up under the compulsory clauses of the Lords' act, and refused to 
 deliver in a schedule of his efl'ects, and in consefpicnce been remanded ;(^') 
 and another prisoner was discharged, although he was entitled to an annu- 
 ity suflicient to satisfy the judgment. 2 Younge k J. 10. But the sta- 
 tute applies only to cases of persons in execution upon judgments in civil 
 actions :{b) and therefore it has been holden, that one in custody on an 
 attachment., for non-payment of money under 20Z. found due by an award 
 made a rule of court, is not entitled to his discharge under it.((') So, a 
 defendant in custody on an attachment, for non-payment of money 
 awarded by the master to the prosecutor of an indictment for an assault, 
 of which the defendant was convicted, is not entitled to his discharge 
 under the above act, after having been imprisoned twelve calender months; 
 although the sum awarded for damages do not exceed 20?. exclusive of 
 costs. ((?) And where a defendant was arrested for a sum under 20Z. and 
 afterwards gave a warrant of attorney for the original debt and costs of 
 the action, which together exceeded that sum, under which judgment was 
 entered up, and he was taken in execution; the Court of Com- 
 mon Pleas held, that he was *not entitled to his discharge, [ *388 ] 
 under the above statute ; as the Avarrant of attorney did not 
 appear to have been improperly obtained from him, nor was he in custody 
 at the time it was given. (fla) On a motion for thc'discharge of an insol- 
 vent debtor under the above statute, the rule in the King's Bench, is abso- 
 lute in the first instance, after due notice of the application has been given 
 to the plaintiff or his attorney :(i6) but, in the Common Pleas, it is in the 
 first instance only a rule nisi:{cc) and the court, on showing cause, re- 
 quired the record to be examined by the officer, to ascertain whether the 
 judgment had been entered up for a less sum than twentij pounds, and 
 whether the defendant had lain in prison tivelve months by virtue of such 
 judgment ; the affidavit of the defendant, as to these facts, not being deemed 
 sufficient. (cM) 
 
 The acts of parliament hitherto mentioned, are only for the relief of 
 debtors in execution; but besides these acts, other have been occasionally 
 passed, for the relief of insolvent debtors in general.{e) The cases de- 
 cided on these latter acts, may be classed under the following heads : 1st, 
 the cases in which insolvent debtors are,(/) or are not,(^) entitled to 
 the benefit of the acts ; 2dly, the jurisdiction of the justices, at an 
 
 {a) 3 Miuile & Sd. 282. ' {h) M'Clel. 6. 13 Price, 186, S. C. 
 
 (6) M-Clcl. 6. 13 Price, 186, S. C. (c) 10 East, 408. 2 Barn, k Aid. 61. 
 
 {d) 2 Matile & Sel. 201 ; and see 8 Dowl. & Ryl. b^, accord. {aa) G Moore, 287. 
 
 {bh) 2 Barn. & Cre3. 804. 4 Dowl. & Ryl. 301, S. C. And for the form of a notice, of pri- 
 soner's intention to apply for his discharge, under this statute, see Append. Chap. XV. \ 80, 
 and for the form of an affidavit, to obtain the rule thereon, id. g 81. 
 
 [cc) 7 Taunt. 37, 467. (dd) 8 .Moore, 80. 
 
 (c) See the statute 34 Geo. III. c. 69, 1 37, and the other statutes referred to, ante, 212, {k). 
 
 (/) 8 Durnf. & Piast, 49. 2 East, 148.' 3 Bos. k Pul. 394. 4 Taunt. 460, 854. 
 
 (.-7) 6 Durnf. & East, 28, 399. 7 Durnf. <fe East, 305. 1 Bos. & Pul. 477. 6 East, 347. 7 
 East, 91. 3 Smith, II. 115, S. C. 8 East, 433. 2 Campb. 443. 1 Price, 315. 3 Barn. & Aid. 
 407. 2 Chit. Rep. 222, S. C. 4 Barn. & Ores. 419. 6 Dowl. & Ryl. 491, S. C.
 
 383 OF TUE RELIEF OF 
 
 adjourned session ;(7i) 3dly, tlieir remanding the insolvent, for obtaining 
 money or goods under false pretences :(/') 4thlj, the property which passes 
 under the acts;(^) 5thly, the assignment of it by the clerk of the peace ;(/) 
 Gthly, the evidence in support of an ejectment by the assignee,('>?«) or to 
 prove the insolvent's discharge ;(ri) and lastly, the liability of future 
 effects, (o) 
 
 At length, by the statute 53 Geo. III. c. 102,(|;) (Lord RedesdaWs act,) 
 a court was established for the permanent relief of insolvent debtors in 
 ^M^^rtwc?, called ^Tlie Court for relief of Insolvent Debtors.' This statute 
 was amended by the 54 Geo. III. c. 23, and 56 Geo. III. c. 102, and con- 
 tinued by the 59 Geo. III. c. 129 ; but having been suffered to expire, the 
 statute 1 Geo. IV. c. 119, was made, for the permanent relief of insolvent 
 debtors in England, which was amended by 3 Geo. IV. c. 123, and 5 Geo. 
 
 IV. c. 61, and afterwards repealed by 7 Geo. IV. c. 57, except 
 [ *389 ] as *to the matters of certain petitions therein mentioned. The 
 
 insolvent debtors' court has been holden to be such a court, as 
 privileges the parties and their witnesses, in attending it, from arrest, 
 eundo, morando, et redeundo, in the same manner as when in attendance 
 upon any other court.(a) A lessor whose property has been assigned to 
 a provisional assignee, under the statute 1 Geo. IV. c. 119, cannot eject 
 an occupier of land which passed under the assignment; although the pro- 
 visional assignee has never taken possession, nor has any permanent 
 assignee been appointed, or rent withheld from the lessor, 4 Bing. 348. 
 And the provisional assignee of that court may maintain an ejectment, for 
 the property of an insolvent, under the provisions of the statute 1 Geo. IV. 
 c. 119, without a previous application to the court.(6) But an assignment 
 of the property of an insolvent, under that statute, only transferred the 
 property he was possessed of at the time of presenting the petition for his 
 discharge; and did not pass any after acquired property to his assignee. (c) 
 And neither the 53 Geo. III. c. 10'2,{d) nor the 1 Geo. IV. c. 119,(t') dis- 
 charged the prisoner from all his debts ; but only from the demands of 
 such of his creditors as were named in his schedule, and specified in the 
 order of discharge. It has also been determined, that a plea of discharge, 
 under the statute 53 Geo. III. c. 102, is no bar to an action of trespass 
 for mesne profits, accruing before the discharge. (/) 
 
 The laws for the relief of insolvent debtors in England were finally 
 amended and consolidated by the statute 7 Geo. IV. c. 57, by which it is 
 enacted, that "it shall be lawful for any person who shall be in actual cus- 
 tody, within the walls of any prison(^) m. England, upon any process 
 
 (h) 6 Durnf. & East, 76. 8 Durnf. & East, 424. 
 
 (i) 6 Durnf. & East, 76. 8 East, 180. {k) 3 Bos. & Pul. 321. 
 
 {I) 2 East, 257. 8 Moore, 384. 1 Bing. 354, S. C. 
 (m) 5 Maule & Sel. 72. 3 Dowl. & Ryl. 509. 
 
 («) 3 Stark. Ni. Pri. 54. 4 Barn. & Cres. 335. 6 Dowl. & Ryl. 464, S. C. 
 [o] 6 Durnf. & East, 366. 8 East, 55. See also Barnes, tit. Prisoners, 2 Blac. Rep. 992, 
 1188, 1307, 1309. 8 Taunt. 403, for determinations on former statutes, in the Common 
 
 (;;) \ 1, 10. {a) 6 Taunt. 356. 2 Marsh. 57, S. C. Ante, 195. 
 
 (h) 2 Car. & P. 79. 3 Bing. 203, S. C. 
 
 (c) 9 Moore, 710. 2 Bing. 372, S. C. {d) 7 Taunt. 179. 1 Chit. Rep. 222. 
 
 (e) 4 Barn. & Cres. 419. 6 Dowl. & Ryl. 491, S. C. ; and see 4 Barn. & Cres. 15. 6 Dowl. & 
 Ryl. 75, S. C. 4 Barn. & Cres. 214. Ry. & Mo. 322. 2 Car. & P. 120, S. C, as to the descrip- 
 tion of debts in the schedule. (/) 3 Barn. & Aid. 407. 2 Chit. Rep. 222, S. C. 
 
 [(j) Stat. 7 Geo. IV. c. 57, § 12, 52 ; and see stat. 3 Geo. IV. c. 123, g 8. 5 Geo. IV. c. 61, 
 2 12, & 6 Geo. IV. c. 121, § 1.
 
 INSOLVENT DEBTORS. 389 
 
 whatsoever, for or by reason of any debt, damage, costs, sum or sums of 
 money, or for or by reason of any contempt of any court whatsoever, for 
 non-payment of any sum or sums of money, or of costs taxed, or untaxed, 
 either ordered to be paid, or to the payment of which such persons would 
 be liable in purging such contempt, or in any manner in consequence or 
 by reason of such contempt, at any time within the space of fourteen days 
 next after the commencement of the actual custod}' of such prisoner, 
 whether such commencement shall have been in the same or any other 
 prison, or the rules or liberties of any prison, or afterwards, if the said 
 court shall in any case think reasonable to permit the same, to apply by 
 'petition in a summary way to the said court, for his or her discharge from 
 such custody, according to the provisions of that act; And in such petition 
 shall be stated the time and place of the first arrest of such prisoner, in 
 the cause or causes wherein he or she shall then be detained, and the time 
 of his or her commitment to the prison wliere he or she shall then be 
 confined; and if such prisoner shall not have been in the same custody 
 from the time of such first arrest, then the means and manner by which 
 the change of custody of such prisoner has taken place ; and also the 
 name or names of the person or persons at whose suit or prose- 
 cution such prisoner shall, at the time of presenting such *peti- [ *3'J0 1 
 tion, be detained in custody, and the amount of the debt or 
 debts, sum or sums of money, and of such costs as aforesaid, so far as the 
 amount of such costs is ascertained, for which he or she shall be so detain- 
 ed, &c. And such prisoner shall, in such petition, pray to be discharo-ed 
 from custody, and to have future liberty of his or her person against the 
 demands for which such prisoner shall be then in custody, and against the 
 demands of all other persons who shall be, or claim to be, creditors of such 
 prisoner, at the time of presenting such petition; which petition shall be 
 subscribed by the said prisoner, and shall forthwith be filed in the said 
 court. "(a) 
 
 And " such prisoner shall, at the time of subscribing the said petition, 
 duly execute a conveyance and assignment to the provisional assignee of 
 the said court, in such form as it is to that act annexed, of all the estate 
 right, title, interest, and trust of such prisoner, in and to all his real and 
 personal estate and effects, both within this realm and abroad, except the 
 wearing apparel, bedding, and other such necessaries of such person, and 
 his or her family, and the working tools and implements of such prisoner, 
 not exceeding in the whole the value of twoit^ pounds; and of all future 
 estate, right, title, interest, and trust of such prisoner, in or to any real 
 and personal estate and effects, within this realm or abroad, which such 
 prisoner may purchase, or which may revert, descend, be devised or be- 
 queathed, or come to him or her, before he or she shall become entitled 
 to his or her final discharge in pursuance of that act, according to the 
 adjudication made in that behalf; or in case such prisoner shall obtain his 
 or her discharge from custody, without any adjudication being made in 
 the matter of his or her petition, then before such prisoner shall be at 
 large and out of custody ; and of all debts due or growing due to such 
 prisoner, or to be due to him or her, before such discharge as aforesaid ; 
 which conveyance and assignment, so executed as aforesaid, in form afore- 
 said, shall vest all the real and personal estate and effects of such prisoner, 
 
 (a) Stat. 7 Geo. IV. c. 57, g 10, and see stat. 1 Geo. IV. c. 119, g 4.
 
 391 
 
 OF THE RELIEF OF 
 
 and all such future real and personal estate and effects as aforesaid, of 
 every nature and kind ■^diatsoever, and all sucli debts as aforesaid, in tlie 
 said provisional assignee. "(^) 
 
 And " every such prisoner, who shall apply for relief under that act, shall, 
 ■within the space o^ fourteen days next after his or her petition shall have 
 been filed, or within such further time as the said court shall think reason- 
 able, deliver into the said court, a schedule, containing a full and fair de- 
 scription of such prisoner, as to his or her name or names, trade or trades, 
 profession or professions, together with the last usual place of abode of such 
 prisoner, and the place or places where he or she has resided, 
 [ *391 ] during the time when his or her debts were contracted : and 
 *also a full and true description of all debts due or growing due 
 from such prisoner at the time of filing such petition, and of all and every 
 person and persons to whom such prisoner shall be indebted, or who, to 
 his or her knowledge or belief, shall claim to be his or her creditors ; 
 together with the nature and amount of such debts and claims respectively, 
 distinguishing such as shall be admitted, from such as shall be disputed 
 by such prisoner ; and also a full, true, and perfect account of all the 
 estate and effects of such prisoner, real and personal, in possession, rever- 
 sion, remainder, or expectancy ; and also of all places of benefit or advan- 
 tage held by such prisoner, whether the emoluments of the same arise from 
 fixed salaries, or from fees, or otherwise; and also of all pensions or allow- 
 ances of the said prisoner, in possession or reversion, or held by any other 
 person or persons for or on behalf of the said prisoner, or of and from 
 which the said prisoner derives, or may derive, any manner of benefit or 
 advantage ; and also of all rights and powers, of any nature and kind 
 whatsoever, which such prisoner, or any other person or persons in trust 
 for him, or for his or her use, benefit, or advantage, in any manner what- 
 soever, shall be seised or possessed of, or interested in, or entitled unto, 
 or which such prisoner, or any other person or persons in trust for him or 
 her, or for his or her benefit, shall have any power to dispose of, charge, 
 or exercise for the benefit or advantage of such prisoner ; together with a 
 full, true, and perfect account of all the debts due or growing due, at the 
 time of filing such petition, to such prisoner, or to any person or persons 
 in trust for him or her, or for his or her benefit or advantage, either solely 
 or jointly with any other person or persons, and the names and places of 
 abode of the several persons from whom such debts shall be due or grow- 
 ing due, and of the witnesses who can prove such debts, so far as such 
 prisoner can set forth the same ; and the said schedule shall also contain 
 a balance sheet of so much of the receipts and expenditures of such prisoner, 
 and of the items composing the same, as shall be at any time required by 
 the said court in that behalf; and shall also fully and truly describe the 
 wearing apparel, bedding, and other necessaries of such prisoner, and his 
 or her family, and the working tools ai^d implements of such prisoner, not 
 exceeding in the whole the value of twenty pounds, which may be except- 
 ed by such prisoner from the operation of that act, together with the 
 
 {b) 7 Geo. IV. c. 57, § 11, and see stat. 1 Geo. IV. c. 119, | 4. And for the assignment 
 bv the provisional assignee, see stat. 1 Geo. IV. c. 119, § 7. 7 Geo. IV. c. 57, g 19; and as 
 to the effect of such assignment, see 1 Moore & P. 19. 4 Bing. 392, S. C. For the sale and 
 disposal of the property, see stat. 1 Geo. IV. c. 119, I 7, &c. 7 Geo. IV. c. 57, I 20, &c. 
 And for the removal of assignees, and appointment of new ones, in case of death, &c., see 
 stat. 1 Geo. IV. c. 119, § 14. 7 Geo. IV, c. 57, I 38.
 
 INSOLVENT DEBTORS. 333 
 
 value of sncli excepted articles respectively; and the said schedule shall 
 he suhscribed by such prisoner, and shall furthwith be filed in the said 
 court, together with all books, papers, deeds, and writings, in any Avay 
 relating to such prisoner's estate or effects, in his or her possession, or 
 under his or her custody or control. "(^) 
 
 After the petition :ind schedule arc fded, the court is required to appoint 
 a time and place for hearing the matters of them ;((?<) of which notice is to 
 be given to the creditor or creditors at whose suit the prisoner is detained 
 in custody, or his or their attorney or agent, and to the other 
 creditors *named in the schedule, and resident within the united [ *392 ] 
 kingdom, whose debt shnll amount to the sum o^ five pounds; 
 and to be inserted in i\\Q London Gazette^ and also, if the court shall think 
 fit, in the IJdinburrjh and Dublin Gazettes, or either of them, and in such 
 other newspaper or newspapers as the said court shall tlivcct.{a(() At the 
 time of hearing, the matters of the petition and schedule are to be ex- 
 amined : and creditors may oppose the prisoner's discharge; whereupon 
 the hearing may be adjourned, if necessary, and the prisoner shall remain 
 in custody, and' he again brought up, and the hearing and examination 
 further proceeded in, as to the court shall seem fit.(^>) Affidavits may be 
 received in opposition to the prisoner's discharge, in certain cases men- 
 tioned in the act ; and interrogatories filed, for the examination or cross 
 examination of the persons making or joining in the same:(6') And the 
 schedule and prisoner's accounts may be referred, if the court shall think 
 fit, upon application made by a creditor, and supported by oath or affida- 
 vit, to an officer of the court, or examiner, who may order the attendance 
 of the prisoner. ((?) 
 
 And after such examination made into the matters of the petition and 
 schedule of any such prisoner as thereinbefore directed, it is, as we have 
 seen in a former chapter,(e) declared to be lawful, "at such hearing, or 
 adjourned hearing as aforesaid, for the said court, or the commissioner or 
 justices therein mentioned, upon such prisoner's swearing to the truth of 
 his or her petition and schedule, and executing such warrant of attorney 
 as is thereinafter directed, to adjudge that such prisoner shall be discharged 
 from custody, and entitled to the benefit of that act, at such time as the 
 said court or commissioner, or justices, shall direct, in pursuance of the 
 provisions thereinafter contained in that behalf, as to the several debts 
 and sums of money due, or claimed to be due, at the time of filing such 
 petition, from such prisoner, to the several persons named in his or her 
 schedule as creditors, or claiming to be creditors for the same respectively ; 
 or for which such persons shall have given credit to such prisoner, before 
 the time of filing such petition, and which were not then payable ; and as 
 to the claims of all other persons, not known to such prisoner at the time 
 of such adjudication, who may be indorsees or holders of any negotiable 
 security set forth in such schedule, so sworn to as aforesaid. "(/) 
 
 (a) Stat. 7 Geo. IV. c. 57, § 40 ; and see stat. 1 Geo. IV. c. 119, g 6. 
 (6) 7 Geo. IV. c. 57, § 41. 
 
 . (aa) 7 Geo. IV. c. 57, g 42. 
 
 (b) Id. I 43. (c) /(/. I 44 ; and see st.at. 1 Geo. IV. c. 110, ? 22. 
 (f/) 7 Geo. IV. c. 57, ? 45; and see stat. 1 Geo. IV. 119, I IG. And for the mode of 
 
 bringing up an insolvent debtor, when in custodj, before a commissioner of the insolvent 
 court, on slat. 53 Geo. III. c. 102, see 2 Uhit. Rep. 225. 
 
 (e) Ante, Chap. X. p. 213, 14. 
 
 (/) 7 Geo. IV. c. 57, § 4<J ; and see stat. 1 Geo. IV. c. 119, g 16.
 
 392 
 
 OF THE RELIEF OF 
 
 The discharge of any prisoner, so adjudicated as aforesaid, is declared 
 by the act(^) to extend to " all process issuing from any court, for any 
 contempt of any court, ecclesiastical or civil, for non-payment of money, 
 or of costs or expenses in any court, ecclesiastical or civil ; and in such 
 case, the said discharge shall be deemed to extend also to all 
 [ *393 ] costs which *such prisoner would be liable to pay, in conse- 
 quence or by reason of such contempt, or on purging the same : 
 And every discharge so adjudicated as aforesaid, as to any debt or dam- 
 ages of any creditor of such prisoner, shall be deemed to extend also to all 
 costs incurred by such creditor, before the filing of such prisoner's sche- 
 dule, in any action or suit brought by such creditor against such prisoner, 
 for the recovery of the same : and all persons, as to whose demands for 
 any such costs, money or expenses, any such person shall be so adjudged 
 to be discharged, shall be deemed and taken to be creditors of such pri- 
 soner in respect thereof, and entitled to the benefit of all the provisions 
 made for creditors by that act; subject nevertheless to such ascertaining 
 of the amount of the said demands, as may be had by taxation or other- 
 wise, and to such examination thereof as is therein provided, in respect of 
 all claims to a dividend of such insolvent's estate and efi"ects." 
 
 The discharge of any such prisoner so adjudicated, is also declared by 
 the act, (a) to extend to " any sum and sums of money, which shall be pay- 
 able by way of annuity, or otherwise, at any future time or times, by vir- 
 tue of any bond, covenant, or other securities, of any nature whatsoever: 
 And every person and persons who would be a creditor or creditors of 
 such prisoner, for such sum or sums of money, if the same were presently 
 due, shall be admissible as a creditor or creditors of such prisoner, for the 
 value of such sum or sums of money, so payable as aforesaid ; which 
 value the said court shall, upon application at any time made in that 
 behalf, ascertain ; regard being had to the original price given for such 
 sum or sums of money, deducting therefrom such diminution in the value 
 thereof, as shall have been caused by the lapse of time since the grant 
 thereof to the time of filing such prisoner's petition; and such creditor or 
 creditors shall be entitled in respect of such value, to the benefit of all 
 the provisions made for creditors by that act, without prejudice neverthe- 
 less to the respective securities of such creditor or creditors, excepting as 
 respects such prisoner's discharge under that act." Previously to the 
 above act, the grantor of an annuity, who had been discharged out of cus- 
 tody, under the insolvent act, 51 Geo. III. c. 125, was holden to be dis- 
 charged, both as to his person and property, from all payments of the 
 annuity.(5) But that act did not operate as a discharge of his sureties, 
 or of specific securities. (5) And a person discharged under it was holden 
 to be liable to his surety, for the arrears of an annuity, due after his dis- 
 charge, which the surety had been obliged to pay.(c) 
 
 After any person shall have become entitled to the benefit of the statute 
 7 Geo. IV. c. 51, {d) by any such adjudication as aforesaid, "no writ of 
 fieri facias, or elegit, shall issue on such judgment obtained against such 
 prisoner for any debt or sum of money, with respect to which such person 
 
 (g) I 50, and see stat. 1 Geo. IV. c. 119, ? 16, 
 
 {>i) I 51 ; and see stat. 1 Geo. IV. c. 119, § 10. 
 
 \b) 4 Taunt. 460; and see id. 854, accord. 
 
 (c) 2 Maule & Sel. 551. Ante, 213. 
 
 {d) I 61; and see stat. 1 Geo. IV. c. 119,^ 28._\
 
 INSOLVENT DEBTOR!?. 393 
 
 shall have so become entitled, nor in any action upon any new contract or 
 security for payment thereof, except upon the judgment entered 
 *up against such prisoner, according to that act : And if any [ •304 ] 
 suit or action shall be brought, or any scire facias be issued, 
 against any sucli person, his or her heirs, executors or administrators, for 
 any such debt or sum of money, or upon any new contract or security for 
 payment thereof, or upon any judgment obtained against or any statute or 
 recognizance acknowledged by, such person for the same, except as afore- 
 said, it shall and may be lawful for such person, his or her heirs, execu- 
 tors or administrators, to ^^ZcacZ generally, that sucli person was duly 
 discharged according to that act, by the order of adjudication made in 
 that behalf, and that such order remains in force, without pleading any 
 other matter specially :(««) whereto the plaintiff or plaintiffs shall or may 
 repli/ generally, and deny the matters pleaded as aforesaid, or reply 
 any other matter or thing which may show the defendant or defendants 
 not to bo entitled to the benefit of that act, or that such person was not 
 duly discharged according to the provisions thereof, in the same manner 
 as the plaintiffs might have replied, in case the defendant or defendants 
 had pleaded that act, and a discharge by virtue thereof, specially." 
 
 Particular modes of proceeding are appointed by the act, in the case of 
 married women, (a) and prisoners of unsound mind:(6) and the act only 
 extends to prisoners within the walls of the prison, except under particu- 
 lar circumstances.((?) It is also provided, that " the benefit of that act 
 shall not be allowed to any prisoners petitioning the said court, who hav- 
 ing been arrested in any county or place where he or she had, at or lately 
 before such arrest, his or her usual place of abode, other than in the 
 counties of Middlesex or Surrey, or the city of London, or borough of 
 Southivark, such usual place of abode being distant more than twenty 
 miles from the court-house of the said court, shall be removed by any 
 writ of habeas corpus, sued out on his or her behalf, or by his or her pro- 
 curement or request, from custody in such county or place, to any other 
 county. "(iZ) 
 
 And "no person petitioning the said court for relief under that act, 
 who shall have been at any time discharged by virtue of the same, or of 
 any other act for the relief of insolvent debtors, or who shall have been 
 duly declared bankrupt before the commencement of his or her imprison- 
 ment, under any commission still remaining in force, and shall not have 
 obtained his or her certificate under such commission, shall be entitled to 
 the benefit of that act, within the space o'l jive years after such discharge, 
 or declaration of bankruptcy, unless three fourths in number and value 
 of the creditors against whom such person shall seek to be discharged, by 
 virtue of that act, shall signify their assent to such discharge, or it shall 
 be made to appear to the satisfaction of the said court, or of a commis- 
 sioner thereof on his circuit, or such justices as aforesaid, before whom 
 the said person shall be brought, for the hearing of the matters 
 *of his or her petition, that such person has since such former [ *395 ] 
 discharge, or declaration of bankruptcy, endeavoured by indus- 
 
 {aa) For the history of the acts for the relief of iriBolvent debtors, with the mode of plead- 
 ing them, nnil tlie evidence thereou, see Cas. temp, llardw. 145, 0. 
 
 (a) Stat. 7 Ceo. IV. c. 57, ? 72; and see stat. 3 Geo. IV. c. 123, ? 12. 5 Barn. & Aid. 759. 
 
 (b) Stat. 7 Ceo. IV. c. 57, ? 73 ; and see stat. 1 Geo. IV. c. 1U», { 44. 
 
 (c) 7 Geo. IV. c. 57, g 12, aud see id. § 52. (d) Id. I 66. 
 
 Vol. I.— 25
 
 395 OF THE RELIEF OF INSOLVENT DEBTORS. 
 
 trj and frugality to pay all just demands upon him or her, and has incur- 
 red no unnecessary expense ; and that the debts which such person has 
 incurred, subsequent to such discharge, or declaration of bankruptcy, 
 have been necessarily incurred for the maintenance of such person, or his 
 or her family ; or that the insolvency of such person has arisen from mis- 
 fortune, or from inability to acquire subsistence for himself or herself, 
 and his or her family. "(aa) 
 
 It is also provided, that "the act shall not extend to discharge any pri- 
 soner seeking the benefit thereof, with respect to any debt due to his ma- 
 jesty or his successors, or to any debt or penalty with which he or she shall 
 stand charged at the suit of the crown, or of any person, for any offence 
 committed against any act or acts of parliament, relative to any branch 
 of the public revenue ; or at the suit of any sheriff or other public officer, 
 upon any bail bond entered into for the appearance of any person prose- 
 cuted for any such offence; unless three of the commissioners of his 
 majesty's treasury for the time being shall certify, under their hands, 
 their consent to such discharge. "(55) 
 
 As it may sometimes happen, that a debt of, or claim upon, or balance 
 due from such prisoner as aforesaid, may be specified in his or her schedule 
 so sworn to as aforesaid, at an amount which is not exactly the actual amount 
 thereof, without any culpable negligence or fraud, or evil intention on the 
 part of such prisoners there is a claus9 in the act,(c(?) that "in such case, the 
 said prisoner shall be entitled to all and every benefit and protection of 
 that act ; and the creditor in that behalf shall be entitled to the benefit of 
 all the provisions made for creditors by that act, in respect of the actual 
 amount of such debt, claim, or balance, and neither more nor less than the 
 same, to all intents and purposes, such error in the said schedule notwith- 
 standing." 
 
 The future effects of an insolvent are liable by this act:((^) And " before 
 any adjudication shall be made in the matter of the petition of any such 
 prisoner, the said court, or commissioner, or justices, shall require such 
 prisoner to execute a warrant of attorney, to authorize the entering up of 
 a judgment against such prisoner, in some one of the superior courts at 
 Westminster, in the name of the assignee or assignees of such prisoner, or 
 of such provisional assignee, if no other assignees shall have been appointed, 
 and shall have accepted such office, for the amount of the debts stated in the 
 schedule of such prisoner, so sworn to as aforesaid, to be due, or claimed to 
 be due, from such prisoner, or so much thereof as shall appear at the time of 
 executing such warrant of attorney to be due and unsatisfied ; and the order 
 of the said court for entering up such judgment shall be a sufficient authority 
 to the proper officer for entering up the same; and such judgment 
 [ *396 ] shall have the force of a recognizance : *And if at any time it shall 
 appear to the satisfaction of the said court, that such prisoner is of 
 ability to pay such debts, or any part thereof, or that he or she is dead, 
 leaving assets for that purpose, the said court may permit execution to be 
 taken out upon such judgment, for such sum of money as under all the cir- 
 cumstances of the case the said court shall order : such sum to be distributed 
 rateably amongst the creditors of such prisoner, according to the mode 
 
 aa) Stat. 7 Geo. IV. c. 57, I 64; and see stat. 1 Geo. IV. c. 119, ? 42, 3. 
 
 bh) Stat. 7 Geo. IV. c. 57, § 74; and see stat. 1 Geo. IV. c. 119, I 40. 
 
 cc) 7 Geo. IV. c. 57 , § 63. 
 
 d) 7 Geo. IV. c. 57, 1 1 1, 57, 8, 9 ; and see stat. 1 Geo. IV. c. 119, g 25, 29, 30. Ante, 388.
 
 OP THE REMOVAL OF CAUSES FROM INFERIOR COURTS. 396 
 
 thereinbefore directed, in the case of a dividend made after adjudication ; 
 and such further proceedings shall and maybe had upon such judgment, as 
 may seem fit to the discretion of the said court from time to time, until the 
 whole of the de])ts due to the several persons against whom such discharge 
 shall have been obtained, shall be fully paid and satisfied, together with 
 such costs as the said court shall think fit to award; and no scire facias 
 shall be necessary to revive such judgment, on account of any lapse of 
 time, but execution shall at all times issue thereon, by virtue of the order 
 of the said court: Provided always, that in case any such application 
 against any such prisoner shall appear to the said court to be ill founded 
 and vexatious, it shall be lawful for the said court not only to refuse to 
 make any order on such application, but also to dismiss the same, with 
 such costs against the party or parties making the same, as to the said 
 court shall appear reasonable; and the said costs shall be paid accord- 
 ingly."(<0 
 
 •CHAPTER XVI. [ •397 ] 
 
 Of the Removal of Causes, from inferior Courts. 
 
 The different modes of commencing actions, in the courts of King's 
 Bench, Common Pleas, and Exchequer, having been already considered, it 
 may be proper to take a view of the various means by which they are 
 removed thither from inferior courts. These are, by writ o^ certiorari^ or 
 habeas corpus, from inferior courts of record ; or by writ of pone, rccord- 
 ari facias loquelam., or accedas ad curiam, from such as are not of record. 
 
 The writ of certiorari(aa) is a writ issuing sometimes out of Chancery,(J) 
 and sometimes out of the King's Bench or Common Pleas :{c) and lieth 
 where the king would be certified of any record which is in the Treasury, 
 or in the Common Pleas, or in any other court of record ; or before the 
 sheriff and coroners : or of a record before commissioners, or before the 
 eschoator ; in which cases he may send this writ to any of the said courts 
 or officers, to certify such record before him in banco, or in Chancer}', or 
 before other justices, where the king pleaseth to have the same certified : 
 and he or they to whom the certiorari is directed, ought to send the same 
 record, or the tenor of it, as commanded by the writ; and if they fail so to 
 do, then an alias shall be awarded, and afterwards a pJurics, with a clause 
 of vel causu)n nobis siijnificcs, and after that an attachment, if good cause 
 be not returned upon the phirics.{d) 
 
 Suits commenced in inferior courts of record may, it seems, be removed 
 by certiorari into the Exchequer, by the plaintiff or defendant :{e) And 
 
 (a) 1 Geo. IV. c. 57, ? 57 ; and see stat. 54 Geo. III. c. 23, ? 14. 1 Geo. IV. c. 119, g 25. 
 And for the mode of proceeding against future effects, see stat. 1 Geo. IV. c. 119, ^ 29, 9. 
 7 Geo. IV. c. 57, § 58, 9 ; and as to tiie cancelling of the warrant of attorney, and entering 
 satisfaction on the judgment, when the debts are satisfied, see stat. 7 Geo. IV. c. 57, g Gl. 
 
 (an) Append. Chap. XVI. g 1, &c. (Ij) Id. Chap. XLV. § 28. 
 
 (e) 2 Ld. Raym. 836. 1 Salk. 143. 7 Mod. 138, S. C. Barnes, 345, 399. Pr. Reg. 221. 
 
 (d) F. N. B. 243. A. B. Gilb. Exec. 175. 6 Palm. 562. 
 
 (e) Skin. 2 44, 246. And see Man. Ex. Pr. 152, ic, for the different modes of removing 
 causes into the court of Exchequer.
 
 397 OF THE REMOVAL OF CAUSES 
 
 this court, having an original and in many cases an exclusive jurisdiction in 
 fiscal matters, ^Yill not permit questions in the decision of which the king's 
 revenue is interested, to be discussed before any other tribunal. On such 
 occasions, the court interposes upon motion, by ordering the proceedings to 
 bo removed into the office of pleas. (/) The usual order, in cases of this 
 nature, is that the action be removed out of the King's Bench or Common 
 Pleas, or other court in which it is depending, into the office of pleas in the 
 Exchequer ; and that it shall be there in the same forwardness, as in the 
 court out of which the action is removed. This order, however, 
 [ •SQS ] does not operate as a certiorari, to remove the proceedings; *but 
 as a personal order on the party, to stay them there, with liberty 
 to commence his action in the office of pleas; and of course calls upon the 
 defendant in that action to appear, to accept a declaration, and to put the 
 plaintiff in the same state of forwardness, in the office of pleas, as he was 
 in the other court. (aa) 
 
 When a certiorari issues out of Chancery, it is returnable in that court ; 
 and the record when brought up, if wanted in another court, must be sent 
 there by mittimus. {hh) And anciently, it seems, no other court but the 
 Chancery could grant a certiorari, on a suggestion, where there was nothing 
 before them ;((?) but it is now settled, that a record may be removed into 
 the King's Bench or Common Pleas, as well by certiorari out of these 
 courts, (d) as by certiorari and mittimus out of Chancery :[e) For, as the 
 King's Bench and Common Pleas have the superintendence of all inferior 
 jurisdictions, their proceedings are removable into these courts, in order 
 that the judges may inspect the record, and see whether they keep within 
 the limits of their jurisdiction. (^) 
 
 A certiorari lies, in general, for the removal of all causes from inferior 
 courts,(^) whether the defendant has been proceeded against therein by 
 capias, or other process :[a] and it will lie to remove an ejectment from an 
 
 m Hardr. 176. Parker, 143. 1 Anstr. 205, n. Man. Ex. Pr. 161, 2, 164, ti. 1 Price, 206. 
 
 \aa) Per Eyre^ Ch. B. 1 Anstr. 205, n; and see 8 Price, 584. Chitty's Commercial law, 1 
 V. 805, 6. 
 
 {bb) Append. Chap. XLV. § 30. 
 
 (c) Gilb. Exec. 153, cites 41 Ass. 22. 
 
 \d) Cro. Eliz. 821. 1 Ld. Pvaym. 216. 2 Atk. 317. Thes. Brev. 77. Append. Chap. XVI. 
 2 1, &c. 
 
 (e) F. N. B. 244, (A), 245, (A). Gilb. Exec. 175, 6; and see 1 Madd. Chan. 12. 
 
 (/) Gilb. Exec. 143. 1 Salk. 144, 5. 
 
 iff) 2 Dowl. & Ryl. 409, per BayUy, J. 
 
 [a] a supreme court has power, by the common law, to review the proceedings of all 
 inferior tribunals, and to pass upon their jurisdiction and decisions of questions of law. 
 But unless a statute confers the power of reviewing determinations of inferior tribunals 
 upon questions of fact, such determinations are conclusive, and cannot be reversed on cer- 
 tiorari. The court can only review errors in law. Scott v. Beatty, 3 Zab. N. J. 201. Starr 
 v. Trustees of Rochester, 6 Wend. 564. Independance v. Pompton,4: Halst. 209. Ex parte Hay- 
 ward, 10 Pick. 358. Le Roy v. The Mayor, ^c, 20 Johns. 430. Parks v. Boston, 8 Pick. 226. 
 Wildy V. Washburn, 16 Johns. 50. State v. Sertft, 2 Hill, 369. Baldwin v. Simmons, 4 Halst. 
 196. Woody. Tallman, Coxe, 153. Ex parte Nightingale, 11 Pick. 168. Williamson v. Car- 
 nan, 1 Gill & Johns. 196. Clark v. Vanlciu, 6 Halst. 78. Farley v. M'Intire, 1 Green, 190. 
 Graecen v. Allen, 2 Green, 74. Andrews v. Andrews, 2 Green, 141. And when the proceed- 
 ings of the court below are, in any stage of them, different from the course of the common 
 law, whether in civil or criminal cases, the writ of certiorari is the only proper process to 
 correct any error that may have occurred, unless some different process is given by sta- 
 tute. Commonwealth v. Ellis, 11 Mass. 466. Bath Bridge, ^c, Company v. Magoun, 8 
 Greenl. 293. Ruhlman v. Commonwealth, 5 Binn. 27. Phillips v. Phillips, 3 Halst. 123. 
 Triggs v. Boyce, 4 Hayw. 100. Williamson r. Carnan, 1 Gill & Johns. 196. Macahoyy. Com-
 
 FROM INFERIOR COURTS. 398 
 
 inferior court.(/i) This writ may be sued out htfure, or, in Bomc cases, 
 after judgment ; and lies in civil actions before judgment, in the King's 
 
 (h) 1 Riirn. & Cres. 253. 2 Dowl. & Rvl. 407, S. C. 3 Rarn. k Crcs. 550. 5 Dowl. A Ryl, 
 445, S. C. ; but seo Barucs, 421. Run. liject. 2 Ed. 174, 5. Ad. Kject. 2 Ed. 17C, 7, ttml . 
 contra. 
 
 monwealth, 2 Virg. Cas. 270. Bob v. State, 2 Yerg. 173. Buggtn v. JiCGrudcr, Walk. 112. 
 Swate V. T/ie Mayor, .jr., 8 Gill. 150. The Slate v. Bell, 13 Ired. 373. 
 
 Whenever the record of an inferior court is brought, in duo course of law, by appeal, 
 writ of error, &c., before a superior court, and there is a manifest defect, or a suggestion of 
 a diminution, a certiorari will be awarded, as auxiliary process, directing a return of a full 
 and complete transcript, and other papers. Smith v. Opdyhe, 7 Halst. 85. State v. CoUiu.f, 3 
 Dev. 117. Slate v. Ecid, 1 Der. & Bat. 382. Browne v. Oxbornc, 1 Blackf. 32. Thatcher v. Mil- 
 ler, 11 Mass. 414. Stewart v. Ingle, 9 Wheat. Rep. 526. Commonwealth v. Roly, 12 Pick. 496. 
 Rcid V. De Wolf, Wright, 418. Andrews v. Bosworlh, 3 Mass. 223. Fowler v. Lindsay, 3 Dall. 
 413. Sweet v. Overseers, 3 Johns. 23. Thorp v. Ross, 2 South. 720. Sayre v. Blaurhard, 
 lb. 551. Commonwealth v. New Milford, 4 Mass. 447. Scott v. Hall, 2 Munf. 229. Field t. 
 Milton, 3 Cranch, 514. Burr v. Waterman, 2 Cow. 38, note. Brackeit v. State, 2 Tyler, 152. 
 And, perhaps, wherever there is error in civil or criminal proceedings, which cannot be 
 reached by writ of error, the proper remedy in the absence of a statutory one, is the writ 
 of certiorari. la case no appeal will lie, the supreme court will issue a certiorari to the dis- 
 trict court for the purpose of reviewing its summary proceedings. The People v. Turner, 1 
 Cal. 152. And this writ may issue to all inferior tribunals and jurisdictions, in cases where 
 they exceed their jurisdictions, and in cases where they proceed illegally, and there is no 
 appeal or other mode of directly reviewing their proceedings. But an error of judgment 
 on the part of the judge, either as to the facts or the law of the case, could not bo inquired 
 into and corrected. Dooliltle v. Galena and Chicago R. R. Co., 14 111. 381. 
 
 Thus certiorari, and not a writ of error, is the proper process to remove the proceedings of 
 the court of sessions, county commissioners, &c., in laying out highways, and other pro- 
 ceedings respecting highways and turnpike roads. Commonwealth v. Coombs, 2 Mass. 489. 
 Commonwealth v. Ilall, 8 Pick. 440. Commonwealth v. West Boston Bridge, 13 Pick. 195. 
 Commonwealth v. Cambridge, 7 Mass. 158. While's case, 2 Overt. 109. Lawton v. Commit- 
 sioners, 2 Caines, 179. Cowan's case, 1 Overt. 311. Hatter of Highway, 2 Pen. 1038. Bur- 
 rows T. Vandevier, 3 Ham. 383. Adams v. Newfane, 8 Verm. 271. Schuylkill Falls Road, 7 
 Binn, 250. So of the proceedings of the mayor and aldermen of Boston, in laying out and 
 altering streets. Parks v. City of Boston, 8 Pick. 218. And to remove the proceedings of 
 the Common Pleas or sessions, on a complaint against the alleged father of a bastard child. 
 Brotrne v. Simjhson, 2 Mass. 445. Commonwealth v. Cole. 5 Mass. 517. Commonwealth v. 
 Jtoore, 3 Pick. 194. Mariner v. Dyer, 2 Greenl. 165. Tillson v. Bowley, 8 Greenl. 163. 
 Laivson v. Scott, 1 Yerg. 92. Siveet v. Overseers, 3 Johns. 23. GHe v. Moore, 2 Pick. 
 386. Chaflin v. Hubbard, Brayt. 38. Or the proceedings before a justice of the peace, 
 on a complaint to recover a fine under the militia law. Edgar v. Dodge, 4 Mass. 670. 
 Commonwealth v. Derby, 13 Mass. 433. Ball v. Brigham, 5 Mass. 406. Dunham v. United 
 Stales, 4 llayw. 54. Knight v. Payne, Wright, 369. Rathbun v. Sayer, 15 Wend. 451. Or 
 to correct proceedings in cases of foreign attachment. Allen v. Williams, 1 Ilayw. 17. 
 Fryar v. Blackmore, 2 Ilayw. 374. Hartshorn v. Wilson, 2 Ham. 27. Wilson v. Ray, Charlt. 
 109. Branson v. Shinn, 1 Green, 250. Ayres v. Bartlet. 2 Green, 330. Learned v. Duval, 
 3 Johns. Cas. 141, contra. Walker v. Gibbs, 1 Yeates, 255. Lcnis v. Wallick, 3 S. & B. 
 411. So where on appeal is not allowed by law, it is a substitute for an appeal. 
 Reardon v. Guy, 2 Ilayw. 245. Dougan v. Arnold, 4 Dev. 99. Swaim v. Fentress, 4 DeT. 
 601. Or to remove irregular proceedings of a commissioner of insolvency. Anon., 1 
 Wend. 90. Or the proceedings of the assistant justices of the city of New York, under the 
 statute relating to summary proceedings to recover the jiossession of land. Roach v. (^o-nne, 
 9 Wend. 227. Or the proceedings of justices of the peace ajiinjinting a town officer, on 
 the neglect of the town to make an appointment. Wildy v. Washburn, \G Johns. 40. In 
 Maryland and New Jersey, it is the process by which the decrees of the Orphan's court are 
 brought before the Supremo court for correction. Bradford v. Richardson, 3 Har. & M'llen. 
 348. Stale v. Mayhew, 4 Ilalst. 70. Cozens v. Dickenson, 2 Pen. 507. State v. Judges, ^e., 
 2 South. 554. Ludlow v. Ludlow, 1 South. 387. Ez parte Caig, Charlt. 159. M'Caskill r. 
 ifCaskill, Charlt. 151. Burroughs v. Mickle, 2 Pen. 913. Vanyelt v. Veght, 2 Green, 207. 
 Durham v. Hall, 3 Har. & M'Hen. 352. And in Massachusetts the proceedings of the 
 Common Pleas, (when an appeal was not allowed,) on a complaint for flowing land by a 
 mill-dam. Commonwealth v. Ellis, 11 Mass. 4G2. Spring v. Lowell, 6 Mass. 399. Vanduten 
 V. Comstock, 3 Mass. 187. And where a decision was made without giving the party a 
 fair opportunity to be heard, or to produce testimony. Fonda v. Canal Appraisers, 1 Wend. 
 283. Brooklyn v. Patchcn, 8 Wend. 47. So, if notice is not given to parties boforo ad-
 
 398 OF THE REMOVAL OF CAUSES 
 
 Bench or Common Pleas, in all cases wliere these courts have jurisdiction, 
 and can administer the same justice to the parties as the court below: and 
 
 judicating upon their rights. Commissioners v. Claw, 15 Johns. 537. Commonwealth v. 
 Chase, 2 Mass. 170. Commonwealth v. Cambridge, 4 Mass. 627. Commonwealth v. Coombs, 2 
 Mass. 489. Commonwealth v. l^eters, 3 Mass. 229. Commonwealth v. Sheldon, 3 Mass. 188. 
 Slate V. Jiarinff, 8 Greenl. 135. Uz parte Baring, 8 Greenl. 137. 
 
 Certiorari to correct proceedings of inferior tribunals is not a writ of right, but is matter 
 of sound discretion in the court. Bath Bridge, ^~c. Company v. Magoun, 8 Greenl. 293. 
 Drowne v. Slimpson, 2 Mass. 445. Lee v. Childs, 17 Mass. 352. Iluse v. Grimes, 2 N. Hamp. 
 210. Munroe v. Baker, 6 Cow. 396. People v. Supervisors, ^-c, 15 Wend. 198. Addis. 193, 
 note. Freeman v. Oldham, 4 Monr. 420. State v. Senft, 2 Hill, 367. Rockingham v. West- 
 minster, 24 Verm. 228. Duggen v. M^Gruder, Walker, 112. And before granting it the court 
 will look into the record, and the circumstances attending the process ; and if the error be 
 such as does not affect the substantial justice of the case, but is in the forms of proceeding 
 only, the writ will be refused. Ex -parte Weston, 11 Mass. 417. Ex parte Adams, 4 Pick. 25. 
 Freetown v. Commissioners, 9 Pick. 46. Royalton v. Fox, 5 Verm. 458. Wilbraham r. Com- 
 missioners, 11 Pick. 322. The State v. Anderson, Coxe, 318. The uniform practice is to con- 
 Bider the grounds for granting a certiorari open for investigation during the next term after 
 granting it, whether it be granted within or out of court. Dwiggins v. Robertson, 1 Overt. 81. 
 And certiorari cases are said not to be triable at the first term, but stand open to exception. 
 Hamilton v. Archer, 1 Overt. 368. And where the exception goes to the jurisdiction of the 
 court, or strikes at the remedy, showing that the plaintiff is not entitled to it, or that upon 
 Bome principles of law the writ ought not to have been allowed, it is never too late, while 
 the matter is in fieri, for the court to interpose and quash the writ, and this maybe done 
 ex mero motu, whenever they discover the facts which, if known at the application of the 
 writ, would have induced a refusal of an allocatur. Haines v. Campion, 3 Harr. 49. The 
 State V. Ten Eyck, 3 Harr. 373. The State v. Kingsland, 3 Zab. N. J. Rep. 85. 
 
 Notice oi certiorari must be given by the adverse party; but the necessity of process for 
 that purpose is superceded by his coming in voluntarily. Anon, 1 Hayw. 405. When notice 
 is given to appear on the return day of the certiorari, and the writ is not then returned, nor 
 any proceedings had to continue it in court, it is discontinued, and & procedendo should issue. 
 Anon. 1 Hayw. 420. Notice will be ordered at any time before two terms have elapsed, 
 after the certiorari is filed. Williams v. Gormon, 2 Hayw. 155. 
 
 In the return of a writ of certiorari, it is proper for the court below, and indeed its duty to 
 state enough of the proceeding to show that they have jurisdiction, not only of the subject- 
 matter of the inquiry and of the person proceeded against, but also that some proof was 
 made which had, at least, a tendency to establish the material allegations in issue. To this 
 extent, it is the duty of the court above to look into the return. If it appears that the court 
 had no jurisdiction of the subject-matter, or that there was no evidence legally tending to 
 establish the main facts, which could alone authorize the judgment in either case, in such 
 cases, the court does not deliberate of evidence, l)ut determines merely whether there is any 
 evidence whatever. The People v. Overseers of Ontario, 15 Barb. 286. And such testimony 
 should be returned as applies to the question of the jurisdiction of the inferior tribunal over 
 the subject-matter, and over the persons of the parties; and that question is properly ex- 
 aminable in the court issuing the certiorari. Tlie People \. Goodwin, 1 Selden, 568. 
 
 The fact that a proceeding is void for want of authority or jurisdiction in the inferior tri- 
 bunal, is not a sufficient reason for refusing to remove it by this writ. Commonwealth v. 
 Blue Hill Turnjnke, 5 Mass, 420. Hawthorne y. M'Guire, 1 Barring. 530. State v. Thompson, 
 2 N. Hamp. 237. Ex parte Hayw., 10 Pick. 358. Commonwealth v. West Boston Bridge, 13 
 Pick. 197. Starr v. Trustees of Rochester, 6 Wend. 564. Coicans Case, 1 Overt. 311. Jeffers 
 V. Brookfield, Coxe, 38. State v. Poicnal, 1 Fairf. 24. Williamson v. Carnan, 1 Gill & Johns. 
 197. State v. Huntingdon, 1 Const. Rep. 325. Davis v. Mathews, Charlt. 111. Herrigas v. 
 M-Gill, 1 Ashm. 152. Morrison v. Wilmington, ^-c. Turnpike, 1 Harring. 366 ; although a cer- 
 tiorari will not issue to remove a cause for trial above, merely from a defect of jurisdiction in 
 the court below. Fowler \. Lindsay, 3 Dall. 411. 
 
 By the common law, writs of certiorari removed only the record or proceedings in the 
 nature of a record, or of an officer or of courts of limited jurisdiction, and the court decided 
 only as to the jurisdiction and regularity of the proceedings ; but in New York, under sec- 
 tion 47 of 2 Revised Statutes, a writ of certiorari gives power to examine and correct errone- 
 ous decisions of questions of fact. 3Jorewood v. Hollister, 2 Selden, 309. In order to bring 
 the facts before the court, if no state of the case can be agreed on, the proper practice is, in 
 the first instance, to call on the court below to certify what the facts are. Their return is 
 conclusive. Scott v. Beatty, 3 Zabr. N. J. 256. And if the court below fail to make a return 
 of the facts, resort may then be had to affidavits. lb. And when the return does not show 
 that the whole of the testimony has been returned, it will be presumed there was evi- 
 dence in the court below to sustain the finding of the jury, or of the court, as the case maj
 
 FROM INFERIOR COURTS. 398 
 
 though the cause cannot be ilcterminetl in the court above, yet this Avrit 
 may be granted, if the inferior court have no jurisdiction over it, or do 
 not proceed therein according to the rules of the common law.(i;') But if 
 the inferior court have jurisdiction, and the court above have not, a c«r- 
 tio7-a7'i cannot be liad ; as Avhere an action is brought in London, for calling 
 a woman whore, (/r) or upon a custom or bye-law wliich is only suable in 
 the inferior court, (Z) A certiorari also lies, to remove a cause from the 
 court of the isle of Ely ;{m) or from the Cinque 'ports,{ii) or other exempt 
 jurisdiction. And even in the case of a customary proceeding by foreign 
 attachment, if the defendant cannot find bail below, he may sue 
 out a ^certiorari ; and upon putting in bail in the court above, [ '399 ] 
 the cause shall go on there. (a) But a certiorari lies not in 
 general, where the debt or damages appear to be under /or^^ shillings :(5) 
 though the court of King's Bench refused to quash a certiorari upon this 
 ground, in an action for an assault brought against excise officers, who 
 could not have had an impartial trial in the inferior court.(cc) 
 
 It seems to have been formerly holden, that no certiorari lay to 
 Wale8,[dd) or a county palatine^ in civil cases :(cc) and it cannot now be 
 had as a matter of course '-{ff) nor unless a special ground be laid, as that 
 the case strongly calls for a trial at hd,v.{(jg) And where a certiorari 
 issued, to remove a cause from the court of Great Sessions in Wales, with- 
 out any special ground for so doing, and without any notice having been 
 given to the opposite party, but was not delivered to the judges of that 
 court, till the day before the trial would in course have taken place, and 
 after great expenses had been incurred ; the court of King's Bench, under 
 these circumstances, not only quashed the certiorari, and directed a |)ro- 
 cedendo to issue, but ordered that the party who issued it, should pay to 
 the opposite party, the costs incurred by the latter in the court below, 
 togetjier with the costs of the application. (/<) By the statute 1 Geo. IV. 
 c. 87, § 5, " it shall not be lawful for the defendant to remove any action 
 of ejectment, commenced by a landlord under the provisions of that act, 
 from any of the courts of Great Session in Wales, to be tried in an English 
 county, unless such court of Great Session shall be of opinion that the same 
 
 I 
 
 (t) 1 Lil.P. R. 253. {k) 2 Rol. Abr. 69. Carth. 75. 
 
 \l) 1 Salk. 352. 6 Mod. 1V7, S. C. Say. Rep. 15G. 2 Bur. 777, 8. 2 Blac. Rep. lOGO. 2 
 Bos. & Pul. 93 ; and see 5 Barn. & Aid. 821. 1 Dowl. k Ryl. 537. 
 
 (w) 1 Salk. 148. 2 Ld. Raym. 836. 7 Mod. 138, S. C. Williams v. Thomas, E. 22 Geo. III. 
 K. B., cited in Doug. 751, (y). But in the Common Pleas, when the writ is directed to the 
 court of Pleas of the Bishop of Ely, it should be indorsed with the words Isle of Ely, before 
 it is sealed. R. E. 13 W. III. C. P. ; and see 3 East, 128. 
 
 {n) 1 Lil. P. R. 253, 257. 
 
 (a) 1 Salk. 148. 2 Ld. Raym. 837. 7 Mod. 138, S. C. 
 
 (6) Brownl. Brcv. Jud. 140. 2 Browul. 82. Moyle, G9, Clift, 374. 
 
 (cc) 4 Durnf. & East, 499. 
 
 \dd) Gilb. E.xcc. 202. Williams v. Thomas, E. 22 Geo. III. K. B., cited in Doug. 751, {v) ; 
 and see 2 Ken. 370, 440. 
 
 Ue) Gilb. Exec. 201. 
 
 (/) Doug. 749. Williams X. Thomas, E. 22 Geo. III. K. B., cited in Doug. 751, («). 
 
 \gg) Id. ihid. Append. Chap. XVI. ^ 6. 
 
 (A) 1 Barn. & Cres. 143 ; and see 13 Price, 449. 
 
 be. Snow v. Perkins, 2 Mich. (Gibbs,) 238. The granting of a certiorari, operates as a super- 
 tedeas to further proceedings on the record, which it brings up for review ; but it does not 
 revoke a judgment executed or in process of execution. The power of this writ cannot be 
 extended by a special order of the judge of the superior court. Mayor, tjc, of Macon v. Shaa, 
 14 Geo. 162.
 
 399 
 
 OF THE REMOVAL OF CAUSES 
 
 ou^lit to be SO removed, upon special application to the court for that 
 purpose." And, by the statute 5 Geo. IV. c. 106, § 23, "no writ of 
 certiorari shall be granted, issued forth, or allowed, to remove any action, 
 bill, plaint, cause, suit, or other proceeding at law whatsoever, originated 
 in or commenced, carried on, or had, in any of his majesty's courts of 
 Great Sessions in Wales, unless it be duly proved upon oath, that the party 
 or parties, suing forth the same, hath or have given seven days' notice 
 thereof in writing, to the other party or parties concerned in the action, 
 &c., sought to be so removed ; and unless the party or parties so applying, 
 or suing forth such writ, shall, upon oath, show to the court, in which 
 application shall be made, sufficient cause for issuing such writ ; and so 
 that the party or parties therein concerned, may have an opportunity to 
 show cause, if he or they shall so think fit, against the issuing or granting 
 such certiorari; and that the costs of such application be in the discretion 
 of the court, wherein such application shall be made for such certiorari." 
 The court of King's Bench would not grant a certiorari, to remove pro- 
 ceedings in quare impedit, from the court of Great Session at 
 [ *400 ] Chester, into the King's Bench, where a special verdict was *ex- 
 pected to be found ; the proper course being, to remove the 
 special verdict, when found, into the latter court, by writ of error. (a) 
 And a plaint in replevin cannot be removed from a county court in Wales, 
 into the King's Bench, by certiorari.{h) 
 
 In criininal cases, a certiorari always lies, unless it be expressly taken 
 away ;(c) but an appeal never lies, unless it be expressly given by the 
 statute, (c) A certiorari is granted of course, on the application of the 
 crown : but when a defendant applies for it, he must lay some ground 
 before the court, supported by affidavit. ((Z) And the court of King's 
 Bench may grant a certiorari, to remove an indictment for a misdemeanor, 
 from the Great Sessions in Wales, into this court. (e) But the court refused 
 a certiorari, to remove an indictment for a misdemeanor, and proceedings 
 thereon at the assizes, after conviction and before judgment ; which was 
 prayed for the purpose of applying for a new trial, on the judge's refusal 
 of the evidence, on the ground of the verdict being against evidence, and 
 the judge's direction. (/) On moving for a rule nisi for a certiorari^ to 
 remove an order of sessions, it is irregular to entitle the affidavits in any 
 cause ; and if they are entitled, they cannot be read.(^) 
 
 After judgment, a certiorari does not in general lie, to remove a cause 
 from an inferior court;(7i) and therefore if it be returned thereon, that the 
 defendant is condemned by judgment, he shall be remanded, and continue 
 in prison, without being let to bail against the will of the plaintiff, until 
 agreement be made with him of the sum adjudged. (2) So, where, in an 
 action for sixteen pounds, brought in the forest court of Knareshoroughy 
 the defendant suffered judgment by default, and afterwards sued out a 
 certiorari, to remove the cause into the King's Bench ; the latter court 
 held, that the certiorari was too late, and made a rule for a procedendo 
 
 a) 6 Dowl. & Ryl. 489. [b) 5 Barn. & Cres. 206. 7 Dowl. & Ryl. T09, S. C. 
 
 *c) 3 Dowl. & Ryl. 35 ; and see id. 275, 301. 2 Barn. & Cres. 228. 3 Dowl. & Ryl. 306, 
 
 C. 8 Dowl. & Ryl. 117. 
 
 Vi) 2 Durnf. & East, 89. {e) 3 Durnf. & East, 658. 
 
 7) 13 East, 411 ; and see 2 Ken. 370, 440. 
 
 g) 1 Barn. & Cres. 267. 
 
 h) 7 Dowl. & Ryl. 769. 
 
 i) Stat. 2 Hen. V. st. 1, c. 2. Year Book, 9 Hen. VI. 8.
 
 FROM INFERIOR COURTS. 400 
 
 absolute, altliougli the defendant, in opposition to that rule, swore that 
 the jurisdiction of the inferior court was limited to five pounds.(//) But 
 if a defendant in execution have an action depending against him in the 
 court below, this, being returned, will be a cause of detainer in the court 
 above : And in cases of absolute necessity, as where the inferior court 
 refuses to award execution,(/f) the court above will grant a certiorari after 
 judgment, for the sake of doing justice between the parties. So, where 
 the inferior court acts in a summary method, or in a new course different 
 from the common law, a certiorari lies after judgment; though a writ of 
 error docs not.(^) 
 
 If the judgment of an inferior court be removed into the King's Bench 
 be certiorari, and the party sue a scire facias to have execution 
 upon such *judgment, he ought to show in his scire facias, that [ *401 ] 
 it is the judgment of an inferior court, removed hither by certi- 
 orari, and to point out the particular limits of the inferior jurisdiction, 
 and pray execution within those limits: But if the judgment be removed 
 into the King's Bench by writ of error, and affirmed, the party may have 
 execution in any part of England ; for by the affirmance it is become the 
 judgment of the King's Bench. (<7.) And now by the statute 19 Geo. III. 
 c. 70, § 4, reciting that persons served with process issuing out of inferior 
 courts, where the debt is under ten pounds, (since extended to twenty 
 pounds, by the statute 7 & 8 Geo. IV. c. 71, § 6,) may, in order to avoid 
 execution, remove their persons and effects beyond the limits of the juris- 
 diction of such courts ; it is enacted, that "in all cases where final judg- 
 ment shall be obtained in any action or suit, in any inferior court of 
 record, it shall and may be lawful to and for any of his majesty's courts 
 of record n,t West minster, upon affidavit made and filed of such judgment 
 being obtained, and of diligent search and inquiry having been made after 
 the person of the defendant or his effects, and of execution having issued 
 against such person or effects, and that they are not to be found within 
 the jurisdiction of the inferior court, to cause the record of the said judg- 
 ment to be removed into such superior court, and to issue writs of execu- 
 tion thereupon, to the sheriff of any county or place, against the defend- 
 ant's person or effects, in the same manner as upon judgments obtained 
 in the said courts at Westminster :" Which provision is extended, b'y a 
 subsequent statute,(6) to the courts inWales, and the counties palatine: 
 but from these courts, a transcript of the record is to be removed, and not 
 the record itself; and the latter act extends to all judgments, for the 
 defendant as well as the plaintiff. In a case arising upon the former of 
 these statutes, where a judgment was signed against a defendant in an 
 inferior court of record, and he surrendered in discharge of his bail, but, 
 before he was charged in execution, he was removed to the Fleet by 
 habeas corpus; the court of Common Pleas determined, that a certiorari 
 might be granted to remove the record, in order to charge him in cxecu- 
 
 (h) 1 Powl. k Ryl. YG9. 
 
 (A;) 1 Lil. P. R. 252, 3. 
 
 (l) 1 Salk. 2G3 ; and see 9 Moore, 649. 2 Bing. 344, S. C. 10 Mooro, 32. Id. 171. 2 
 Bing. 463, S.C. 
 
 (a) 1 Ld. Ravm. 216. 3 Salk. 320. Carth. 391, S. C. ; and sco 3 Duriif. & East, 657 ; but 
 seeF.N. B. 242,C. Gilb. Repl. 117. 
 
 (6) 33 Geo. III. c. 68, g 1. And for the forma of writs of certiorari and proceedings on this 
 Btatnte, see Append. Chap. XVI. ? 10, &c. See also stnt. 5 Geo. IV. c. 106, ? 15, for enforcing 
 obedience to rules, orders, and decrees of the courts of Great Sessions in Wales, against per- 
 sons residing out of the jurisdiction, by process from the courts at Westminster.
 
 401 
 
 OF THE REMOVAL OF CAUSES 
 
 tion in the Fleet, on the ground that although the ease of a prisoner in 
 actual custody be not within the express terms, yet it is "within the equity 
 of the statute. (c) But the statute 19 Geo. III. c. 70, § 4, is confined to 
 suits in inferior courts, where the proceedings are similar to those in 
 the superior courts; and therefore docs not extend to the case of a foreign 
 attachment. (cZ) And a certm^ari, Ave have seen,(e) will not lie, to remove 
 the record of a judgment obtained against a defendant in the 
 [ *402 ] county palatine of I)urham, for the *purpose of enabling his 
 bail to render him in the court of King's Bench, though he be a 
 prisoner for debt in the custody of the marshal. (a) 
 
 As persons served with process issuing out of courts of requests may, in 
 order to avoid execution, remove their persons and effects beyond the 
 limits of the jurisdiction of the said courts, there is a clause in the court 
 of requests act for the city of Bath,{h) &c. that " in all cases where a final 
 decree of judgment for any sum or sums exceeding ten shillings, shall have 
 been obtained in the said court, it shall and may be lawful to and for any 
 of his majesty's courts of record at Westminster^ upon affidavit made and 
 filed of such decree or judgment being obtained, and of diligent search 
 and inquiry having been made after the person or persons of the defend- 
 ant or defendants, or his her or their goods and chattels ; and of the pre- 
 cept of execution having issued against the person or persons, or effects, 
 as the case may be, of the defendant or defendants ; and that the person 
 or persons, goods and chattels, of such defendant or defendants is or are 
 not to be found within the jurisdiction of the said court, (which affidavit 
 may be made before a judge or commissioner authorized to take affida- 
 vits,) it shall and may be lawful to and for such superior court, to cause the 
 record of the said decree or judgment to be removed into such superior court, 
 and to issue writs of execution thereupon, to the sheriff of any county, city, 
 liberty or place, against the person or persons, or effects, of the defend- 
 ant or defendants, in the same manner as upon judgments obtained in 
 the said courts at Westminster ; and the sheriff, upon every such execu- 
 tion shall, and he is thereby authorized to detain the defendant or de- 
 fendants, until the sum of ten shillings be paid to him, or to levy the same 
 out of the effects, according to the nature of the execution, for the extra- 
 ordinary costs of the plaintiff or plaintiffs in the said court, subsequent to 
 the said decree or judgment, and of the execution in the superior court, 
 over and above the money for which such execution shall be issued." And 
 there are similar clauses, in the court of requests acts for other populous 
 districts ; as for the town and borough of Grimshy, and the liberties thereof, 
 and the several parishes and places in the hundred or wapentake o^ Bradley, 
 Haverstoe, and the east division of the hundred or wapentake of Yarborough, 
 in the county of Lincoln ;(cc) the hundred oi Elloe, and parishes of Surfleet 
 and Gosberton, in the hundred of Kirton ;{dd) the borough and parish of 
 Boston, and hundreds of Skirbeeh and Kirton, (except the parishes of Gos- 
 berton and Surfleet ;){ee) and the sokes of Bolingbrooke and Horncastle, 
 and other places in the same county ;(/) the Isle of Wight, in the county 
 
 (c) 1 H. Blac. 532, 3. 
 
 \d) 5 Barn. & Aid. 821. 1 Dowl. & RyL SST, S. C. (e) Ante, 286. 
 
 (a) 2 Dowl. &Ryl. 177. 
 
 (6) Stat. 45 Geo. IIL c. Ixvii. ? 27. 
 
 {cc) Stat. 46 Geo. IIL c. xxxvii. § 22. 
 
 {dd) Stat. 47 Geo. III. sess. 1, c. xxxvii. | 23. 
 
 (ee) M sess. 2, c. i. ^ 24. (/) M c. IxxviiL § 31. ]
 
 FROM INFERIOR COURTS. 402 
 
 of Southampton ;((/) tlie townships of Stockport and Brinriington, and 
 hamlets of ^(Z^(7// and Brinksway, in the count j palatine of CHESTER ;(/<) 
 the town and liberties of Beverley, in the county of YoRK \{i) 
 the town and *port of Sandwich, and vills of Jianwjatc and [ *403 ] 
 Sarr, and several parishes, in the county of KENT;(a) the 
 parishes of Saint John the Baptist, Saint I'vicr the Apostle, and Birch- 
 ington, and the vill of Wood, in the Isle of Thanet ;{!>) the town of 
 Gravesend, and hundreds of Toltimjtrongh, Dartford, Wilmington, and 
 Axtane;{c) and the hundred of Codsheath, and other places, in the same 
 county •,{d) the parishes of Hides Owen, Itowley Jiegis, West Bromwich, 
 Tipton, and manor of Bradley, in the counties of Worcester, Salop, 
 and Stafford ;(c'<;) the township of Wolverhampton, and other places, 
 in the latter county ;( f) the town and borough of Ipswich, in the county 
 of Suffolk ;(,(/^) and the parish of Manchester, in the county palatine of 
 
 LANCASTER.(/iA) 
 
 The writ of certiorari should be directed to the judge or judges of the 
 inferior court, from which the cause is intended to be removed ; and when 
 it is for the removal of a cause, should command them to certify the record, 
 with all things touching the same :{ii) therefore, where a certiorari in such 
 case was to certify the tenor of a record, it was superseded as erroneous ; 
 for being to remove a record out of an inferior court, in order to be pro- 
 ceeded on in a superior one, it ought to have been to certify the very 
 record; for otherwise no proceeding could be had upon it.(^) ^^ hen the 
 certiorari issues out of Chancery, it is an original writ, and may be tested 
 at any time in term or vacation ;(Z) and should be made returnable on a 
 general return-day: But when it issues out of the King's Bench or Com- 
 mon Pleas, it is a. judicial writ, and should be tested in term-time ;_ and, 
 in the King's Bench, it is usually made returnable on a day certain in 
 court.(m) If the Avrit be mis-directed,(7?) or otherwise bad in point of 
 law, the court will order it to be quashed, if before them ; or if not 
 returned, will grant a su])ersedeas.{o) But the court cannot quash a writ 
 that is not before them :(o) And though the parties to whom the certiorari 
 is directed, and in whose keeping the record is, may object to make a 
 return of it on account of an informality in the direction, yet they having 
 in fact returned it into the court above, no such objection can be taken by 
 third persons.(^) 
 
 The writ of certiorari, we have seen,(^) lies for the removal of all 
 causes from inferior courts, whether the defendant has been proceeded 
 against therein by capias, or other process : But the writ of habeas corpus, 
 •which will next be considered, only lies where the defendant has been 
 arrested upon, or served with a copy of a capias, and either 
 remains in custody, or *has given bail.(rta) This latter writ, [ *404 ] 
 though its direct object be to bring up the body of the defendant, 
 
 (ff) Stat. 46 Geo. III. c. l.xvi. § 22. (h) Id. c. cxir. ? 26. (?) /'/. c. cxxxv. J 24. 
 
 (a) Stat. 47 Geo. lU. sess. 1, c. xxxv. § 29. (6) Id. scss. 2, c. vii. § 24. 
 
 (c) /(/. c. xl. ? 27. (rf) Stnt. 48 Geo. IH. c. i. § 30. 
 
 (ee) Stat. 47 Geo. III. sess. 1, c. xxxvi. § 26. {/) Stat. 48 Geo. III. c. ex. g 34. 
 (Off) Stat. 47 Geo. III. sess. 2, c. Ixxix. | 26. (hh) Stat. 48 Geo. IH. c. xliii. ? 33. 
 lii) Append. Chap. XVI. § 1, &c. (k) 2 Atk.317; and seel Madd. Chan. 12. 
 
 (I) Trye, 10. (m) Thea.Brev. 67, 8. Append. Chap. XVI. ? 1, &c. 
 
 (n) 2 Atk. 318, 19. (o) /(i. 318 ; and see Say. Rep. 156. 
 
 \p\ A Durnf. & East, 499. \q) Ante, 308. 
 
 (aa) 1 Barn. & Cres. 513. 2 Dowl. & Ryl. 722, S. C. 4 Barn, k Cres. 401. 6 Dowl. 
 Ryl. 497, S. C.
 
 404 OF THE REMOVAL OF CAUSES 
 
 serves consequentially to remove causes against him from inferior courts: 
 And the ground of removal upon this writ is, that when a defendant, 
 against whom thcro is a cause depending in an inferior court, is removed 
 by habeas corpus into the court above, the inferior court have lost their 
 jurisdiction over him; and not having jurisdiction over his person, they 
 cannot proceed in the cause, and the bail, if any, in the inferior court are 
 discharged. (5) But this writ only lies for the defendant, and cannot be 
 had by the j^laintiff, to remove his own cause from an inferior court. (<?) 
 
 The writ of habeas corpus, of which something has been already said,(d) 
 as it is used to remove prisoners into the custody of the marshal of the 
 King's Bench or warden of the Fleet prison, is a judicial writ issuing out 
 of the court of King's Bench or Common Pleas : and, like the certiorari, 
 should be directed to the judge or judges of the inferior court, in which 
 the record is ;(e) commanding them to have the body of the defendant, 
 together with the day and cause of his being taken and detained, to do 
 and receive,(/) &c. There is an old rule of court,((/) by which the habeas 
 corpus, when directed to the inferior courts of Lo7idon, Westminster, 
 Southwark, and other courts within five miles of London, might have 
 hQQn reiMmohXQ immediate ; but otherwise it must have been returnable 
 on a day certain in court.(^) The rule however having fallen into dis- 
 use, the writ we have seen,(7i) is now always made returnable immediate. 
 
 The writ of certiorari or habeas corpus, when delivered to the judge or 
 judges of the court below, instantly suspends their power ; so that if 
 they afterwards proceed, it is a contempt, for which they are liable to an 
 attachment ; and the subsequent proceedings are void, and coram non 
 judice.{i)\_A\ On receipt of the writ therefore, it should be forthwith 
 allowed and returned; and the officer cannot refuse to obey it, under pre- 
 tence of not being paid his fees in the court below, or the charges of 
 bringing up the *defendant :(a) for the former, he has a proper 
 [ *405 ] remedy by action ; and for the latter, if not paid, the defend- 
 ant may be remanded. (55) 
 
 It was formerly usual for the defendant in an inferior court to sue out a 
 writ of certiorari or habeas corpus, and keep it in his pocket, without pro- 
 ducing it, till issue was joined, the jury sworn, and the plaintiff had given 
 his evidence ; by which means the plaintiflF was not only put to considerable 
 expense, but the defendant ; knowing before-hand what proofs he could pro- 
 
 {b) Skin. 244, 5. And see 3 Bac. Abr. 15. 3 Maule & Sel. 328, in which latter case it 
 ■was holden, that upon the removal of a cause by certiorari, out of an inferior court, th« 
 pledges below are discharged, by putting in and perfecting bail above: and the distinction 
 seems to be, that when Va& plaintiff r^vaov^s the cause, the bail are immediately discharged ; 
 but when the defendant removes it, they are not discharged, until bail above be put in and 
 perfected. Id. 330, per Bayley, J. 
 
 (c) Cas. Pr. C. P. 5. Pr. Reg. 216. Ante, 350. {d) Ante, 347, &c. 
 
 (e) For the direction of the writ of habeas corpus in particular cases, see Append. Chap. 
 XVI. § 18. 
 
 (/) Append. Chap. XVI. I 16. 
 
 lo) R. M. 1654, ?i 8, K. B.; and see R. M. 1654, | 11. R. H. 13 & 14 Car. II. C. P. 
 
 (A) Ante, 349. 
 
 (i) Bro. Abr. tit. Cause de remover plea, pi. 48. 1 Salk. 148, 9. 2 Ld. Raym. 83T, 8, S. C. 
 Gilb. Exec. 144, 200, 202. Gilb. Repl. 117. Doug. 749, as to the writ oi certiorari ; and Cro. 
 Car. 261. 1 Mod. 195. T. Jon. 209. 3 Mod. 85. Skin. 244. 1 Salk. 148, 352. 6 Mod. 
 177, S. C, as to the writ of habeas corpus. 
 
 (a) 2 Str. 814. 2 Bur. 1152 ; and see Pr. Reg. 219. 1 H. Blac. 105. 
 
 (bb) 1 Str. 308. 2 Str. 1262. 
 
 [a] See note [a] ante, page 398.
 
 FROM INFERIOR COURTS. 405 
 
 duce, had an opportunity of opposing them by false witnesses. (cc) To 
 remedy this mischief, it was enacted by the statute 43 Eliz. c. 5, that "no 
 writ of habeas corpus, or other writ, to remove any cause depending in an 
 inferior court having jurisdiction tliereof, shall be received or allowed by 
 the judges or officers of such court, but they may proceed therein as if 
 no such Avrit were sued forth or delivered, except the said writ be delivered 
 to such judges or officers, before the jury have appeared, and one of them 
 is sworn." And still further to avoid vexatious delays, by the removal of 
 causes out of inferior courts, it was enacted by the statute 21 Jac. I. c. 
 23, § 2, that "no writ of habeas corpus, certiorari, or other writ, except 
 writs of error or attaint, to stay or remove any cause depending in an infe- 
 rior court of record, having jurisdiction thereof, where the same arises 
 within its jurisdiction, shall be received or allowed by the judges or officers 
 of such court, but they may proceed therein, &c. except the said writ be 
 delivered to such judges or officers, before issue or demurrer ]o'mQ(\. in the 
 said cause; so as the same be not joined within six weeks next after the 
 arrest, or appearance of the defendant." This statute is confined to infe- 
 rior courts of record ; and does not extend the case of an interlocutory 
 judgment: therefore, the practice in that case is to allow the habeas cor- 
 pus or certiorari, in like manner as upon the 43 Eliz., provided it be 
 delivered at any time before the jury are sworn ',{d) which is also the prac- 
 tice, where issue is joined within six weeks next after the defendant's 
 arrest or appearance. 
 
 By the statute 21 Jac. Ij c. 23, (e) it is further provided, that "if in any 
 cause, not concerning freehold or inheritance, or title of land lease or 
 rent, commenced or depending in any such inferior court of record, it 
 shall appear or be laid in the declaration, that the debt damages or things 
 demanded do not amount to or exceed the sum of /ye pounds, then such 
 cause shall not be stayed or removed by any writ or writs whatsoever, 
 other than writs of error or attaint : And if any writ or writs shall be 
 granted or sued forth contrary to the intent and meaning of this act, the 
 judges of the inferior court may disallow and refuse the same, and pro- 
 ceed as if no such writ had been granted or sued forth: pro- 
 vided *there be an utter barrister of three years standing at the [ *406 ] 
 bar of one of the four inns of court, steward or under-steward, 
 town-clerk, judge or recorder of such inferior court, or assistant to the 
 judge or judges of the same, who is not an utter barrister of that stand- 
 ing, there present, and not of counsel in any action or suit there dcpeud- 
 ing."(a) If this proviso be not complied with, the cause may be removed 
 at any time:(6) and the court will not grant a ]r)'ocedejido, where the 
 judge is a barrister, if he be not present at the trial. (c) 
 
 Soon after the making of this statute, a method was contrived of remov- 
 ing causes for sums not exceeding /yc pounds, by setting up an action for 
 a fictitious demand to a larger amount ; and then upon suing out a liabeas 
 corpus, all the causes were removed together. (J^Z) To defeat this coutri- 
 
 {^cc) Soe the preamble to the statute 43 Eliz. c. 5. But if tlie certiorari had been delivered 
 after the jury were charged with the evidence, tlie inferior court might have proceeded to take 
 the verdict, and then certified; because the jury wore sworn to speak the truth, and the 
 intent of the certiorari in such case was not to stop the trial. Gilb. Eiec. 144. 
 
 (rf) 2 Bur. 759; but see Pr. Reg. 217. Barnes, 221, S. C. contra. (0 { 4. 
 
 (a) g 6. {b) Cro. Car. 79. 3 Mod. 86. 
 
 (c) 1 Bur. 614. {dd) Palm. 403.
 
 40G 
 
 OF THE KEMOVAL OF CAUSES 
 
 vanco, it was enacted by a subsequent statute,(t'e) that " the judges of such 
 inferior courts as are dccribed in the statute of James, may proceed in 
 such cases as are therein specified, which appear or are laid not to exceed 
 the sum of five pounds, althou(:^h there may be other actions against the 
 defendant, -wherein the plaintiff's demands may exceed the sum of five 
 pounds." And lastly, by the statute 19 Geo. III. c. 70, § 6, which takes 
 away the arrest under ten pounds in inferior courts, it is provided, that 
 *'no cause, where the cause of action shall not amount to the sum of ten 
 pounds or upwards," (since extended to twenty pounds, by the statute 7 
 & 8 Geo. IV. c. 71, § 6,) "shall be removed or removable into any supe- 
 rior court, by writ of habeas corpus or otherwise, unless the defendant 
 shall enter into a recognizance to the plaintiff, in the inferior court, with 
 two sufficient sureties, in double the sum due, for the payment of the debt 
 and costs, in case judgment shall pass against him."(/) This statute is 
 not confined to actions oi debt, or for the recovery of liquidated damages; 
 but extends to all actions brought for the recovery of debts and damages, 
 under an arrestable sum : and therefore, where an action was brought in 
 an inferior court for defamation, and the defendant after entering a com- 
 mon appearance, and suffering judgment by default, removed the proceed- 
 ings by certiorari into the King's Bench, without entering into any recog- 
 nizance; the court held, that the case was within the statute, and awarded 
 a procedendo, for the defendant's default in not entering into the recogni- 
 zance thereby required, the damages being laid under an arrestable 
 sum.(^) But where an action was brought in an inferior court for 8?. 
 17s. 3c?. and the damages were laid in the declaration at 20?. and the 
 defendant after interlocutory judgment signed against him, removed the 
 cause into the King's Bench by habeas corpus cum causd, without entering 
 into the recognizance required by the statute 19 Geo. III. c. 70, § 6, the 
 court refused to award a, procedendo. {h) A similar recognizance 
 [ *407 ] is required, on the removal of causes from any court of inferior 
 jurisdiction into the court of Common Pleas at Lancaster, where 
 the cause of action does not amount to the sum of 10?. or upwards, by the 
 statute 34 Geo. III. c. 58 § 2. And ttvo days' notice exclusive must be 
 given of the bail, in the court below, in order that the plaintiff may have 
 an opportunity of inquiring into their sufficiency. (a) 
 
 On a certiorari, the record itself is returned, in the condition in which 
 it was when the writ came to the court below :(?>) And this writ removes 
 all things done in that court, between the teste and return of it.(c) But 
 upon a habeas corjms, the record itself is never removed, as it is upon a 
 certiorari, but remains below ; and the return is only an account or history 
 of the proceedings, stated and sent up to the superior court, to enable them 
 to judge and determine the matter there.((?) It is not deemed a sufiicient 
 
 (ee) 12 Geo. I.e. 29, § 3. 
 
 (/) For the form of a scire facias, on a recognizance of bail on this statute, see Append. 
 Chap. XLIII. § 16. 
 
 (ff) 4 Dowl. & Ryl. 350. 
 
 (k) Id. 362. 2 Barn. & Cres. 802, S. C. 
 
 (a) Imp. K. B. 10 Ed. 650. Imp. C. P. 7 Ed. 699. 
 
 (b) Gilb. Exec. 144, 200. Gilb. Repl. 117, S. P. 1 Salk. 352. 6 Mod. 177, S. C. 2 Ld. Raym. 
 1102. 2Atk. 317. 4 Barn. & Cres. 401. 6 Dowl. & Ryl. 497, S. C. For the forms of returns 
 of proceedings in a borough court, see Append. Chap. XVI. § 2 ; in the Mayor's court of 
 London, by foreign attachment, id. ^ 4 : and in the Great Sessions, id. § 15. 
 
 (c) 1 Salk. 149. 2 Ld. Raym. 838, S.'c. 
 
 (d) 1 Salk. 352. 6 Mod. 177, S. C. Skin. 244. And for the form of a return that the de-
 
 FROM INFEUrOR COURTS, 407 
 
 return to a habeas corpus^ that before the coming of the writ, tlie party 
 was bailed; for he is still in custody in contemplation of law:(t') And when 
 the writ is disallowed by the inferior court, for any of the causes before 
 mentioned, (/) it must still bo returned to the superior court, with the 
 special matter.(//) 
 
 On the return of the certiorari or habeas corpus, if the defendant be in 
 actual custody on mesne process, the court will not discharge him, until 
 bail be put in and perfected above ;(/<) and therefore, in such case, the 
 usual way of g^iining the defendant his liberty, is to put in and perfect 
 bail lielow, before the writ is brought. (z) When the defendant is not in 
 actual custoily, at the return of the certiorari or habeas corpus, he must 
 put in bail, if called upon, in the court above ; which bail is either common 
 or special, as in the court below. 
 
 Before the statute 12 Geo. I. c. 29, every defendant, not being an executor 
 or administrator, must have put in special bail upon a certiorari or habeas 
 corpus, in all actions whatsoever, except actions for words, and trilling 
 assaults, unless a judge had otherwise ordered. (/c) By that statute, "no 
 person shall be holden to special bail, upon process issuing out of an 
 inferior court, where the cause of action shall not amount to the sum of 
 fortif shillings or upwards." And, by a subsequent statute, (/) " no person 
 shall be arrested, or holden to special bail, upon such process, 
 *where the cause of action shall not amount to the sum of ten [ *408 ] 
 pounds or upwards." This provision has been since extended, 
 by the statute 7 & 8 Geo. IV. c. 71, § 6, to " all actions in inferior courts, 
 where the cause of action shall not amount to tioenty pounds, exclusive of 
 any costs, charges and expenses, that may have been incurred, recovered, 
 or become chargeable, in or about the suing for or recovering the same, or 
 any part thereof:" Therefore, at this day, unless there be a cause of 
 action to that amount, the defendant need not put in special bail, upon a 
 certiorari or habeas corpus, in the court above : though, if it be under that 
 amount, he must enter into a recognizance with two sureties to the plaintiff 
 in the court below, pursuant to the statute 19 Geo. III. c. 70, § G,{a). 
 On a recognizance to render in an inferior court, if the proceedings are 
 removed into the King's Bench by writ of error, a render in that court has 
 been deemed a good performance of the condition. (6) 
 
 At the return of the writ of certiorari,{c) or habeas corpus, the plaintiff 
 should obtain a rule or order from a judge, for a procedendo, unless the 
 defendant put in bail within /tH«- days after notice of the rule, if in term ; 
 or, in vacation, within six days after notice thercof.('Z) But it is a rule in 
 the King's Bench, that " no bail shall be put in upon any writ of habeas 
 corpus, before the writ is returned ; and that such bail shall not be taken 
 
 fendant was taken, &c., on a plaint levied in the sherifTs court of London, see Append. 
 Chap. XVI J 17. 
 
 (e) Salmon .j- Sladc, U. 25 k 26 Car. II. cited in 2 Cromp. 3 Ed. 402. 
 
 (/) Ante, 405, 6. 
 
 Iff) 1 .Mod. 195. 3 Mod. 85. Carth. 59. 2 Cromp. 3 Ed. 402. 
 
 (A) R. .M. 1654, § 7. R. H. 2 Jac. II. (a), K. B. R. M. 1654, § 10, C. P. 
 
 (i) New Guide, Jv. B. 244. 
 
 (k) R. M. 1654, § 9. R. II. 2 & 3 Jac. II. K. B. R. M. 1649, rcj. 2. R. M. 1654, I 12, C. P. 
 1 Salk. 98, 102. 
 
 {I) 19 Geo. III. c. 70, 2 1. (a) Ante, 406. 
 
 (b) 1 Str. 49. (c) 1 Lil. P. R. 252. 
 
 (rf) R. II. 10 W. III. (a),K. B.; and see R. M. 1654, ? 8, K. B. R. M. 1649, rey. 2. R. M. 1G54, 
 { 11, 12. R. n. 13 & 14 Car. II. 0. P. Append. Chap. XVI. 2 19.
 
 408 
 
 OF THE REMOVAL OF CAUSES 
 
 by any justice of this court, unless that writ, -with the return thereof, shall 
 be offered before the said justice to be filed, at the time of putting it 
 in."(t') If a defendant be arrested by process of the King's Bench, and 
 removed hj habeas corjms to the Common Pleas, he may put in and justify 
 bail in cither court.(_^) 
 
 The bail upon a habeas corpus are taken on a hail-piece, which is 
 annexed to the writ and return, setting forth, in the King's Bench, that 
 the defendant is delivered to bail upon a habeas corpus, at the suit of the 
 plaintiff or plaintiffs in the plaint ;{g) in which respect it differs from the 
 bail-piece upon a cepi corpus : In the Common Pleas, the bail-piece con- 
 tains a short statement or abstract of the habeas corpus, with the names 
 and additions of the bail, and the sum sworn to; and in that court, it is 
 filled up by the clerk of the dockets, who attends one of the judges to put 
 in the bail, and to render the principal, if necessary.(7i) When common 
 bail are sufficient, the bail-piece(z) should be filled up, annexed to the habeas 
 corpus and return, and filed by the defendant's attorney at a judge's 
 chambers, within the time allowed by the rule ',{k) and notice(?) thereof 
 
 given to the plaintiff's attorney. When special bail are required, 
 [ *409 ] they may be put *in at any time pending the rule, before a judge 
 
 in town, commissioner in the country, or judge of assize in his 
 circuit :{a) and they are either absolute, or cle bene esse, as upon a cepi 
 corrms.ih) The recognizance of bail, in the King's Bench, is general, that 
 if the defendant be condemned at the suit of the plaintiff, (or plaintiffs) in 
 the p>laint, he shall satisfy the costs and condemnation, or render himself 
 to the custody of the marshal :(<?) but, in the Common Pleas, it is taken 
 in a penalty or sum certain, being double the amount of the sum sworn to, 
 upon condition that the defendant do appear to a new original, to be filed 
 within two terms ; and that if he be condemned in the action, he shall pay 
 the condemnation money, or render himself a prisoner to the Fleet •,{d) and 
 in that court, on a removal by habeas corpus, the original should it seems 
 be shown, upon tendering the declaration if insisted on ; and agree in the 
 nature of the action, the sum in demand, and the county, otherwise the 
 bail are not liable. (ge) 
 
 When special bail are put in upon a habeas corpus, notice thereof should 
 be given in writing, before the expiration of the rule, to the plaintiff's 
 attorney ;(/) who is allowed tiventy eight days in the King's Bench, or in 
 the Common Pleas tiventy dsijs,{gg) after they are put in, to except to 
 them : and if he do not except to them for insufficiency within that time, 
 the bail-piece should be filed by the defendant's attorney, within four days 
 after. (A/i) If the bail in an inferior court offer to become bail in the 
 action in the King's Bench, the plaintiff is in general compellable to take 
 them ; because he might, but did not except to them below : But it is 
 
 le) R. H. 10 W. III. ; and see R. M. 1651. R. E. 29 Car. II. K. B. 
 
 (#) 1 Bos. & Pul. 311. A7ite, 246, 356. 
 
 (g) R. T. 8 W. III. reff. 3, ? 1, K. B. ; and see Append. Chap. XVI. § 23, &c. 
 
 (h) Imp. C. P. 7 Ed. 700, 706. (i) Append. Chap. XVI. § 20, 21. 
 
 (k) New Guide, K. B. 250, 51. [1) Append. Chap. XVI. ? 22. 
 
 (a) R. T. 8 W. III. reff. 3, § 1, K. B. 
 
 (b) R M. 1654, ? 7,8, K.B. K.M. 1654, § 11. R.H. 13 & 14 Car. II. C. P. Ante, 253. 
 
 (c) Append. Chap. XVI. § 25. (d) Id. § 26. 
 
 (e) R. M. 1654, § 12, C. P. (/) Append. Chap. XVI. § 27. 
 
 (ga) R. M. 1654, § 11. R. H. 13 & 14 Car. II. C. P. 
 
 {hh) R. M. 1654, ^ 8. R. M. 16 Car. II. and note, (b). 1 Salk. 98, K. B. R. M. 1654, ^ H. 
 R. H. 13 & 14 Car. 11. C. P.
 
 FROM INFERIOR COURTS. 409 
 
 Otherwise, when a cause comes hitlier out of London ; for the sufTiciency 
 of the bail there is at the peril of the clerk, and he is responsible to the 
 plaintiff; so that the plaintiff had not the liberty of excepting to them; 
 and the clerk is not responsible, if they be deficient in this court, though 
 he was in London. {ii) 
 
 If the phiintiff be dissatisfied with the bail put in by the defendant, he 
 should obtain a rule or order from a judge, for better bail, which will entitle 
 him to a procedendo^ unless they are perfected in four days after service of 
 the rule :(A:) and thereupon the same or different bail must justify, (as in 
 other cases,) within the four days, if the rule be served in term; but if 
 served in vacation, it is sufficient for the defendant to give notice, within 
 the time allowed by the rule, of an intended justification on the first <lay of 
 the ensuing term.(/) The court of King's Bench, we have seen,{m) will not 
 give time to correct a misnomer in the notice of justification of 
 bail ; and it is a rule in that court, not to allow time for justifying [ *410 ] 
 *bail on a habeas corpus, on account of the delay,(rt) except in 
 case of unavoidable accident, such as the unexpected illness of the bail.(^) 
 AVhere the rule for better bail was served on the 14th oi January, and the 
 bail did not justify until the 19th, the court held, that the plaintiff 's jtjro- 
 cedendo was regular :((?) But where the rule expired in vacation, a render 
 on the first day of the ensuing term, sedente eurid, was deemed good : 
 though notice was not given till afterwards on the same day, and after a 
 writ of procedendo had issued to an inferior court, where the cause origi- 
 nated, (c^) 
 
 The bail upon a habeas corpus are liable to all the actions mentioned in 
 the return of it, wherein the plaintiff or plaintiffs shall declare within tivo 
 terms. (e) But this must be understood of the bail upon a habeas corpus 
 before declaration ; for it is said, that if the plaintiff had declared before the 
 habeas corpus delivered, in one action which requires special bail, and in 
 another wherein common bail is sufficient, the bail shall be special only as 
 to that action which requires special bail, and common to the other. (/) On 
 a removal after declaration, special bail are liable, though the plaintiff de- 
 clare in a different kind of action in the court above, so as it be for the 
 same cause.(_r/) And where one of the Yeomen of the King's guard had 
 been arrested, without leave from the Lord Chamberlain, by process issuing 
 out of the Palace court; and that court had refused to discharge him out 
 of custody, on filing common bail ; and, bail above having been put in and 
 perfected in that court, the defendant, after interlocutory judgment signed, 
 removed the cause into the King's Bench hy habeas corpus, and put in and 
 perfected bail ; the court, under these circumstances, refused to order an 
 exoneretur to be entered on the bail-piece. (//) 
 
 If bail be not put in and perfected in due time, a procedendo may be 
 
 {ii) 1 Salk. 07. 
 
 \k) R. .\I. 10 Car. II. (r), K. B. Append. Clmp. XVI. ? 28. 
 
 \l) New Guide, K. B. 249 ; and see Append. Chap. XVI. § 29. 
 
 (m) Ante, 2G6. 
 
 \a) 1 Chit. Rep. 76, (a). Ante,2l3. 
 
 \b) 2 Chit. Rep. 107. 9 Dowl. & Ryl. 6. Ante, 273. 
 
 (c) 1 Chit. Rep. 1.30. (rfj 5 East, 533 ; and see 16 East, 387. 
 
 {,€) R. H. 2 Joe. II. (a), K.B. 
 
 (/) SctIc v. Neioion, H. 25 & 26 Car. II. 2 Cromp. 3 Ed. 409. 
 
 {ff) 1 Wils. 277. 
 '' (//) 1 Barn. & Cres. 139. 2 Dowl. k Ryl. 250, S. C. And see further, as to bail on the 
 removal of causesfrom inferior courts, Petersd. Part I. Chap. XVII. 
 
 Vol. i.~26
 
 410 OF THE REMOVAL OF CAUSES 
 
 awarded :(/) ■which is a judicial writ, directed to the judges of the inferior 
 court, commanding them to proceed in the cause, (A;^) notwithstanding the 
 writ before delivered to them. The j^'^'ocedendo removes the suspension 
 created by the certiorari, or habeas corpus :[ll) and this writ may also be 
 awarded where it appears upon the return of the habeas corpus, that the 
 court above cannot administer the same justice to the parties as the court 
 below : as in the cases before mentioned,(mm) where an action is brought in 
 London, for calling a woman ivliore ; or upon a custom or bye-law, which 
 is only suable in the inferior court. So, where a habeas corpus was brought 
 after interlocutory and before final judgment in an inferior court, and the 
 defendant died before the return of it, a procedendo was awarded : because, 
 by the 8 & 9 W. III. c. 11, § 6, the plaintiflF may have a scire 
 [ *411 ] facias *against the executors, and proceed to judgment, which he 
 cannot have in another court; and by this means he would be de- 
 prived of the effect of his judgment, which would be unreasonable.(a) So, 
 where an action was brought in the sheriff's court of Lo?idon, against two 
 partners, and one of them brought a habeas corpus, and put in bail for him- 
 self only, a procedendo was granted : for otherwise the plaintiff would have 
 been disabled from going on in either court. (5) And a procedendo was 
 awarded in an action brought in the Palace court, on a bail bond given to 
 the officer, on process issuing out of that court : for, by the statute 4 Anne, 
 c. 16, § 20, the action on the bail bond ought to be brought in the same 
 court where the original action was commenced, in order that the court 
 may give such relief, in a summary way, to the plaintiff and defendant in 
 the original action, and to the bail upon the bond, as is agreeable to jus- 
 tice, (c) But the plaintiff in an inferior court, from which a cause is removed 
 by habeas corpus, is not entitled to a procedendo, after render of the defend- 
 ant, and notice of such render ; although the render be made after the day 
 on which the rule for better bail expires. (d) And a procedendo cannot 
 issue after service of the rule for the allowance of bail, on the ground that 
 the plaintiff was called by a wrong name in the notice of bail ; but the rule 
 for the allowance should be first set aside. (e) 
 
 In causes removed from the Mayor's court of London, the court above 
 will allow the validity of the custom or bye-law, upon which the action is 
 founded, to be discussed in a summary way, upon the return of the certio- 
 rari or habeas corpus, and before it is filed :(/) but where an action was 
 brought in that court, and the defendant, who was an attorney of the King's 
 Bench, sued out a writ of privilege, a procedendo was awarded, without 
 prejudice to the defendant's pleading his privilege in the court below.(^) 
 So, where a cause was removed from the Mayor's court of London by ha- 
 beas corpus, to which a return was made, stating a custom under which the 
 defendant was sued and arrested, error being suggested in the proceedings 
 below, the court above would not stay the procedendo merely on that 
 grounds ; but said, they would leave the defendant to his writ of error.(/i) 
 
 (j) R. M. 1654, I 8, K. B. R. M. 1654, § 11. R. H. 13 & 14 Car. II. C. P. 
 
 \kk) Append. Chap. XVI. §31,2, 3. 
 
 \ll) 1 Salk. 352. 6 Mod. 177, S. C. {mm) Ante, 398. 
 
 (a) 1 Salk. 352. [b) 1 Str. 527. 
 
 (c) 8 Durnf. & East, 152. 
 
 {d) 16 East, 387. 4 Barn. & Aid. 535. Ante, 410. 
 
 (e) 1 Chit. Rep. 575. (/) 1 Ld. Raym. 581. 
 
 {g) Say. Rep. 156, 7. 
 
 (A) 6 Durnf. &; East, 760 ; and see 2 Bos. & Pal. 93.
 
 FROM INFERIOR COURTS. 411 
 
 But, except in causes removed from London, the court above will not enter 
 into the validity of a custom or bye-law in a summary way, on the return 
 of the certiorari or habeas corpus ; but put the parties to declare upou it 
 in that court, and demur.(i) 
 
 If a record be filed in the King's Bench, upon a certiorari, it can never 
 be sent back or remanded, either in the term in which it is filed, or any 
 other ; and that is plain by the act of lien. YIII. c. G, which enables this 
 court to remand it in case of felony, which otherwise they could not have 
 done:(/ir) and therefore the j>ro(?t't?t;?e(?o must be moved for on the 
 *return of the certiorari, and before it is filed : But upon a habeas [ ^41 2 ] 
 corpus it is otherwise ; for the very record below is not returned 
 thereon, and therefore cannot be filed : consequently di. procedendo may be 
 granted on this writ, after the return is filed ; because it will not send out 
 any record filed in this court, but only takes off the suspension created by 
 the habeas corpus.{a) After the cause has been once remanded, by writ of 
 proccdcnde, it cannot be again removed, or stayed by any writ before judg- 
 ment :(6) And if, after a procedendo to carry a cause back to an inferior 
 court, the plaintiff recover, and then sue out a scire facias against the bail 
 below, and they remove the proceedings against them into the King's Bench 
 by habeas corpus, this court will award o, procedendo in the suit against the 
 bail.(c) 
 
 A certiorari, as we have already seen,((^) removes the record in a civil 
 cause from the inferior court; but though the record be brought up on this 
 writ, into the court above, yet they do not take up the cause where the 
 record leaves off, but begin the whole proceedings de novo ; for there is no 
 continuance from the inferior to the superior court, and therefore they 
 cannot proceed on that record which was below : and though a certiorari 
 removes the record in the condition in Avhich it was at the time of the ser- 
 vice of the writ, and thereby transfers the same into the superior court, 
 yet it cannot make the roll of the inferior court a record of the superior 
 one, but only brings up the record from the inferior to the superior court ;(e) 
 and nothing is recorded here but the original :(/) Therefore, where the 
 proceedings in an inferior court of record were removed by certiorari, into 
 the Common Pleas, and the question was, whether the plaintiff should de- 
 clare de novo ; it appearing by the return, that the parties were at issue 
 in the court below, it was holden that the plaintiff must declare denovo.ig) 
 On the removal of a cause from an inferior court, by writ of certiorari, the 
 plaintiff need not file his declaration, until the end of the term after that 
 in which the writ is returnable. (/i) And, on a certiorari or habeas corpus, 
 the plaintiff may declare in this court, as he pleases; and is not confined 
 to the same species of action as he declared in below.(«i) When a defend- 
 ant, however, removes a cause from an inferior court by certiorari, the 
 plaintift' is not bound to follow the suit; and the defendant cannot sign 
 judgment of non-pros, for want of a declaration.(A;^) 
 
 (t) 2 Bur. 775. 2 Ken. 469 S. C. 
 
 (k) 1 Salk.352. 6 Mod. 177,S. C. ; and see Gilb. E.tec. 144,5; bnt see 4 Dowl. & Rjl. 350. 
 
 (a) 1 Salk. 3.'i2. C Mod. 177, S. C. ; and see Gilb.Eiec. 144,5; but see 4 Dowl. & Ryl.350. 
 
 (b) Stat. 21 Jac. I. c. 23, § 3. (c) 6 Durnf. & East, 365. 
 
 (d) Ante., 407. 
 
 (e) Gilb. Exec. 144, 200. F.N. B. 71. C. Gilb. Repl. 1 17 ; but seo 2 Alk. 317. Barnes, 421. 
 (/) Bro. Abr. tit. Cauae de remover Plea, pi. 47. 
 
 \g) Barnes, 345 ; and see 6 Dowl. & Rjl. 490, 91, fcr Ahhoit, Ch. J. ; but see Barnes, 421. 
 (A) 4 Moore, 190. (ii) Pr. Reg. 221. 2 Chit. Rep. 517. 
 
 [kk) 4 Barn. & Ores. G49. 7 Dowl. & Rjl. 104, S. C.
 
 412 OF THE REMOVAL OF CAUSES 
 
 On a liahcas corpus, the parties have no day in court: and, as the record 
 is not removed upon this writ from the inferior court, but only 
 [ *413 ] an "account or history of their proceedings, the plaintiff must 
 begin de novo, and declare against the defendant as in custody 
 of the marshal. (aa) But it is otherwise where conusance is demanded and 
 allowed ; for there the superior court gives a day to the parties in the inferior 
 one, and transfers the roll itself into that court. And the reason of the 
 difference is, that the inferior court which has conusance, being taken out 
 of a superior one, the judges continue the cause into the inferior court, as 
 into a court erected by the king, and taken out of the ordinary jurisdic- 
 tion ; and therefore, the proceedings go on as in the court in which they 
 were commenced; but where the cause is taken from the inferior to the 
 superior court, they do not proceed as in the same court ; for it would be 
 below the higher jurisdiction not to proceed on it as res integra, or to 
 suffer any continuance to be made from a subordinate power to theirs. (6) 
 
 The declaration upon a habeas corpus must be delivered, if at all, before 
 the end of the second term after putting in bail, including the term in 
 which it was put in :{c) If the plaintiff do not declare within that time, the 
 defendant's attorney is not bound to accept a declaration ; though the 
 plaintiff cannot be non-prossed for want of \t.{d) And if a cause be removed 
 by the defendant, by habeas corpus, out of an inferior court, the plaintiff 
 is not bound to declare in the court above, if he has taken no other step 
 than compelling the defendant to put in and justify bail there. (e) On the 
 removal of a cause by habeas corpus, out of the courts of Canterbury^ 
 Southampton, Hull, Litchfield, or Poole, which are counties where the 
 judges of nisi ptrius seldom come, if the action be transitory, the venue 
 must be laid in the county oi Kent, Southampton, York, Stafford, or Dorset, 
 where the town and county lies.(/) And, on a habeas corpus returnable 
 in Michaelmas or Easter term, if the declaration be delivered before the 
 third return, the defendant is not entitled to an imparlance. ( g) So, when 
 a defendant removes the cause by habeas corpus from an inferior court, 
 and the plaintiff does not declare until the next term, an imparlance is not 
 allowed ; for such removals being in general considered as dilatory, it would 
 only be adding to the delay if an imparlance were granted. (7t) 
 
 If a plaint be levied in an inferior court, within six years after the cause 
 of action arose, and then it be removed into the King's Bench by habeas 
 corpus, and the plaintiff declare here de novo, and the defendant plead the 
 statute of limitations, the plaintiff, we have seen,(z) may reply, and show 
 the plaint in the inferior court, and that will be sufficient to avoid 
 [ *414 ] *thc statute. And it is a rule, that upon a cause removed by 
 habeas corpus out of an inferior court, having jurisdiction of the 
 cause, if judgment be given for the plaintiff, the costs below are to be con- 
 
 {aa) 1 Salk. 352. 6 Mod. 177, S. G. ; and see R. M. 16 Car. II. (c). Skin. 215. 2 L. Raym. 
 1102,3. 2Atk. 317. Gilb.Repl. 114. 1 Durnf. & East, 372. 
 
 (b) Gilb. Erec. 144, 200. F.N. B. 71, C. Gilb. Repl. 117. 
 
 (c) 1 Str. 631. Barnes, 90 ; but see Cro. Jac. 620, by which it appears, that ancientlythe 
 plaintiff bad three terms to declare, after bail put in; and see 6 Durnf. & East, 752. 4 
 Moore, 190. 
 
 {d) R. M. 16 Car. II, (c), K. B. Cowp. 117. 1 Durnf. & East, 372. 
 
 (e) 3 Maule & Sel. 93. ( f) R. M. 1654, g 9, K. B. R. M. 1654, § 12, C. P. 
 
 {g) 1 Mod. 1. 2 Salk. 515. 1 Wils. 154. 
 
 [h] 6 Durnf. & East, 752 ; but see 2 Bos. & Pul. 137. 
 
 (t) Ante, 27, 8.
 
 FROM INFEllIOR COURTS. 4U 
 
 siderod, and cast into the judgment; if for the defendant, the charges of 
 putting in baii.(a) 
 
 When the inferior court from which the cause is to be removed is not of 
 record, the means of removing it, we may remember, are by pon9, recordari 
 facias loquelam, accedas ad curiam. These writs are chieily calculated 
 for the removal of actions of replevin from the county court, or court of 
 some lord autliorized to grant replevins ; for it is beneath the dignity of a 
 superior court to proceed in other actions, if the debt or damages appear 
 to be unHQY forty shillings; and therefore, in such case, if the cause were 
 removed, the court would remand it by procedendo. A plaint in replevin 
 cannot, we have secn,(i) be removed from a county court in Wales, into 
 the King's Bencli, by certiorari. And a writ of accedas ad curiam, 
 issued to a court of requests, which proceeds equitably, may be set aside 
 on motion. (f) 
 
 If a replevin be sued by ivrit out of Chancery, then if the plaintiff or 
 defendant would remove the cause out of the county court, into the King's 
 Bench(t/) or Common Pleas, he ought to sue out a writ of 2yone;ie) which 
 is an oriejinal writ, issuing out of Chancery, directed to the sheriff of the 
 county where the replevin is brought ; and when returnable in the King's 
 Bench, it commands the sheriff to imt before the king on a general return 
 day, wheresoever, &c. the plea which is in his county, by the king's writ, 
 between the parties, of the cattle or goods taken and unjustly detained, &c. 
 The writ of pone, if taken out by the plaintiff in replevin, hath a clause 
 in it, commanding the sheriff to summon the defendant to appear in the 
 court above at the return day, that he be then there, to answer the plain- 
 tiff thereupon.(e) If the replevin be removed by the defendant, then 
 the i^one commands the sheriff, that he warn the plaintiff to be there, 
 to prosecute his plaint thereupon against the defendant, if he shall think 
 proper :(/) and by this means, both parties have a day in the court 
 above. ((/) 
 
 AVhen the plaint is in the county court, and the replevin sued there ivith- 
 out writ, then if the plaintiff or defendant would remove it, he ouglit io 
 sue out a writ of recordari facias loquelam ; which is an original writ, 
 issuing out of Chancery,(/<) on a proper prxcipe,{i) directed to the sheriff 
 in whose court the plaint is entered, (Z:) commanding him that in 
 his full *county, he cause to be recorded the plaint which is in [ *415 ] 
 the same county, without the king's writ; and that he have that 
 record in the court above, on a general return day, under his seal, and 
 the seals of four lawful knights of his county who were present at that 
 recording ; and that he prefix the same day to the parties, that they bo 
 then there, to proceed in the action.(aa) And if a replevin be sued by 
 
 (rt) R. 11.1054,3 22, K.B. R.M.1G54,§ 25, C. P. ^. .^^ ^ r. 
 
 \b) Ante,Am ' (c) 10 Moore, 32. Id. ITl. 2 Bmg.4G3,S. C. 
 
 (d) Bro. Abr. tit. Cause de Remover Plea, pi. 50. Trye, 94. 
 
 (e) F. N. B. 69, M. Gilb. Repl. 102. Append. Chap. XLV. J 26. 
 
 (/) Append Chap. XLV.g 27. , . t- . o^, 
 
 (>) F. N.B. 70, A. Gilb. Rcpl. 106,7,8. 2 Ld. Raym. 1102, 3. 1 Durnf. & East, 371. 
 Ih) F. N. B. 70, B. Gilb. Repl. 108. 
 
 (i) Append. Chap XLV. ? 34. (^■) Trye, 39. 
 
 (aa) F. N. B. 70, B. Append. Chap. XLV. § 35.
 
 415 OF THE RExMOVAL OF CAUSES 
 
 plaint in the court of any lord, other than in the county court before the 
 slieriff, then the recordari has a clause therein commanding the sheriff, 
 that taking with him four discreet and lawful knights of his county, he 
 go in his proper person to the court of the lord ; and in that full court, 
 cause to be recorded the plaint, &c. •.[hb) and from this clause in the writ, 
 it is called an accedas ad curiam.{cc) On this writ the sheriff must go in 
 person to the lord's court, and take with him four men of his county; but 
 it is not necessary that they should be knights. (cZcZ) When a sheriff, or 
 his deputy, neglects to enter a plaint in reiolevin, in the county court, for 
 damage feasant, the court of King's Bench will not compel him to do so, 
 on motion ; but the only remedy, if any, is by writ of mandamus. [e) 
 
 The ^plaintiff may remove the plea out of the county cou7't, either by 
 pone, or recordari, without cause shown ; for it is in his own delay : but 
 the defendant cannot remove it without cause shown ; for since it is in 
 delay of the plaintiff, a just cause ought to appear on record for such 
 removal. (/) The cause of removal usually assigned is, that the sheriff 
 or his clerk is related to one of the parties -.{g) and the sheriff cannot 
 return that the cause is not true. But if either the plaintiff or defendant 
 remove a suit out of the lord's court, they ought to show cause ; because 
 they should not oust the lord of the profits of his jurisdiction, without 
 apparent reason •.[li] And it seems that such causes were anciently 
 examined before the writ was granted, as in Chancery they used to 
 examine the cause of action, before the granting of original writs ; but 
 this in both cases is now neglected, and such writs are issued as a matter 
 of course. (t) 
 
 The writ of pone, recordari, or accedas, like the certiorari or habeas 
 corpus, when delivered to the sheriff or lord to whom it is directed, instantly 
 suspends his power ; so that if he afterwards proceed, he is liable to an 
 attachment, and the proceedings are void, and coram non judice.{k) And 
 it has been adjudged, that the officer of an inferior court cannot refuse pay- 
 ing obedience to the writ, under pretence of not being paid his fees ; for 
 he is obliged to obey the writ, and has a proper remedy for such fees as 
 are due to him.(Z) On the receipt of the writ therefore, it should be forth- 
 with allowed and returned, under the peril of an attachment. The return 
 
 to the po7ie or recordari, &c. should be made and filed by the 
 [ *416 ] *party suing it out, with the filacer of the court above, in two 
 
 terms after it is returnable ;(a) or, upon the filacer's certificate, 
 the cursitor will issue o, procedendo. lb) The recordari and accedas ad 
 curiam should be returned under the sherifi"'s seal, and the seals of four 
 suitors of the court : And it is a good return for the sheriff to say, that 
 after the receipt of the writ, and before the return thereof, no court was 
 holden ; and also, that he required the lord to hold his court, and he would 
 not, so that he could not execute the same ; and thereupon the justices 
 shall award a distringas, directed unto the sheriff, to distrain the lord to 
 
 (M) F.N. B. 70, A. Gilb.Repl. 112. 
 
 \cc) Append. Chap. XLV. I 47 ; and see 2 Bos. & Pul. 138, {a). 
 
 (dd) F. N. B. 10, E. (e) 2 Dowl. & Ryl. 13. 
 
 (/) Gilb. Repl. 103, cites F. N. B. 69, M. 70, B. ; and see 2 Moore, 643. 
 
 iff) Append. Chap. XLV. ^ 27. (h) F. N. B. 70, A. Gilb. Repl. 105. 
 
 (»•) Gilb. Repl. 105. [k) F. N. B. 4, E. 
 
 (/) 2 Bur. 1151,2. Gilb.Repl. 115. Ante, i0i,5. 
 
 (a) For the form of a return to a recordari, see Append. Chap. XLV. § 38. 
 
 (t) Id. I 46, 49.
 
 FROM INFERIOK COURTS, 416 
 
 hold his court; and sicut aUas,{e) &c. When the return is filed, the cause 
 it seems cannot afterwards be remanded ;{d) unless it was removed from 
 a court of ancient deraesne.(<?c) 
 
 If the pone or rccordari, &c. bear date before tlic plaint entered in the 
 county, yet the cause is well removed ; because both are the kin<!;'s courts. (/f) 
 But if the cause be removed out of the court of any other lord, by a writ 
 which bears date before the entry of the plaint, is not good.(^) The 
 reason of the difference is, because the sheriff, by whom the county is held 
 or farmed, bcinc; the kinf^'s immediate deputy, the kin^; may remove the 
 replevin out of the sheriff's court into his own, without showing cause; and 
 therefore it is not material whether the recordari be tested before the plaint 
 or not : and although the defendant cannot remove the plaint without 
 cause, yet this is not in order to prevent the sheriff from being ousted of 
 his jurisdiction, but that the plaintiff may not be delayed without good 
 cause shown : But when the record is removed out of the lord's court, 
 which has a jurisdiction by grant or prescription, there must be cause 
 shown for such removal; and the cause will be absurd, if the accedas ad 
 curiam bear date before the plaint, for that cannot be a cause to oust the 
 lord of his jurisdiction, which was not in being at the time of the writ 
 issued. (^) So, the plaint is well removed by certiorari, where it ought to 
 have been hj pone or recordari :{h) So, if one plaint be removed, where 
 another ought to have been ; or where there is a variance between the 
 plaint and the writ.(/i) If the plaintiff has already declared in the county 
 court, yet nothing shall be removed but the plaint :{i) And though the 
 plea be discontinued in the county, yet the plaintiff or defendant may 
 remove the plaint into the King's Bench or Common Pleas, by recordari, 
 &c., and he shall declare, and the court shall hold plea, upon the same 
 plaint.('i) 
 
 If the writ of pone or recordari, &c., be brought by the plaintiff, and 
 the defendant do not appear, on or before the appearance day of the return, 
 the plaintiff", having previously filed the writ and return with the filacer,(A;) 
 should give a rule with that officer, for the defendant to appear,(^) 
 *which expires in four days ;(a) and upon his non-appearance [ *417 ] 
 within that time, sue out a pone per vadios ;(h) upon which a 
 summons(cc) is made out, and served upon the defendant : and if he do not 
 appear, the plaintiff, on the return of nihil, should sue out a distringas ;{dd) 
 and afterwards, if necessary, an alias or plurics distringas ;{e) upon which 
 issues are levied from time to time, until the defendant appear, when ho 
 must pay the costs of the different writs :(/) or, if nulla bona be returned, 
 the plaintiff may have a capias,{gg) and process of outlawry. If the cause 
 be removed by the defendant by jjone, and the plaintiff appear, but the 
 defendant make default, a distringas is the first process for compelling his 
 
 (c)F.N. B. 18, E. 
 
 (rf) /(/. 69, M, (a). Gilb. Repl. 10. (ec) Gilb. Repl. 11 1. 
 
 (jf) F. N. B. 71,D. Gilb. Repl. 118. (^) Gilb. Rcpl. 118, 19. 
 
 (k) F.N. B. 69, M, (a). Cro. Eli/,. 543. Gilb. Repl. 108 ; but see Moore, 30. 
 
 (i)F. N.B. 71,A. Gilb. Repl. 113. 
 
 [k] Barnes, 222. (I) Pr. Reg. 371. Append. Chap. XLV. ? 50. 
 
 (a) 2 Bos. & Pul. 138. 
 
 (b) 21 Hen. VI. 50. F. N. B. 70, A. Gilb. Repl. 107. Append. Chap. XLV. ? 41. 
 
 (cc) Append. Chap. XLV. ^ 42. (dd) Id. § 4.-5. (e) Id. g 44. 
 
 (/•) 3 Sel. Pr. 2 Ed. 161. Imp. C. P. 7 Ed. 745. Anie, 110, 11. 
 
 (.7,7) 3 Hen. VI. 54, 5. F. N. B. 70, A. Gilb. RepL 106, 7. Pr. Reg. 371. Thcs. Brcv. 37. 
 Append. Chap. XLV. § 45.
 
 417 OF THE REMOVAL OP CAUSES 
 
 appearance ;(7Ji) and on a nulla ho7ia returned, a capias maybe issued. (^(/) 
 The appearance of the defendant is entered with the filacer ;(n) after 
 which, the next step is for the plaintiff to declare : and though he has 
 already declared in the inferior court, (/c/c) yet as nothing is removed but 
 the plaint, he must declare dc novo in the court above. (Z/) But the declara- 
 tion, in the Common Pleas, should regularly be delivered before the end 
 of the second term after the return of the recordai'i, &c., unless the plain- 
 tiff has obtained a rule for time to declare, which it seems he may do in 
 replevin, as well as in other actions ;(?w) and if it be not delivered till the 
 third term, the court will set it aside for irregularity. (7i) After a writ of 
 reeordari facias loquelam, and several writs of pone issued thereon to 
 compel the defendant's appearance, if the plaintiff file a declaration, enti- 
 tled of an intermediate term between that in which the reeordari facias 
 loquelam is returnable and the term in which the declaration is filed, with 
 notice to plead in the following term, both the declaration and notice to 
 plead are irregular, (o) 
 
 When the writ of pone or reeordari, &c., is brought by the defendant, 
 he should file it and the return with the filacer ; and having entered his 
 appearance, give a rule for the plaintiff to declare, (j^j) with the master in 
 the King's Bench, or filacer in the Common Pleas : and if the return be 
 filed on or before the appearance day, there is no occasion to demand a 
 declaration in writing ;(g) but otherwise a written demand is necessary.(r) 
 
 The rule to declare may be given, in the King's Bench, within 
 [ *418 ] fourteen days,(s) *or in the Common Pleas within /owr days, (a) 
 
 after the end of the term, and served on any day before the 
 time in the rule has expired ; and the plaintiff, in the King's Bench, must 
 declare within /owr days after such service. (Z») But the demand of declara- 
 tion, when necessary, should not be made before the return of the writ.(c) 
 The same mode of proceeding may be adopted, to compel the plaintiff to 
 declare, where he neglects to do so, after having sued out and filed the 
 writ of reeordari, &c. : And if he do not declare within the time limited 
 by the rule, or obtain a rule for time to declare, the defendant may sign a 
 judgment of non-pros,{d) upon which he is entitled to costs ;(e) and in 
 replevin, he may sue out a writ of retortio Jiabendo,{f) or, if the distress 
 was for rent, proceed to execute a writ of inquiry, on the statute 17 Car. 
 II. c. l.(ff) If the party suing out a reeordari, &c., do not get it returned 
 and filed within tivo terms, the other party should apply to the filacer, for 
 
 (M) 21 Hen. VI. 50. F. N. B. 70, A. Gilb. Rcpl. 106, 7 ; and see 2 Bos. & Pul. 137, where 
 a distringas issued, for compelling the defendant's appearance, on the removal of a cause by 
 the plaintiff, by accedas ad curiam. 
 
 [gg) Ante, p. 4IG, note {gg). 
 
 (ii) Trye, 94. 
 
 (kk) For the form of a declaration in the county court, see Append. Chap. XLV. 3 22. 
 
 («) E. N. B. 71, A. Gilb. Repl. 113. 
 
 (w) I Durnf. & Bast, 371. 5 Taunt. 35. 
 
 (7j) 5 Taunt. 649 ; and see Allen v. 3Iillward, H. 30 Geo. III. C. P. Imp. C. P. 7 Ed. 533, 4. 
 
 (o) 5 Taunt. 771.1 Marsh. 341, S. C. 
 
 (p) Pr. Reg. 371 ; and see 2 Moore, 642. Append. Chap. XLV. g 54. 
 
 (q) 1 H. Blac. 281. 2 Moore, 643, (c). 
 
 (r) Pr. Reg. 370. Cas. Pr. C. P. 55,S. C. Append. Chap. XLV. § 52. 
 
 (s) 11 East, 183. 
 
 (a) Allen v. Millward, H. 30 Geo. III. C. P. Imp. C.P. 7 Ed. 533, 4. 
 
 {b) 11 East, 183. (c) 10 Moore, 32. 
 
 {d) P. N. B. 70, A. Gilb. Repl. 106, 7. Append. Chap. XLV. § 55, &c. ; but see 2 Moore, 642. 
 
 («) 1 Durnf. k East, 371. (/} Append. Chap. XLV. § 92. 
 
 {g) Id. I 59, 77.
 
 FROM INFERIOR COURTS. 418 
 
 a certificate that tlie same is not returned and filed ; -vvliich will be a suffi- 
 cient warrant for the cursitor to make out a writ of procedendo, for 
 remanding the cause to the inferior court :{h) Or if either party, having 
 sued out a rccordan, &c., neglect to file it, the other party, for the sake 
 of expedition, may, without waiting till the end of the second term, sue 
 out another writ of the same nature, and got it returned and filed, for 
 removing the proceedings into the court above. 
 
 After the plaintiff' has declared, he should give a rule for the defendant to 
 avow or make cognizance; and, in the Common Pleas, if the writ by which 
 a cause is removed, be returnable on the first return of the term, and the 
 plaintiif do not declare within /oit?- days before the end of that term, the de- 
 fendant is entitled to an imparlance, though he has not appeared within the 
 term.(/) The subsequent proceedings are similar to those in common cases. 
 
 (h) Barnes, 222. 2 Scl. Pr. 2 Ed. 162. Imp. C. P. 7 Ed. T47. Append. Chap. XLV. § 46, 49. 
 (i) 2 Bos. & Pul. 137. 
 
 Note. An important removal of causes sometimes takes place here under the ])0\ver of the 
 Federal Constitution. A recent case in the Supreme Court of Pennsylvania, Wheahn v. The 
 Camden .j- Amhoij Kail Road Co., 4 Am. Law Reg. 29G, discusses the suV)ject matter so fully that 
 the reader is presented with the opinion of Mr. Just. Woodward, as the most recent and satis- 
 factory discussion that is to be found. " The Constitution of the United States, art. 3, sect. 2," 
 says he, "extends the judicial power of the federal union to various classes of cases, and 
 among others to all cases in law and equity ' between citizens of different states.' The 1 1th sec- 
 tion of the Act of Congress, 1789, commonly called the Judiciary Act, vests original cogniz- 
 ance in the Circuit Courts of all suits of a civil nature at common law or in equity, where 
 the matter in dispute exceeds, exclusive of costs, five hundred dollars, and where 'the suit 
 is between a citizen of the state where the suit is brought, and a citizen of another state:' 
 and the 12th section provides that if a suit be commenced in a State court by a citizen of the 
 state in which the suit is brought, against a citizen of another state, and the matter in dis- 
 pute exceeds five hundred dollars, exclusive of costs, to be made to appear to the satisfac- 
 tion of the court, and the defendant shall, at the time of entering his appearance in such 
 State court, file a petition for the removal of the cause for trial into the next circuit court, 
 to be held in the district where the suit is pending, and offer good and sufficient surety for 
 his appearance in said court, and entering special bail if necessary, ' it shall then be the 
 duty of the state court to accept the surety and proceed no further iu the cause,' but the 
 same is to proceed in the Circuit Court of the United States, in the same manner as if it had 
 been brought there by original process. 
 
 "It will be observed that the legislative language, descriptive of the parties who may sue 
 or remove into the circuit court, is a little more restricted than that emjjloyed in the consti- 
 tution, but if any difference of meaning be indicated by the difference in phraseology, it is 
 unimportant in the cause before me, for if this be a removable case, it is because it is within 
 the words of the legislature, and of course within those of the constitution. 
 
 " What, then, is the case? James C. Whcedcn brought suit in the Supreme Court of 
 Pennsylvania against the Camden and Amboy Railroad and Transportation Company, for 
 the recovery of damages claimed to exceed five hundred dollars, and which resulted, it is 
 understood, from the late calamity, well known as the ' Burlington disaster.' The Com- 
 pany, at the time of appearing, filed a petition, setting forth that they were a corporation 
 solely created and established by laws of the State of New Jersey, and having their chief 
 place of business within the State of New Jersey, and that the corporation was and is a 
 citizen of said state, and that the plaintiff is a citizen of Pennsylvania. Security was ten- 
 dered and the removal of the cause into the circuit court was pr.iyed for. 
 
 "The plaintiff puts in an answer to the petition and alleges that the company own 
 property and transact a large part of their business in the city of Philadelphia. Several of 
 the specifications in the plaintiffs answer are qualified and some of them contradicted by 
 counter affidavits on the part of the company ; but I do not consider the facts alleged in the 
 answer, whether disputed, qualified or admitted, as of much moment to the present inquiry, 
 for the defendant being a corporation created by the Legislature of New Jersey, and having 
 no vitality or existence, save such as is derived from that source, cannot be, ^yhatever their 
 business transactions in this state, a citizen of Pennsylvania in any sense of either the con- 
 stitution or the judiciary act. 'That invisible, intangible and artificial being, that mere 
 legal entity, a corporation aggregate,' if capable of becoming a citizen of a state for any pur- 
 pose, must be made so by the legislative power of the state. It is impossible that New Jer- 
 sey should make a citizen of Pennsylvania, even of a natural person, much less of an artificiaL
 
 418 OF THE REMOVAL OF CAUSES 
 
 And if tlie Icf^islativc faculty of that state is incompetent for this purpose, a corporation 
 existiiip; solely by her will, cannot make itself a citizen of Pennsylvania. No amount of busi- 
 ness carried on, or property held here, can naturalize such a corporation. Its rights amongst 
 us are permissive merely, resting entirely in the absence of prohibitory legislation. That 
 we regard every corporation ' not holding its charter under the laws of this Commonwealth,' 
 as foreign, may be seen by reference to the 3d section of our act of Assembly of 21st March, 
 1849, (Brightly's Purdon, 1G9,) which provides that suit may be brought against ' any such 
 foreign corporation ' by process served upon ' any officer, agent, or engineer of such corpor- 
 ation, either personally or by copy, or by leaving a certified copy at the office, depot, or 
 usual place of business of said corporation.' It was under this act of Assembly the present 
 defendant was sued, as a foreign corporation. The answer does not allege any legislative 
 recognition by Pennsylvania of this corporation defendant, and therefore, if all that is 
 alleged were admitted, it would not be a step in the process of proving a Pennsylvania 
 citizenship for it. We subject it to suit through its agents when they are found here, and 
 we seize, in execution of our judgments, any property it may have within our borders ; 
 but in no sense or degree can it ever become a local institution, except by express legislative 
 recognition. 
 
 "But further. If the facts alleged in the answer are insufficient to prove a Pennsylvania 
 citizenship, so also do they fail to disprove this corporation a citizen of New Jersey. If it 
 have a local habitation it is in New Jersey, and, to borrow the language of Ch. J. Taney, in 
 Bank of Augusta v. Earlc, 13 Peters, 588, it must dwell in the place of its creation ; and can- 
 not migrate into another sovereignty. But as natural persons, through the intervention of 
 agents, are continually making contracts in countries in which they do not reside, and where 
 they are not personally present when the contract is made, so may this artificial person by its 
 agents make contracts within the scope of its limited powers in a sovereignty in which it 
 does not reside, provided such contracts are permitted to be made by the laws of the place. 
 
 "And as the natural person does not transfer his citizenship from one sovereignty to 
 another by such dealings, neither does the artificial. Nor do such dealings constitute, for 
 either the natural person or the corporation, a double citizenship, one in the place of the 
 domicil, and another where business is carried on through agencies. 
 
 "It is obviously proper, therefore, for me to lay out of view, in the further consideration 
 of this case, ail the business arrangements and transactions which the answer charges the 
 company with maintaining in Pennsylvania. A foreign corporation doing business in this 
 state becomes not thereby a citizen of Pennsylvania, and loses not any citizenship it may have 
 in the state of its creation. 
 
 " But still the question remains, is this company a citizen of New Jersey? Incorporated 
 solely by that state, doing business therein, its principal officers resident there, and its rail- 
 road, the great instrument of all its operations, lying wholly in that state, this company is a 
 citizen of New Jersey in so far as an artificial being can become such. If any company can 
 be in the sense of the constitution a citizen of a sovereign state, the Camden and Amboy 
 Railroad Company is a citizen of New Jersey, and the plaintiff being confessedly a citizen 
 of Pennsylvania, the jurisdiction of the circuit court would follow as a necessary conse- 
 quence. The suit might have been brought in that court in the first instance, and is remov- 
 able there at the instance of the defendant. 
 
 " But can a corporation be a citizen ? For general purposes it is impossible. The rights 
 and privileges guarantied to citizens in the federal constitution are inconsistent with the 
 nature, properties and purposes of corporations. Take, for instance, that provision of the 
 fourth articles, 'that the citizens of each state shall be entitled to all privileges and immunities 
 of citizens of the several states.' If corporations created by state authority were held to be 
 within the provision, their rights and powers would no longer be measured by the grants of 
 their charters, but by the constitutional rights of an American freeman ; they would over- 
 run state lines, seize upon political power, and ultimately devour one another. 
 
 "The framers of the federal constitution were well acquainted with corporations. They 
 existed in England and in several of the states, and whilst no power to create them was 
 expressly delegated to Congress, no restraint was imposed on the power of the states to mul- 
 tiply them indefinitely. They were left out of the federative system altogether, and that, 
 doubtless by design, and on good reason, and not by accident. So was the word citizen 
 well understood as it is now understood, to mean a human being — a natural person cap- 
 able of acting, contracting, suing and being sued without legislative aids — a person of whom 
 allegiance is predicable, and who, maybe guilty of treason. In all these points and many 
 others, corporations are distinguishable from citizens, and no body of men probably were 
 ever assembled on earth who understood the distinction better, or were more capable of 
 expressing their thoughts accurately, than the framers of the Constitution of the United 
 States. When the3'' used the word citizen to define the character of the parties who might 
 resort to the judicial power of the Union, did they then mean corporations? The received 
 rules of interpretation would require us to understand the same word in the same sense 
 throughout the instrument, if not controlled in certain places by the context, and if the 
 word citizen, when used in the fourth article did not include corporation, how, it might be
 
 FROM INFERIOR COURTS. 418 
 
 asked, can it bo construed in tho tliird article to embrace them? There is nothing in the 
 context of either article to impart a shade of meaning to the word difTerent from the common 
 understanding of its sense. It would seem to me to mean the same thing in both articles, 
 and in both to mean natural and not artificial persons. 
 
 " For these reasons, and others which it is not worth while to take time to state, I should 
 be very ajjt, if the question were new, to reach the conclusions so repeatedly stated and 
 ably defended by the dissentient members of tho .Supreme Court of the United States, whea 
 cases involving the question have been before that tribunal ; but sitting here as a judge in 
 a state court, I am not to follow dissenting opinions, nor, on a constitutional question, my 
 own ideas of the meaning of the organic law, but am to take the instrument in the sense ia 
 •which it is received by the majority of the Hupreme Court of the United States. 
 
 "Among the judicial tribunals of the country, if not in other dejiartments and places, 
 that court is the supreme and final arbiter of questions under the federal constitution. Tho 
 respect entertained for the members of that bench makes the duty of following them, on a 
 constitutional question, easy and pleasant, which the theory of the government makes im- 
 perative. 
 
 " In the case of the Dank of the United States v. Deveatix, 5 Cranch, Gl, decided in 1809, 
 the record contained an averment that the phiintifTs were citizens of the State of Pennsjd- 
 vania, and that the defendants were citizens of (Jeorgia. The defendants pleaded to tho 
 jurisdiction that the body corporate was not comjjetent to sUe in the Circuit Court of the 
 United States. The Supreme Court overruled the plea, and sustained the jurisdiction, not 
 on the ground that corporations were citizens, for this Chief Justice Marshall most empha- 
 tically denied, but on the ground that the mcinhcrs of tho corporation, who were natural 
 persons, and the substantial parties on the record, were citizens of Pennsylvania, and tho 
 court felt itself authorized to look to the character of the individuals composing tho corpo- 
 ration, for the purpose of sustaining a jurisdiction which had been often exercised without 
 question. 
 
 " In Sullivan v. The Fulton Steamboat Company, 6 Wheaton, 450, the defendants were de- 
 scribed as a corporate body, incorporated by the legislature of New York, and it was held 
 that the court had not jurisdiction. 
 
 " The Bank of Vicksburg v. Slocomb, 14 Peters, 60. Here a Mississippi corporation was 
 sued by a citizen of Louisiana, and the successful plea to the jurisdiction was that two of 
 the corporators were citizens of Louisiana. 
 
 "That plea, admitted by the demurrer, was held sufficient to oust the jurisdiction. Thi8 
 case interprets that of the ])ank v. Veveauz, where Ch. J. Marshall ruled that the court 
 would look beyond the charter to the members of the corporation, without defining what 
 was meant by members — whether corporators merely, or official and governing members. 
 Taking tho two cases together, tho doctrine is, that, if all the corporators are citizens of 
 the state from which tho charter of incorjioration is obtained, the corporation raa,y bo sued 
 in the Circuit Court by a citizen of another state, but if any of them are citizens of the 
 state to which tho corporation belongs, jurisdiction is denied. This case in 14 Peters also 
 rules what has been admitted in subseciuent cases, that the act of Congress of 28th Feb., 
 1839, wrought no change in the jurisdiction of the Circuit Courts as respects tho character 
 of parties. 
 
 " The doctrine deduced from these two cases (Deveaux's and Slocomb's) is in exact accord- 
 ance with that laid down by Chancellor Kent, as the result of all the authorities, (1 Com. 
 378,) and by Judge Slori/, in the Bank of Cumberland v. M'illi-f, 3 Sumner, 472. In this case, 
 a bank incorporated by the State of Maine, sued a customer who was a citizen of .Massa- 
 chusetts, and was turned out of the Circuit Court because a citizen of Boston was the owner 
 of ten shares of the capital stock of the bank. See also 1 Peters, 238. 3 Dallas, 382. 4 
 Dallas, 708; and 3 Cran. 267. 
 
 "1 come now to the case of the Louuiville Railroad Company v. Letfon, 2 Howard, 497. 
 Letson, a citizen of New York, sued in the Circuit Court of the United States for the Dis- 
 trict of South Carolina, the Louisville, Cincinnati and Charleston Railroad Com[iany, a 
 corporation created by and transacting business in the State of South Carolina. The juris- 
 diction was objected to on several grounds. 
 
 " 1st. That all the members of said corporation were not citizens of South Carolina, but 
 that two of them were citizens of North Carolina. 
 
 " 2d. That South Carolina herself was a member of said corporation. 
 
 " 3d. That the Bank of Charleston, another South Carolina corporation, was a member 
 of the corporation sued, and that two citizens of New York were members of the said bank- 
 ing corporation. 
 
 " 4th. That the Charleston Insurance and Trust Company was also a member of the cor- 
 poration sued, and that three members of said Trust Company were citizens of New York. 
 
 " These objections were all overruled, the cause tried, and judgment rendered by the 
 Circuit Court for the plaintiff, and the judgment affirmed in the Supreme Court, after argu- 
 guments by counsel, which are remarkable for their fulness and ability. 
 
 " Mr. Justice Wayne delivered the opinion of the Supreme Court, aud after reviewing and
 
 418 OF TUE REMOVAL OF CAUSES, ETC. 
 
 limiting the cfTect of prior decisions, indicated the ground on which the decision in this 
 case WHS iiltogether rested by the following language: 'It is, that a corporation created by 
 and doing business in a particular state, is to be deemed to all intents and purposes as a 
 person, although an artificial person, an inhabitant of the same state, for the purposes of 
 its incorporation capable of being treated as a citizen of that state as much as a natural 
 person. Like a citizen, it makes contracts; and though in regard to what it may do in 
 some particulars, it ditFers from a natural person, and in this especially, the manner in 
 which it can sue and be sued, it is substantially within the meaning of the law, a citizen of 
 the state which created it, and where its business is done, /or all the purposes of suing and 
 being ^ued.' 
 
 " Here, it will be observed, there was no looking beyond the charter to fix the citizenship 
 of the members. Incorporation by and doing business in a particular state, constitute citi- 
 zenshii) ' for all the purposes of suing and being sued.' These words seem to be added by 
 way of qualification, but when it is considered that the Constitution and act of Congress 
 use the word citizen in connection with the judicial powers of the courts only for the pur- 
 pose of defining who may sue and be sued, it is apparent that the words of the learned 
 judge are no qualification of the constitutional and legislative rule. 
 
 " The next case is Marahall v. The Baltimore and Ohio Railroad Company, IG Howard, 314 — 
 a suit by a citizen of Virginia against a corporation which was described as a ' body cor- 
 porate by an act of the General Assembly of Maryland,' and without any averment as to 
 the place of business or residence of officers or corporators. The jurisdiction of the Cir- 
 cuit Court was affirmed in the Supreme Court by an opinion by Grier Justice, who cited 
 with approbation Lelson's case, and the opinion of Mr. Justice Catron, in Bundle v. The 
 Delaware and Raritan Canal Company, 14 How. 80. 
 
 " The point of distinction between Letson's case and that oi 31 ar shall is, that in the former 
 it was averred of record that the corporation was doing business in the state which created 
 it; in the latter it was not. In the former, the language of the judge implies that the cor- 
 poration, in its artificial and legal character, is to be regarded as a citizen for purposes of 
 suit ; in the latter, that the officers, who are curators, or trustees of the corporation, are the 
 substantial party in a suit, and that their residence and citizenship determines the juris- 
 diction. In this respect, the opinion in Marshall's case is coincident with what Catron, Jus- 
 tice, said in Bundle v. The Canal Company. 
 
 "'My opinion is, and long has been,' said the learned judge, 'that the mayor and alder- 
 men of a city corporation, or the president and directors of a bank, or of a railroad com- 
 pany (and of other similar corporations,) are the true parties that sue and are sued as 
 trustees and representatives of the constantly changing stockholders. If the president and 
 directors are citizens of the state where the corporation was created, and the other party 
 to the suit is a citizen of a different state, or a citizen or subject of a foreign government, 
 then the courts of the United States can exercise jurisdiction under the third article of the 
 constitution. In this sense I understood Letson's case, and assented to it when the decision 
 was made ; and so it is understood now.' 
 
 "These views were repeated by Judge Catron, in a dissenting opinion, in Marshall's case, 
 and his dissent in that case was rested on the ground that there was no averment on re- 
 cord of the citizenship of the president and directors. According to Mr. Justice Grier, 
 speaking for the majority, this is to be inferred from an averment of the act of incorpora- 
 tion. 
 
 " If Letson's case is to be received as Judge Catron understood it, the result of all the 
 cases, the earlier taken in connection with the modern, may be stated thus: — 
 
 " 1. A corporation is not per se a citizen within the meaning of the third article of the 
 constitution. 
 
 " 2. But when it sues oris sued, the governing officers, by whatever name called, are the 
 substantial party ; and if they are citizens of the state which created the corporation, and 
 the other party is a citizen of another state, the federal courts have jurisdiction. 
 
 " This is according to Judge Marshall's principle, of looking beyond the charter to the 
 citizenship of members of the corporation, but it defines the members to be looked to dif- 
 ferently from what was done in the Vicksburg Bank v. Slocum. It is no longer the stock- 
 holders or corporators in general, but the president and directors, to whose citizenship the 
 court will look. 
 
 " This rapid review of the cases is sufficient to show that, if the question before me had 
 arisen whilst the doctrine obtained in the Supreme Court, which was expounded in the 
 Vicksburg Bank case, the fact alleged here, and not controverted, that some of the stock- 
 holders of the Camden and Amboy Company are resident in and citizens of Pennsylvania, 
 would be decisive against the jurisdiction of the Circuit Court. That doctrine passed into 
 the text of Chancellor Kent and other writers, and many cases were ruled upon it. It was, 
 nevertheless, subject to serious objections, as may be seen by the criticisms of counsel and 
 judges in subsequent cases, and particularly in Letson's case. Whether the doctrine that 
 was substituted for it will not be found more objectionable, and the court be brought to 
 the broad ground of declaring, either that corporations, as such, are citizens within the
 
 OF THE DECLARATION. 418 
 
 meaning of the constitution, or that they are not citizens, and cannot bo parties to litiga- 
 tion in the federal courts, are suhjects not fit for present speculation, and which must await 
 the developments of judicial iiistor}'. 
 
 "My present duty is to apply the law as I find it settled now. And, as I understand it, 
 the fact tluit some of the stockholders of the company resiile in the same state as the [dain- 
 tiff, is a circumstance of no importance whatever. Though they may be affected by the 
 judgment in the case, they are not to be considered parties to the record. The president 
 and directors are the substantial parties sueil, under the shadow of tiie corporate name, 
 and I am to i)resume them citizens of New Jersey, because it is shown that the company 
 was incorporated by that state, and is doing business therein. Nor is that presumption 
 rebutted by their holding property and transacting business through agencies in Pennsyl- 
 vania. The jurisdiction of the Circuit Court results, therefore, out of the citizenship of 
 these governing members of the corporation. 
 
 " Under the act of Congress, it is to be made to appear to the satisfaction of this court, 
 that the matter in dispute exceeds five hundred dollars, exclusive of costs. An affidavit to 
 that elfect is appended to the jietition of the company, which, though objected to, I deem 
 sufTu-icnt, and I also consider the surety offered, ' good and sufiicieiit.' 
 
 " It is therefore ordered that the prayer of the jietitioner be granted, that the security bo 
 accepted, and that this court will proceed no further in the cause." 
 
 *CH AFTER XVII. [ *419 ] 
 
 Of the Declaration. 
 
 IIavino stated, in the preceding chapters, the various means of bringing 
 the defendant into court, when at large, in actions commenced by original 
 •writ, or by bill of Middlesex or latitat, in the King's Bench, or capius 
 quare clausum fregit, &c. in the Common Pleas, or by venire facias^ 
 subpoena, or quo minus, in the Exchequer, and also whatever is peculiar 
 to the proceedings in actions by or against attorneys and officers, who are 
 supposed to be already in court, and prisoners in actual custody of the 
 sheriff, &c. or of the marshal of the King's Bench or warden of the Fleet 
 prison, with the removal of causes from inferior courts, I shall, in the pre- 
 sent chapter, treat of the declaration in ordinary cases ; where the defend- 
 ant, having been arrested upon or served with process, cither appears and 
 puts in and perfects special bail, when necessary, or files common bail, or 
 an appearance is entered or common bail filed for him by the plaintiff, 
 according to the statutes. (a) 
 
 The declaration is a specification, in legal form, of the circumstances 
 which constitute the cause of action ; and, in actions by original, is an ex- 
 position of the writ, with the addition of time, place, and other circum- 
 stances :(/'') and it is either in chi(f, or l>g the bye. A declaration in chief 
 is at the suit of the same plaintiff, for the principal cause of action, or 
 that for which the writ was sued out : A declaration by the bye is at the 
 suit of a different plaintiff, or of the same plaintiff for a different cause of 
 action. 
 
 The plaintiff can in no case declare against the defendant, until the 
 return (lay of the Avrit : and, except against attorneys or prisoners, the decla- 
 ration cannot be delivered or filed absolutely, until the defendant has 
 
 (a) 12 Geo. I. c. 29, g 1, altered by 5 Goo. TI. c. 27. 43 Geo. III. c. 46, ? 2. 45 Geo. Ill- 
 c. 124, ? 3. 51 Geo. III. c. 124, g 2 & 7 & 8 Geo. IV. c. 4 & 130, c. 5, § 71, c. 71, I 2, 5. Atite, 
 114, 120,21 ; 228,241,2,3, 4. 
 
 (6) Co. Lit. 303 ; and see 1 Chit. PI. 4 Ed. 222.
 
 419 
 
 OF THE DECLARATION. 
 
 appcareil, and put in and perfected special bail, when neceseary, or filed 
 common bail, or an appearance has been entered or common bail filed for 
 him by the plaintiff", accordin^j to the statutes, (c) So, in an inferior court, a 
 custom to declare against a defendant, before an appearance entered by him, 
 or by some person for him, is bad in law.((i) But when the defendant has 
 been arrested upon, or served with a copy of process against his person, 
 the plaintiff may declare de bene esse, or conditionally/, on the return of the 
 writ, before the defendant has appeared, or put in and perfected 
 [ *420 ] special bail, &c. : and the declaration, or copy of the bill, is usually 
 *delivered before appearance, in actions against attorneys and 
 officers of the court of King's Bench, and 'prisoners in actual custody of 
 the sheriff", marshal, or warden. (aa) When there are several defendants, 
 ao-ainst whom it is intended to proceed jointly, the plaintiff" cannot declare 
 until they are all in court :{aa) And, in cases of contract, where bailable 
 process is taken out against several defendants, for a joint cause of action, 
 the plaintiff" cannot declare against them severally •,{b) but it is otherwise 
 in the Common Pleas, where the process hnot bailable ;{cc) for in that 
 case, we have seen,(t^cZ) the plaintiff" is allowed to join/owr defendants, for 
 separate causes of action, in one writ, and to declare against them seve- 
 rally ; and if they do not appear, he may bring them into court, by enter- 
 ing an appearance for them, according to the statute. So, in actions of 
 tort, a party suing out bailable process against several defendants jointly, 
 may it seems declare separately against one of them.(e) 
 
 In actions by bill in the King's Bench, if the defendant appeared per- 
 sonally at the return of the writ, the plaintiff" was anciently obliged to de- 
 clare against him within three days ;(/) or, if he appeared by attorney, the 
 plaintiff must have declared before the end of the term.(^) Afterwards, 
 the time for declaring was extended; and a rule was made by Coke, Ch. J. 
 and the court, in the reign of James the first, that the plaintiff" ought to de- 
 clare the same term, or the term after bail was filed ;(7i) and in a subse- 
 quent case, the course of the court was certified by the secondary and clerks 
 to be, that no declaration should be taken upon any bail, but within three 
 terms after the bail filed ; and it was said that Lord Ch. J. Popham and 
 the court, in his time, made an express order accordingly ; for before then 
 the usage was often otherwise : and the court in that case held it to be a 
 very good course, and that it should not be altered. (z) In the case oi pri- 
 soners, the plaintiff, agreeably to this practice, was allowed three terms 
 after the arrest, to remove the defendant, in order to charge him with a de- 
 claration. (^) At length, by the statute 13 Car. II. stat. 2, c. 2 § 3, the 
 time for declaring upon a bill of Middlesex or latitat, in the King's Bench, 
 
 (c) Lofft, 333. 2 Durnf. & East, 719; and see Forrest, 33. 2 Chit. Rep. 165. 
 
 ((f) 3 Barn. & Cres. 772. 5 Dowl.& Ryl. 719, S.C. 
 
 (aa) For the distinctions as to declaring absolutely a.x\A de bene esse, in chief and by the br/e, 
 see the valuable Suggestions of Mr. Serjeant E. Laives, for some alterations of the law, on 
 the subjects of Practice, Pleading, and Evidence, &c., p. 16. 
 
 (i) 5 Durnf. & East, 722. 4 East, 589. 1 Maule & Sel. 55. 3 Dowl. & Ryl. 247, K. B. 2 Blac. 
 Rep. 759. 1 Bos. & Pul. 49. 2 New Rep. C. P. 82. 1 Marsh, 274. 7 Moore, 301, 362. 1 Bing. 
 48, 68, S. C. C. P. Forrest, 31, Excheq. 
 
 (cc) 1 Bos. & Pul. 19, 49 ; but see R. E. 8 Geo. IV. K. B. 
 
 (dd) Ante, 148. 
 
 (e) 3 Barn. & Cres. 734. 5 Dowl. & Ryl. 622, S. C. 
 
 ( f) Stat. 8 Eliz. c. 2, ^ 2. Hans. Infrod. 2. (g) Gilb. C. P. 40. 
 
 (/i) 3 Bulst. 214; and see Hans. /n^rod 2. (i) Cro. Jac. 620, 21. Ante,Al3,{c). 
 
 (k) 2 Keb. 478.
 
 OF THE DECLARATION. 420 
 
 was limited to the end of the next term after the defendant's appearance; 
 and a rule was made by Jlale, Ch. J. that the court would discharge ^jn- 
 soners on common bail, in two terms :{l) and in the time of Jfolf, Ch. J. 
 the course of the court was, that if a declaration were not delivered on or 
 before the last day of the second term, scdcnte curid, the defend- 
 ant *might sign a non pros ; and if he did not immediately sign [ '421 ] 
 it, though he might afterwards receive a declaration, yet he was 
 not compellable to do so, but he might well refuse h;{ti) and accordingly, 
 as the practice of the court then stood, if the declaration was tendered at 
 any time after the end of the second term, and before the non pros was 
 signed, the defendant was not bound to accept it, but might sign his non 
 pros at any time after the end of the second term.(//^>) ]>ut Mr. Justice 
 BuUcr having expressed an opinion, that by the general rules of law, a 
 plaintiff must declare against a defendant within twelve months after the 
 return of the writ, though, by the rules of the court, if he do not deliver his 
 declaration within ttvo terms, the defendant may sign a judgment of non 
 pros ;(cc) it is now settled, agreeably to that opinion, that unless he take ad- 
 vantage of the plaintift"s neglect, by signing a judgment of non jyros^ the 
 plaintiff may deliver his declaration, at any time within a year next after 
 the return of the writ.((Z) 
 
 In the Common Pleas, or in actions by original in the King's Bench, 
 when the proceedings were ore tenus at the bar of the court, the plaintiff 
 was anciently demandable on the defendant's appearance; and if he did 
 not appear, or would not count against him, he might have been imme- 
 diately nonsuited. (e) But the parties by consent, might have obtained a 
 day before declaration, which was called a dies datus prece p»artium ;{f) 
 for the consent of the defendant exempted the plaintift' from the necessity 
 of declaring immediately. In that case, if the defendant had made 
 default at the day given, since there was no declaration, the^plaintifT could 
 not have had judgment, but was obliged to bring him in again by pro- 
 cess ;((/) for none could have judgment, but upon complaint exhibited 
 against the defendant whilst in court. But after declaration, if the 
 defendant had made default, judgment was given against him ; because, 
 having deserted the court, he ceased to oppose the plaintiff's demand, 
 and so submitted that the court should give judgment. (/<) 
 
 In process of time, when the proceedings were no longer ore tenus, but 
 the defendant was at liberty to appear by attorney, the defendant could 
 not have nonsuited the plaintiff, in the Common Pleas, without giving a 
 rule to declare, and calling for a declaration. If the writ were returna- 
 ble in five weeks of Easter, or on the last return of any term, the defend- 
 ant, having given a rule, and called for a declaration, might have entered 
 a nonsuit, if it were not delivered /our days or more before the essoin-day 
 of the ensuing term:(e) and if the writ were returnable on any other 
 
 {I) Id. 812. 
 
 (a) 12 Mod. 217. (ifi) R. M. 10 Geo. II. reg. 2, (i), K. B. 
 
 (ccj 2 Durnf. & East, 112. 
 
 {d) Id. ibid. 3 Durnf. & East, 123, 4. 5 Durnf. & East, 35. 7 Durnf. k East, 7 j but see 2 
 New Rep. C. P. 404. 
 
 (e) 2 Hen. IV. 15, 23. 22 Edw. IV. 1. 
 
 (/) Hardr. 365. Gilb. C. P. 41, 2 ; and see Doc. PI. 222. 
 
 (g) 19 lien. VIII. 6 Moor, 79. 3 Leon. 14. BcnL & Dalig, 153, S. C. 6 Mod. 6, 7, 8. 1 
 Salk. 21G, S. C. 
 
 (A) Gilb. G. P. 40, 41. (i) R. M. 1654, g 15, K. B. & C. P.
 
 421 OF THE DECLARATION, 
 
 return, the defcnrlant, having in like manner given a rule, and called for a 
 declaration, might it seems have entered a nonsuit, if it were not deli- 
 vered some time during the same term.(/c) But if the defend- 
 [ *422 ] ant had appeared the first term, *and given no rule to declare, 
 the defendant's attorney might have been compelled to accept a 
 declaration, the second term, -with an imparlance ; and the declaration 
 might have been entered as of that term, with an imparlance over to the 
 next, or in the first term with an incijntur, as the case required. (a) In 
 such case however, if the plaintiff had not declared the second term, a 
 nonsuit might have been entered at the end of that term, upon a continu- 
 ance over by dies datus, but not the third term or after. (a) 
 
 At length it was settled, agreeably to the statute 13 Car. IL stat. 2, c. 
 2, § 3, that "upon all process returnable the first or any other return in 
 any term, the plaintifi" shall have liberty, to the end of the next ensuing 
 term, to deliver his declaration to the defendant's attorney, or leave the 
 same in the oiBce : and the defendant's attorney having entered his ap- 
 pearance with the proper officer, as of that term in which the process was 
 returnable, and, in the Common Pleas, given a rule to declare in the pro- 
 per office, at the end of the ensuing term, or in four days after the end 
 thereof, and called on the plaintiff's attorney or clerk in court, if he can 
 be found ; the defendant may, at any time in the vacation of such ensu- 
 ing term, after the rule for declaring is out, sign his no7i pros for want of 
 a declaration, and afterwards : and the plaintiff shall not, without leave 
 of the court, have any longer time to declare, other than the time to be 
 limited by the defendant's rule. "(5) But if the plaintiff be not called 
 upon by rule to declare, he hath all the vacation of the second term to 
 declare m.[c) If the plaintiff do not declare in that time, or obtain a 
 rule for time to declare, his cause is out of court ; and if he afterwards 
 declare, the court will set aside the declaratian for irregularity. (c?) So, 
 where a writ was returnable the last return of Trinity term, and an 
 appearance being entered, the plaintiff proceeded no further, nor obtained 
 a rule for time to declare, upon which the defendant in Hilary term, 
 being the third term after the return of the writ, gave the plaintiff a rule 
 to declare, and for want of a declaration signed judgment of nan pros ; 
 the court of Common Pleas held it to be irregular, because the plaintiff 
 by his own default was out of court at the end of the second term, and 
 the defendant therefore could not rule him to declare but at the end of 
 the term, or within four days after. (e) And where one of two defendants 
 having been holden to bail in Trinity term, the plaintiff proceeded to out- 
 lawry against the other, and delivered a declaration against the former on 
 the first day of Easter term following, not having obtained a rule for time 
 to declare, it was holden that the cause was out of court, and the bail enti- 
 tled to an exoneretur.if) 
 
 When the defendant is outlaioed before judgment, the original is deter- 
 mined, so that the plaintiff cannot declare thereon while the outlawry 
 remains in force, but is put to a new action :{g) And if two defend- 
 
 {k) Id. § 15, C. P. (rt) R.M. 164, ^ 15. K. B. § 14,0. P. 
 
 (6) R. H. 9 Ann. reg. 3, C. P. ; and see R. M. 10 Geo. II. reg. 2, [b), K. B. 
 
 (c) Gas. Pr. C. P. 13. Pr.Reg. 121, S. C. 
 
 (rf) 5 Taunt. 649 ; and see 2 Blac. Rep. 876, 7. 3 Bos. & Pul. 221. 4 Taunt. 715. 
 
 (e) Allen V. milward, H. 30 Geo. III. C. P. Imp. C. P. 7 Ed. 533, 4. 
 
 (/) 2 New Rep. C. P. 404. (g) Cro. Eliz. 706. W. Jon. 442.
 
 OF THE L»ECLA11ATI0X. 422 
 
 ants are *jointly sued, and one appears, ami the other makes [ *i2o ] 
 default and is outLiwed, he who appears shall be charged with 
 the whole. («) But if a defendant be outlawed, and he reverse the out- 
 lawry and give bail, as he ought, the jjlaintiff may declare against him 
 within tioo terms after the outlawry is reversed; and if he do not declare 
 within that time, the declaration may be refused, but the plaintiff shall 
 not be non-prossed \{hh) And it seems, that after the reversal of an out- 
 lawry, the plaintiff has his election, either to declare upon the first origi- 
 nal, or to sue out a new one.(6*c) In declaring against A. upon a joint 
 contract by A. and B. it is not enough to allege that B, was in due man- 
 ner outlawed, without adding that he was outlaweil in that suit :{dd) But 
 an allegation that a co-defendant was outlawed by due course of law, at 
 the suit of the plaintiff, in this i^lea and suit, is sufficient, without a jyrout 
 patet per recordum.{ce) 
 
 - In the Common Pleas, the course of that court is, that although the origi- 
 nal be laid in London, for expediting the outlawry, yet when the defendant 
 comes in, the plaintiff may declare against him in any other county, be the 
 action local or transitory :(^) And where a wi'it oi capias quare clausum 
 fregit was issued against two defendants, with an ae etiam in debt, upon 
 which one of them was arrested and put in bail, and the plaintiff proceeded 
 to outlawry against the defendant, on an original writ issued against 
 both, and afterwards declared against the former defendant only, alleging 
 that he was outlawed in that suit ; the court, upon reference to its officers, 
 held that these proceedings were regular, and would not set aside the decla- 
 ration :(//) observing, that it was founded on the original, on which one of 
 the defendants was outlawed ; and with respect to the writ with the ac 
 etiam, on which the other defendant was arrested and put in bail, that 
 writ was issued only for the purpose of bringing him into court, and having 
 so done, it had answered its purpose ; and that when a defendant is in 
 court, the plaintiff may declare against him for any cause of action he may 
 think proper.(/4) In a subsequent case, they would not entertain a motion 
 made on behalf of a defendant, who had been arrested and was in court by 
 his bail, which went to impeach an outlawry against another defendant, 
 who was not before the court. (2) The defendant in this court shall have his 
 costs, to be taxed by the prothonotaries, if the plaintiff do not proceed 
 within tivo terms next after notice of the reversal of the outlawry. (7c) 
 
 If the plaintiff be not ready to declare, before the end of the next term 
 after the return of the process, he may obtain a side-bar or treasury rule 
 from the clerk of the rules in the King's Bench, {/) or one of the secondaries 
 in the Common rieas,(??t) for time to declare, until the first day of 
 the *ensuing term; a copy of which rule should be served on the [ *424 ] 
 defendant's attorney, or stuck up in the King's Bench or prothono- 
 taries' office, if the defendant have not appeared : And, in the Common 
 Pleas, there is no difference in this respect, between a rule for time to de- 
 
 (o) 5 Co. 119, {(i). W. Jon. 442 ; but seo 1 Maulc & Sel. 242. 
 
 (W) Cora. Dig. tit Pleader, C. 4. 
 
 (cc) W. Jon. 443. March. 9. . 
 
 (dd) 3 East, 144 ; but see Co. Lit. 128, b, 352, b. 
 
 \ee) 7 East, 50. (/) 3 Lev. 245. 
 
 (ff) 2 Moore, 87. 8 Taunt. 187, S. C. 
 
 (A) 2 Moore, 80. 8 Tauut. 189, S. C. ; and see 2 Moore, 301. 3 Taunt. 304, S. C. 
 
 (»■) 2 Moore, 90. (k) R. T. 33 Car. IL C. P. 
 
 (l) Append. Chap. XVH. § 1. (m) /(/. § 2. 
 
 Vol. I.— 27
 
 424 
 
 OF THE DECLARATION, 
 
 clare in replevin, and in other actions.(a) This rule cannot in general be 
 had, where the defendant is a prisoner.(6) But where, on a writ against 
 three, one was arrested and lay in gaol, and the other two absconded, the 
 court refused to discharge the prisoner ; saying, that he must appear for 
 all, or lie in gaol till the other two were outlawed. (c) In such case how- 
 ever, the plaintiif, in the Common Pleas, must move the court, or apply 
 to a judge, for time to declare against the prisoner, until the outlawry or 
 appearance of the other defendants ;(cZ) and show that he is using all due 
 diligence in proceeding against them. If the plaintiff be still unprepared, 
 he may obtain rules for further time to declare, from the beginning to the 
 end of the term, and from the end of one term to the beginning of another, 
 alternately, as often as may be necessary. But after several rules have 
 been obtained, the courts will make a peremptory one, for the plaintiff to 
 declare before the end of the term in which the motion is made.(e) The 
 rule for this purpose, in the King's Bench, is absolute in the first instance, 
 and drawn up on a motion paper signed by counsel ; but, in the Common 
 Pleas, it is a rule to show cause: And, in the latter court, when the 
 plaintiff does not declare, after having obtained time for that purpose, the 
 defendant may sign judgment of nonpros, without giving a rule to declare. (/) 
 In the King's Bench, when the defendant has appeared and filed bail 
 upon a bill of Middlesex or latitat, kc. or the plaintiff has filed it for him 
 according to the statute, the plaintiff may declare hy the hye, in as many 
 different actions as he thinks fit, at any time before the end of the next term 
 after the return of the process -.{g) And after a plea in abatement, if the 
 plaintiff enter on the roll quod hilla cassetur, et defendens eat sine die, he 
 may at any time during the same term in which the process is returnable, 
 deliver a declaration by the bye against the defendant. (/i) It is also a settled 
 point, that when bail is filed by the defendant, upon a bill of Middlesex, or 
 latitat, &c. any other person besides the plaintiff may declare against him 
 by the bye, at any time during the term wherein the process is returnable, 
 sedente curid :{i) But where bail is filed by the plaintiff according to the 
 statute, this is not such a general bringing of the defendant into court, as 
 will warrant any person, except the plaintiff, in delivering a declaration by 
 
 the bye against him.(^) The plaintiff in the original action must 
 [ *425 ] declare in chief, before he can declare by the bye :{l) but any other 
 
 *person may declare by the bye, before the delivery of a declara- 
 tion in chief :{aa) And indeed, as the plaintiff is allowed two terms for de- 
 claring, another person who has only one, might otherwise be deprived of 
 the opportunity of declaring by the bye. Where the plaintiff, having 
 declared in his own right, afterwards declared as executor, without indors- 
 ing the declaration " by the bye,'' when delivered, but the defendant's 
 
 (a) 5 Taunt 35. Ante, 417. 
 
 (6) Pr. Reg. 327. 
 
 (c) Per Cur. E. 12 Geo. III. K. B. 2 Cromp. 3 Ed. 8 Barnes, 396, 401. 2 Blac. Rep. 759. 
 
 {d) Id. ibid. 2 New Rep. C. P. 404. (e) Append. Chap. XVII. I 5, 6. 
 
 (/) 1 H. Blac. 87. 
 
 Q) R. M. 10 Geo. II. reg. 1, (6), K. B. ; but see Gilb. K. B. 310. 
 
 {h) 5 Durnf. & East, 634. 
 
 (i) Poph. 14a. Garth. 377. 1 Salk. 2, S. C. Gilb. K. B. 310, 342. 4 Bur. 2181. 3 Durnf. & 
 East, 627. 
 
 (fc) 2 Str. 1027. Gas. <ot!J9. Hardw. 207, S. C. R. M. 10 Geo. II. reg. 1, K. B. 
 
 \l) 6 Durnf. & East, 158. 7 Durnf. & East, 80. But taking the declaration by the bye out 
 of the office, is a waiver of the irregularity. 3 East, 342. 
 
 (aa) Con. Phillip's case, 1 Cromp. 3 Ed. 96.
 
 OF THE DECLARATION. 425 
 
 attorney was told it was " hy the hije" th^ court of King's Bench, on the 
 opinion of the master, hcUl it to be regular.(/*) 
 
 In actions by orif/inal in the King's Bench, tlie practice of declaring by 
 the bye is similar to that in the Common Pleas ; where the satne plaintiff 
 is allowed to declare against the defendant by the bye, in as many differ- 
 ent actions as he thinks fit, at any time before the end of the next term 
 after the return of the process ;(c) and he may so declare in the same term, 
 though the debt and costs on the first declaration are paid :((/) but he cannot 
 declare by the bye, after the end of that term ;((^) nor can any other person 
 declare by the bye, except the plaintifT.(/) If the plaintiff sue out a writ 
 at the suit of himself and wife, he may deliver a declaration by the bye at 
 his own suit:(^^//) but if an action be brought by the husband only, and a 
 declaration delivered in that action, he cannot declare by the bye at the 
 suit of himself and wife, there being no process to warrant it.(/i/i) If the 
 writ be special, the plaintiff cannot declare by the bye, till he has declared 
 in the original action :(zV) but if it be with an ae etiam only, he may deliver 
 as many declarations as he thinks fit thereon against the defendant, during 
 the same term ; though he will lose his bail, by declaring for a different 
 cause of action from what is expressed in the ac etiam.[kk) So, on a capias 
 with an ac etiam, at the suit of an executor, the plaintiff cannot deliver a 
 declaration by the bye at the suit of himself personally ; but if the writ be 
 a general qiiare clausiim fregit, the plaintiff may declare by the bye as 
 executor, or qui tarn, or as assignee of the sheriff.(/^) 
 
 'Y^h.Q parts of a declaration are, first the title ; secondly, the venue ; thirdly, 
 the commencement ; fourthly, the statement of the cause of action ; and 
 lastly, the conclusion. {tn) The declaration hjhill^'in the King's 
 Bench, *should regularly be entitled of the day on which the [ *42G ] 
 writ is returnable ; for the bill, of which it is a copy, cannot be 
 filed till the bail is put in, which cannot be till the return of the writ :(a) 
 And where there are several defendants, who put in bail of different terms, 
 the declaration should be entitled of the term when the last bail was put 
 m.(l)b) In practice it is usual, in both courts, when the cause of action will 
 admit of it, to entitle the declaration generally^ of the term in which the 
 writ is returnable ; and though filed or delivered, it cannot regularly be en- 
 
 (6) Per Cur. E. 21 Geo. III. K. B. Append. Chap. XVIII, § 4. 
 
 (c) Pr. Reg. 142. (d) Id. 144. 
 
 (e) Barnes, 346. (/) Cas. Pr. C. P. 6. 
 
 (gg) Id. 132. (hh) Id. 131. Barnes, 337. Pr. Reg. 142, S. C. 
 
 (ii) Cas. Pr. C. P. 58. (kk) Id. ibid. Pr. Reg. 137, S. C. 3 Wils. 61. 
 
 {II) Ilainey y. Sparing, E. 10 Geo. III. C. P. Imp. C. P. 7 Ed. 190. 
 
 (ot) In Heath's .Maxims, it is said that a count or declaration, being terms equivalent, 
 ought principally to contain three things : first, the names of the plaintiff and defendant, 
 who in actions real are called demandant and tenant, and the nature of the action ; and this 
 by some is termed the demonstration, or demonstrative part of the count : secondly, the time, 
 the place, and the act ; in which ought to be comprehended how and in what manner the 
 action did accrue, or first arise between the parties ; when, what day, what year, and what 
 place, and to whom the action shall be given ; which is called the declarative part of the 
 count: and lastly, the perclose or conclusion, which is undc detrrioratus est, &c. : in which 
 the plaintiff ought to aver and proffer to prove his suit, and show the damage he hath sus- 
 tained by the wrong ami injury done by the defendant: And the declaration, according to 
 this definition, consisting of a tria, somewhat resembling the logical major, minor, and con- 
 clusion, some of the ancients, (among whom none was more fond of it than Mr. Fleetwood^ 
 the famous recorder of London,) conceived to be a perfect syllogism. Heath's Max. 2. And 
 see further, as to the several parts of a declaration, 1 Chit. PI, 4 Ed. 234, &c. 
 
 {a) Cas. temp. Hardw, 141 ; but vide ante. 2 48, 282, 
 
 {bb) 1 Wils. 242,
 
 426 OF THE DECLARATION, 
 
 titled, of a subsequent term :(c) And, in the Common Pleas, after tlie remo- 
 val of a replevin cause by Avrit of recordari facias loquelam, the declara- 
 tion must be entitled of the term in which the writ is returnable, or that of 
 the appearance. (c?) But the declaration should always be entitled after the 
 time when the cause of action is stated to have accrued : therefore, when 
 the cause of action is stated to have accrued after the first day of the term 
 in which the writ is returnable, the declaration should be entitled of a sub- 
 sequent day in that term, and not of the term generally ; for a general title 
 refers to the first day of the term, and upon such a title it would appear that 
 the action was commenced before the cause of it accrued. Yet, where the 
 cause of action was stated to have accrued on the first day of term, the 
 court of King's Bench on demurrer held, that the declaration might be en- 
 titled of the term generally: for the delivery of the declaration is the act of 
 the party, and in ancient times it could not have been delivered till the sit- 
 ting of the court ; so that the cause of action might well have accrued be- 
 fore the actual delivery of the declaration. (e) So, where a cause of action 
 arose on the 29th of January^ being the first day of 'd^^ fourth year of the 
 reign of his present majesty, and the declaration was entitled " Saturday 
 next after 15 days of St. Hilary in Hilary term, in the third year of King 
 George the 4th," which would be the 1st o^ February, in i\\Q fourth jea.r 
 of his reign, the court on demurrer held, that the declaration was properly 
 entitled, though the plaintiff appeared in terms to have commenced his 
 action, before the cause of it had arisen. (/) And it is now holden to be 
 no error, to entitle the declaration of a term generally, though the cause 
 of action is stated therein to have accrued after the first day of the 
 term.(^) 
 
 When a declaration is improperly entitled, the plaintiff may have it cor- 
 rected, on an affidavit of the fact :{h) And leave has been given to 
 [ *427 ] amend *the declaration, by entitling it of the day on which it was 
 actually delivered, instead of the term generally, in order to accord 
 with an averment therein, that other defendants named in the writ were 
 then outlawed. (a) So, in an action against the marshal for an escape, 
 where the bill was entitled generally of 3Iichaelmas term, and the escape 
 was alleged to have taken place on the 15th November, the court, after spe- 
 cial demurrer, allowed the plaintiff to amend, on payment of costs; although 
 it appeared by affidavit that the prisoner had returned into the custody of 
 the marshal, before any application for liberty to amend was made. (5) And 
 the title of a declaration may be set right, at the instance of the defend- 
 ant, if necessary for his defence :{cc) Thus, where the declaration is entitled 
 of the term generally, and the defendant pleads plena administravit,{dd) or 
 a tender made before the exhibiting of the bill, upon which he would give 
 in evidence an administration of assets, or tender made, between the first 
 day of the term to which the bill relates, and the day of suing out the 
 
 (c) 3 Durnf. & East, 624. 
 
 (d) 5 Taunt. 771. 1 Marsh. 341, S. C. Ante, 417. 
 
 (e) 1 Durnf. & East, 116; and pee 3 Wils. 154. 2 Blac. Rep. 735, S. C. 
 (/) 2 Dowl. & Ryl. 868 ; and see 7 Barn. & Cres. 406. 
 
 Iff) 10 Moore, 194. 2 Bing. 469. 1 M'Clel. & Y. 202, S. C. 
 
 (A) 1 Wils. 78. 2 Wils. 256. 7 Durnf. k East, 474; and see 2 Chit. Rep. 22 ; but see 6 
 Taunt. 19. 1 Marsh. 419, S. C. 
 
 (a) 1 East, 133. (J) 6 Barn. & Cres. 196. 
 
 (cc) 5 Barn. & Cres. 151. 7 Dowl. & Ryl. 731, S. C. 
 
 (del) Cas. temp. Hardw. 141. And see further, as to the mode of entitling the declaration, 
 and the consequences of a mistake therein, 1 Chit. PI. 4 Ed. 237, &c.
 
 OF THE DECLARATION. 427 
 
 writ ; he has a riglit to call upon the plaintiff to entitle his declaration 
 properly. (e) 
 
 The venue in ijcrsonal actions, or county where the action is laid and 
 intended to be tried, is local or transitory.{f) "When the action could only 
 have arisen in a particular county, it is lucal, and the venue must be laid 
 in that county : for if it be laid elsewhere, the defendant may demur to the 
 declaration ;(r/) or the plaintiff, on the general issue, will be non-suited at 
 the trial. (/i) Such are all real and mixed actions, and actions of ejectment^ 
 and trespass quare clausum fregit, &c. And an action on the case for a 
 nuisance is held to be local in its nature ; and the nuisance must be proved 
 to have been committed in the county where the venue is laid.(z) But 
 where the action might have arisen in anT/ county, as upon contracts, it is 
 transitory^ and the plaintiff may in general lay the venue wherever he 
 pleases \{k) subject however to its being changed by the court, if not laid 
 in the very county where the action arose. 
 
 To use the words of Lord 3IansJieM, in the case of Fahrigas v. 3Io8- 
 tyn:{l) " There is ^formal and a substantial distinction, as to the locality 
 of trials. I state them," says he, as "different things: With regard to 
 matters arising within the realm, the substantial distinction is, where the 
 proceeding is in 7'em, and where the effect of the judgment could not be 
 had, if it were laid in a wrong place. That is the case of all ejectments, 
 where possession is to be delivered by the sheriff of the county; and as 
 trials in England are in particular counties, and the officers are 
 county *officers, the judgment could not have effect, if the action [ *428 ] 
 were not laid in the proper county."(aa) 
 
 With regard to matters that arise out of the realm, there is a substantial 
 distinction of locality too ; for there are some cases that arise out of the 
 realm, which ought not to be tried any where but in the country where 
 they arise : as if two persons fight in France, and both happening casually 
 to be here, one should bring an action of assault against the other, it 
 might be a doubt whether such an action could be maintained here ; 
 because, though it is not a criminal prosecution, it must be laid to be 
 against the 2^eace of the king ; but the breach of the peace is merely 
 local, though the trespass against the person is transitory. So, if an 
 action were brought relative to an estate in a foreign country, where the 
 question was a matter of title only, and not of damages, there might be a 
 eolid distinction of locality. 
 
 But there is likewise a, formal distinction, which arises from the mode of 
 trial : for trials in England being by jury, and the kingdom being divided 
 into counties, and each county considered as a separate district or princi- 
 pality, it is absolutely necessary that there should be some county where 
 the action is brought in particular, that there may be a process to the 
 sheriff of that county, to bring a jury from thence to try it. This matter 
 of form goes to all cases that arise abroad : but the law makes a distinc- 
 tion between transitory and local actions. If the matter, which is the 
 cause of a transitory action, arise within the realm, it may be laid in any 
 
 (e) 1 Sir. 638. 1 Wils. 39, S. C. cited. 1 Wils. 304, S. P. ; and see 4 Esp. Rep. 73, 4. 
 
 (/) Gilb. C. P. 84. (</) 1 Wils. 1C5. 
 
 (A) Cowp. 410. 2 Blac. Rep. 1033. 
 
 (i) 1 Taunt. 379; but see 2 Campb. 3. 1 Bos. k Pul. 225. 
 
 (k) Gilb. G. P. 84; and see 1 Wms. Sauud. 5 Ed. 74, (2). 
 
 (Z) Cowp. 17G, 7 ; and see 2 Camp. 274. Sleph. PI. 306, &c. 
 
 [aa) 7 Dumf. & East, 587, 8.
 
 428 OF THE DECLARATION. 
 
 county, the place not being material ; as if an imprisonment be in Mid- 
 dlesex, it may be laid in Surrey, and though proved to be done in 
 3Iiddlesex, it does not at all prevent the plaintiff from recovering 
 damages. The place in transitory actions is never material, except where 
 by particular acts of parliament, it is made so ; as in the case of church- 
 wardens and constables, and other cases which require the action to be 
 brought in the county. The parties, upon sufficient ground, have an 
 opportunity of applying to the court in time to change the venue ; but if 
 they go to trial without it, that is no objection. 
 
 So, all actions of a transitory nature, that arise abroad, may be laid as 
 happening in an Englisli county. (i) But there are occasions which make 
 it absolutely necessary to state in the declaration, that the cause of action 
 really happened abroad ; as in the case of specialties, where the date must 
 be set forth. If the declaration state a specialty to have been made at 
 Westminster in 3Iiddlesex, and upon producing the deed, it bears date at 
 Bengal, the action is gone ; because it is such a variance between the 
 deed and the declaration, as makes it appear to be a different 
 [ *429 ] instrument. *But the law has in that case invented a fiction; 
 and has said, the party shall first set out the description truly, 
 and then give a venue only for form, and for the sake of trial, by a 
 videlicet, in the county of Middlesex, or any other county. In declaring 
 on foreign bills, though it is usual to state that they were drawn at the 
 place where they bear date, adding the venue under a videlicet,{a) yet 
 this does not seem to be necessur j.{bb) 
 
 In an action upon a lease for rent, &c„ when the action is founded upon 
 the privity of contract, it is transitory, and the venue may be laid in any 
 county, at the option of the plaintiff; but when the action is founded upon 
 the privity of estate, it is local, and the venue must be laid in the county 
 where the estate lies.(c) Thus, in an an action of deU or covenant, by the 
 lessor against the lessee, the action being founded on the privity of con- 
 tract, is transitory. (c^) So, if an action of debt be brought by the lessor 
 against the executor of the lessee, in the detinet only, it is transitory.(e) 
 And debt for use and occupation is not a local action. (/) But if the 
 action be brought, as it may, against the executor of the lessee, as 
 assignee, upon the privity of estate, in the debet and detinet, it is local. (^) 
 In covenant by the grantee of the reversion against the lessee, the action 
 being founded on the privity of contract, which is transferred from the 
 lessor to the grantee, by the operation of the statute 32 Hen. VIII. c. 34, 
 the action is transitory.{7i) But in debt by the assignee(2') or devisee(^) of 
 
 (b) In a replication to a plea of ne unques accouple, &c.,in a writ of dower, alleging a mar- 
 riage in Scotland, it is not necessary to state, by way of venue, that the marriage was had 
 in any place in England. 2 H. Blac. 145. Nor is it necessary to lay a venue in a plea in 
 abatement, that another person ought to have been sued jointly with the defendant; and if 
 it be pleaded that such other person is alive, to wit, in Spain, it will be considered as 
 pleaded without any venue. 7 Durnf. & East, 243 ; and see 1 Wms. Saund. 5 Ed. 8, a, (1). 
 Steph. PI. 306, &c. 
 
 (a) Bayley on Bills, 3 Ed. 175. 
 
 {bb) 3 Campb. 304, 5 : but see 2 Barn. & Aid. 301. 1 Barn. & Cres. 16. 2 Dowl. & Ryl. 
 15, S. C. 
 
 (c) 1 Wms. Saund. 5 Ed. 241, b, (6.) 
 
 (d) 3 Lev. 154. 6 Mod. 194. 2 Str. 776; and see 2 Salk. 651. 
 
 (e) Gilb. Debt, 403. Gilb. C. P. 91. (/) 5 Taunt. 25. 
 (g) 2 Lev. 80. 3 Keb. 135, S. C. Gilb. Debt, 403. Gilb. C. P. 91. 
 
 (h) 1 Wms. Saund. 5 Ed. 238. Carth. 183. 1 Wils. 165. 
 
 (j) Cro. Car. 183. 1 Wils. 165. [k) W. Jon. 43.
 
 OF TUE DECLARATION. 429 
 
 the lessor, against the lessee, which is founded on the privity of estate, 
 the action is local. So, if an action of debt or covenant be brought by the 
 lessor,(^) or his personal representatives,(m) or by the grantee of the 
 reversion, (?«) against the assignee of the lessee, it is local, and the venue 
 must be laid in the county where the land lies : and accordingly, in cove- 
 nant against the assignee of the lessee of premises, described in the 
 declaration as situate witliin the liberties of Berwick upon Tweed, the 
 venue cannot be laid in Northumberhind.{o) 
 
 There are some actions, however, of a transitory nature, wherein the 
 venue, by act of parliament, must be laid in a particular county. Thus, by 
 the statute 31 Eliz. c. 5, § 2, " in any declaration or information, the offi-nce 
 against any penal statute shall not be laid to be done in any other county 
 but where the contract, or other matter alleged to be the offence, was in truth 
 done ; and every defendant in such action or information may traverse, 
 and allege that the offence was not committed in the county 
 where it is alleged : which being tried for the defendant, *or if the [ MSO ] 
 plaintiff be thereupon nonsuit, then the plaintiff shall be barred in 
 that action or information." And, by the statute 21 Jac. I. c. 4, "in all 
 informations to be exhibited, and in all bills, counts, plaints and declara- 
 tions, to be commenced against any person or persons, either by or on be- 
 half of the king or any other, for or concerning any offence committed or to 
 be committed, against any penal statute, the offence shall be laid and alleged 
 to have been committed in the county where such offence was in truth 
 committed, and not elsewhere." The former of these statutes is holden to 
 be still in force; and it extends to all actions or informations brought by 
 common informers upon penal statutes, whether made before or after the 31 
 Eliz. (a) And hence it is a general rule, that the venue in such actions or 
 informations must be laid in the county where the offence was committed. 
 The latter statute also extends as well to offences of omission, as of com- 
 mission. (^) There is an exception however, in the statute, that it shall not 
 extend to any such officers of record as had, in respect of their offices, 
 theretofore lawfully used to exhibit informations, or sue upon penal laws ; 
 which exception extends to informations by the attorney general, in the 
 court of Exchequer ;(c) and there are some other exceptions in the statute, 
 relating to offences concerning champerty, &c. But the statute 21 Jac. I. 
 0. 4, does not extend to offences created by subsequent statutes ;((7) and 
 neither this statute,(g) nor the 31 Eliz. c. 5,(/) extends to actions brought 
 by the imrty grieved. In an action on the statute 1 & 2 Ph. & M. c. 12, 
 for driving a distress out of the hundred, if the hundred in which the cattle 
 were distrained be in one county, and the hundred into which they were 
 driven in another, the venue may be laid in either county.(^) But an 
 action on the statute 3 Geo. II. c. 2(3, for selling coals, as and for a sort 
 which they really were not, must be brought in the county in which the 
 
 (Z) 6 Mod. 104 ; and see 7 Durnf. & East, 583. 2 East, 580. (m) Latcli, 197. 
 
 (n) Carth. 182. 3 Mod. 336. 1 Salk. 80. 1 Show. 191, S. C. 7 Durnf. & East, 583, 
 
 (o) 3 King. 459. 
 
 (a) Com. Dig. lit. Action, N. 10 Bui. Ni. Pri. 195. 4 Bur. 2467. 2 Durnf. & East, 238. 2 
 Bos. & Pul. 381. 4 East, 385. 9 East, 296. 5 Taunt. 754. 1 Marsh. 320, S. C. Id. 321, (a). 
 3 Maule & Sel. 429. 
 
 (6) 5 Maule & Sel. 427. 
 
 (c) Bunb. 236, 261. Parker, 182. 3 Anstr. 871. 
 
 {d) 1 Salk. 372, 3. Bui. Ni. Pri. 195. .Sel. Ni. Pri. 6 Ed. 637. 3 Maule & Sel. 438, 9 ; 442,3; 445. 
 
 (e) I Show. 354. Bui. Ni. Pri. 196. (/) Ante, 14. Bui. Ni. Pri. 195. 
 
 [g) 2 Campb. 266. 2 Taunt. 252, S. C.
 
 4:)0 OP THE DECLARATION. 
 
 coalri were delivered^ and not where they were contracted for.(7i) And a 
 penal action for non-residence must be brought in the county in which the 
 living is situated. (2) In an action brought to recover penalties on the 
 statute of usurij, it appeared that the contract was made in one county, 
 and the money paid in another ; and the court held, that the venue ought 
 to have been laid in the county where the usurious interest was received.(Z;) 
 There are also certain other actions, wherein the venue, which would 
 otherwise be transitory, must by various acts of parliament, made for pro- 
 tecting officers in the execution of their duty, be laid in the county wherein 
 the facts were committed, and not elsewhere. Such are actions upon the 
 
 case, or trespass against justices of peace, mayors or bailiffs of 
 [ *431 ] cities or *towns corporate, headboroughs, portreves, constables, 
 
 tithing-men, church-wardens, &c., or other persons acting in 
 their aid and assistance, or by their command, for anything done in their 
 oflScial capacity ;(a) and also actions against any person or persons, for 
 anything done by an officer or officers of the exc{se,{b) or customs,{€c) or 
 others acting in his or their aid, in execution or by reason of his or their 
 office ; or for anything done in pursuance of the act for consolidating the 
 provisions of the acts relating to the duties under the management of the 
 commissioners for the affairs of taxes, or any act for granting duties to be 
 assessed under the regulations of that a,ct,[dd) &c. ; against an officer of 
 the army, navy, or marines, for anything done in the execution of, or by 
 reason of his office ;{ee) or against any person, for anything done in pur- 
 suance of the acts relative to larceny, &c., or malicious injuries to pro- 
 perty.(_^) But an action against a constable is not confined to the proper 
 county, where he does not act in execution of his office.(^^) 
 
 Also, by the 42 Geo. III. c. S5,{hh) the provisions of the statute 21 
 Jac. I. c. 12, with regard to the venue, &c., are extended to all persons 
 having, holding or exercising, or being employed in any public employ- 
 ment, or any office, station or capacity, either civil or military, either in 
 or out of this kingdom ; and who under and by virtue or in pursuance of 
 any act or acts of parliament, &c., have, by virtue of any such public 
 employment, &c., power or authority to commit persons to safe custody : 
 and " all such persons, having such power or authority as aforesaid, shall 
 have and be entitled to all the privileges, benefits and advantages, given 
 by the provisions of the said act, as fully and effectually to all intents and 
 purposes, as if they had been specially named therein. Provided always, 
 that when any action, bill, plaint or suit, upon the case, trespass, battery, 
 or false imprisonment, shall be brought against any such person as is in 
 this act described as aforesaid, in this kingdom, for or upon any act, 
 matter or thing done out of this kingdom, it shall be lawful for the plaintiff 
 bringing the same, to lay such act, matter or thing to have been done in 
 Westminster, or in any county where the person against whom any such 
 action, bill, plaint or suit shall be brought, shall then reside." 
 
 (/() 4 East, 385. (i) 2 Chit. Rep. 420. 
 
 (k) 2 Barn. & Cres. TOO. 5 Dowl. & Rjl. 616, S. C. 
 
 (a) Stat. 21 Jac. I. c. 12, ^ 5. (b) 23 Geo. III. c. 70, § 34. 
 
 {cc) 24 Geo. III. sess. 2, c. 47, ^ 35, 39 ; which statute, however, is repealed by that of 6 
 Geo. IV. c. 105 ; and see stat. 28 Geo. III. c. 37, § 23. 6 Geo. IV. c. 108, ^ 97. 
 
 (dd) Stat. 43 Geo. III. c. 99, ^ 70. (ee) Stat. 6 Geo. IV. c. 108, | 97. 
 
 (/) Stat. 7 & 8 Geo. IV. c. 29, § 75, &c. 30, g 41. 
 
 {>/[/) 1 Str. 446. 3 Bur. 1742 ; and see 2 Esp. Rep. 542. 3 Esp. Rep. 226. 2 Stark. Ni. 
 Pri. 445. {hh) § 6.
 
 OF THE DECLARATION. 431 
 
 On the other hand, the venue in a transitory action is in some cases 
 altogether optional in the phvintiff; as wliere the action arises mWalcH or 
 beyond the sea, or is brought upon a bond, or other specialty, promissory 
 note, or bill of exchange; for scandalum maynatum, or a libel dispersed 
 throughout the kingdom ; against a carrier, or lighterman ; or for an 
 escape, or false return ; and in short, wherever the cause of 
 action is not *wholly and necessarily confined to a single [ *432 ] 
 county. (a) In these cases, the venue cannot be changed by the 
 courts, but upon a special ground. 
 
 In actions by oru/inal, the venue, in the King's Bench, should in general 
 be laid in the county where the writ was brought :(/») and if it be not so 
 laid, the court will set aside the proceedings for irregularity, and the 
 plaintifl', we have sccn,(6') will lose his bail. But, in the Common Pleas, 
 though the practice was formerly the same as in the King's Bench, (fZ) 
 where an arrest shall be by virtue of a capias ad respondendum in any 
 county, and bail shall be put in thereupon, and the plaintifl" shall think 
 proper afterwards to declare in a difFcrent county, it shall not be deemed 
 a waiver of the bail ; but the recognizance of bail shall be as efiectual for 
 the benefit of the plaintiff, and he may proceed thereon against the bail, 
 in the same manner as if the plaintiff had declared against the defendant 
 in the same county in which the bail was put in.(c) And it is a general 
 rule, that the county in the margin will help, but not hurt :(/) Hence, if 
 there be no venue, or it be not laid with certainty,((/) in the body of the 
 declaration, reference must be had to the margin ; but where a proper 
 venue is laid in the body, the county in the margin will not vitiate it. (A) 
 In an action upon the case for a nuisance, if no place be alleged where 
 the nuisance was committed, the county in the margin shall be intended. (?) 
 And, in stating transitory facts, it is enough to allege a county for a 
 venue, without a parish. (/c) 
 
 In actions by bill against common persons, in the King's Bench, the de- 
 claration begins by stating the defendant to be in custody of the marshal ;(Z) 
 or, if he be in custody of the sheriff, or bailiff or steward of a franchise hav- 
 ing the return and execution of writs, it should allege in Avhose custody he 
 is, at the time of the declaration, by virtue of the process of the court, at 
 the suit of the plaintifi's.(w) If the action be brought by or against par- 
 ticular persons, as assignees, executors, &c. the special character in which 
 they sue, or are sued, should be set forth in the beginning of the de- 
 claration : And in actions against attorneys^ instead of stating that 
 
 (a) See the cases referred to in Chap. XXIV. (/■>) Bat vide ante, 423. 
 
 {c) Ante,2M. (rf) Barnes, 116. 
 
 (e) R. H. 22 Geo. III. C. P. 
 
 (/) 1 Wms. Saund. 5 Ed. 308, (1) And note, Lord Ilardwicke was of opinion, that the 
 JJ"\n the nmrpin of the declaration, was not ori^'inally meant to signify the county, but was 
 only a denotation of each section or paragraph in the record. Cas. temp. Hardw. 344. 
 
 (g) 2 Blac. Rep. 847. 3 Wils. 339, S. C. 
 
 \h) Cas. temp. Ilardw. 343, 4. Barnes, 483. 3 Durnf. & East, 387. 
 
 (»•) 1 Taunt. 379; and see 2 East, 497. 5 Taunt. 789. 1 Marsh. 3G3, S. C. And see fur- 
 ther, as to the x'enue in personal actions, whether local or transitory, and the mode of slating 
 it, with the consequences of a mistake, and when aided, 1 Chit. PI. 4 Ed. 239, &c., 252, &c. 
 Steph. PI. 298, &c. 
 
 ik) 3 Maule & Sel. 148. 
 
 (/) Append. Chap. XV. ? 19. Chap. XVII. ? IG, Ac. Chap. XLVI. § 26. And for the form 
 of the lie;:^inning and conclusion of a declaration in the E.\chequer, see Append. Chap. 
 XVII. I 19, 20, 21. 
 
 (to) Append. Chap. XV. g 1, Ac.
 
 432 0¥ THE DECLARATION. 
 
 [ *433 ] they are in custody of the marshal or sheriff, it should be stated 
 that *they are present in court ;(a) or, in actions against pe^r« 
 or members of the house of commons, that they have privilege of parlia- 
 ment, (6) 
 
 In account, covenant, debt, annuity/, detinue, and replevin, where the 
 original is a summons, the declaration by original writ, in the King's 
 Bench or Common Pleas, begins by stating that the defendant was sum- 
 moned to answer : in actions on the case, trespass, ejectment, &c. where 
 the original is an attachment, it states that he was attached to answer. (c) 
 But where by the declaration it appears that the defendant was summoned, 
 instead of attached, or vice versd, the defendant cannot demur, without 
 craving o^er of the original, and setting it forth, in order to show that it 
 does not warrant the declaration. (cZ) 
 
 It was formerly usual for the declaration hj original to repeat the whole 
 of the original writ.(e) But this practice being productive of great and un- 
 necessary prolixity, a rule of court was made, that " declarations in actions 
 upon the case, and general statutes, other than debt, repeat not the origi- 
 nal writ, but only the nature of the action ; as that the defendant was 
 attached to answer the plaintiff, in a plea of trespass upon the case, or in a 
 plea of trespass and contempt, against the form of the statute."{f) And 
 in trespass vi et armis, commenced by original, it has been deemed suffi- 
 cient, on a general demurrer, to state in the declaration, that the defend- 
 ant was attached to answer the plaintiff, in a plea of trespass, without set- 
 ting forth the circumstances. (^) It even seems, that the omission of the 
 
 words "and thereupon the said plaintiff by his attorney complains," 
 
 in the beginning of a declaration of trespass on the case, in the Common 
 Pleas, is no cause of special demurrer.(7i) And it is no objection to a 
 declaration, that the parties, having been once called by their names, are 
 afterwards designated by the terms plaintiff and defendant ;{i) which is 
 now become the common mode of declaring. 
 
 In actions upon contracts, the declaration must in all cases state the con- 
 tract upon which the action is founded, and the breach of it : And this 
 alone, without more, is in some cases sufficient : as in action of debt on 
 bond, by the obligee against the obligor. Contracts are either in 
 [ *434] writing, {k) *or hj parol ; if in writing, they are either by deed 
 under seal, or by agreement without seal ; and they are either 
 express or implied ; the former are created by the words, the latter by the 
 
 (a) Append. Chap. XIV. § 18, &c. (6) Id. Chap. VI. § 12, &c. 
 
 (c) Com. Dig. tit. Pleader, C. 12. 2 Wms. Saund. 5 Ed. 1, (1). Append. Chap. XVII. I 7, 
 &c. Chap. XLVI. I 20, &c. 
 
 {d) Cro. Jac. 108. Cro. Car. 91. 1 "Wms. Saund. 5 Ed. 318. 1 Sid. 423. 2 Keb. 544. 1 
 Mod. 3, S. C. 4 Mod. 246. 2 Salk. 701. 6 Mod. 28, S. C. 2 Ld. Raym. 903. Fort. 341. Cas. 
 temp. Hardw. 189. Barnard v. Moss, H. 28 Geo. III. C. P. Com. Dig. tit. Pleader, C. 12, 14, 
 3 M. 6; and see 2 Wils. 85, 395, 413. 1 H. Blac. 249. 11 East, 62. 1 Chit. PI. 4 Ed. 256, 7. 
 Steph. PI. 424, 5. And as oyer cannot now be had of the original writ, it seems that the 
 declaration is no longer demurrable for the above cause. 1 Wms. Saund. 5 Ed. 318, (3) ; 
 but see 2 Chit. Rep. 638. 
 
 (e) Com. Dig. tit. Pleader, C. 12. 
 
 (/) R. M. 1654, I 12, K. B. R. M. 1654, § 16, C. P. 
 
 {g) Carth. 108; and see 1 Wms. Saund. 5 Ed. 318,(3.) 
 
 {h) 1 Bos. & Pul. 366. And see further, as to the mode of commencing declarations, 1 
 Chit. PI. 4 Ed. 254, &c. Steph. PI. 420. 
 
 (t) 6 Taunt. 121. 2 Marsh. 101, S. C. 6 Taunt. 406. 
 
 {k) For the cases in which it is necessary that the contract should be in writing, see the 
 statute of frauds and perjuries, 29 Car. II. c. 3, § 4, 17.
 
 OF THE DECLARATION. 434 
 
 obvious meaning and intention of the parties. Thus, a covenant is implie^l, 
 from the hahcnduvi in a lease, for quiet enjoyment ; and from the redden- 
 dum, for payment of the rent. (a) So, on the indorsement of a note or bill, 
 it is implied, that if the drawer or acceptor do not pay it, the indorser will, 
 on having due notice of its non-payment :(/*) And in general it maybe re- 
 marked, that promises are implied, to pay money on legal liabilities.(c) 
 With regard to their operation, contracts arc j^resent or future ; under the 
 former, may be classed warranties, that a horse is sound, &c. : the latter 
 are to do or omit some act, or to procure it to be done or omitted by 
 another. (rZ) Contracts must be stated in the declaration as they were really 
 made, either in terms, or according to their legal effect ;(t') and if there 
 be a variance, it ^Yill be fatal, (/) unless it be rectified, by amending 
 
 (a) 3 Bac. Abr. 296. 
 
 lb) Bayley, on Bills, 27, 41, 2 ; 57. (c) Anle, 2. 
 
 (d) See further, as to contracts in assumpsit, 1 Chit. PI. 4 Ed. 2G5, &c. Lawcs, on Pleading, 
 Chap. IV. 
 
 (e) 1 Marsh. 211, per Gibbs, Ch. J. 
 
 (/) For modern cases, in which variances between the declaration and evidence, have 
 been holden to he fatal, see 1 New Rep. C. P. 351. 5 Esp. Rep. 239, S. C. 2 East, 2. 4 .Maule 
 
 6 Sel. 505. 2 Chit. Rep. 333. 3 Moore, 79. Gow. 21, S. C. 2 Barn. & Aid. 301. 1 Chit. Rep. 
 
 28, S. C. Id. 60, (rt). 5 Barn. & Aid. 42. 1 Barn. & Cres. 16. 3 Ktark. Ni. Pri. 15G, S. C. 2 
 Dowl. & Ryl. 15, S. C. 2 Barn. & Cres. 20. 3 Dowl. & Ryl. 21 1, S. C. 3 Barn. & Cres. 462. 
 
 5 Dowl. & ilyl. 319, S. C. 4 Barn. & Cres. 108. 6 Dowl. & Ryl. 200, S. C. 5 Barn. & Cres. 909. 
 8 Dowl. & Ryl. 643, S. C. 3 Bing. 472, in a4.s?<7«/).?(7 ,• 4 Maule & Sel. 470. 6 .Maule & Sel. 115. 
 
 1 Moore, 89. 2 Barn. & Aid. 765. 1 Chit. Rep. 518, S. C. 5 Moore, 164. 2 Brod. k Bing. 395, 
 S. C. 3 Dowl. & Ryl. 145. 1 Moody & M. 6. 6 Barn, k Cres. 430, in covenant; Ante, 225, 6, 
 in debt on bail bond ; Ry. k Mo. 153. 1 Car. k P. 534, S. C. in debt for usury ; 4 Barn. & 
 Ores. 403. 6 Dowl. & Ryl. 483, S. C. 5 Barn. & Cres. 339. 8 Dowl. & Ryl. 98, S. C. in case, 
 against sheriff, for escape or false return ; Doug. 665. 4 Barn. & Cres. 657. 7 Dowl. k Ryl. 
 123. Ry. & Moore, 266, S. C. in case, against sheriff, on stat. 8 Anne, c. 14, g 1 ; 2 Barn. & 
 Aid. 756. 1 Chit. Rep. 507, S. C. for malicious prosecution; 4 .Moore, 266. 1 Brod. k Bing. 
 538, S. C. against agent, for misconduct ; 5 Barn. & Aid. 615. 1 Dowl. & Ryl. 230, S. C. for 
 libel ; 2 Barn, k Cre.s. 486. 3 Dowl. & Ryl. 728, S. C. for slander of title; 5 Moore, 475, in 
 replevin; and 1 Car. k P. 472, on an indictment for a conspiracy. And for cases in which 
 variances have been deemed immaterial, see 8 East, 8. 13 East, 410. 6 Taunt. 108. Id. 581. 
 
 2 Marsh. 287, S. C. 8 Taunt. 197. 2 Moore, 114, S. C. 1 Chit. Rep. 60, (a). 1 Brod. k Bing. 
 523. 4 Moore, 515. 2 Brod. & Bing. 89, S. C. 5 Moore, 74. 2 Brod. k Bing. 359, S. C. 4 
 Barn. & Aid. 435. 5 Barn. & Aid. 964, S. C. 11 Price, 19. 3 Stark. Ni. Pri. 156. 1 Barn. & 
 Cres. 18. 7 Moore, 283. 1 Bing. 34, S. C. 8 Moore, 372. 1 Bing. 355, S. C. 4 Barn. & Cres. 
 445. 6 Dowl. k Ryl. 533, S. C. 7 Dowl. & Ryl. 140. 3 Bing. 633. 1 Moore & P. 239. 7 Barn. 
 Cres. 423, in assumpsit; 1 Stark. Ni. Pri. 294. 1 Chit. Rep. 518, {a). 4 Moore, 66. 1 Brod. & 
 Bing. 443, S. C. 9 Price, 642. 6 Moore, 483. 3 Brod. & Bing. 186, S. C. 1 Barn. & Cres. 358. 
 2 Dowl. k Ryl. 662, S. C. 1 Car. k P. 80, 610. Ry. k Mo. 195. 1 Car. & P. 586, S. C. 1 
 Younge <fc J. 2, in covenant ; Ante, 225, in debt on bail bond ; 7 Moore, 231. 1 Bing. 6, S. C. 
 in debt on replevin bond; 1 Durnf. k East, 235. 1 Chit. Rep. 60, in debt for penalties; 6 
 Barn. & Cres. 251, in debt for rent ; 4 Barn, k Cres. 380. 6 Dowl. k Ryl. 500, S. C. in debt, 
 against marshal, for escape; 7 Moore, 345, for diverting a watercourse; 1 Chit. Rep. 104. 
 4 Barn. & Cres. 161. 6 Dowl. k Ryl. 291, S. C. for disturbance of common ; 1 Barn, k Cres. 
 77. 2 Dowl. k Ryl. 184, S. C. 7 Moore, 304. 1 Bing. 45, S. C. in trover; 3 Durnf k East, 
 643, in case, on stat. 11 Geo. II. c. 19, g 3 ; 4 Durnf. k East, 558. Dowl. k Ryl. Ni. Pri. 35. 
 
 7 Barn. & Cres. 301 ; for negligence; 3 Barn. & Cres. 541. 5 Dowl. k Ryl. 292, S. 0. for 
 deceit; 2 Barn. & Cres. 2. 3 Dowl. k Ryl. 226, S. C. against the sheriff, for not taking suf- 
 ficient pledges in replevin: 10 Price, 154; Ry. k Mo. 291. 4 Bing. 278, against the sheriff, 
 for an escape ; 3 Dowl. & Ryl. 483. 3 Barn. & Cres. 2. 4 Dowl. & Ryl. 624, S. C. against tho 
 sheriff, for a false return ; 4 Bing. 261, in an action for words. 9 East, 157. 6 Maule k Sel. 
 
 29, for malicious prosecution ; 1 Chit. Rep. 480. 2 Barn, k Cres. 678. 4 Dowl. k Ryl. 230, 
 S. C. 3 Barn, k Cres. 24. 4 Dowl. k Ryl. 695, S. C. 3 Barn, k Cres. 113. 4 Dowl. & Ryl. 
 670, S. C. 3 Barn. & Cres. 138, 9, (6). 4 Dowl. k Ryl. 810, S. C. for libel ; 10 Moore, 264. 
 
 6 Barn, k Cres. 34. 9 Dowl. k Ryl. 20, S. C. in repUvin ; 4 Dowl. k Ryl. 202. 9 Moore, 556. 
 2 Bing. 271, S. C. in trespass; Ry. k .Mo. 252. 4 Barn, k Cres. 850. 7 Dowl. k Ryl. 324, 
 S. C. 6 Barn, k Cres. 102. 9 Dowl. & Ryl. 97, S. C. 1 Moody k .M. 118, on an indictment for 
 perjury. And see further, as to variance, 1 Chit. PI. 4 Ed. 271, &c., 334, &c. 3 Stark. Evid. 
 1526, &c.
 
 431. OF THE DECLARATION. 
 
 [ *435 ] the record at the trial, pursuant to the statute 9 Geo. IV. c. 15. *In 
 
 assumpsit for usg and occupation, it is not necessary to state in 
 what parish the promises are situated :{a) and where a parish is known 
 as well by one name as another, it is sufficient to call it by either.(6) But 
 where the situation of the premises is alleged in the declaration, a vari- 
 ance in the name of the parish is fatal. (c?) 
 
 When the contract is by deed, it is not necessary to set forth the con- 
 sideration upon which it is founded : as the law in that case imjjlies a con- 
 sideration where none is stated :(cZ) And a consideration is also implied, 
 upon bills of exchange, and promissory notes: But in all other cases, the 
 consideration, not being implied, must be stated in the declaration. Con- 
 siderations ave commonly said to be executed ov executory ; or in other 
 words, the contract is founded upon something already done, or to be done : 
 But there is a third species of considerations, partaking of the nature of 
 both the others, as in the case of mutual promises ;{e) where the plaintiff's 
 promise is executed, but the thing which he has engaged to perform is 
 executory. When the consideration is executed, the defendant cannot 
 traverse the consideration by itself, because it is incorporated and coupled 
 with the promise, and if it were not then in fact executed, it is nudum 
 pactum : But if it be executory, the plaintiff cannot bring his action till 
 the consideration be performed ; and if in truth the promise were made, 
 and the consideration not performed, the defendant must traverse the per- 
 formance, and not the promise, because they are distinct things. (/) 
 
 It is also commonly supposed, that to make a good consideration, there 
 must be either an immediate benefit to the party promising, or a loss to 
 the person to whom the promise was made. But this rule seems to be too 
 narrow ; for it is said, that wherever a man is under a moral obligation, 
 which no court of law or equity can enforce, and promises, the 
 [ *436 ] honesty and *rectitude of the thing is a consideration ; as if a 
 man promise to pay a just debt, the recovery of which is barred 
 by the statute of limitations; or if a man, after he comes of age, pro- 
 mise to pay a meritorious debt contracted during during his minority, but 
 not for necessaries; or if a bankrupt in affluent circumstances, after his 
 certificate, promise to pay the whole of his debts ; or if a man promise to 
 perform a secret trust, or a trust void for want of writing by the statute 
 of frauds : In these and many other instances, though the promise give a 
 compulsory remedy, when there was none before, either in law or equity ; 
 yet as the promise is only to do what an honest man ought to do, the ties 
 of conscience upon an upright mind are said to be a sufficient considera- 
 tion. (aa) 
 
 When the promise and consideration explain themselves without refer- 
 
 (a) 6 East, 348. 1 Taunt. 570. 
 
 [h) 1 Taunt. 570; and see 1 Bos. & Pul. 225. 2 Campb. 3. 13 East, 9. 3 Taunt. 127. 5 
 Maule & Sel. 32G. 4 Barn. & Aid. 616, 619. 3 Bing. 449. 1 Younge & J. 492. 1 Chit. PI. 4 
 Ed. 251, 2; but see 2 Campb. 274. 
 
 (c) 3 Campb. 235 ; and see 4 Taunt. 700. 1 Moore, 161. Holt Ni. Pri. 523, S. C. 2 Moore, 
 587. 8 Taunt. 539, S. C. 1 Younge & J. 492. 
 
 {d) 7 Durnf. & East, 475 ; and see 3 Bur. 1639. 
 
 (e) 1 Salk. 171. 1 Ld. Raym. 665, S. C. 
 
 (/) Bui. Ni. Pri. 146 ; and see 7 Barn. & Cres. 423. 
 
 [aa] Per Lord Mamfield, Cowp. 290 ; and see 5 Taunt. 36, accord.; but see 3 Bos. & Pul. 
 249, (a), semb. contra. And see further, as to the consideration in assumpsit, 1 Chit. PI. 262, 
 &c. Lawes, on Pleading, Chap. III. 4 Barn. & Cres. 8. 6 Dowl. & Ryl. 42, S. C. 2 Bing. 464. 
 1 M'Clel. & y. 205, S. C. ; but see 4 Bara. & Cres. 345. 6 Dowl. & Ryl. 438, S. C. 7 Dowl. & 
 Ryl. 14. 1 Moore & P. 227. 4 Bing. 459, S. C.
 
 OF THE DECLARATION. 436 
 
 ence to any collateral matter, they are stated in the declaration ^\ithout 
 any inducement : But when that is not the case, the declaration begins by 
 stating the circumstances under which the contract was made, or to which 
 the consideration refers ; as in an action of assnmpHit to pay money, in 
 consideration of forbearance, or of staying proceedings, the declaration 
 begins by stating the debt forborne, or the proceedings tliat were stayed. 
 The inducement is in nature of a ])reamble, and leads on to the prin- 
 cipal matter of the declaration ; and as its ofhce is explanatory, it does 
 not require exact certainty.(i) 
 
 When the consideration is executed^ and the promise to pay a sum cer- 
 tain, or to do or omit some specific act, the declaration proceeds at once 
 from the contract to the breach, without any intermediate averments ;\^\\ 
 as in the case of indchitatus assnnq/sit, to pay a precedent debt, &c. Lut 
 when the consideration is executory, or the performance of the defend- 
 ant's covenant or agreement is made to depend on the performance of a 
 condition precedent, on the part of the plaintiff, the declaration ought to 
 aver that the consideration has been executed, or the condition performed: 
 for it is a rule, that in all cases where the estate or interest commences 
 
 (/>) Com. Dig. tit. Pleader, C. 31. And see further, as to the inducement in assumpsit, 1 
 Chit. n. 4 Ed. 260, &c. Lawes, on Pleading, Chap. II, 
 
 [a] a declaration should aver facts, and not set forth the evidence by which the facts 
 might be proved. Ralston v. Strong, 1 Chip. 293. Glover v. Tuck, 24 Wend. 1.53. And 
 averments by way of inducement, in the first count of a declaration, will aid a subsequent 
 count, which wouhl otlicrwise be defective, when it clearly refers to the first count which is 
 good. Crookshank v. Gray, 20 Johns. 344. Where any acts are to be done by the jilain- 
 tilT, by way of a condition precedent, he must show, in pleading, precisely what he has done 
 by way of performing them, with such circumstances as are material, in point of law, to 
 raise the corresponding obligation. Glover v. Tuck, 24 Wend. 153. And this upon the 
 general principle, that where any allegation is necessary in a declaration to maintain an 
 action, its omission in the declaration cannot be supplied by the proof I'ollardv. T/iumason, 
 5 Humph. 5G. Kinnaj v. Ilosea, 3 llarring. 456. And generally, every material averment 
 in a declaration must be proved, although averments foreign to the issue may be rejected as 
 surplusage and need not be proved. Bell v. Lakin, 1 M'.MuUan, 3G4. Furgcson v. Tucker, 
 2 Ilarr. k (lill. 182. But no immaterial averment, made by way of inducement merely, need 
 be proved, although descriptive of a written instrument. Ward v. The Little lied, 7 Miss. 
 5«2. Where the matter alleged in the pleadings is to be considered as lying more properly 
 in the knowledge of the plaintiff than the defendant, then the declaration ought to state 
 that the defendant had notice thereof But where the matter does not lie more properly in 
 the knowledge of the plaiutiff, notice need not be averred. Carlisle v. Cahaicba and Marion 
 Railroad Co., 4 Ala. 70. And where a videlicet is followed by that which is necessary to be 
 alleged, and is material, it is considered as a direct and positive aflirmation, or averment, 
 which is traversable, unless contrary to the preceding matter. It is as necessary to prove 
 it, when material, as if it had been averred without a videlicet. Ladue v. Laduc, 1(5 Verm. 
 189. Ho, too, matter in excuse of performance must lie expressly averred. Excuse of per- 
 formance is not admissible under mere averment of performance. Bruen v. Astor, Antlion, 
 133. A subsequent count in a declaration may, by a distinct reference to a preceding one, 
 adopt an averment contained in such preceding count, without repetition of such averment. 
 Freeland v. M-Cullough, 1 Denio, 414. Mardis v. Shacklc/ord, 6 Ala. 433. Useless averments 
 in a declaration do not affect those which are well alleged. Olm.ttcad v. Dot;/, 2 Root, 184. 
 But any averment is unnecessary, where the words are so connected with the subject mat- 
 ter as to make their meaning obvious. MLellan v. Morri.t, Kirby, 14.'J. Although the omis- 
 sion of a material averment in a declaration, or the cause of action defectively set out, 
 cannot be supplied with evidence at the trial. Wahhmith v. Wald.imith, 2 Ham. 156. In 
 declaring on a contract which is not sufficiently explicit in itself, and where its validity 
 depends upon extrinsic matter, either referred to or necessarily arising out of the terms of 
 the contract, the deficiency must be supplied by proper averments in the declaration. Rilq/ 
 Vanhouton, 4 How. Mis. 425. Averments contrary to the record are inadmissible. nVy/i/ 
 v. Mott, Kirby, 152. Busk v. Byvanks, 2 Root, 248. Nor can a defect in a record be supplied 
 by averment. Wood v. Commonwealth, 4 Hand. 329.
 
 436 OF THE DECLARATION. 
 
 on a condition precedent, be the condition or act in the affirmative or 
 negative, and to be performed bj the plaintiff or defendant, or any other, 
 the plaintiff ought in his count to aver performance ;{e) as if a man grant 
 an annuity to another, when he is promoted to such a benefice, &c. the 
 plaintiff in annuity ought to aver that he is promoted, (cZ) &c. But when any 
 estate or interest passes or vests immediately, and is to be defeated by a 
 condition subsequent, or matter ex post facto, be it in the affirmative or 
 negative, or to be performed by the plaintiff or defendant, or by any other 
 performance of that matter need not be averred :(e) as if a 
 [ *437 ] grant be of an annuity *to A. till he be advanced to a benefice, 
 A. in annuity need not say that he is not yet advanced. (aa) 
 
 Covenants or agreement are of three kinds ; first, such as are called mu- 
 tual and independent, where either party may recover damages from the 
 other, for the injury he may have received by a breach of the covenants in 
 his favour, and where it is no excuse for the defendant to allege a breach of 
 the covenants on the part of the plaintiff: Secondly, there are covenants 
 which are conditions and dependent, in which, the performance of one 
 depends on the prior performance of another ; and therefore till, this prior 
 condition be performed, the other party is not liable to an action on his 
 covenant : Thirdly, there is also a sort of covenants, which are mutual 
 conditions, to be performed at the same time ; and in these, if one party 
 was ready and offered to perform his part, and the other neglected or 
 refused to perform his, he who was ready and offered, has fulfilled his 
 engagement, and may maintain an action for the default of the other, 
 though it be not certain that either is obliged to do the first act. (J) 
 
 The dependence or independence of covenants is to be collected from 
 the evident sense and meaning of the parties ; and however transposed 
 they may be in the deed, their precedency must depend on the order of 
 time, in which the intent of the transaction requires their performance. (c) 
 The words by which conditions precedent are commonly created, are 
 for,(d) in consideration of, ita quod,{e) proinde,{f) &c. In general, if the 
 agreement be that one party shall do an act, and that for the doing 
 thereof the other shall pay a sum of money, the doing of the act is 
 a condition precedent to the payment, and the party who is to pay shall 
 not be compelled to part with his money, till the thing be performed.(^) 
 And however improbable the thing may be, it must be complied with, or 
 the right which was to attach on its being performed does not vest : as if 
 the condition be, that A. shall enfeoff B. and A. do all in his power to 
 perform the condition, and B. will not receive livery of seisin, it was never 
 
 (c) 7 Co. 10, a. (d) PI. Com. 25, b. (e) 7 Co. 10, a. 
 
 (aa) 7 Co. 10, a. PI. Com. 25, b. 30, a. 32, b ; and see 1 Durnf. & East, 645. 2 H. Blac. 579. 
 For the cases in which it is, or is not necessary to aver the existence of a life, and how it 
 may be averred, see 1 Wms. Saund. 5 Ed. 235, a, (8). 
 
 (6) Per Lord Mansfield, in the case of Kingston v. Preston, cited in Doug. 690, 91. And 
 see the several modern cases on this subject, collected and arranged in Willes, 157, (a). 1 
 Wms. Saund. 5 Ed. 320, (4). 2 Wms. Saund. 5 Ed. 108, a, (3). Sel. Ni. Pri. 6 Ed. 108, &c., 
 5i0, &c. 1 Chit. PI. 278, &c. Lawes, on Pleading, Chap. V. 
 
 (c) Doug. 690 ; and see 6 Durnf. & East, 570, 668. 7 Durnf. & East, 130. 
 
 {d) 1 Vent. 177, 214. 2 Wms. Saund. 5 Ed. 350, S. C. 
 
 (e) 2 Ld. Raym. 766. (/) Doug. 688. 
 
 (V) 1 Salk. 171.1 Ld. Raym. 665, S. C. ; and see 1 Ld. Raym. 440, 686. 2 Salk. 623. Com. 
 Rep. 117. 12 Mod. 529, S. C. 1 Str. 535, 615. 2Str. 712. 1 Wils. 88. 2 Bur. 899. 2 Blac. 
 Rep. 1312. Doug. 27, 272, 620, 684. 1 Durnf. & East, 639. 1 H. Blac. 270. 4 Durnf. & East, 
 761. 2 H. Rlac. 123, 389, 574. 5 Durnf. & East, 409. 6 Durnf. & East, 570, 665, 710. 7 Durnf. 
 & East, 125. 8 Durnf. & East, 366. 1 East, 203. 2 Bos. & Pul. 447.
 
 OP THE DECLARATION. 437 
 
 doubted, but that the right which was to depend on the performance of 
 
 the condition did not arise.(A) If a person undertake for the 
 
 act of a stranger^ the cases are uniform to *show that such act [ MSB ] 
 
 must be performed.(a) And where tliere are mutual promises 
 
 yet if one thing be the consideration for the other, there a performance 
 
 is in general necessary. (W*) 
 
 If a day be appointed for the payment of money, and the day is to 
 happen before the thing can be performed, an action may be brought for 
 the money, before the thing is done : for it appears tliat the party relied 
 upon his remedy, and intended not to make the performance a condition 
 precedent :(tr) But where a certain day of payment is appointed, and that 
 day is to happen subsequently to the performance of the tiling to be done 
 by the contract, in such case the performance is a condition precedent, 
 and must be averred in an action for the money. (cc) So if two men agree, 
 one that the other shall have his horse, and the other that he will pay 10?. 
 for him, no action lies for the money, till the horse be delivered. (cc) 
 Another distinction to be attended to is, that where mutual covenants go 
 to the wliolc of the consideration on both sides, they are mutual condi- 
 tions, the one precedent to the other ; but where they go only to a party 
 and a breach may be paid for in damages, there the def^dant has a 
 remedy on his covenant, and shall not plead it as a condition preccdent.((f) 
 And it is said, that where the participle doing, performing, &c., is pre- 
 fixed to a covenant by another person, it is a mutual covenant, and not a 
 condition precedent. (e) 
 
 An averment may be by any words which show the matter to be as 
 stated ; as that the plaintiff avers, or in fact saith, or although, or because, 
 or loith this that, <&c.(/) And where there is a condition precedent, it is 
 necessary to state in the declaration, that it has been performed, or a 
 lawful excuse for its non-performance. (^) But there are some cases in 
 the books, respecting conditions precedent, where the thing agreed to be 
 done having been in effect performed, though not in the exact manner, 
 nor with all the circumstances mentioned, it was deemed a substantial 
 performance ;(/i) as where the condition was to enfeoff, a conveyance by 
 lease and release has been deemed sufficient :(^) So, if the condition be for 
 one to deliver the will of the testator, and he deliver letters testamen- 
 tary. (A;) And wherever a man, by doing a previous act, would actjuire a 
 right to any debt or duty, by a tender to do the previous act, if the other 
 party refuse to permit him to do it, he ac(iuires the right as completely, 
 as if it had been actually done ; and if the tender be defective, owing to 
 the conduct of the other party, such incomplete tender will be suQicient : 
 because it is a general principle, that he who prevents a thing 
 from being done, shall not avail himself of the *non-performanco [ *439 ] 
 
 (A) 6 Diirnf. & East, 719. 
 
 (a) 6 Durnf. & East, 122. 
 
 \bb) 1 Salk. 171. 1 Ld. Raym. 6G5,S. C. 6 Durnf. & East, 570. 7 Durnf. & East, 125. 
 
 \cc) 1 Salk. 171,2. 1 Ld. Raym. 665, 6, S. C. ; and see 2 H. Hlac. 392. 
 
 (d) 1 n. Blac. 273, [a] ; and see 6 Durnf. & East, 572, 3. 8 Durnf. k East, 373. 4 East, 
 483, 4. 10 East, 295. 1 Moore & P. 66. 4 Bing. 409, S. C. 1 Chit. PI. 4 Ed. 281. Sel. Ni. Pri. 
 6 Ed. 517, &c. 
 
 (f) 2 Hlac. Rep. 1313 ; and see Willes, 146, 496. 
 
 (/) Com. Dig. tit. Pleader, C. 77. Willes, 134,427. 1 Wms. Saund. 5 Ed. 117, a, (4), 235, 
 fl, b. 2 Wms. Saund. 5 Ed. 61, .y, (9). 
 
 (.7) 4 Durnf. & East, 761. 6 Durnf. & East, 570. Ox) G Durnf. & East, 722. 
 
 (i) Co. Lit. 207, a. {k) 1 Rol. Abr. 426, pi. 2, 4.
 
 439 OF TEE DECLARATION. 
 
 which he has occasioned.(a) The performance of a condition pre- 
 cedent is also excused by the absence of the plaintiff, in those cases 
 ■where his presence is necessary for the performance of the condition ; by 
 his ohstructinf] or preventing the performance ; or by his neglecting to do 
 the first act, if it be incumbent on him to perform it :{h) It is also excused 
 in some cases, by his not giving notice to the defendant. (c) When the 
 conditions are mutual, and to be performed at the same time, the plaintiff 
 must aver that he was ready, and offered to perform his part, but the 
 defendant refused to perform }\\^.{dd) And when the sum to be paid is 
 not ascertained by the contract, the plaintiff must aver the facts necessary 
 to ascertain it : as, upon a quantum meruit or valebant, that the plaintiff 
 deserved to have, or that the goods were reasonably zvorth, a certain 
 sum, &c.(ee) 
 
 When the contract is to pay a collateral sura upon request, there the 
 request, being parcel of the contract, and as it were a condition precedent, 
 ought to be specially alleged, with the time and place of making it :{ff) but 
 when the contract is founded upon a precedent debt or duty, as in the case 
 of a bond, or for money lent,(^^) &c., or is for the payment of a collateral sum 
 on a day certain,(7i) or otherwise than upon request :{i) or the debt or 
 duty arises immediately upon the performance of the consideration, (A;) 
 there it is not necessary to urge a special request, but licet ssepius requi- 
 situs is sufficient ; which is only a form of pleading, and if it be omitted, 
 does not vitiate the declaration. (Z) 
 
 When the matter alleged lies more properly in the knowledge of the 
 plaintiff than of the defendant, there the declaration ought to show that 
 notice was given to the latter ;(w) as where the defendant promises to give 
 the plaintiff so much for a commodity as it is worth, or as any other had 
 given him for the like, or to give so much for every cloth the plaintiff 
 should buy, or to pay the plaintiff what damages he had sustained by a 
 battery, or to pay the plaintiff's costs of suit :(m) And when 'notice is 
 necessary, it ought to appear that it was given in due time, and to a pro- 
 per person. («) But when the matter does not lie more properly in the 
 knowledge of the plaintiff than of the defendant, no notice is 
 [ *440 ] requisite ;(o) as in ^debt upon an obligation, conditioned to per- 
 form an award, notice of the award need not be alleged, because 
 the defendant may take notice of it, as well as the plaintiff. So if, upon 
 a treaty of marriage, a promise be made to the father of the daughter, 
 
 (a) Doug. 686 ; and see 1 Durnf. & East, 638. 
 
 (6) 1 Rol. Abr. 457, 8. 
 
 (c) Id. 463, 467, 8 ; and see Co. Lit. 207, a. 
 
 {dd) 7 Durnf. & East, 130 ; and see 7 Taunt. 314. 1 Moore, 56, S. C. 
 '' \ee) And see further, as to the averment of performance, or excuse of performance, in 
 assumpsit, Sel. Ni. Pri. 6 Ed. 108, &c. 1 Chit. PI. 4 Ed. 277, &c. Lawes, on Pleading, Chap. 
 V. VI. ; and as to the form of averment, and the consequences of a mistake, 1 Chit. PI. 282, &c. 
 
 (/) Com. Dig. tit. Pleader, C. 69. 1 Wms. Saund. 33, a, (2) ; and see 2 H. Blac. 131. 5 
 Durnf. & East, 409. But the time and place of the request, being merely matter of form, 
 the omission of them cannot be taken advantage of in arrest of judgment, since the statute 
 4 Ann. c. 16. 10 East, 359. 
 
 {gg) 1 Wms. Saund. 5 Ed. 32. 
 
 (A) Owen, 109. (t) 1 Lutw. 231. {k) 1 Str. 88. 
 
 [l) PI. Com. 128, b. Hardr. 38, 72. 1 Bos. & Pul. 59, 60. And see further, as to a request, 
 2 Wms. Saund. 5 Ed. 118, (3), 123, (4). 1 Chit. PI. 4 Ed. 287, &c. Lawes, on Pleading, 
 Chap. VIII. 
 
 (?n) Hardr. 42 ; and see 16 Vin. Abr. tit. Notice. 5 Durnf. & East, 62L 
 
 (n) Com. Dig. tit. Pleader, C. 74. 
 
 (o) Hardr. 42 ; and see 1 Wms. Saund. 5 Ed. 117, a, (2).
 
 OF THE DECLARATION. 440 
 
 by the father of the son, to pay tlic daughter lOOZ. after the death of the 
 son, if she survive, and tlie son die, an action may be broui^lit upon this 
 promise ; and notice need not be given to the defenchant of the death of 
 the son. (a) So, on a promise to pay so much money at the full age of an 
 infant, notice of his attaining that age need not be given, because it is as 
 notorious to the one as to the other.(a) And in an action on a promis- 
 sory note, by the indorsee against the drawer, notice of the indorsement 
 need not be averred. (6) 
 
 The lircdch, in a dechiration upon contract, is either nefjative, that the 
 defendant has not done something which he contracted to do, or procured 
 it to be done by another, or that he has not done it, or procured it to 
 be done, in a careful and proper manner; or it is affirmative, that he has 
 done something which he contracted not to do, or suffered it to be done 
 by another, or that he has deceived the plaintiif, on a warranty, &c. The 
 breach must be assigned in the words of the contract, or in words tanta- 
 mount, which comprehend the substance and effect of it. Where a party, 
 however, has disabled himself from making an estate he has stipulated to 
 make at a future day, by making an inconsistent conveyance of that estate, 
 he is considered as guilty of a breach of his stipulation, and he is liable 
 to be sued before the day arrives. (t*) And in assigning the breach of a 
 covenant for quiet enjoyment, it is sufficient to allege, that at the time of 
 the demise to the plaintiff, A. B. had lawful right and title to the pre- 
 mises, and having such right and title, entered and evicted the plaintiff, 
 without showing what title A. B. had, or that he evicted the plaintiff by 
 legal process. (c^) When the damages sustained by the plaintiff arc natu- 
 rally connected Avith the breach of contract, it is not usual to state them 
 specially in the declaration ; otherwise they should be stated, in order to 
 prevent a surprise upon the defendant.(e) 
 
 In actions for ivrongs, the declaration should state the injury complained 
 of; and in actions on the case, it should set forth, by way o^ inducement 
 the circumstances under which the injury was committed, and the conse- 
 quential damages resulting therefrom to the plaintiff. [a] The injury com- 
 
 {a) Ilardr. 42 ; and see 1 Wms. Saund. 5 Ed. 117, a, (2). 
 
 [h) 1 Bos. & Pill. 625. And see further, as to notice, 1 Chit. PI. 4 Ed. 285, &c. Lawcs, on 
 Pleading, Chap. VII. 
 
 (c) 6 Barn. & Crcs. 325. 
 
 \d) 4 Dnrnf. & East, 617. And see further, as to the breach in assumpsit, 1 Chit. PI. 4 Ed, 
 290, &c. Lawes, on Pleading, Chap. IX. 
 
 (c) See further, as to the diima<jes in a.ssumpnit, 1 Chit. PI. 4 Ed. 296, 7. And as to tho 
 mode of declaring in general in uxsumpnit, see id. 259, &c. Lawes, on Pleading, Chap. I. to 
 XV. inclusive ; in debt, 1 Chit. PI. 309, &c. ; and in covenant, id. 325, &c. 
 
 [a] "Whenever a sura of money is sought by an action at law, this sum is, in our legal 
 English, called damages. No more distinct sense tlian this can be given to tlie term da- 
 mages, which has wliolly lost, in its legal use, both its i)opular sense of hurt and its etymo- 
 logical sense of subtraction of right; while, on tlio other hand, it has come to signify a 
 multitude of pecuniary obligations, which have nothing in common but this one result — a 
 money payment by judgment of law." Law Rev. for Feb. 185C, p. 247. 
 
 " Damages — dumua in the common law," says Lord Cofce, Co. Litt. 257, a, "hath a spe- 
 cial signification for the recompense that is given by the jury to the plaintiflf, for tho wrong 
 the defendant hath done unto iiim." 
 
 " It is a general and very sound rule of law," said Sedgwick, J., delivering the opinion of 
 the Supreme Court of Massachusetts, liockwnod v. Allen, 7 Mass. p. 254, " tliat where an 
 injury has been sustained, for which the law gives a remedy, that remedy shall be commen- 
 surate to the injury sustained." 
 
 " It is a natural and legal principle," said Shippm, Chief Justice of the Supreme Court of 
 
 Vol. I.— 28
 
 440 OF TEE DECLARATION. 
 
 plained of is immediate or consequential. When it is immediate^ and 
 included in the act complained of, there it is sufficient to state that act 
 
 Pennsylvania, Buksij v. Donaldson, 4 Dallas, 206, " that the compensation should be equiva- 
 lent to the injury." 
 
 " The general rule of law," said Start/, J., to the jury on the Rhode Island circuit, Dexter 
 V. Spear, 4 Mason, 115, "is this: whoever does an injury to another, is liable in damages 
 to the extent of that injury. It matters not whether the injury is to the property, or the 
 person, or the rights or the rei)utation of another." 
 
 And this compensation is awarded according to certain rules of law which the jury are 
 not at liberty to disregard, and which equally control the conduct of the court. 
 
 " In cases," said Washington, J., on the Pennsylvania circuit, Walker v. Smith, 1 Wash. 
 C. C. R., 152, " where a rule can be discovered, the jury are bound to adopt it. That rule 
 is, that the plaintiff should recover so much as will repair the injury sustained by the mis- 
 conduct of the defendant." In regard to the rate of damages on a foreign bill of exchange, 
 the New York Court of Errors said: "In this, as in other cases of contract, the rule by 
 which the amount or extent of redress should be ascertained, is a question of law." Graves 
 V. Dash, 12 John. R. 17." Sedgwick on Dam. 29. 
 
 Wherever the breach of an agreement or the invasion of a right is established, the Eng- 
 lish law infers some damage to the plaintiff; and if no evidence is given for any particular 
 amount of loss, it declares the right by awarding what it terms nominal damages, being 
 some very small sum, as a farthing, a penny, or sixpence — ulijiis, Hi remedium. 
 
 "Every injury," said Lord Holt, "imports a damage." Ashby v. White, 1 Salk. 19. So 
 again, in the same case, as elsewhere reported, his lordship said : " My brother Fowell, in- 
 deed, thinks that an action upon the case is not maintainable, because there is no hurt or 
 damage to the plaintiff; but surely every injury imports a damage, though it does not cost 
 the party one farthing ; and it is impossible to prove the contrary, for a damage is not 
 merely pecuniary, but an injury imports a damage, where a man is thereby hindered of his 
 right. As in an action for slanderous words, though a man does not lose a penny by rea- 
 son of the speaking them, yet he shall have an action. So if a man gives another a cuff on 
 the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have 
 his action, for it is a personal injury. So a man shall have an action against another for 
 riding over his ground, though it do him no damage, for it is an invasion of his property, 
 and the other has no right to come there." 2 Lord Raym. 955. 
 
 " Wherever," says Mr. Sergeant Williams, "any act injures another's right, and would be 
 evidence in future in favour of the wrong-doer, an action may be maintained for an invasion 
 of the right, without proof of any specific injury." 1 Saunders, 346, a. 
 
 " It has been said that the effect of our law is to give in damages what it calls compensa- 
 tion. When, however, we come to analyze this phrase, we shall find its juridical interpre- 
 tation a very restricted one. Injury resulting from the acts or omissions of others, free 
 from anj' taint of fraud, malice, or wilful wrong, consists : — 
 
 First. Of the actual pecuniary loss directly sustained; as the amount of the note unpaid; 
 the value of the property paid for, but not delivered. 
 
 Second. Of the indirect pecuniary loss sustained in consequence of the primary loss ; the 
 profits that might have been made if the contract had been performed ; the derangement 
 and disturbance produced by the failure of others to comply with their engagements, and 
 the consequent inability of those who depend on them to adhere to their own ; loss of credit; 
 loss of business; insolvency. 
 
 Third. Of the mental suffering produced by the act or omission in question; vexation; 
 anxiety. 
 
 Fourth. The value of the time consumed in establishing the contested right by process 
 of law, if suit become necessary. 
 
 Fifth. The actual expenses incurred to obtain the same end, costs and counsel fees. 
 To these one further element is to be added in those cases where the aggressor is ani- 
 mated by a fraudulent, a malicious, or an oppressive intention, and that is : 
 
 Sixth. The sense of wrong, or insult, in the sufferer's breast, resulting from an act dic- 
 tated by a spirit of wilful injustice, or by a deliberate intention to vex, degrade, or insult. 
 This constitutes the difference, and the only difference, between the injury produced by in- 
 ability, and that produced by design. All the other constituents are the same. The pecu- 
 niary loss, direct and indirect; the anxiety, the time and expense are the same, whether a 
 wrong be done through the honest inability, the wilful fraud, or the deliberate malice of 
 the offending party. But in the two latter cases, the last element is superadded; a sense 
 of wrong or insult which does not exist in the former. 
 
 All these items must, therefore, be taken into the account in any effort to make complete 
 compensation, in the ordinary acceptation of the word. But we shall find that the legal 
 meaning of the term is very different. We shall find that in cases of contract, as a general 
 rule, the law takes no notice whatever of the motives of the defaulting party; that whether
 
 OF THE DECLARATION. 440 
 
 alone In the declarfition, as in trespass vi et arinis. The cJiarr/e in such 
 case ought to be direct ami positive, and not merely by way of recital : 
 Therefore, a declaration by lull, stating that wlnrcaH, or where- 
 fore the defendant *did the act complained of, is bad on special [ '441 ] 
 demurrer ; and was formerly holdcn to be so, in arrest of judg- 
 ment ;(a) But now it may be amended at any time before or after judg- 
 ment, by a right bill ; the time of iiling whereof the court will not incjuire 
 into '.[J)) And by oricjinal, the court part being hcdpcd by the recital of 
 the writ, this fault is not fatal, even on a special dc'murrer.(t') 
 
 When the ilamaijes in trespass are such as naturally arise from the act 
 complained of, or cannot with decency be stated, they may be given in evi- 
 dence under the rt?2rt eworm/a; but otherwise they must be stated in the 
 declaration :{d) And many things may be laid and proved in aggravation 
 of damages, for which alone trespass would not lie : as trespass may be 
 brought for entering the plaintiff's house, and beating his wife,(tr) child, 
 or servant,(/) and the beating may be given in evidence, to aggravate 
 the damages : but in such case, the plaintiff cannot recover damages for 
 losing the service of his child or servant, because he may have a proper 
 action for that injury.(^) So, trespass will lie for breaking and enter- 
 ing the plaintiff's house, under a false and unfounded charge and assertion 
 that the plaintiff had stolen property therein, jjer quod he was injured in 
 his credit, &c. ; and the jury may give damages for the trespass, as it is 
 aggravated by such false charge. (A) So, in trespass qiiare domumfreyit^ 
 he may give in evidence that the defendant came into his house, and 
 debauched his daughter ;(/) or that his wife was so terrified by the con- 
 
 (rt) 2 Salk. 636. iStr. 621. (i) 2 Str. 1151, 1162. 
 
 (c) 1 Wils. 99. Barnes, 452, S. C. 2 Wils. 203. And see further, as to the statement of 
 the injur;/, in actions for wrongs, 1 Chit. PI. 4 Ed. 336, &c. 
 
 ((/) Pealie's Cas. Ni. Pri. 3 Ed. 64, 87 ; and see 1 Sid. 225. 
 
 (ee) 1 Str. 61 ; and see Cro. Jac. 501. 1 Stark. Ni. Pri. 98. 
 
 (/) 2 Salk. 642. Holt, 699, S. C. 2 Ld. Raym. 1032. 6 Mod. 127. Holt, 699, S. C. 
 
 (<7) 2 Sulk. 642. Holt, 699, S. C. Bui. Ni. Pri. 89 ; but see Cro. Jac. 501. 
 
 (h) 2 Maule & Sel. 77 ; and see 5 Taunt. 442. 1 Marsh. 139, S. C. 
 
 [i) 1 Sid. 225. 2 Ld. Raym. 1032. 6 Mod. 127. Holt, 699, S. C. 3 Bur. 1878. 2 Durnf. k 
 East, 166. Bui. Ni. Pri. 89. 
 
 the engagement be broken through inability or design, the amount of remuneration is the 
 same ; and that in these cases, as well as in those of torts or breach of duty of any kind, 
 where there is no complaint of fraud, malice, nor wilful negli^^ence, of all the lu^ads of loss 
 above enumerated, only the first and fifth are taken into consideration, and the latter but 
 imperfectly. 
 
 In all cases growing out of contracts, and in those of infringment of rights, or non-per- 
 forniance of duties, created or imposed by the law, in which there is no element of fraud, 
 wilful negligence, or malice, the compensation recovered in damages, consists solely of the 
 direct pecuniary loss, which includes, in mere monc}- demands, interest for the detention of 
 the amount claimed, and the costs of the suit brougiit for the recovery of the demand. No 
 indirect loss is accounted for. No allowance is made for the mental sujfering of the party 
 who complains of the non-i)erformancc of his contract, or the infringement of his rights, 
 which, indeed, it may be said the law possesses no scale to measure. This, however, is not 
 the reason ; for as little does it take into consideration the time actually consumed, and the 
 fees actually paid to counsel for the establishment of the demand in controversy. In this 
 class of cases, the direct pecuniary loss, and the costs of the suit, arc all that the law means 
 when it speaks of compensation. In fact, unless the word is used in a technical sense, it is 
 altogether inaccurate to speak of damages as resulting in compensation ; and whatever re- 
 stricted meaning this term may be supposed to have tedinically acquired, it is, at all events, 
 entirely incorrect to say, in the language which has been used by various eminent judges, 
 that "the remedy is commensurate to the injury." This language attributes to legal relief 
 a degree of perfection which it is very far from possessing." Sedgwick on Dam. 35.
 
 441 OF THE DECLARATION. 
 
 duct of the defendant, that she was immediately taken ill, and soon after- 
 wards died.(^) But, in trespass quare clausum fregit, the phiintiff would 
 not be permitted to give evidence of the defendant's taking away a 
 horse,(?) &c. ; and in other cases, the evidence is allowed to be given, not 
 as a substantive ground of action, but merely to show the evidence of the 
 defendant's conduct. (A;) 
 
 Consequential injuries, we have secn,(w) arise from mal-feazance, non- 
 feazanee, or mis-feazance. In actions for mal-feazance, three things are to 
 be attended to in the declaration ; first, the 7notive, if any, which urged the 
 defendant to the commission of the act complained of; secondly, the end 
 which he had in view ; and thirdly, the means which he took of accomplish- 
 ing it. Thus, in an action for defamation, the motive is malice, the end 
 proposed is to injure the plaintiff in his good name, &c. and the means are 
 the words spoken by the defendant for that purpose. In actions for mal- 
 feazance, the motive is either malice, which generally speaking 
 [ *442 ] *leads to the commission of injuries to the person, or the gratifica- 
 tion of self-interest at the expense of another ; and accordingly, the 
 end which the defendant has in view, is either to injure the plaintiff, or to 
 benefit himself: and the tneanshe takes of accomplishing his intention, are 
 either direct and open, or under colour of legal process, or by deceit, which 
 is either where there is a privity between the parties, as upon a sale of 
 goods, &c. or where there is no such privity. In actions for non-feazance, or 
 mis-feazance, the injury frequently proceeds from a mere neglect, without 
 any bad motive imputable to the defendant. [a] 
 
 The circumstances attending the several injuries before mentioned, and 
 which should be stated by way of inducement, are various, according to the 
 nature and grounds of the action. In general, they disclose some right or 
 
 {h) iStark. Ni. Pri. 93 ; but see Peake's Cas. Ni. Pri. 3 Ed. 87 ; and see 2 Phil. End. 134, 5 
 (I) 1 Sid. 225. Bui. Ni. Pri. 89. [m) Ante, 4. 
 
 [a] "Where two parties have made a contract which one of them has broken, the da- 
 mages which the other party ought to receive in respect of such breach of contracfshould 
 be such as may fairly and reasonably be considered either arising naturally, i. e., according 
 to the usual course of things, from such breach of contract itself, or such as may reason- 
 ably be supposed to have been in the contemplation of both parties, at the time they made 
 the contract, as the probable result of the breach of it. Now, if the special circumstances 
 under which the contract was actually made were communicated by the plaintiffs to the 
 defendants, and thus known to both parties, the damages resulting from the breach of such 
 a contract, which they would reasonably contemplate, would be the amount of injury which 
 would ordinarily follow from a breach of contract under these special circumstances so 
 known and communicated. But, on the other hand, if these special circumstances were 
 wholly. unknown to the party breaking the contract, he, at the most, could only be supposed 
 to have had in his contemplation the amount of injury which would arise generally, and ia 
 the great multitude of cases not affected by any special circumstances, from such a breach 
 of contract. For had the special circumstances been known, the parties might have spe- 
 cially provided for the breach of contract by special terms as to the damages in that case ; 
 and of this advantage it would be very unjust to deprive them." Per Aide rsoti, B., in Iladley 
 V. Baxendale, 9 Ezc. R. 354. And in a very late case, Fletcher v. Taylor, 17 C. B. 21, Crow- 
 der, J., referring to Iladlcy v. Baxendale, directed the jury in regard to the proper measure 
 of damages in these terms, that " where two parties have made a contract, which one of 
 them has broken, the damages which the other party ought to receive, in respect to such 
 breach of contract, should be such as may fairly and reasonably be considered either aris- 
 ing naturally, that is, according to the usual course of things, from such breach of contract 
 itself, or such as may reasonably be supposed to have been in the contemplation of both 
 parties at the time they made the contract, as the probable result of the breach of it." See 
 also Taylor \. Maguire, 12 Missouri, 313. Freeman v. Clute, 3 Barb. S. C. 324. Green v. 
 Mamiing, 11 111. 613. Furlong v. Pollcys, 30 Maine, 491. Johnson v. Small, 2 Gushing, 
 40. Myers v. Perry, I Ann. Rep. Louis, 373. Sugden v. Jenkins, 2 Sandf. S. C. 614. Bos- 
 worth V. Brand, 1 1)ana, 377. Harrison v. Berkeley. 1 Sirobharjt, 525.
 
 OF THE DECLARATION. 442 
 
 title in the plulntifT, or some diifj/ to be performed by the defendant. In 
 actions for wrongs, afTccting the absolute rights of persons, the right to 
 personal security, being implied, need not be stated in the declaration ; as 
 in actions of assault and battery^ <fcc. But wlicn the wrongs coinphiined 
 of affect the relative rights of persons, the rehition should be stated, in 
 respect of which the plaintiff is injured ; as in actions for criminal con- 
 versation^ &c. : And when an action is brought for defamation, it is usual 
 to state in the declaration, by way of inducement, that the phiintiff is a 
 person of good name, etc., and has not been guilty of the crime imputed 
 to him. (a) 
 
 In actions for wrongs to real or personal property, the plaintiff's right 
 or title must be set forth in the declaration, either generally or specially. 
 When a special title is necessary to maintain the action, it must be stated 
 with certainty :(/>) If a man allege in himself a title to the inheritance of free- 
 hold of lands in possession, he ought regularly to say that he was seised ;{c) 
 or, if he allege possession of a term for j-ears, or other chattel real, that he 
 was jjosscssed :(c) So, if he allege seisin of things manurable, as of lands, 
 tenements, rents, &c. he should say that he was seised in his demesne as of 
 fee ;{d) if of things not manurable, as of an advowson, that he was seised as 
 of fee and riyht, omitting in his demesne :{d) And it is a rule, that when 
 title is necessary to be shown, if the plaintiff derive a particular 
 estate from another, he ought to show that the other had such an [ *443 ] 
 •interest as would enable him to make the estate. (««) The reason 
 •why the commencement of particular estates must be shown in pleading 
 is, because they are created by agreement out of the primitive estate ; 
 and the court must judge, whether the primitive estate and agreement be 
 sufficient to produce the particular estate claimed : And this is a funda- 
 mental rule, which ought not to be broken upon fancied inconveniences. (i6) 
 It is also a rule, that if the plaintiff claim under one Avho has only a par- 
 ticular estate, as for life, he must aver the continuance of that estate. (cc*) 
 
 In setting forth a title to incorporeal hereditaments, the plaintiff must 
 show that it Avas by grant, custom, or prescription. A grant ought regu- 
 larly to be pleaded, with a profei't in curid of the deed containing it; but 
 where the deed is lost or destroyed, by accident or length of time, it may 
 be pleaded without a profert.{dd) Custom is properly a local usage, and 
 
 {a) Com. Dig. tit. Action upon tlie dtxc for Drfamation, G. I. And as to the indiiremcnt 
 in a decimation for a UM, see 1 Younge & J. 480. 7 Barn. & Cres. 459. 1 .Moore & P. 402. 
 4 Bing. 48U, S. C. 
 
 (i) As to the mode of stating or setting forth, in a declaration or other pleading, the srisin 
 of the king, see 1 Wms. Saund. 5 Ed. 187, (1), seisin of a corporation, sole or aggregate, id. 
 ibid, seisin of a husband, jure uxori.i id. 253, (4). 2 Wms. Saund. 5 Ed. 283, (I), leaie and re- 
 lease, id. 10, (15), 11, (1(3), bargain and sale inroUed, 1 Wms. Saund. 5 Ed. 251, (2), 251, a, 
 (3). 2 Wms. Saund. 5 Ed. 11, (18), 12, a. {2Q), feoffment, 2 Wms. Saund. 5 Ed. 9, c. fine and 
 proclamations, 1 Wms. Saund. 5 Ed. 258, a. (8). 2 Wms. Saund. 5 Ed. 175, /. g. (1, 2, 4), 
 devise. 1 Wms. Saund. 5 Ed. 276, c. (2), lease or dcmixe, id. 276, (1), lease of tithes. 2 Wms. 
 Saund. 5 Ed. 297, (1), entnj under lease, ,^-c. 1 Wms. Saund. 5 Ed. 147, (2), 202, n. [\), in- 
 teresse termini, id. 251, (1), assignment of term, or reversion, id. 234, (3), 238, (2), oltnrnment, 
 id. 234, b. (4), or a copyhold title, id. 318, (8, 9). As to the mode of setting forth the title in 
 declarations in covenant, see 2 Chit. Pi. 4 Ed. 209, &c. And see further, as to the showing 
 of title in declarations and other pleadings, Stcph. PI. 321, &c. 
 
 (c) Co. Lit. 17, a. 
 
 \d) Lit. ? 10; and see Com. Dig. tit. Pleader, C. 35. 2 Ros. k Pul. 574. 
 
 (art) Com. Dig. tit. Pleader, C. 36 ; and sec Stcph. PL 328, &c. 
 
 (bh) 2 Salk. 562 ; and see 3 Wills. 72. 
 
 \cc) Cora. Dig. tit. Pleader, C. 66. 
 
 (cW) 3 Duruf. & East, 151. And for the cases in which a profert in curid is necessary, or
 
 4J.3 or THE DECLARATION. 
 
 not annexed to any particular 2^&'>'son ; such as a custom within a manor, 
 that land shall descend to the youngest son, or that copyholders shall have 
 a right of common, &c. Fi-eseription is altogether n personal usage ; and 
 is cither in a que estate, or in a man and his ancestors : the former is 
 where the right claimed is annexed to, and passes with the land, in which 
 case the plaintift' states that he, and all those whose estate he hath therein, 
 have immemorially had such right ; the latter is where the right is not 
 annexed to the land, but lies in grant, in which case the plaintiff must 
 aver that he, and his ancestors, have immemorially enjoyed it.(e) 
 
 But in personal actions, it is seldom necessary to state a title specially 
 in the declaration ; for damages are the gist of these actions, and the title 
 only matter of inducement :(/) And it is a general rule therein, that7:»os- 
 session is sufficient evidence of title, against a wrong-doer ;{g) as in tres- 
 pass quare clausum f regit, (Jt) &c. So, in an action on the case for Sb nuisance 
 to the plaintiff's house, &c. it is sufficient for the plaintiff in his declara- 
 tion, to state generally that he was lawfully possessed of the house, or 
 other property affected by the injury complained of :(z) and if the decla- 
 ration be for stopping up lights, it goes on to state, that by reason of his 
 possession he had, and of right ought to have, the lights that have been 
 obstructed. (^) In like manner, the plaintiff, in an action for 
 [ *444 ] diverting a luater-course from *his mill, need only state, that he 
 was possessed of the mill, and that the water had been accus- 
 tomed, and of right ought to flow thereto, without stating that it was an 
 ancient mill, or disclosing the grounds upon which the right to the water 
 is claimed, (aa) 
 
 In an action upon the case for the disturbance of rights of common,{h) 
 &c., there is said to be this distinction : When the action is brought 
 against a, tvrong-doer, it is sufficient for the plaintiff to state in his declara- 
 tion, that he was possessed of a house or land, &c., and by reason of his 
 possession thereof, was entitled to the right, in the exercise of which he 
 has been disturbed. But when the plaintiff would lay any charge or 
 servitude on the land or property of another, he must set forth his title 
 specially in the declaration. (c) Thus, in an action on the case against a 
 
 may be dispensed with, and as to the demand and giving of oyer, and the manner of set- 
 ting out deeds, &c., thereon, see 1 Wms. Saund. 5 Ed. 9, (1), 9, b. (1), 289, (2), 317, (2). 2 
 Wms. Saund. 5 Ed. 9, b. c. (12, 13), 46, b. (1), 36G, (1), 405, (1), 409, (2). Staph. PI. 439, 
 &c. 
 
 (e) And see further, as to customs and prescriptions, what may or may not be claimed by 
 them, 1 Wms. Saund. 5 Ed. 341, (3), 348, (10), how the chiim should be made by a corpo- 
 ration, id. 340, (2), 341, (3), as to a custom for a corporation to exclw^Q foreigners from buying 
 and selling, id. 312, c. d. (3), or a, prescription for tenants to have the sole and several pasture, 
 &c., in exclusion of the lord, or owner of the soil, id. 353, (2), and as to a custom or pre- 
 scription for comvwn, &c., by copyholders, id. 341, (3), 349, (11, 12). 
 
 (/■) 10 Co. 59, b. (^r) Steph. PI. 323, &c. 
 
 (h) 2 Bulst. 288. {i) Rol. Rep. 393. 
 
 {k) Cro. Car. 325. 1 Show. 18. 
 
 {aa) 1 Leon. 247. Palm. 290. Cro. Car. 499, 575. 3 Mod. 48. 3 Lev. 133, S. C. 
 ' {b) 1 Vent. 319. 4 Mod. 418. And for the manner of declaring for the disturbance of rights 
 of way, see 1 Vent. 274. 2 Lev. 148. 3 Keb. 528. 3 Lev. 266. 1 Lutw. 120. 2 Ld. Raym. 751, 
 1090. 3 Ld. Raym. 85; of offices, 10 Co. 59, b. Cro. Eliz. 335 ; oi franchises, 4 Mod. 423. 1 
 Show. 18; of tolls, Owen, 109. Cro. Jac. 43, 122, 3. 3 Lev. 190. 2 Lutw. 1517; of ferries, 
 Willes, 508; and of scats in churches, 1 Lev. 71. 1 Sid. 203, S. C. 2 Lev. 193. 3 Lev. 73. 1 
 Wils. 326. 1 Durnf. & East, 428. See also 1 Wms. Saund. 5 Ed. 346, (2). 2 Wms. Saund. 
 5 Ed. 113, (1), 172, (1), 175, (2). 2 Chit. PI. 4 Ed 807, &c. 
 
 (c) 4 Mod. 421. 1 Str. 5. Willes, 619. 1 Bur. 440. 4 Durnf. & East, 713. Sed qucere as to 
 this distinction? and see 3 Durnf. & East, 768. 2 Wms. Saund. 5 Ed. 113, (1). 1 Chit. PL 
 4 Ed. 330.
 
 OF THE DECLARATION. 444 
 
 stranger and wrong-Jocr, for disturbing the plaintiff in the use of a seat 
 in a church, no title or consideration is necessary to be shown : But when 
 the plaintiff claims against the ordinary himself, who hath jyrimii facie the 
 disposal of all the scats in the church, he ought to show some cause or 
 consideration, as building, repairing,((Z) kc. And though, in the other 
 case, the plaintilT is allowed to declare upon his possession, yet ho must 
 prove his title at the trial : And possession for above aixty years of a pew 
 in a church, is not a sufficient title to maintain an action on the case, for 
 disturbance in the enjoyment of it ; but the plaintiff must prove a pre- 
 scriptive right, or a faculty, and should claim it in his declaration, as 
 appurtenant to a messuage in the parish. ((^) In declaring for wrongs to 
 personal property, the plaintiff must state his right ; as, in trespass for 
 taking goods, that they were his own goods ;{/) or in trover, that he was 
 possessed of them, (&c. : And, in a declaration in replevin, for taking 
 goods, the description number and value of them must bo stated with 
 certairity.((7) 
 
 In actions upon the case for a breach of duty, the declaration sliould 
 state the nature of the duty to be performed by the defendant : which is 
 founded on the general obligation of law, the defendant's particular 
 situation, or some contract or agreement between the parties. When the 
 defendant is liable of common right, as to repair a wall, for preventing 
 damage to his neighbour, it is not necessary for the plaintiff to show a 
 title in his declaration, or the special ground of the defendant's liability :(/t) 
 But when a charge is imposed on another against common right, 
 as owner of the soil *or tertenant, it was formerly holden, that [ *4-4.j ] 
 a title must be shown ; as in an action for not repairing fences, (a) 
 &c. So, where a special action on the case was brought against the 
 defendant, for not keeping a bull and a boar, the declaration was holden 
 bad on demurrer, for not setting forth that the defendant was obliged to 
 keep them, either by custom, prescription, or othcrwise.(W) But in a 
 late case, where an action was brought for not repairing a private road, 
 leading through the defendant's close, it was holden to be sulKcient to 
 allege, that the defendant, as occupier of the close, Avas bound to repair 
 it :{cc) And, per Bullcr Justice, " the distinction is, between cases where 
 the plaintiff lays a charge upon the right of the defendant, and where the 
 defendant himself prescribes in right of his own estate : In the former 
 case, the plaintiff is presumed to be ignorant of the defendant's estate, 
 and cannot therefore plead it; but in the latter, the defendant, knowing 
 his own estate, in right of which he claims a privilege, must set it forth. (t?) 
 In actions against sheriffs or other officers, or against carriers, vJcc, for 
 mis-fcazance, the declaration must state the nature of the plaintiff's right, 
 and ground of the defendant's duty,(r) 
 
 In actions upon the case for conse([uential injuries, the damages which 
 the plaintiff has sustained, being the gist of the complaint, must be stated 
 
 (rf) 3 Lev. 73. (c) 1 Durnf. k Kast, 428. 
 
 (/) Cro. Jac. 4G. 2 Salk. 640. 1 Ld. Raym. 239. 2 L«l. Ravm. 8'JO. 2 Str. 1023. 
 
 ((7) 1 Moore, 38G. 7 Taunt. 642, S. C. (A) 1 Salk. 22, 3G0. 6 Mod. 311, S. C. 
 
 \a) Salk. 335, 6. (W) 4 -Mod. 241. 
 
 (re) 3 Durnf. & East, 7C6. 
 
 (<f) Id. 768. Tamen qucere? 
 
 (c) Sec further, as to the statement of the plaintifTs rviht or interest, and tlie defendant's 
 obligation or ditlij, with the consequences of a mistake in setting them out, in actions for 
 wrongs, 1 Chit. Pi. 4 Ed. 328, &c.
 
 445 OF THE DECLARATION. 
 
 in the declavatlon ; -wliich damages must appear to depend on the injury 
 complained of, and not be too remote, or happen from the intervention of 
 another cause :(/)[a] And ih^y oxa g.\1\icy general or special. General 
 damages are such as naturally arise out of, or are connected with the 
 injury complained of :[b] And, in actions for mal-feazanee, they in general 
 correspond with the end or design which the defendant had in view, and 
 which has been previously stated in the declaration ; as, in an action for 
 defamation, the declaration states that the defendant, intending to injure 
 the plaintiff in his good name, &c., spoke the words complained of ; 
 whereby the plaintiff was injured in his good name, &c. Special damages 
 are either such as are superadded to general damages, arising from an act 
 injurious in itself; or such as arise from an act indifferent in itself, but 
 injurious in its consequences : and, in either case, they must be specially 
 laid in the declaration, or the plaintiff will not be allowed to give them in 
 evidence at the trial. Thus, in an action for defamation, though the 
 words be in themselves actionable, yet the plaintiff is not at liberty to 
 give evidence of any loss or injury he has sustained by the speaking of 
 them, unless it be specially laid in the declaration. (^) If an action be 
 brought for words that are not in themselves actionable, and the plaintiff 
 do not prove the special damage laid in the declaration, he must be non- 
 suited ; because the special damage is the gist of the action : but 
 [ *446 ] where the words are of ^themselves actionable, if the words be 
 proved, the jury must find for the plaintiff, though no special 
 damage be proved. (a) 
 
 The declaration in general concludes, "to the damage of the plaintiff of 
 a certain sum of money, and therefore he brings his suit, &c." But in 
 dt, p>enal action, brought by a common informer, where the plaintiff's right 
 to the penalty accrues upon bringing the action, it is not necessary to con- 
 clude in this way ; as the plaintiff cannot have sustained any damage by a 
 previous detention of the penalty.(^) In actions against attorneys and 
 officers of the court, it is usual, though not necessary,(c) for the plaintiff in- 
 stead of bringing suit, to pra?/ relief, &c. And where the action is brought 
 by hill against a member of the house of commons, the bill concludes with 
 a prayer of process to be made to the plaintiff, according to the statute, 
 kG.{dd) It was anciently necessary to find p)ledges to prosecute, and add 
 their names to the declaration by bill ;{e) but they are now holden to be 
 mere matter of form, and may be found at any time before judgment.(/) 
 
 The general requisites, or qualities of a declaration are, first, that it 
 correspond with the process ; secondly, that it contain all the circum- 
 
 (/) 5 Taunt. 534; and see 2 Chit. Rep. 198. 
 (g) Bui. Ni. Pn. 1. 
 
 (a) Bui. Ki. Pri. 6. And see further, as to the statement of the damages, in actions for 
 wrongs, 1 Chit. Pi. 4 Ed. 349, &c. Steph. PI. 426, 7. 
 
 (b) 4 Bur. 2021, 2490. (c) Andr. 247. 
 
 {(id) See further, as to the mode of concluding declarations, 1 Chit. PI. 4 Ed. 356, &c. 
 Steph. PI. 427, 8. 
 
 (e) 9 Ed. IV. 27. Bro. Abr. tit. Bill, 15, tit. Pledges, 11. Dyer, 288. 
 
 (/) 18 Edw. IV. 9. 2 Hen. VII. 1, 17. Palm. 518. Stat. 4 & 5 Ann. c. 16, ? 1. Fort. 330. 
 Gas. temp. Hardw. 315. Barnes, 163. 1 Wils. 226. 2 Wils. 142. Butler v. Baileij, E. 25 Geo. 
 III. K. B. 3 Durnf. & East, 157. 1 Chit. PI. 4 Ed. 358, 9. Steph. PL 428, 9. 
 
 [a] See Sedgw. on Dam. ch. 3, p. 57. 
 
 [b] See ara/e, note [a], pp. 440-441.
 
 OF TOE DECLARATION. 44G 
 
 stances necessary to maintain the action, and no more ; thirdly, that these 
 circumstances be set forth with certainty and truth. Q7) 
 
 The correspondence of the decKiration with the process may be con- 
 sidered, as it respects the parties to the action, tlieir christian and sur- 
 names, the description of the character in which they sue or arc sued, and 
 the nature of the cause of action. In the Common Pleas, when the pro- 
 cess is not baihible, the plaintiff, we have seen,(//) is allowed to join four 
 defendants, for separate causes of action, in one writ, and to declare against 
 them severally :(/) and accordingly, in that court, on a common capias 
 quare clausum frcyit against two, a declaration against one has been 
 deemed regular.(/:) But when the cause of action is bailable, the plaintiff 
 cannot declare against one defendant separately, upon joint process, and 
 affidavit to hold to bail against two ;(/) though they were sued upon a joint 
 and several promissory note,(7/?) or though the other defendants arc out of 
 the jurisdiction of the court and cannot therefore be served with pro- 
 cess :(«) And Avhere a defendant is held to bail, on a writ issued 
 against himself and *another, and the plaintiff declares against [ *44T ] 
 one only, the court will set aside the declaration and subsequent 
 proceedings for irrcgularity.(a) So, where a husband and wife being 
 arrested, the latter was discharged out of custody on filing common bail, 
 and the plaintiff declared against the husband alone, the court held the 
 proceeding to be irregular.(6) In the Common Pleas, however the affida- 
 vit of debt and clause of ac etiam in bailable process, point out the person 
 against Avhom the action is to proceed : Therefore, where the affidavit of 
 debt was against A., the capias against A. and B., and the declaration 
 against A. only, by whom bail was put in, that court held it to be regu- 
 lar '.{c) So, upon a bailable capias against two defendants, with a clause of 
 ac etiam and affidavit of debt against one, the plaintiff, in that court, may 
 regularly declare against the latter defendant only.(c^) And where the plain- 
 tiff first sued out bailable process against W. in which lie only was named, 
 and on which he was arrested and put in and perfected bail, and the plain- 
 tiff then sued out serviceable process against four other defendants, in 
 which W. was not named, and afterwards a declaration Avas delivered 
 against W. with the other four defendants, the court held the declaration 
 to be regular.(ce) 
 
 The declaration should regularly correspond with the process, in the 
 christian and surnayjies of the parties. If a person enter into a bond by 
 a wrong christian name, and be sued thereon, he should be sued by that 
 name ; it having been determined, that a declaration against him by his 
 right name, stating that he executed the bond by a wrong one, is bad.(/) 
 And, as a man cannot have two christian names, it has been holden, on a 
 
 {ff) Co. Lit. 303, a. PI. Com. 84, 122. And sco further, as to these qualities, 1 Chit. PI. 4 
 Ed. 222, &c. 
 
 (A) Ante, 148, 420. 
 
 ({) 2 New Rep. C. P. 98. 
 
 \k) 1 Bos. k. Pul. 19, 49 ; but see R. E. 8 Geo. IV. K. B. (/) Ante, 420. 
 
 (to) 4 East, 589. (n) I Maule & Sel. 55. 
 
 {a) 5 Durnf. & East, 722. '4 East, 589. 1 Maule & Sel. 55 K. B. 1 Bos. & Pul. 49. 2 New 
 Rep. C. P. 82. 1 Marsh. 274, C. P. Forrest, 31. Excheq. ; but see 3 Barn. & Cres. 734. 5 
 Dowl. & Ryl. 622, S. C. Ante, 420. 
 
 {b) 3 Dowl. k Ryl. 247. (c) 2 New Rep. C. P. 98. 
 
 (d) 7 Taunt. 458. 1 Moore, 147, S. C. 
 
 \ee) 1 Bing. 48. 7 Moore, 301, S. C. ; and see Stcph. PI. 319, &c. 
 
 (/) 3 Taunt. 504.
 
 447 OF THE DECLARATION. 
 
 plea in abatement, that the plaintiif cannot declare against the defendant 
 in his right name, with an alias of the name he is suedby.(^) Yet, -where 
 the defendant was sued by the name of Jonathan otherivise John jSoans, 
 this was holden to be no cause of demurrer to the declaration ; for nan 
 constat that it was not all one christian name. (A) If the defendant has 
 been arrested by a wrong name, the sheriff and his officers are liable to 
 an action of trespass and false imprisonment,(e) and the arrest being ille- 
 gal, the court instead of putting the defendant to plead the misnomer in 
 abatement, will set aside the proceedings,(^) and discharge him if in cus- 
 tody •,{l) or if he has given a bail-bond, will order it to be delivered up 
 
 to be cancelled,(w) But in cases of non-bailable process, if the 
 [ "^448 ] defendant's name be *misstated in the writ, the court will not 
 
 set aside the writ and proceedings on motion, but will leave the 
 defendant to his plea in abatement. (a) And if the defendant be called 
 and known as well by one name as the other, or there be only an inaccu- 
 racy in the spelling, so that the name is idem sonans, the court will not 
 interfere. (6) So, where A. having two christian names, has omitted one 
 of them in his dealings with B., he cannot in an action brought against 
 him by B., make the omission a ground for setting aside the proceed- 
 ings.(t') And where the defendants had signed a regular bail-bond, they 
 were holden to have thereby waived the irregularity of the omission of 
 their christian names in a capias ad responde7idu77i, directing the sheriff 
 to take Messrs. L. and B.(c?) The application for setting aside the pro- 
 ceedings, which is founded on an affidavit of the misnomer,(e) should it 
 seems be made before the expiration of the time allowed for pleading in 
 abatement ;(^) and the court will only relieve the defendant, upon the 
 terms of his filing common bail, and undertaking not to bring any 
 action. ((/^) If the plaintiff declare against the defendant by a wrong 
 name, he may, if not estopped, plead the misnomer in abatement ; and it 
 is said that his entering into a bail-bond to the sheriff in the wrong name, 
 should not estop him from pleading in abatement in the original action ; 
 though perhaps it might, in an action on the bail hond.{hh) The safer 
 way, however, is for the defendant, when arrested by a wrong name, to 
 enter into the bail bond by his right name, stating that he was arrested by 
 the name in the writ; for if his entering into it by a wrong name would not 
 operate as an estoppel, it might be evidence, by his own admission, of his 
 being called as well by one name as the other :(«) And it is clear, that if 
 
 (g) Willes 554. 
 
 (h) 3 East, 111 ; and see 2 Chit. Rep .335. Steph. PI. 319, &c. 
 
 (?) 6 Durnf. & East, 234. 8 East, 328. 2 Campb. 270. 2 Taunt. 399. 1 Marsh. T5. 2 Chit. 
 Rep. 357. 5 Taunt. 623. 1 Barn. & Aid. 647. Ante, 110 ; but see 3 Campb. 108. 8 Moore, 297, 
 1 Bing.314, S. C. 
 
 (/c) 1 Marsh. 477. 4 Maule & Sel. 360. 1 Chit. Rep. 282 ; but see 4 Barn. & Cres. 970. 1 
 Dowl. &Ryl. 458, S. C. 3 Bing. 296. 
 
 {I) 2 Taunt. 399. 4 Maule & Sel. 360 ; but see 1 Price, 277, 391. 2 Price. 328. 
 
 (m) 1 Chit. Rep. 282. 2 Chit. Rep. 357. 1 Bing. 424; but see 3 Durnf. & East, 572. 2 Bos. 
 &Pul. 109, contra. A7ite,301. 
 
 (a) 7 Dowl. & Ryl. 258. Waierlow cj- another v. Galiegne, E. 7 Geo. IV. K. B. accord. 
 
 (b) 2 Taunt. 401 ; and see 16 East, 110, 11. 1 Price, 277,391. 
 
 (c) 6 Taunt. 530. 2 Marsh. 230, S. C. 
 
 \d) 1 Brod. & Bing. 529. 4 Moore, 317, S. C. ; but see 6 Moore, 264. 3 Bing. 296. Ante, 
 148. (e) 1 Chit. Rep. 282. 
 
 (/) 15 East, 159; and see 6 Taunt. 115. 1 Marsh. 474, S. C. 
 {gg) 1 Chit. Rep. 282 ; and see 4 Maule & Sel. 360. 2 Taunt. 399. 
 [hh) Willes, 461. Barnes, 94, S. C. ; and see 1 Salk. 7. 
 [ii) 3 Taunt. 505 ; but see 8 Moore, 526. 1 Bing. 424, S. C.
 
 OF THE DECLARATION. 448 
 
 the defendant, after being arrested, were to put in bail above in a wrong 
 name, it would estop him from pleading the misnomer in abatement •,{k) 
 even though he were himself no party to the recognizance.(Z) The bail 
 above therefore, in such case, shoukl be put in, and entered on the recogni- 
 zance roll, by the defendant in his right name, as having been arrested 
 by the name in the writ.(wi) 
 
 When process is taken out against a defendant by a wrong name, the 
 misnomer may be cured by amending the writ, if there be anything to amend 
 by, and then declaring against the defendant by his right name;(?<)[A] 
 but in doing this, the court will take care tliat it shall not operate 
 to the ^prejudice of the sherifr.((7) Or, if the defendant appear by [ *440 ] 
 his right name, the plaintiff may declare against him by the name 
 in which he appears, stating that he was arrested, or served Avith process, by 
 the other ; for by appearing, the defendant admits himself to be the person 
 sued, and so the variance is immaterial. (6) On process not bailable, if the 
 defendant be sued by a wrong name, and do not appear, the plaintiff, we 
 have seen,(f') cannot rectify the mistake, by appearing for him in his ri(jht 
 name, according to the statute :{d) nor can ho appear for him in the name 
 by which he is sued, and afterwards declare against him in his right name.(e) 
 But if a defendant be arrested or served with process by a tvrong christian 
 name, and afterwards put in bail or appear by his rigltt name, and the 
 plaintiff declare against him by his right name, without stating that he was 
 arrested or served with process by the other, the court will not interpose in 
 a summary way, and set aside the proceedings for irregularity ;(/) nor will 
 they, on that ground, order an exoneretur to be entered on the bail-piece :(^) 
 And it seems, that a misnomer, in process may be cured, by an attorney's 
 undertaking to appear. (7i) So, if a defendant be served with a process by a 
 wrong christian name, and afterwards the plaintiff enter an appearance for 
 him, and serve him with notice of declaration, by his rigid name, and pro- 
 ceed to judgment and execution, the court will not set aside the proceedings 
 for irregularity, merely on the ground that the defendant never appeared : 
 because he ought to have pleaded the misnomer in abatement ;(u) And the 
 course is now said to be, when there has been a misnomer in the writ, for 
 the plaintiff, on the return of it, to file a declaration in the proper form ; 
 and the declaration so filed has been holden to cure the objection to the 
 writ.(M) It has also been determined, that if the plaintiflf declare by a 
 
 (h) Willes, 4C1. Barnes, 94, S. C. ; and see 1 Salk. 8. 3 Durnf. & East, 611. 
 
 \l) 2 New Rep. C. P. 453. ("0 Ante, 252, 3. 
 
 (;i) 2 Bos. & Pul. 109 ; and see 3 Wils. 49. Ante, 242. 
 
 (rt) Bo3. k Pul. 109; and see 3 Wils. 49. Ante, 242. 
 
 {!,) 2 Wils. 393. Green cj- Robinson, H. 23 Geo. III. K. B. Boyne v. Milh, M. 25 Geo. III. 
 K. B. 3 Durnf. & East, 611. 1 Bos. & Pul. 105, 645. 
 
 (c) Ante, 242. 
 
 \d) 3 Durnf. & East, 611. 2 New Rep. C. P. 132. 11 East, 225, accord. 1 Bos. k Pul. 105, 
 contra. 
 
 (e) 10 East, 328. 11 East, 225 ; and sec 3 Maule & Sel. 450. 
 
 {/) 2 Wils. 393. (g) 13 East, 273. 
 
 {h) 2 Chit. Rep. 240. (»V) 3 East, 167. 
 
 (/.-A-) 2 Chit. Rep. 8 ; and see 3 Maule k Sel. 450. Sedgucere, if the objection to the writ can 
 be cured, by an}' form of declaring, when the defendant has not appeared? For the plain- 
 tiff in that case cannot, it seems, regularly appear for him, according to the statute, in a 
 
 [a] The misnomer of a corporation, in a grant or obligation, will not prevent a recovery 
 upon it in the true name, provided the corporation, designed and intended by the parties to 
 the instrnment, be shown by proper and apt averments and proof. Upper AUoways Creek v. 
 Slriny, 5 Halst. 323.
 
 449 0^ THE DECLAEATION. 
 
 Avrong christian name, this is no ground of nonsuit at the trial, if it can he 
 shown that the defendant knew that the action was brought by the person 
 who actually sues ;{l) nor is it any objection to the plaintiiF's recovery, in 
 an action on a promissory note, that one of the defendants is misnamed, 
 if it be proved that he was the real person sued, and served 
 [ *450 ] with process. (wi) And if the defendant be sued by a ivroncj 
 ^christian name, and omit to plead the misnomer, the plaintiff 
 may proceed to judgment and execution against him, in the name by which 
 he is sued.(rt) 
 
 Upon general process, the plaintiff may declare qui tam,{h) or as execu- 
 tor or administrator, &c. ; or the defendant may be declared against in his 
 representative character.((?) But this rule will not hold e eonverso ; for 
 where the process was to answer the plaintiff qui tarn, &c. and the decla- 
 ration was in his own name only, omitting the qui tarn part, the court held 
 the variance to be fatal, and set aside the proceedings. (c^) In a subse- 
 quent case, the proceedings were set aside, where the process was to 
 answer the plaintiffs as assignees of a bankrupt, and the declaration was 
 in their own right ; for the plaintiff cannot declare against the defendant 
 generally, on process sued out in a special character.(e) So, where a writ 
 was sued out by the plaintiffs as executors, and the declaration was by 
 them in their oivn right, it was deemed a sufficient variance for discharging 
 the defendant out of custody on filing common bail.(/) 
 
 The plaintiff may declare in chief, upon common process by hill in the 
 King's Bench, or on a common capias quare clausum f regit in the Common 
 Pleas,(^) for any cause of action whatever.(7i) And where the process 
 was in trespass and assault, and the declaration in trover, the variance was 
 deemed immaterial. (2) But, in bailable cases, the declaration should regu- 
 larly correspond with the ac etiam in the writ, as to the nature of the cause 
 of action : Therefore, where the plaintiffs having held the defendant to bail 
 on an affidavit in assumpsit, delivered a declaration in trover, the court of 
 King's Bench ordered an exonerctur to be entered on the bail-piece. (^) 
 But they will not permit a defendant to take advantage of a variance in the 
 amount of the debt, between the ac etiam part of the latitat and the decla- 
 ration.(^Z) And though, where there is a material variance between the ac 
 etiam in the writ and the declaration, the plaintiff will lose his bail,(wiw) yet 
 the court will not on that ground set aside the proceedings for irregularity.(w) 
 
 different name from that in the process ; and after having appeared for him in the latter 
 name, a declaration in a different one would be irregular. Ante, 242, 449. 
 
 {I) 3 Campb. 29 ; and see 6 Moore, 141. 3 Brod. & Bing. 54, S. C. 7 Moore, 522. 1 Bing. 
 143, S. C. AtUe, 9. 
 
 [m) 16 East, 110 ; and see 1 Chit. Rep. 507, 8, {a), 512, 13, (a). 
 
 (a) 2 Str. 1218. 6 Taunt. 115. 1 Marsh. 474, S.C. 7 Barn. & Cres. 486. 1 Man. &Ryl. 265, 
 S. C. ; but see 1 Moore, 105. 
 
 (b) 1 Str. 1232. 2 Blac. Rep. 722. 3 Wils. 141, S. C. 
 
 (c) 6 Moore, 66. 3 Brod. & Bing. 4, S. C. 
 \d) 4 Bur. 2417. 6 Durnf. & East, 158. 
 
 (e) Meggs ^ another, assignees of Cochran, v. Ford, E. 25 Geo. III. K. B. 
 {/) 8 Durnf. & East, 416 ; and see 3 Wils. 61.1 Bos. & Pul. 383. 
 {g) Pr. Reg. 137. Cas. Pr. 0. P. 58, S. C. 
 {h) R. E. 15 Geo. II. reg. 1, K. B. Cowp. 455. Ante, 352. 
 (?) 2 Chit. Rep. 166. 
 
 {k) 7 Durnf. & East, 80 ; and see 8 Durnf. & East, 27. 
 
 {ll) 5 Durnf. & East, 402. {mm) Ante, 294. 
 
 (n) Per Cur. M. 43 Geo. III. K. B. 2 Moore, 89. 8 Taunt. 189, S. C. ; and see 2 Moore, 301. 
 8 Taunt. 304, S. C. C. P.
 
 OF THE DECLARATION. 450 
 
 It should also be remembered, that in the Common Pleas, a variance be- 
 tween the writ and count, the ac etiam being in case on promisea, but the 
 declaration in debt, is not aground for entering an eroncretxir on the bail- 
 piece, where the sum sworn to is under 40/.(o) By orijinal, the plaintiff 
 must declare in chief, for the same cause of action as is expressed 
 in the writ:(p) and if there be a variance between the ^original [ *451 ] 
 writ and declaration, the court will discharge the defendant, on 
 entering a common appearance :(a) But they will not on this ground set 
 aside the proceedings ; for that would be permitting the defendant to do 
 indirectly, what the practice of the court will not allow him to do 
 directly, by craving oyer of the original writ, and pleading the variance 
 in abatement. (6) 
 
 The rules of pleading, upon Avhicli the statement of the cause of action 
 depends, are founded in good sense ; their objects are precision and 
 brevity: nothing is more desirable for the court than precision, nor for 
 tlie parties than brevity.(c) Precision or certainty is of three kinds ; first, 
 to a common intent ; secondly, to a certain intent in general ; thirdly, to 
 u certain intent in every particular -.[d) The second, or that which is to a 
 certain intent in general, is all that is re(|uired in a declaration ; and it 
 ought to be such that the defendant may answer it, a good issue be joined 
 thereon, and the court be enabled to give judgment.(c') This certainty 
 should pervade the whole declaration ; and is particularly required in 
 setting forth the time, place, and other circumstances necessary to main- 
 tain the action. (/)[a] But that which is alleged by way of conveyance 
 
 (o) 1 n. Blac. 310. Ante, 294. 
 (;>) R. H. 8 Car. I. K. B. 5 Durnf. & East, 402. 
 
 (a) G Durnf. & East, 3G3 ; but see 2 Moore, 301. 8 Taunt. 304, S. C. 
 {b) Id. 2 Wils. 393. Durant v. Serocold, E. 24 Geo. III. K. B. ; but see 5 Durnf. & East, 722. 
 4 East, 589. 2 New Rep. C. P. 82. 5 Taunt. 649. 1 Marsh. 274. 
 
 (c) Doug. 666, 7. 
 
 (d) Co. Lit. 303, a. ; and see Cowp. 682. Doug. 158, 9. 
 U) Co. Lit. 303, a. PI. Com. 84. 
 
 (/) Com. Dig. tit. J'lcader, C. 18, kc. And see furtlier, as to certainly in general, 1 Chit. 
 PI. 4 Ed. 212, &c. ; and as to the certainty required in declarations, id. 2'."J, iVc. ; iu /dras, i< . 
 457, &c.; and in replications, id. 561 ; aud as to time and place, see 5 Durnf. k. East, 607. 1 
 Chit. PL 4 Ed. 231, &c. 
 
 [a] The declaration, in every case, must set out a good and sufficient cause of action. 
 Mackall V. Jones, 5 Gill,& Johns. 65. U. States Bank v. Stnilh, 11 Wheat. 172. And every 
 material fact, which constitutes the ground of the plainliffa action, should be alleged. 
 Drowne v. Stiinpgon, 2 Mass. 441, 444. Tracy v. J)akin, 7 Johns. 75. If a declaration con- 
 tain a substantial cause of action, duplicity, or irrelevant and superfluous matter, does not 
 vitiate it. Calli.inn \. Simmons, 2 Port. 145. IJvans v. Watrou.ic, Hi. 205. It is not, how- 
 ever, necessary to state a promise according to the words of it, but it is sufficient to stale 
 it according to its effect. Andrews v. Wi/liams, 11 Conn. 326. Tiie whole of the conside- 
 ration of a contract must be stated ; and if any part of an entire consideration, or of a con- 
 sideration consisting of several things, be omitted, the plainlilf will fail on the ground of 
 variance. Brooks v. Lowrie, 1 N. & M. 342. In declaring on contracts not under seal, which 
 do not contain within themselves the acknowledgment of a consideration, or that from which 
 a consideration can be implied by law, it is incumbent on the plaintiff to set out and [trovo 
 a consi<leration. Trcadwuy v. Xicks, 3 .M-Cord, 195. And a contract in tiie allernative must 
 be stated, in the declaration, according to the terras of it. Stone v. Knowltcn, 3 Wend. 374. 
 
 Whatever the jilaintiff is under the necessity of newly assigning, in order to avoid the 
 effect of a plea, whetiier of time, place, or circumstance, must be staled with as niucii pre- 
 cision as in the declaration itself. I'rice v. J'rrry, 1 Miss. 542. So wiiere au action on the 
 case is brought, and the damages actually sustained ilo not necessarily arise from the act 
 complained of, and arc not therefore implied by law, the plaiutilT must stale, in his decla- 
 ration, the particular damage which he has sustained, or he cannot give evidence of it upoa 
 the trial. Squier v. Gould, !4 Wend. 159. t)r where, by the terms of a contract, an act is
 
 452 OF THE DECLARATION. 
 
 or inducement to the substance of the matter, need not be so certainly 
 allco-cd, as that which is the substance itself :(^) and surplusage will not 
 vitiate, except where it defeats the action. (A) 
 
 If the declaration be defective in any of the above particulars, the 
 defendant may demur : But if he do not, the defect may in some cases 
 be aided by the defendant's j9?ea, or by a verdict for the plaintiff. If the 
 declaration want time, place, or other circumstances, it may be aided by 
 the defendant's plea; but not if it be defective in substance: (2) And a 
 verdict will aid the omission of that which was necessary to be proved at 
 the trial, and without which the jury could not have found for the 
 plaintiff. (^) Defects in the declaration are also frequently cured by the 
 statutes of jeofails. (l) 
 
 The declaration itself was formerly delivered, in the King's Bench, to 
 the defendant's attorney, who made a copi/ of it, and then delivered it 
 back:(m) But the copy is now made in that court, as well as in the Com- 
 mon Pleas, by the plaintiff's attorney ;(w) and, except where the defendant 
 
 is in custody, should either be delivered to the defendant's attor- 
 [ *452 ] ney, ox filed *with the clerk of the declarations in the King's 
 
 Bench, or prothonotaries in the Common Pleas. When the 
 defendant has appeared, and filed common bail, or special bail has been 
 put in and perfected, a copy of the declaration should be delivered to his 
 attorney,(rta) if his place of abode be known ; the delivery of a copy to 
 the defendant himself, after he has appeared or filed bail, not being 
 deemed sufficient. (Z*) And, on the delivery of a copy of the declaration, 
 the defendant's attorney must formerly have paid for the same, after the 
 rate of four pence per sheet, computing severity-two words to a sheet, 
 together with the stamps or king's duty,((?) and/oitr pence for the warrant 
 
 (^f) Co. Lit. 303, a. 
 
 \h) Com. Dig. tit. Pleader, C. 28, 9. Steph. PI. 417, &c. {i) 8 Co. 120, b. 
 
 [k) Cora. Dig. tit. Pleader, C. 87 ; and see Doug. tiSO. 7 Durnf. & East, 518, 583. 1 Cliit. PI. 
 4 Ed. 359. 60. 
 
 [l] 32 Hea. VIII. c. 30. 18 Eliz. c. 14. 21 Jac.I. c. 13. 16 & 17 Car. II. c. 8. 
 
 (?«) R. T. 12 W. III. K. B. 
 
 [aa) R. T. 2 Geo. II. K. B. ; but see 8 Mod. 379. 2 Ld. Raym. 1407, by which this rule ap- 
 pears to have beea made in T. 11 Geo. I. before the statute 12 Geo. I. c. 29, and the rule 
 upon that statute, of T. 1 Geo. II. K. B. 
 
 (6) Lofft, 332. 
 
 (c) R. T. 12 W. III. K. B. ; and note [a) R. T. 2 Geo. II. K. B. 
 
 to be done in a reasonable time, an allegation that it'n-as done in a reasonable time, to wit, 
 on or about such a day, is sufficient. Nichols v. Blakeslee, 2 Day, 218. Or in declaring 
 upon a special contract, it must be set out in its very terms, or according to its legal effect. 
 Keyes v. Dearborn, 12 N. Hamp. 52. Pye v. Rutter, 7 Mis. 548. Dickerson v. 3Iorrison, 5 
 Pike, 316. White v. Gucd, 6 Blacli. 228. 3Ioore v. Platte County, 8 Mis. 467. Maxfield v. 
 Scott, 17 Verm. 634. Berthe v. Biggs, 1 How. Miss. 195. A declaration should contain all 
 that it is necessary for the plaintiff to prove under a plea of the general issue, in order to en- 
 title himself to recover. Bcardsley v. Southmayd, 2 Green, 534. Writings ahva^'s may, and 
 often should, be declared on according to their legal effect, and not set forth in their pre- 
 cise words. Churchill v. Blerchants' Bank, 19 Pick. 532. Doar v. Fenno, 12 lb. 521. Lent 
 V. Paddleford, 10 Mass. 230. Hopkins v. Young, 11 lb. 302, 307. Johnson v. Carter, 16 lb. 
 443. And it is not necessary to state a promise according to the words of it, but ac- 
 cording to its effect. Thus, in an action on a written agreement to pay a certain sum for 
 a certain number of staves, subject to a deduction at a certain rate for any number not 
 taken, it is necessary to allege in the declaration the number of staves actually taken. 
 Martin v. Woodall, 1 Stew. & Port. 244. And a writing declared on, but not spread upon 
 the record by oyer, or otherwise, must be taken as set out in the declaration. Pollard v. 
 M-Clain, 3 A. K. Marsh. 24.
 
 OF THE DECLARATION. 452 
 
 of attorncj.(J) But now, it is not necessary for the defendant's attorney 
 to pay for a copy of the declaration, when delivered ;(«) the stamps or 
 king's duty on copies of declarations are repealed, by the statute 5 Geo. 
 IV. c. 41 ; and the plaintiff, we have seen,(/) cannot sign judgment, for 
 the defendant's refusing to pay /our pence for the warrant of attorney, 
 when a copy of the declaration is delivered to him. 
 
 If the abode of the defendant's attorney be unknown to the plaintiff's 
 attorney, the copy should ha filed, with the clerk of the declarations in 
 the King's Bench, or prothonotaries in the Common Pleas, and notice 
 thereof given to the defendant.(y) And a copy of the declaration should 
 \)Q Jilid in like manner, whore tlic plaintiff has entered an aj)poarance, or 
 filed common bail for the defendant, according to the statute, and notice 
 thereof delivered to, or left at the last or most usual place of abode of the 
 defendant ; in which notice should bo expressed the nature of the action, 
 at whose suit it is prosecuted, and the time limited by the rules of the 
 court for pleading ; and that in case the defendant do not plead by such 
 limited time, judgment will be entered against him by default. (A) The 
 statute 48 Geo. III. c. lVd,[i) requiring copies of declarations to be 
 Avrittcn in the usual and accustomed manner, and it not having been the 
 practice to write such copies on both sides of the paper, the court of 
 King's Bench held, that a copy so written, and delivered to a prisoner, 
 was irregular, and entitled him to be discharged out of custody. (A;) But 
 the court of Common Pleas refused to set aside a declaration, on the 
 ground that the common counts were partly printed, and partly written. (/) 
 
 *The declaration, in the foregoing cases, must be delivered or 
 filed absolutely. But it cannot be so delivered or filed, before [ *453 ] 
 appearance or bail ; as the defendant till then is not in court. (a) 
 Still, however, for the sake of expediting the cause, by making the times 
 for appearance and pleading concurrent, it is a rule in the King's Bench, 
 that '* upon all process, returnable before the last return of any term, 
 where no affidavit is made or filed of the cause of action, the plaintiff 
 onaijifb) file or deliver the declaration de bene esse, or conditionallij, at the 
 return of such process, with notice to plead in eigJit days after the filing or 
 delivery thereof: And that upon all such process as aforesaid, where an 
 affidavit is made and filed of the cause of action, the declaration may be 
 filed or delivered de bene esse, at the return of such process, with notice 
 to plead in four days after such filing or delivery, if the action be laid in 
 London or 31iddlesex, and the defendant live within tiventy miles oi Lon- 
 don ; and in eicjht days, if the action be laid in any other county, or the 
 defendant live above twenty mWc^ from London: Provided the declaration 
 in either case be filed or delivered, and notice thereof given, /owr days ex- 
 
 [d] R. M. 5 Ann. reg. 2, K. B. In the Common Pleas, /owr pence was paid for the warrant 
 of attorney in debl, trespass and detinue, and eiijht pence in other actions. Imj). C. P, 4 Ed. 228. 
 
 (e) 4 Durnf. & East, 370. Imp. K. P. 10 Ed. 179, (a). Imp. C. P. 7 Ed. 1S3, (a). 
 (/) Ante, 95. 
 
 (>/) R. T. 2 Geo. IT. K. B. R. M. 1654, § 15, C. P. 
 
 ('/() R. T. 1 Geo. II. K. B. R. M. 1 Geo. II. rej. 1, C. P. ; and see Append. Chap. XVII, 
 § 22, 23. 
 
 (/) Srhed. Part II.; and see stat. 55 Geo. III. c. 184. Schcd. Part. II. princijuo. 
 
 (k) 12 East, 294; and see 1 Maule & Sel. 709. 1 Dowl. & Ry\. 5C2. 
 
 {/) 2 Moore, 634. 8 Taunt. 591, S.C. 
 
 (a) Lollt, 333. 2 Durnf. & East, 719; and see Forrest, 33. 2 Chit. Rep. 165. Anle,4]0, 20. 
 
 (h/j) IJiit he is not bound to do so, Carmichael v. Chandler, T. 24 Geo. III. K. B. Iiiiii. K. B. 
 10 Ed. 149; and see 2 East, 442. Ante, 299, 305.
 
 453 
 
 or THE DECLARATION. 
 
 elusive before the end of the terra, and a rule to plead be duly entered. "(c) 
 It was formerly doubted, whether a declaration could be filed or delivered 
 de bene esse, in the King's Bench, on process returnable the last return of 
 the term.((i?) But it is now settled, that it cannot be so filed or delivered :(e) 
 the practice of declaring de bene esse being founded on a rule of court,((?) 
 by which the right of declaring in that mode is limited to process return- 
 able before the last general{f) return : and the privilege was only intended 
 to apply, when the plaintiff is entitled to a plea of the term.(e) 
 
 In the Common Pleas, the practice of declaring de bene esse seems to 
 have been first allowed on special writs,(^) and was afterwards extended to 
 common ones.(7i) At present, the declaration in that court may be filed or 
 delivered de bene esse, upon process returnable the first, second, or tliird 
 return of any term,(^) or on i\\Q fourth return of Easter term :[k) And, by 
 a late r\x\Q,(k) it may be so filed or delivered, upon process returnable the 
 last return of any term ; provided it be filed or delivered, on the day of 
 such return, or on the day next after such return, in case the same shall not 
 happen on a Sunday, in which case the plaintiff shall have the whole of 
 the Monday following, to file or deliver his declaration de bene 
 [ *454 ] esse : *And this rule applies equally to Easter term, as to any 
 other.(a) It was not formerly necessary, in the Common Pleas, 
 to give notice of a declaration being filed conditionally, in bailable 
 actions :(6) But now, by a late rule of court,(c6') " in every action in 
 which special bail shall be required,' and where the declaration shall be 
 filed conditionally, notice in writing of such declaration being so filed, 
 shall be given to the defendant, his attorney or agent ; and no declaration 
 shall be considered as filed, until such notice shall be so given." 
 
 In the Exchequer of Pleas, it was formerly the practice, to file the ori- 
 ginal draft of declaration in the office; and engrossments on paper, of 
 declarations and other pleadings, were not usually required to be made by 
 the party declaring or pleading : But now, by a late rule of court, (cZt?) it 
 is ordered, that " engrossments on paper, of all declarations and other 
 pleadings, shall be duly made on stamp, (eg) and filed or delivered by the 
 parties respectively declaring or pleading, within the times prescribed by 
 the rules of the court for filing and delivering declarations or other plead- 
 ings respectively ; and that a book be kept in the office of pleas, wherein 
 entries shall be made of declarations so filed." 
 
 (c) R. T. 22 Geo. III. K. B. ; and see R. M. 10 Geo. II. reg. 2, K. B. R. M. 3 Geo. II. reg. 2, 0. 
 P. Pr. Reg. 148. 
 
 {d) 1 Sel. Pr. 2 Ed. 226 ; and see the eighth edition of this work, p. 456, (c). 
 
 (e) 1 Bam. & Ores. 653. 3 Dowl. & Rjl. 28, S. C. ; and see 2 Chit. Rep. 237. 5 Barn. & Ores. 
 455. 8 Dowl. & Ryl. 135, S. C. accord. ; but see 1 H. Blac. 533, 4, contra, in 0. P. 
 
 (/) 5 Barn. & Cres. 455. 8 Dowl. & Ryl. 135, S. C. 
 
 (g) Cas. Pr. C. P. 16. Pr. Reg. 145, 6. 
 
 (A) Pr. Reg. 146, 7. Cas. Pr. C. P. 55, 6, S. C. 
 
 {i) R. T. 8 Geo. III. C. P. ; and see R. M. 8 Geo. II. reg. 2, C. P. R. Reg. 148. 
 
 [k) R. H. 35 Geo. III. C. P. 2 H. Blac. oct. ed. 551. 7 Taunt. 71, [a). 2 Marsh. 337, (a). 2 
 Chit. Rep. 381. Same rule. 
 
 (a) 7 Taunt. 70. 2 Marsh. 337, S. C. 
 
 (6) Pr. Reg. 149. Barnes, 302, S. C. 2 Blac. Rep. 725. 3 Wils. 147, S. C. 2 Bos. & Pul. 42. 
 
 (cc) R. E. 49 Geo. III. C. P. 1 Taunt. 616. 
 
 (dd) R. H. 60 Geo. III. & 1 Geo. IV. in Scac. 8 Price, 85; and see 2 Price, 114. And for 
 the time and manner of declaring in that court, after the defendant's appearance, see R. T. 
 26 & 27 Geo. II. § 9. R. M. 5 Geo. III. ? 2, & R. T. 26 Geo. III. in Scac. Man. Ex. Append, 213, 
 218, 221, 2. 
 
 (ee) The stamp duty on copies of dechirations has been since repealed, by the statute 5 
 Geo. IV. c. 41.
 
 OF THE DECLARATION. 454 
 
 With regard to declarations dc bene esse, it is a rule in the Exchequer,(/) 
 that " upon all process of quo minus ad respondendum and capias, to be 
 issued out of that court, returnable before the last return of any term, 
 where an affidavit shall be made and filed of the cause of action, pursuant 
 to the act of parliament for preventing frivolous and vexatious arrests, a 
 declaration may be filed or delivered de bene esse, at the return of such ])ro- 
 cess,(^) -with notice to plead in four days after such filing or delivery ; if 
 the action be laid in London or Middlesex, and the defendant live within 
 tiventij miles oi London, and in eicjht days, if the action be laid in any 
 other county, or the defendant live above twenty miles from London ; and 
 if the defendant put in bail, and do not plead within such times as are re- 
 spectively before mentioned, judgment may be signed ; provided such 
 declaration be delivered or filed, and notice thereof given, four days exclu- 
 sively before the end of the term, and a rule to plead duly entered." It is 
 also a rule in that court,(/i) that "upon all process to be issued out of that 
 court, returnable as aforesaid, where the defendant shall bo personally served 
 with a copy thereof, pursuant to the said act of parliament, or to the statute 
 51 Geo. lll.c. 124,(z) the plaintiff may file or deliver a declara- 
 tion de bene esse, at the return of *such process with notice to [ *455 ] 
 plead in eight days after the filing or delivery thereof :(«) and if 
 the defendant do not enter an appearance and plead within the said eight 
 days, the plaintiff, having entered an appearance for him according to the 
 said acts, may sign judgment for want of a plea ; provided such declaration 
 be delivered or filed, and notice thereof given, /our days exclusively before 
 the end of the term, and a rule to plead duly entered : And that upon all 
 writs of distringas, whereupon notice shall be given pursuant to the said 
 last-mentioned act, the plaintiff may file or deliver a declaration de bene 
 esse, at the return of such writ, with notice to plead in eight days after the 
 filing or delivery thereof ; and if the defendant do not enter an appearance 
 and plead within the said eight days, the plaintiff, having entered an ap- 
 pearance according to the same act, may sign judgment for want of a plea, 
 a rule to plead having been duly entered." And by a late rule, (6) it is 
 ordered, that "in all cases wherein the plaintiff, by the present practice of 
 the court, would be entitled to sign judgment for want of a plea, where the 
 declaration had been delivered or filed, and notice thereof given, four days 
 exclusively before the end of the term in which the process is returnable, 
 the plaintiff shall be at liberty to sign such judgment ; provided the declara- 
 tion be delivered or filed, and notice thereof given, two days exclusively 
 before the end of the term within which the process is returnable, a rule to 
 plead having been duly entered." This rule does not extend to filing de- 
 clarations de bene esse, so as to entitle the plaintiff to a pica of the 
 term, on writs returnable two days exclusively before the end of the 
 term.(ff) 
 
 In the King's Bench, the declaration may be filed, and notice thereof 
 given, on the return day of the writ, or quarto die j>ost by original; and 
 
 (/) R. T. 20 Geo. III. in Scac. Man. Ex. Append. 221 ; and see R. T. 20 & 27 Geo. II. I 10, 
 and R. M. 5 Geo. III. in Scac. Man. Ex. Append. 214, 219. 
 (.7) 13 Price, 178. M'Clel. 65, S. C. 
 
 (h) R. M. 53 Geo. III. in Sc<ic. Man. Ex. Append. 22G, 7. 8 Trice, 508, 9. 
 (i) And see stat. 7 & 8 Geo. IV. c. 71, g 5. 
 
 (a) Append. Cliap. XVII. $ 24. 
 
 (b) R. 11. GO Geo. III. & 1 Geo. IV. in Scac. 8 Price, 84. 
 (r.) M'Clel. G.^.O. 
 
 Vol. 1.-29
 
 455 OF THE DECLARATION. 
 
 the writ of latitat, we have seen,(tZ) may be sued out and served on the 
 return day : but it cannot be served, and notice of declaration given, at 
 the same time ; for the notice of declaration presupposes the declaration 
 to be filed, and it cannot regularly be filed till after the writ is served : 
 There must be some interval therefore, however short, between the ser- 
 vice of the writ and notice of declaration. (e) But where the defendant 
 had omitted to take advantage of the objection, until after judgment was 
 signed and a whole term had elapsed, the court would not set aside the 
 judgment with costs. (/) In the Common Pleas, the declaration may be 
 filed de bene esse, on the essoin or return day of the writ, or any day 
 after; though a rule to plead cannot be given till the first day of term.(,^) 
 And notice of the declaration being so filed may be given, in that court, 
 on the return day of the writ, at the time of serving it :{h) But notice 
 cannot be given on that day, of a declaration being filed in chief. (i) 
 And service of a notice of declaration on a Sunday is bad, though the 
 
 defendant accept it, knowing it to be *irregular.(a) The declara- 
 [ '456 ] tion, however, cannot be filed before Xhe essoin, or return day of 
 
 the writ : therefore a notice of declaration given the day before 
 the essoin day of the term, being Sunday, until which day the plaintiflfcould 
 not file his declaration, has been deemed a nullity. (6) And, in that court, 
 the declaration cannot be filed or delivered de bene esse, so as to charge 
 the defendant with the costs of it, till the appearance day of the return 
 of the writ. ((?<?) So, if one of three defendants, in a joint action, appear 
 to a quare clausuw. f regit, and the two others, being arrested on bailable 
 process, have till the ensuing term to justify bail, it is irregular for the 
 plaintiff, previous to that time, to deliver a declaration against all three, 
 indorsed '"'■ conditionally, until special bail is perfected.' \dd) And the 
 declaration cannot, in either court, be filed or delivered de bene esse, after 
 the defendant has appeared, or filed bail :(ee) or the time limited for his 
 appearance, or putting in bail, is expired ;{ff) whether the process be 
 bailable or not bailable. (<7^) On bailable process therefore, when the 
 defendant has neglected to put in or perfect special bail, the plaintifi" 
 must proceed against the sherifi", or his bail, upon the bail-bond : and 
 when he has not appeared or filed common bail in due time, the plaintiff 
 must enter an appearance, or file common bail for him, according to the 
 statute ; and then deliver or file his declaration absolutely, {Jih) In the 
 Exchequer of Pleas, it has been the usual course of the court, when the 
 process is served on the return day, to give notice of the declaration 
 
 {d) Ante, 153, 168. 
 
 (e) 3 Smith, R. 531. 12 East, 116. 2 Chit. Rep. 164, 5. 7 Dowl. & Ryl. 233. 
 
 (/) 2 Chit. Rep. 164. 
 
 (g) Cas. Pr. C. P. 68 ; and see Pr.Reg. 148. 
 
 \h) 3 Taunt. 404. 8 Taunt. 127. 1 Moore, 573, S. C. 
 
 [i) 4 Taunt. 818. 8 Taunt. 127. 1 Moore, 573, S. C. 
 
 (a) 1 H. Blac. 628. (6) 2 New Rep. C. P. 75. 
 
 [cc) 2 Blac. Rep. 749 ; and see 1 Esp. Rep. 345. 2 Bos. & Pul. 515. 2 New Rep. C. P. 398. 
 
 {del) 2 New Rep. C. P. 231. Quare, whether, if the declaration had been indorsed condi- 
 tionally, until bail should be perfected by the two latter defendants, it would have been 
 irregular? Id. ibid. 
 
 (ee) R. M. 10 Geo. II. reff. 2. R. T. 22 Geo. III. K. B. R. M. 3 Geo. II. reg. 2. R. T. 8 Geo. 
 III. R. H. 35 Geo. III. C. P. 2 H. Blac. oct. ed. 551. 
 
 (/) 1 Bur. 56. 2 Durnf. & East, 720. 6 Durnf. & East, 548. 8 Durnf. & East, 77, K. B. Pr. 
 Reg. 145, 6. Barnes, 342. 2 New Rep. C. P. 232. 
 
 (pg) 2 New Rep. C. P. 433. 
 
 (AA) Pr. Reg. 145, 6.
 
 OF THE DECLARATION. 456 
 
 being filed conditionally, on the same day :(/) And, in that court, service 
 of notice of declaration on the return day, by a person going away, and 
 returning a few minutes after service of the writ, was liolden not to be 
 irregular. (A-) 
 
 If the declaration he fihd, and notice thereof given t(j the defendant or 
 his attorney, it is deemed to be a good declaration, fruni the time of such 
 notice only ;(/) and therefore a rule to plead in such case, given before 
 notice of declaration, is irregular.(m) Yet where the declaration, in the 
 King's Bench, was fded on the last day of the second term, after the 
 return of the writ, but the notice was not given till a little before the 
 essoin day of the following term, this was holden to be well enough ; the 
 master certifying it to be the practice. (/«) The defendant must formerly 
 have received and paiil for a copy of the declaration, whether it 
 were delivered or left in the *olfice, before he could have been [ •457 ] 
 admitted to plead ;{a) and if he neglected to do so, the plain- 
 tiff's attorney might have refused to accept his plea, and signed judg- 
 ment :[l>} But now, though a copy of the declaration must be paid for, on 
 taking it out of the ofiice, when filed, yet the defendant's attorney, we 
 have seen,(c) is not bound to pay for it, when delivered to him.(cZ) 
 
 The notiee of declaration being filed in the office, must be properly 
 entitled ; and express the nature of the action, as whether it be in debt 
 or case, &c. :{e) but, in the Common Pleas, it need not state the amount 
 of the damages ;(/) and, in the King's Bench, it seems that no date to 
 the notice of declaration is necessary. (^) When the defendant's place of 
 residence is known to the plaintiff's attorney, the notice of declara- 
 tion should be delivered to the defendant, or left for him at the last or 
 most usual place of his abode ; it being irregular in such case for the plain- 
 tiff"s attorney to stick up a notice of declaration in the office :(/i) And the 
 court of Common Pleas would not allow the affixing of a notice of decla- 
 ration in the prothonotaries office, to be good service ; although it was 
 sworn, that the defendant had no fixed place of residence, and that the 
 plaintiff" did not know where to find him.(«V) If the defendant's place of 
 abode be unknown, application must be made to the court, that affixing 
 the declaration in the office may be deemed good service :(/i^) and it is not 
 so considered, unless by express permission of the court, though the 
 defendant's place of abode be unknown to the plaintift*.(//) But where 
 the defendant and his attorney had been informed that a notice of decla- 
 ration was stuck up in the office, the latter court refused to set aside a 
 judgment, for want of service of the notice at the defendant's last place 
 of abode. (mm) And where a defendant kept out of the way, to avoid 
 
 (i) 9 Price, 153. (k) M'Clel. 659. 
 
 (/) R.T. I Geo. II. R. T. 2 Geo. II. K. B. 8 Mod. 370. 2 Ld. Uayin. 1407. 7 Durnf. & East, 
 29a. R. M. 1 Geo. II. rej. 1, C. 1'. 
 (m) Pr. Rep. 131. Cas. Pr. 0. P. 111. Barnes, 248, S. C. 
 (n) 3 Bur. 1452. 2 Durnf. k East, 112. 
 
 (a) U. .M. 10 Geo.U.reff.S,K.li.; and see R. T. 12 W. III. R. T. 2 Geo. II. K. B. 
 ((,) 1 Wils. 173. (c) Ante, 452. 
 
 (d) Imp. K. B. 10 Ed. 179, (a). Imp. C. P. 7 Ed. 183, (a). 
 tc) Pr. lUtr. 131. Cas. Pr. C. P. 63, S. C. Id. 68, 122. 2 Wil3.84. 
 ( /•) 6 Taunt. 331. {</) 2 Chit. Rep. 233. 
 
 (A) 7 Durnf. & East, 2G. 1 V.us. k Pul. 214. 
 
 (iV) 8 .Moore, 273. (H) 1 Taunt. 433. 
 
 {//) 5 Taunt. 777 ; and see 7 Taunt. 145. 1 Cliit. Rep. 075, (a). j 
 
 (;/i//j) 1 New Rep. C. P. 279.
 
 457 OF THE DECLARATION. 
 
 being served with notice of declaration, and it was sent to him in a let- 
 ter by the post, which was returned opened and marked "refused," this 
 Avas deemed good service ; it appearing that the defendant knew the 
 handwriting of the plaintiff's attorney, (w) So, in the Exchequer, service 
 of notice of declaration is good, by affixing it on the door of the house 
 where the defendant last lived, if the plaintiff' or his attorney do not know 
 the place to which he is removed, and knowledge of such service can be 
 brought home to him.(o) When the declaration is filed or delivered de 
 bene eftse or conditionally, it is necessary to make an indorsement thereon, 
 that it is so filed or delivered :(p) and, in the King's Bench, where the 
 declaration filed in the office, before the defendant's appear- 
 [ *458 ] ance, was indorsed *'•'■ filed conditionally," and judgment after- 
 wards signed for want of a plea, the court held the proceeding 
 regular ; though the notice served on the defendant was of a declaration 
 generalhj.{a) 
 
 If the plaintiff" do not declare in due time, he is liable to be nonprossed, 
 or have judgment signed against him for not prosecuting his suit.(i) It 
 is called a judgment of no77j>ros, from the words no7i prosequitur, &c., 
 formerly used in entering it up. And this seems to be the proper appel- 
 lation of the judgment, in actions by hill : but in actions by original, 
 where the language of the judgment was non prosequitur breve, vel sectam, 
 it is more commonly called a judgment of nonsuit. [c) The judgment of 
 nonpros is founded on the statute 13 Qar. II. stat. 2, c. 2, § 3, by which 
 it is enacted, that "upon an appearance entered for the defendant by 
 attorney, in the term wherein the process is returnable, unless the plaintiff" 
 shall put into the court from whence the process issued, his bill or declara- 
 tion, against the defendant, in some personal action or ejectment of farm, 
 before the end of the term next following after appearance, a nonsuit for 
 want of a declaration may be entered against him ; and the defendant 
 shall have judgment to recover costs against the plaintiff", to be taxed and 
 levied in like manner as upon the 23 Hen. \lll.'\d) The provisions of 
 this statute are confined in terms, to cases where the defendant has been 
 arrested; but it has been holden, that if a defendant appear at the day of 
 the return of the process, and put in bail, though he never were arrested, 
 nor the process returned, yet if the plaintiff" do not declare within tivo 
 terms, a nonpros may be entered against him :(e) And the statute is not 
 confined to cases where the writ is defective, but has always been con- 
 strued to extend to cases in general. (/) Hence it is a rule, in the King's 
 Bench, that " on all process issuing out of this court, returnable at a day 
 certain, if the defendant appear by his attorney, and file bail of the term 
 wherein the process is returnable, and the plaintiff" do not declare before 
 the end of the term next following, a nonpros may be signed, without 
 entering any rule to declare, or calling for a declaration. "(^) So, where 
 the proceedings are by original in the King's Bench, it is not necessary to 
 give a rule to declare, or demand a declaration. (/i) But, in the Common 
 
 {n) 5 Taunt. 186. 1 Marsh. 8, S. C. (o) 6 Price, 15. 
 
 Ip) R. M. 10 Geo. II. rcg. 2, K. B. R. E. 3 Geo. II. C. P. Barnes, 257, 302. 2 New Rep. 
 0. P. 223. 
 
 (a) 8 Durnf. & East, 77. 2 Moore, 719. 8 Taunt. 644, S. C. 
 
 (6) Append. Chap. XVII. g 25, &c. (c) Ante,A2l, 2. 
 
 (d) c. 15. (e) 2 Salk. 455. 7 Mod. 32, S. C. (/) 7 Durnf. & East, 27. 
 
 {g) R. M. 10 Geo. II. reg. 2, (6), K. B. Gilb. K. B. 345. 
 
 (A) Imp. K. B. 10 Ed. 493, 531 ; but see R. M. 10 Geo. II. reg. 2, {b), K. B. contra.
 
 OF THE DECLARATION. 45S 
 
 Pleas, the defendant must, before the end of the second term, or within 
 four days after, enter a rule for the plaintiff to declare,(/) which he obtains 
 on Q. jinecipc hon\ the secondaries, and demand a declaration ;(/ir) and if 
 the plaintiff do not declare before the rule is out, the defendant m;iy, at 
 any time before the essoin day of the next term, sign a nonpros, but not 
 afterwards ;(/) and the plaintiff, we have seen,(;/j) is not allowed 
 any longer time to declare, *without leave than the time limited [ *459 ] 
 by the defendant's rule. The demand of declaration must be in 
 writing \{a) and, in country causes, it must be made on the agent in 
 town. (6) 
 
 The defendant cannot sign a judgment of nonpros, before an appearance 
 is entered: and it cannot in general be signed, unless bail be filed, or an 
 appearance entered, of the term wherein the process is returnable ;(<?) and 
 therefore it cannot be signed, where a prisoner is superseded for not 
 declaring, (fee, on filing common bail.(t/) But when special bail is reiiuired, 
 the appearance is not complete, until they are perfected :(i') and therefore, 
 where the defendant was arrested on a bill of Middlesex, on the 22d 
 November, and special bail was put in in 3Iichaelnias term, and perfected 
 in Ililarij term, and judgment of nonjiros was signed in Hilary vacation, 
 the court of King's Bench set aside the judgment for irregularity; the 
 plaintift' having been guilty of no laches, in not declaring in Micliaelmas 
 term, as the defendant was not then fully in court.(/) And the statute 
 contemplates an available appearance only, or such an appearance as will 
 entitle the plaintiff to declare : Tlierefore, whei?e a latitat having issued 
 against three defendants, returnable on the last day of Trinity term, but 
 only one of the defendants being served, an alias issued, returnable on the 
 last day of Michaelmas term, of which one other of the defendants was 
 served with a copy, and in Hilary term following a pluries latitat issued, 
 returnable on the last day of Hilary term, but which was not served on 
 the third defendant, and another pluries issued, returnable on the I'Jth 
 May in faster term, of which he was served with a copy, and an appear- 
 ance was entered for all the defendants, in Easter term ; and the plaintiff 
 not having declared in Trinity term, the defendant signed judgment of 
 nonpros; the court held, that such judgment was regular, though an 
 appearance was not entered of the term the process was returnable. (^) 
 The judgment of nonpros, however, must be signed, in the King's Bench, 
 within a year after the return of the writ.(/t) 
 
 In a joint action, it is said, the plaintiff cannot be nonprossed by one or 
 more of the defendants, without the others. (»') And this is universally true in 
 actions by original, where the plaintiff cannot proceed against the defend- 
 ants severally, upon a joint writ. But upon common process for a supposed 
 trespass, in the King's Bench or Common Pleas, if the plaintiff declare, 
 
 (t) Imp. C. P. 7 Ed. 104, 5. Append. Chap. XVII. g 3. {k) Id. g 4. 
 
 {l) R. H. 9 Ann. rej. 3, C. P. Ante, 422. (m) Ante, 422. 
 
 (a) N. M. 1 Geo. II. C. P. 
 \b) Barnes, 311. Pr. Reg. C. P. 124, S. C. 
 
 (c) IIolvus V. White, E. 11 (;eo. III. K. B. 6 East, 314. 2 Chit. Rep. 37. 3 Barn. & Cres. 
 555. 5 Dowl. & Rvl. 352, S. C. Antf, 242. 
 
 (rf) Imp. K. B. 10 Ed. 494. Imp. C. P. 7 Ed. 5.^5. 1 Cromp. 5 Ed. 123. 5 Dnrnf. & East, 35. 
 
 (e) 2 Chit. Rep. 37. (/) 3 Barn, k Aid. 514. 
 
 Iff) 3 Barn. & Cres. 553. 
 
 (A) 3 Barn. & Aid. 271. 1 Chit. Rep. 6G9, S. C. 
 
 («t) Doug. 1G9. Fhiljjot V. Mullcr ^- another, T. 23 Geo. III. K. B.
 
 459 or THE declaration. 
 
 serve a notice of declaration, or even take out a rule for further time to 
 declare, against one or more of several defendants, and do not proceed 
 against the others, the latter may sign a judgment of 7ionpros.[k) 
 [ *4(J0 ] In *such case, however, there ought to be but one judgment of 
 nonpros for all the defendants, unless the plaintiff have indicated 
 his intention of proceeding against them severally ; for the trespass is joint, 
 and though the plaintiff, in the Common Pleas, may declare severally, yet 
 it remains joint, till it be severed by the declaration. (a) 
 
 The judgment of nonpros, or nonsuit, for want of a declaration, is a final 
 judgment, and signed with the clerk of the judgments in the King's Bench, 
 or prothonotaries in the Common Pleas ; an incipitur being first made on 
 a roll, and also on a sheet of paper, called a judgment paper: And in the 
 Common Pleas, the defendant's warrant of attorney must be filed with the 
 clerk of the warrants, who will mark the judgment paper. (5) "Whenever 
 the defendant obtains a judgment of no7ipros, he is, as a necessary con- 
 sequence, entitled to costs ;{c) for which he may either take out execution, 
 or bring an action of debt upon the judgment. It has even been holden, 
 that an executor is liable to pay costs, upon a judgment of nonpros.{d) 
 And the court in two cases,, have ordered the costs to be paid by the 
 plaintiff's attorney ; in one of them, at the instance of the defendant, 
 upon an affidavit that the plaintiff could not be found ;(e) and in the other, 
 at the instance of the plaintiff himself, where his attorney refused to pro- 
 ceed, without being furnished with money. (/) 
 
 If the judgment of nonj5?'os be regular, the courts will not set it aside, 
 as a matter of course ; and, in a qui tarn action, they have refused to do 
 &o.{g) But it may be set aside on motion, if irregular, with all the pro- 
 ceedings that have been had upon it, provided the application be made 
 in time: And if an action be brought on the judgment, the whole proceed- 
 ings may be set aside, by one rule.(7i) But where the plaintifi" did not 
 apply till after judgment was signed, in an action brought on the judg- 
 ment of nonp>ros, the court of Common Pleas refused to set aside the latter 
 judgment, on the ground of laches. (/) A judgment of nonpros cannot 
 regularly be signed, pending an injunction :(^^) nor where the proceedings 
 are stayed, by a judge's order for the delivery of the particulars of the 
 plaintiff's demand, 7 Dowl. & Ryl. 125, 7 Barn. & Cres. 485, Post, 598. 
 And where it was signed after the debt and costs had been paid, the court 
 set it aside, although the defendant swore that the money was not paid 
 with his privity. (Z) But where it was signed for not adjourning an essoin, 
 cast upon a special capias, and the plaintiff took no notice of it, but deli- 
 vered his declaration, and after the rule to plead was out, and a plea called 
 for, signed judgment; the court, considering it as a trick, declared that 
 as there was no colour for the essoin, or to expect the plaintiff to search 
 after a 7ionpros, and there was no notice given of it, the plaintifi" had a 
 right to go on; and therefore they refused to set aside his judgment.(w) 
 
 (k) 2 Durnf. & East, 257 ; and see 5 Barn. & Cres. 178. 7 Dowl. k Ryl. 619, S. C. 5 Barn. 
 & Cres. 768. 8 Dowl. & Ryl. 592, S. C. 
 
 (a) 2 Salk. 455. Com. Rep. 74, S. C. 4 Bur. 2418. Vin. Abr. tit. Costs, 6 V. 341, contra. 
 
 (b) Imp. C. P. 7 Ed. 534. 
 
 (c) Stat. 23 Hen. VIII. c. 15. 8 Eliz. c. 2, ^ 1, 2. 4 Jac. I. c. 3. 13 Car. II. stat. 2, c. 2, 
 § 3. 1 Durnf. & East, 373. 
 
 (d) 3 Bur. 1584. (e) 1 Str. 402. 
 
 (f) Sav. Rep. 172. Ante, 86. (ff) I Bur. 401. 2 Ken. 82, S. C. 
 
 (A) 4 Durnf. & East, 688. (0 Cas. Pr. C. P. 75. Pr. Reg. 138, S. C. 
 
 {kk) Bowser v. Price, E. 20 Geo. III. K. B. {/) 1 Chit. Rep. 142. {m) 2 Str. 1194.
 
 OF TUE DECLARATION. 460 
 
 *It may not be improper in this place, to state the operation 
 and effect of an injunction, which, we have just seen, will pre- [ *4G1 ] 
 vent the plaintiff' tVom si^nin;^ a ju(l<];moiit of nonprox, and how 
 far it aff'ects the diffVrciit proceedings in the course of the suit. The gene- 
 ral effect of an injunction in Chancery, when obtained for want of an an- 
 swer before action commenced, or after action and before the defendant in 
 equity is in a condition to demand a plea,(a) that is, before the plaintiff in 
 equity has appeared and the defendant has declared against him, is to stay- 
 all proceedings at law, from the time of its being served; but when it 
 is not obtained until after the defendant in c([uity is in a condition to de- 
 mand a plea, he is permitted to demand it, and proceed to trial and judg- 
 ment, being only restrained from taking out execution :{h) And even then, 
 under particular circumstances, the injunction may be extended to stay 
 trial, on an affidavit that the plaintiff" in equity is advised and believes 
 that the answer will aff^ord a discovery material to his defence. (c) 
 
 In the Exchequer, the effect of an injunction for want of an answer, in 
 a town cause, is to sta}'- all proceedings at law, from the time it is served, 
 until answer and further order :{t?) And it is of equal force in a country 
 cause, when the bill is filed in 3Iichaelmas or Easter Term ;{e) but in 
 Hilary and Trinity, which are issuable terms, there is a clause in the in- 
 junction, that if issue is or can be joined in the action, the plaintiff" at law 
 may proceed to trial thereof; but is not to enter up judgment, or sue out 
 execution thereon :(/) and therefore, in these terms, if the plaintiff" at law 
 has so far proceeded in his action, as that he can join issue therein by his 
 own act, as by adding a similiter, [g) in that case he is permitted to go to 
 trial at the folloAving assizes, and the injunction only stays judgment and 
 execution. But though this be the ordinary practice of the court, yet 
 cases do occasionally occur, especially in matters of title and discovery, 
 where the court will restrain the trial at law till after answer. (//) An in- 
 junction upon the merits, in both courts, operates as a stay of all further 
 proceedings in the cause, from the time it is granted. Taking money out 
 of a court of law, which has been paid in by rule of court, is a breach of a 
 common injunction, against proceeding at law:(j) but showing cause 
 against a rule for a new trial, is not a proceeding which amounts to the 
 breach of an injunction, (/c) 
 
 (a) 16 Yes.Jun. 141. {b) Id. ibid. 
 
 (c) Id. 220, 223 ; and see I Madd. Chan. 132, 3. 
 
 (rf) P'owl. l>r. Excheq. 1 V. 250, 51, 259. {e) Id. 2C0. 
 
 (/) Id. 249. {g) 1 Younge k J. 404. 
 
 (h) Fowl. P. Excheq. 1 V. 2G0 ; and see 1 Campb. 561, (a), and the cases there cited. 
 
 (i) 13 Price, 289. M'Clel. 103, S. C. 
 
 {k) 3 Price, 242. And see further, as to the nature and efifect of an injunction, Cora. Dij?. 
 tit. Chancery, D. 8, &c. 1 Madd. Chan. 130, &c. And for the cases in which the court of 
 E.Kchequer will, or will not, grant an injunction after trial, for want of an answer by one of 
 several defendants, see 3 Price, 164, 241. Sec also 4 Price, 346, MClel. 80.
 
 *462 ^'^ IMPARLANCE, AND 
 
 ♦CHAPTER XVIII. 
 
 Of Imparlance, cmd Time /or Pleading ; and of the Notice and Rule 
 to plead, and Demand of Plea, cfc. 
 
 The plaintiff having declared, the defendant is allowed a certain time to 
 prepare for his defence; and that either with or without an imparlance. 
 
 Imparlance is said to be, when the court gives a party leave to answer at 
 another time, without the assent of the other party ',{aa) and in this sense, it 
 signifies time to reply, rejoin, surrejoin, &c. But the more common signi- 
 fication of imparlance is time to plead :[h) and it is either general,{c) 
 without saving any exception to the defendant, which is always to another 
 term ',[d) or special, which is sometimes to another day in the same 
 term,(e) with a saving of all exceptions to the writ, bill, or count ;(/) or 
 of all exceptions whatsoever: which latter is called 2i general spec/aHmpar- 
 lance.(^) The general imparlance is of course, when the defendant is not 
 bound to plead the same term ; but a special imparlance is not allowed 
 without leave of the court, in the King's Bench \{]i) and the court will not 
 grant a special imparlance, except to prevent injustice. (z) In the Common 
 Pleas, general imparlances are entered of course by the attorneys ; and it 
 is a rule, that " all attorneys and clerks do duly enter, or cause to be 
 entered, imparlances or incipiturs in all causes, according to the ancient 
 usage and custom of this court ; and that the want of entering an impar- 
 lance or incipitur, in every cause wherein imparlances ought to be entered, 
 shall be a sufficient cause for the defendant to have a further imparlance 
 of course. "(A';) A special imparlance, in that court, may be granted by 
 the p)rothonotaries, so as to enable the defendant to plead in abatement, 
 within the first /owr days of the next term after the delivery, or 
 [ *463 ] filing and notice *of declaration. (a) But a special imparlance, 
 saving all exceptions to the jurisdiction, cannot be entered with- 
 out leave of the court.[hh) 
 
 After a general imparlance, the defendant can only plead in har of the 
 action ;(cc) and cannot regularly plead to the jurisdiction of the court,(cc) 
 in abatement, [dd) or a tender and touts temps prist. It is then also too 
 late to claim conusance, [dd) or demand oyer of a deed,(ge) &c. After a 
 special imparlance, the defendant may plead in abatement,(^^) though not 
 to the jurisdiction of the court.(^_5r) And where the defendant pleaded a 
 
 (aa) Com. Dig. tit. Pleader, D. 1. 
 
 (6) 2 Mod. 62. 2 Show. 310. Barnes, 346. 2 Wms. Saund. 5 Ed. 1, e, (2). 
 
 (c) Hardr. 365. 1 Lutw. 46. 12 Mod. 529, S. C. Gilb. C. P. 183, 211. 4 Bac. Abr. 27, 
 8. 3 Blac. Com. 301. 
 
 {d) 6 Mod. 28. (e) Id. 8. 10 Mod. 127. Com. Dig. tit Pleader, D. 1. 
 
 (/) Append. Chap. XVIII. ? 1. 
 
 [g) For an account of the different kinds of imparlances, when and how granted, and what 
 may or may not be done after each of them, see 2 Wms. Saund. 5 Ed. 1, (2.) 1 Chit. PL 
 4 Ed. 375, &c. 2 Blac. Rep. 1094. 
 
 (h) R. E. 5 Ann. K. B. [i) 2 Chit. Rep. 214. 
 
 {k) R. T. 21 Car. II. reg. 2, C. P.; and see R. M. 1654, § 14, C. P. 
 
 (a) Pr. Reg. 1. Cas. Pr. C. P. 78. Barnes, 224, S. C. Id. 334. And for the note for an 
 imparlance, in C. P. see Append. Chap. XVIII. ^ 2. 
 
 (bb) 2 Blac. Rep. 1094. {cc) 4 Bac. Abr. 29. Gilb. C. P. 184. Steph. PL 436. 
 
 (dd) Post, Chap. XXVI. (ee) Post, Chap. XXIII. 
 
 Iff) 1 Lutw. 6. {gg) 2 Wms. Saund. 5 Ed. 1, e, (2).
 
 TIME FOR PLEADING, ETC. 463 
 
 misnomer in abatement, after an imparlance, thus : " And A. B. wlio was 
 arrested by the name of A. C. comes, kc," tlio court in one case held this 
 to be tantamount to a special imparlance :(////) This case, however, has 
 since been overruled, by a subse<iuent determination. (i/) And where a 
 bill was filed in vacation against an attorney, as of the preceding terra, 
 Avith a special memorandum of a subsequent day in vacation, stating the 
 cause of action to have accrued after the last day of term, and the 
 defendant pleaded a plea in abatement, entitled of the following term, 
 without a special imparlance ; the court of King's Bench held that this 
 was regular, and set aside a judgment signed as for want of a plea.f^A;) 
 After a general special imparlance, the defendant may not only plead in 
 abatement of the writ, bill or count, but also privilege,{l) which is a plea 
 to the person of the defendant, affecting the jurisdiction of the court. (w) 
 The defendant was not formerly allowed to plead a tender and touts temps 
 jjrist, after any kind of imparlance ;(?«) and the reason assigned was, that 
 by craving time, he admitted he was not ready, and so falsified his plea. 
 But it is now settled, that a plea of tender, being an issuable plea, may be 
 pleaded after imparlance,(o) as well as before ; though, for avoiding the 
 inconsistency above stated, it must always be entitled of the same term 
 with the declaration :(jj) and where it is pleaded after an imparlance, a 
 judge's order must be obtained in the King's Bench, or treasury rule in 
 the Common Pleas,(^7) for leave to plead it as of the preceding term. 
 
 If the defendant plead in abatement after a general imparlance, or to 
 the jurisdiction of the court after a special imparlance, the plaintiff may 
 sign judgment,(r) or apply to the court by motion to set aside 
 the plea ;{s) *or he may demur thereto,(i^) or allege the impar- [ *4G4 ] 
 lance in his replication, by way of estoppel :(b) but if the plaintiff, 
 instead of taking any of these advantages, reply to the special matter of 
 the plea, the fault is cured. (c) 
 
 In the King's Bench, the defendant was formerly allowed to imparl to 
 the term next after the return of the process, unless the proceedings were 
 by original^[d) upon a habeas corpus, for or against attorneys or other 
 privileged persons, or against j;»?'«so>t6'rs in custody of the marshal. (c) On 
 proceedings by original, if the action were laid in London or 3Iiddlesex, 
 and the defendant appeared before the last return of the term ; or if the 
 
 (hh) 1 Blac. Rep. 51. 1 Wils. 2G1, S. C. (») 4 Durnf. & East, 520. 
 
 {kk) 3 Darn. & Aid. 259. 1 Chit. Rep. 704, S. C. 
 
 (/) 1 Lev. 54. Hardr. 365. 1 Lutw. 46. 12 Mod. 529, S. C. Gilb. C. P. 185, 211. 
 
 (m) 5 Mod. 335. 
 
 (n) 4 Bac. Abr. 28. Gilb. C. P. 184. Sty. P. R. 405. 2 Lil. P. R. 37. 1 .Sid. 365. 2 
 Mod. 62. 2 Salk. 622. 1 Ld. Raym. 254. Garth. 413, 14, S. C. 1 Lutw. 238, 9. R. E. 
 5 Ann. (a). R. T. 5 & 6 Geo. II. (h), K. B. 
 
 (o) Dyer. 300. Freem. 134. 1 Wms. Saund. 5 Ed. 33, (2). 2 VTms. Saund. 5 Ed. 2, (2). 
 
 {p) 1 Bur. 50. 
 
 {q) Barnes, 343, 351, 355, 357, 359, 361 ; and see 1 H. Blac. 369. 
 
 (r) 4 Durnf. & East, 520 ; and see 7 Durnf. & East, 298, 447, {d) ; but see 3 Barn. & Aid. 
 259. 1 Chit. Rep. 704, S. C. 
 
 (s) 6 Durnf. & East, 373. 
 
 (o) Sty. P. R. 465. 3 Inf(. Chr. 40. Barnes, 334. 1 V'ils. 261. 1 Blac. Rep. 51, S. C. 
 Per Cur. E. 22 Geo. III. K. B. Green v. Simmester, H. 27 Geo. III. K. B. 6 Durnf. & East, 
 369. 2 Bos. & Pul. 384. 2 Maule & Sel. 484. 
 
 (6) 1 Lutw. 23. 3 In^t. Cler. 39. 
 
 (c) 1 Vent. 236 ; and sec 2 Wms. Saund. 5 Ed. 1, e. (2). 
 
 (d) Skin. 2 ; but see 8 Mod. 228. 
 
 (e) R. M. 5 Ann. reg. III. (a), K. B. Gilb. K. B. 310. Gilb. C. P. 43, 182. 4 Bac. 
 Abr. 27.
 
 464 OF IMPARLANCE, AND 
 
 action were laid in any other county, and the defendant appeared the frst 
 return of Hilary or Trinity term, or before the third return of Michael- 
 mas or Easter term, no imparlance was allowed, without consent or special 
 rule.(/) So, upon a habeas corpus, returnable in dlichaehnas or Easter 
 term, if the declaration were delivered before the third return, the defend- 
 ant was not entitled to an imparlance. (</) And where the proceedings were 
 for or against attorneys or other privileged persons, (7i) or ngsiinst prisoners 
 in custody of the marshal, (i) the defendant was bound to plead, without any 
 imparlance, the same term the declaration was delivered, if delivered /oitr 
 days exclusive before the end of the term. Afterwards, the time was nar- 
 rowed for pleading upon a latitat, &c. ; and it became a rule, that where the 
 cause of action was specially expressed in the process, the defendant 
 should not have liberty of imparling, without leave of the court ; but 
 should plead within the time allowed, by the course of the court, to 
 defendants sued by original \\Yh.{k) And at length it was determined, 
 that even upon a special capias by original, the defendant should not be 
 obliged to plead sooner than upon a common latitat.{l) 
 
 The former distinctions upon this subject being thus gradually abolished, 
 it is now settled, in the King's Bench, (m) that "in all cases when the de- 
 fendant has appeared and filed common bail, or put in and perfected spe- 
 cial bail, or the plaintiff has appeared and filed common bail for him 
 according to the statute, and the declaration is delivered, or filed and 
 notice thereof given, four days exclusive before the end of the term in 
 which the writ was returnable, if the venue be laid in London or Middle- 
 sex, and the defendant live within twenty miles of London, the declaration 
 should be delivered or filed absolutely, with notice to plead within 
 [ *465 ] four days ; *or in case the action be laid in any other county,(a) 
 or the defendant live above twenty miles from London, within 
 eight days e.vclusive{b) after the delivery or filing thereof; and the defend- 
 ant must plead accordingly, without any imparlance : or in default thereof, 
 the plaintiff may sign judgment." If the declaration be delivered or filed, 
 with notice to plead within the first four days of term, the defendant has 
 all the morning of the fifth day to plead ; and judgment cannot be signed 
 for want of a plea ; till the opening of the office in the afternoon of that 
 day :(c) but in any other part of the term, if the defendant do not plead 
 within the four days, the plaintiff may sign judgment in the morning of 
 the fifth day.(c) 
 
 When the defendant has not appeared, or filed bail, the rule in the King's 
 Bench, we have seen,(cZ) is that '' upon all process returnable before the last 
 return of any term, where no affidavit is made and filed of the cause of 
 action, the plaintiff may file or deliver the declaration de bene esse, at the 
 return of such process, with notice to plead in eight days exclusive{e) after 
 
 (/) R. M. 1654, § 15, K. B. 
 
 {g) 1 Mod. 1. 2 Salk. 515. 1 Wils. 154 ; and see 6 Durnf. & East, 752. 
 
 (A) 2 Salk. 517. 6 Mod. 175, R. E. 5 W. & M. reg. III. § 3, (a), K. B.; and see R. M. 5 
 Ann. reg. 3, {a), K. B. 
 
 {i) R. H. 2 Geo. II. reg. 1, K. B. ; and see 1 Dowl. & Ryl. 186. 
 
 {k) R. M. 5 Ann. reg. 3, K. B. (I) 1 Str. 684. 
 
 (m) R. T. 5 & 6 Geo. II. K. B. 
 
 (a) 1 Maule & Sel. 566. (6) R. T. 5 & 6 Geo. II. (a), K. B. 
 
 (c) Shephard v. Mackreth, E. 35 Geo. III. K. B. Lingard v. Peto, M. 48 Geo. III. K. B. 4 
 Dowl. & Ryl. 392, (6). 2 Barn. & Cres. 798. 4 Dowl. & Ryl. 391, S. C. 
 
 {d) Ante, 453. 
 
 (c) The days in this case are both exclusive: therefore, if notice of declaration be served 
 on the Utb, judgment cannot be signed till the 20th. Per Cur. M. 46 Geo. III. K. B.
 
 TIME FOR PLEADING, ETC. 465 
 
 tlie filinfif or dellverv thereof;" being the same time as is allowed for the 
 defendant to appear and file common bail :(/) and " if the defendant do not 
 file common bail, and plead within the said eiijltt days, the plaintiff, having 
 filed common hail for him, may si^'n judgment for want of a jilca."(//) But 
 if the declaration be not filed until aftir the return of the process, the de- 
 fendant has ('////</ days to plead from the time of filing it, wlienever it may 
 be.(/i) And " upon all such process, where an affidavit is made and filed of 
 the cause of action, the declaration may be filed or delivered de bene esse, 
 at the return of such process, with notice to plead in four days after tjie 
 filing or delivery, if the action be laid in London or Middleser, and the 
 defendant live within twenty miles of London, and in cinlit days, if tho 
 action be laid in any other county, or the defendant live above twentij miles 
 from London ;'\(i) being the same time as is allowed for pleading, when 
 the declaration is delivered or filed absolutely :{i) and "if the defendant 
 put in bail, and do not plead within such times as are respectively before- 
 mentioned, judgment may be signed. "(//) But in all the foregoing cases, 
 the declaration should be delivered, or filed and notice thereof given, /oj/r 
 days exclusive before the end of the term, a rule to plead duly entere<l, and 
 a plea demanded, when necessary. (A:) In bailable actions, however, the 
 defendant cannot regularly plead in bar, until the bail are perfected ; and 
 if he plead before, his plea may be considered as a nullity, 
 although the *bail afterwards justify. fa) And where the plain- [ *4G0 ] 
 tiff declared de bene esse, and the defendant pleaded in abate- 
 ment before he had put in special bail, and the plaintiff, treating his plea 
 as a nullity, signed interlocutory judgment, the court held it to be 
 regular.(6) 
 
 In the Common Pleas, it is a rule, that "upon all process returnable the 
 first, second or third return of any term, (since extended to process return- 
 able the fourth return of JEaster term, (c) if the plaintiff declare in London 
 or 3Iiddlese.r, and the defendant live within tiventy miles of London, the 
 defendant shall plead within /our days after such declaration delivered, with 
 notice to plead accordingly, without any imparlance, provided the declara- 
 tion be delivered four days before the end of the term ; and in case the 
 plaintiff declare in any other county, or the defendant live above twenty 
 miles from London, the defendant shall plead within eiyitt days after the 
 declaration delivered, with notice to plead accordingly, without any impar- 
 lance. (tZ) This rule applies to declarations filed or delivered dc bene 
 e8se,{d) as well as to such as are delivered absolutely ; and was e.xtended, 
 by a subsequent rule,(c) to process returnable the last return of any term ; 
 providetl the declaration be filed or delivered on the day of such return, or 
 on the day next after such return, in case the same shall not happen on a 
 Sunday, in which case the plaintiff shall have the whole of the day follow- 
 
 (/) Ante, 240. 
 
 (g) R. T. 22 Geo. III. K. B.; and see former rule of M. 10 Geo. II. rcj. 2 K. B. Ante, 453. 
 
 (A) I Bur. 56. JJelatre .j- Manyo, .M. 20 Geo. III. K. B. 
 
 (t) Ante, 464,5. 
 
 (ff) R. T. 22 Geo. III. K. B. ; and see former rule of M. 10 Geo. II. ref/. 2. K B. Ante, 453. 
 
 (it) R. T. 5 & 6 (;eo. II. (/>). R. ,M. 10 Geo. IF. rej. 2. R. T. 22 Geo. III. K. B. 
 
 (a) 4 Durnf. k Rust, 578. 2 Dowl. & Ryl. 252 ; but see 2 East, 406. 11 East, 411. 
 
 (h) 2 Dowl. & Rvl. 252. 
 
 (c) R. H. 35 Geo. III. C. P. 2 II. Blac. ocr i-rf. 551. 7 Taunt. 71, (a). 2 Marsh. 337, (a). 
 2 Chit. Rep. 381. .'1«/^ 453. 
 
 (rf) R. T. 8 Geo. III. C. P. 2 Wils. 381. 1 Sel. Pr. 2 Ed. 292, 3; and see former rules of 
 H. 9 Ann. reg. 2, M. & E. 3 Geo. II. C. P. Ante, 453.
 
 466 OP IxMPARLANCE, AND 
 
 ing, to file or deliver such declaration as aforesaid. If the declaration be 
 filed de bene esse, on the essoin day of the return of the writ, the defendant 
 is entitled, in the Common Pleas, to eigJit days time to plead; and the 
 defendant must plead in that time, although by the rules of the ofiice, no 
 person is allowed to search for a declaration, till the first day in full 
 term.(e) But if the declaration be filed after the essoin day, and on or 
 before the appearance day, the defendant is entitled only to four days, to 
 be computed from the appearance day ; or if it be filed after the appearance 
 day, then to four days from the time of delivery :(/) And the days are 
 reckoned inclusively/ in that court ; so that if a declaration be filed or 
 delivered on the first, with notice to plead in four days, the plaintiff is 
 entitled to sign judgment for want of a plea, on the opening of the office 
 in the afternoon of the fifth day. 
 
 When the process, in the King's Bench, is returnable the last return of 
 the term •,(g(/) or, in the Common Pleas, when it is returnable on that return, 
 and the declaration is not filed or delivered on the return day, or on the 
 day following ;((?) or where the process, in either court, is returnable be- 
 fore, but the declaration is not delivered, or filed and notice thereof given, 
 four days exclusive before the end of the term,{h) the defendant, if com- 
 pletely in court, is entitled to an imparlance ; and must plead 
 [ *467 ] within *the first four days of the next term ; provided the 
 declaration be delivered, or filed and notice thereof given, 
 before the essoin day of that term : otherwise the defendant will be 
 allowed to imparl to the subsequent term. (a) But if the declaration be 
 delivered before such essoin day, though without a notice to plead, and 
 the defendant appear and accept the declaration, he shall not have an 
 imparlance to the subsequent term ; the notice to plead not being neces- 
 sary in such case, as it would be, where a declaration is filed de bene 
 esse.{b) And if a writ be returnable the last day of one term, and the 
 defendant do not justify bail until the fourth day of the next, he is not 
 entitled to an imparlance to the third term ; the foundation of which is, 
 that no laches can be imputed to the plaintiff, for not declaring until the 
 defendant is perfectly in court :{cc) And, for the like reason, if a writ be 
 taken out against two defendants, and one of them is arrested, or served 
 with a copy of it, in the term in which is returnable, but the other can- 
 not be met with, so that it becomes necessary to take out another writ 
 against him, returnable in the next term ; as the plaintiff cannot declare 
 till both defendants are in court,(c?) they are neither of them entitled to 
 an imparlance, on account of the plaintiff's not declaring until the term 
 in which the latter defendant is arrested, or served with process,((i) or 
 until he is outlawed. (ee) So, the defendant is not entitled to an impar- 
 lance, where the delay in declaring is occasioned by himself; as by his 
 unecessarily obtaining an order for particulars, with a stay of proceed- 
 
 (e) 1 Taunt. 22. (/) 2 Blac. Rep. 1243. 
 
 Iffff) R. T. 5 & 6 Geo. II. (6). R. M. 10 Geo. II. reff. 2. R. T. 22 Geo. III. K. B. 
 
 (c) R. H. 35 Geo. III. C. P. 2 H. Blue. oct. ed. 551. 7 Taunt. 71, la). 2 Marsh. 337, (a). 2 
 Chit. Rep. 381. Ante, 453. 
 
 (A) R. T. 5 & 6 Geo. II. (6),K. B. 
 (a) Vidian's Inirod. II. 2 Wms. Saund. 5 Ed. 1, e, (2). 
 (6) Per Cur. M. 21 Geo. III. K. B. Fo.H, 473. 
 
 (cc) 5 Duruf. & East, 372. 2 Bos. & Pul. 126. 6 Taunt. 261. 1 Marsh. 587, S. C. : and see 
 9 Dowl. & Ryl. 18. 
 
 (d) Ante, 420, 446, 7 ; and see 1 Chit. Rep. 359, (a), 
 (ee) Slack v. Ilurd, T. 31 Geo. III. K. B.
 
 TIME FOR PLEADING, ETC. 4G7 
 
 ings until they have been dclivored.f/) So, ulicn a defendant removes 
 the cause by hahcas corpus I'roin an inferior court, and the plaintiflf docs 
 not declare until the next term, the defendant is not entitled to an impar- 
 lance ; for such removals beinf^ in general considered as dilatory, it would 
 only be adding to the delay, if an imparlance were granted. (^) And it 
 is not usual for the court, or a judge, in any case to grant a rule for an 
 imparlance ; but when the defendant is entitled thereto, he takes it as a 
 matter of course. (////) 
 
 In the Exchequer it is a rule,('') that "upon all process to be issued out 
 of that court, returnable the first or second return, or on any day before 
 the second return of any term, (or, according to the present practice, if 
 returnable on any day before the four last days of the term,)(/r) where 
 the defendant shall, at the return thereof, enter an appearance or file spe- 
 cial bail, (as the case may rcfjuire,) if the plaintiff declare in London or 
 Middleser, and the defendant live within trventy miles of Lon- 
 don, he shall *plead to the said declaration within four days [ *4G8 ] 
 after the delivery thereof, without any imparlance ; and in case 
 the plaintiff declare in any other county, or the defendant live above 
 tiventy miles from Jjondon^ then he shall plead within euilit days after the 
 delivery thereof, without any imparlance: or in default thereof, the plain- 
 tiff" may sign judgment, a rule to plead being duly given, unless the court, 
 or one of the barons, shall think proper, on the special circumstances of 
 the case, to grant an imparlance: but no defendant shall be compelled to 
 plead, by virtue of this rule, unless the declaration be delivered /oh?* days 
 before the end of the term in which the writ is returnable, with notice 
 thereon indorsed of the time wherein such defendant is to plead." The 
 time for pleading, on a declaration filed or delivered de bene esse, before 
 tiie defendant's appearance, has been already stated :(a) And it is a 
 rule,(Z') that " where any declaration shall be delivered to the defendant's 
 attorney or clerk in court, or notice of a declaration shall be delivered to 
 any defendant according to the statute, before the essoin day of any 
 term, and the defendant shall imparl until the next term, he shall plead 
 to the said declaration, within the first /o?o' days of such next term, a 
 rule to plead being duly given ; and in default thereof, the plaintifi" shall 
 be at liberty to sign judgment." 
 
 If four terms have elapsed since the delivery of the declaration, the 
 defendant shall have a whole term's notice of the rule to plead, (t") before 
 judgment can be entered against him,((?) unless the cause have been stayed 
 by injunction,{c) or privilege ; which notice must be given before the 
 essoin day of the term :{ff) And where a general notice is given, of the 
 plaintiff's intention to proceed in the cause, it docs not extend beyond the 
 term ; therefore a rule to plead may be entered, and judgment signed, in 
 the vacation. (^^) This rule was established, for the purpose of preventing 
 
 (/) 2 IJarn. & Aid. 390. 1 Cliit. Rep. 230, S. C. 
 Iff) 6 Durnf. & Kast, 752 ; but sec 2 Bos. Sc Pul. 137. Ante, 413. 
 (/i/() Phillips V. llardiitge, T. 24 Geo. III. K. B. Boyd v, Gordon, II. 30 Geo. III. K. B. 
 (j) II. M. 5 Geo. III. in Scnc. Man. E.x. Append. 218 ; and see K. T. 26 & 27 Geo. II. I G, 9, 
 and R. T. 26 Geo. III. in Scac. Id. 212, 13 ; 221,2. 
 
 (k) Man. E.x. Pr. 200, (t). {a) Ante, 454. 
 
 (b) R. H. 16 Geo. III. in Scac. Man. E.x. Append. 220 ; and see former rule of T. 26 & 27 
 Geo. II. g 8, in Scac. Id. 213. 
 
 (c) Append. Chap. XVIII. ^ 7. (d) R. T. 5 & G Geo. II. {/>), K. B. 
 (e) Id. ibid. 2 Bur. 660. Doug. 71. 2 Blac. Rep. 784. 
 
 (/) 2 Str. 1164. 1 Str. 211, coJilra. (y^/) 2 Durnf. k East, 40.
 
 4(38 OF IMPARLANCE, AND 
 
 any surprise on the defendant, after the phaintiff has lain by four terms, 
 ■without proceeding in his action ; and therefore it does not apply, where 
 the proceedings have been delayed at the defendant's request.(/t) 
 
 It remains to be observed, within what time the defendant must plead 
 after changing the venue, demanding 07/er, giving a bill o? pa7'ticulars, or 
 amending the declaration. After changing the venue, the defendant must 
 plead to the new action, as lie should have done in the other, without de- 
 lay. (^) After the delivery of oi/er, the defendant shall have the same time 
 in terra to plead, or as many pleading days, as he had when he demanded 
 it:(/c) And formerly, if oj/er had been demanded in the Common Pleas, 
 after the rule to plead was out, the plaintiff was not bound to give it ; though 
 if he did, he could not have signed judgment for want of a plea, 
 [ *-469 ] *till the next forenoon :{aa) but now, as will be seen hereafter, the 
 demand of oT/ermnj be made in that court, as well as in the King's 
 Bench, at any period before the time for pleading is expired. (55) In the 
 latter court, a defendant has the same time to plead, after the delivery of a 
 bill of particulars, as he had when the summons for it was returnable :{c) 
 And where a summons for better particulars of the plaintiff's demand was 
 obtained by the defendant, /owr days before the time for pleading expired, 
 but the plaintiff's attorney did not attend till the third summons, and the 
 order being then refused, and the time originally allowed for pleading 
 having expired, signed judgment for want of a plea : the court held, that 
 as the delay was occasioned by the plaintiff's attorney, the judgment was 
 signed too soon, and was therefore irregular. (J) In the Common Pleas, 
 the plaintiff cannot sign judgment for want of a plea, till the expiration of 
 twenty-four hours after the delivery of a bill of particulars : though the 
 time for pleading be expired, and a demand of plea given, more than 
 twenty-four hours before that time.(e) And in that court, after the time 
 for pleading has expired, but before judgment signed against the defend- 
 ant, if the court on his application stay proceedings, till the plaintiff give 
 security for costs, to be approved by the prothonotary, the plaintiff, though 
 he give security instanter, which is accepted by the defendant, is not at 
 liberty to sign judgment, before the opening of the office on the next 
 morning.(/) In the King's Bench, if the plaintiff amend his declaration 
 the same term, the defendant shall have two days, exclusive of the day of 
 amendment, to alter his first plea, or plead de novo ;{g) but if the amend- 
 ment be made in a subsequent term, the defendant is entitled to a new 
 four day rule to plead ;(A/i) though a demand of plea is unnecessary. (w) 
 And where the plaintiff gave notice of trial for the assizes, and afterwards 
 countermanded, and then applied for an order to amend his declaration, 
 
 (A) 3 Durnf. & East, 530 ; and see 2 Blac. Rep. V62. 
 {i) R. M. 1654, g 5, K. B. R. M. 1654, § 8, C. P. 
 
 {k) R. T. 5 & 6 Geo. II. (6), K. B. 1 Str. 705. Prac. Reg. 28, 300, 301. Barnes, 238, 254. 
 Cas. Pr. C. P. 72, 81, 143, S. C. 8 Durnf. & East, 356, 7. 
 
 {aa) Pr. Reg. 300. Cas. Pr. C. P. 72, S. C. ; and see id. 73, 96. Pr. Reg. 278. Barnes, 329, S. C. 
 [hb) Barnes, 268, 326, 7. 2 Wils. 413. 2 Bos. & Pul. 379. Post, Chap. XXIII. 
 
 (c) 13 East, 508 ; and see 4 Barn. & Cres. 970. 7 Dowl. & Ryl. 458, S. C. 
 
 (d) 5 Barn. & Cres. 769. 8 Dowl. & Ryl. 607, S. C. ; and see 4 Barn. & Ores. 970. 7 Dowl. 
 & Ryl. 458, S. C. Ante, 301. 
 
 (e) New Rep. C. P. 361 ; but see 2 Bos. & Pul. 303, scmb. contra; and see 2 Moore, 6 . 8 
 Taunt. 592, S. C. 
 
 (/) 3 Bos. & Pul. 319. 
 
 [0) 1 Sir. 705 ; and see R. M. 10 Geo. II. ng. 2, (J), K. B. 
 
 (M) 8 Durnf. & East, 87. {il) 3 Barn. & Aid. 137.
 
 TIME FOR PLEADING, ETC. 469 
 
 ■which order was obtained on tlie terms of the defendant's having an 
 iraparhinco until the next term, the court of King's Bench refused to 
 rescind so much of the order as related to the imparlance. (^) In the 
 Common Pleas, it seems that a new four-day rule to plead is in all casc3 
 necessary to be given by the plaintiff, on amending his declaration. (/) 
 
 If the defendant be not prepared to plead, by the expiration of the time 
 allowed him for that purpose, his attorney or agent should take out a 
 suynmons, and obtain an order, for time ;(w) which may be repeated, if 
 necessary: And in trover for goods, where the defence was, that 
 they had 'been sold by the plaintiff', the court of King's Ilench [ *470 ] 
 gave the defendant time to plead, in order that he might obtain 
 a discovery from the court of Chancery.(flr) So where the plaintiff, being 
 indicted for felony, sued a banker for money he had paid him, which was 
 surmised to be the produce of the felony, the court of Common Pleas, on 
 application, gave the defendant time to plead in a month after the trial 
 of the indictment. (^>) The summons should be regularl}'' served on the 
 plaintiff's attorney or agent :(t') and when taken out, and made returnable 
 before the expiration of the time for pleading, it is a stay of proceedings, 
 pending the application ;((?) but it is otherwise when taken out, or made 
 returnable, after the expiration of the time for pleading. ((/) In the latter 
 case, the plaintiff is at liberty to sign judgment, before the summons is 
 returnable :((^) but if he neglect to do so, he cannot afterwards sign judg- 
 ment :(/) it being a rule, that if the summons be returnable before 
 judgment is signed, it prevents the plaintiff from afterwards signing it.(^) 
 When the object of the summons is collateral to the time for pleading, (A) 
 as to discharge the defendant out of custody, on filing common bail, kc, 
 it will not in general operate as a stay of proceedings. 
 
 The plaintiff's attorney or agent, on being served with the summons, 
 either indorses his consent to an order being made upon it, attends the 
 judge or makes default. In the latter case, the defendant's attorney or 
 agent, after waiting half an hour,(/) should take out a second summons, 
 and after that a third, (if necessary,) which should be respectively served 
 and attended as tlie first; and if default be made upon three summonses, 
 the judge, on affidavit thereof,( /c/r) will make an order ex jjarte : but if any 
 one of the summonses be attended, the judge will make an order upon, 
 or discharge it, as he sees cause. The time allowed, in the King's Bench, 
 is reckoned- exclusive of the day of the date of the order. (//) In the 
 Common Pleas, it is said to be inclusive of the date of the order, but 
 
 [k] 1 Chit. Rep. 24G. (/) 2 Blac. Rep. 785. 
 
 (m) Append. Chap. XVIH. ? 12, 13. 
 
 (a) 2 Durnf. & East, 683. Nutt, administratrix v. Wright, baronet, E. & T. 25 Geo. III. K. B. 
 
 \b) 4 Tiuint. 825. (c) Ante, 72, !tG, 7. 
 
 {(l) Say. Rep. 1G5. Per Cur. M. 22 Geo. III. 1 Chit. Rep. GS9, K. B. Barnes, 2 Jo, 252. 
 Gas. Pr. C. P. 137. Pr. Reg. 202, S. C. Barnes, 255. Ca?. Pr. ('. P. 114, S. ('. Barnes, 254. 
 Cas. Pr. C. P. 142. Pr. Reg. 2^3, S. C. Barnes, 273. 2 Blac. Rep. 954. 2 New Rep. C. P. 
 1G9. G Taunt. 240. 
 
 (c) 2 Blac. Rep. 954; and see 1 Chit. Rep. 97. 2 Barn. & Aid. 356, S. C. 1 Chit. Rep. 689. 
 
 (/) 2 Barn, k Aid. 355. 1 Chit. Rep. 93, S. C. 
 
 {g) 1 Chit. Rep. 96, 7, per Iia)/ln/, J. 6 Taunt. 240, acco'd. 
 
 [h) Per Cur. M. 28 Geo. III. K. li. 
 
 \i) R. T. 35 Geo. III. K. B. 6 Durnf. & East, 402. R. E. 23 Geo. III. V. P. Imp. C. P. 7 
 El. 233, 67G. 
 
 [kk] Append. Chap. XVIII. \ 14, 15. 
 
 {II) Bv the .Master, [Le Blanc), on a reference from the court, on the last dav of Trinity 
 term, 1827.
 
 470 0^ IMPARLANCE, AND 
 
 exclusive of tlic Jay -when it expires ;(m) and therefore where an order for 
 a week was dated the IGth of May, judgment signed for want of a plea on 
 the 23d, was hohlen to be regular :(m) and, in the latter court, it seems 
 that when the time to plead is not expired at the time of making the 
 order, the time allowed is to be reckoned from the expiration of 
 [ *471 ] the time to plead, and *not from the date of the order, or what 
 is done under it.(a) If there be an order for a month's time to 
 plead, it is understood to mean a lunar, and not a calendar month. (^) 
 The order of a judge for time, or further time to plead, and all other 
 orders, whether by consent or otherwise, should be regularly drawn 
 up and served : it being a rule, in the King's Bench, (c) that " no sum- 
 mons for further time to plead, reply or rejoin, or summons for further 
 particulars of the plaintiff's demand, defendant's set-off, or other parti- 
 cular, be granted in any action depending in that court, unless the last 
 previous order for time, further time, or particulars respectively, be first 
 drawn up, and such order produced at the time of applying for any sucli 
 summons." And, in the Common Pleas, a consent indorsed on a judge's 
 summons is not binding on either party, unless the order be drawn up and 
 served pursuant thereto. (cZc?) In that court also, if a summons be taken out 
 for time to plead, and the defendant's attorney do not attend, the plaintiff 
 must get the summons discharged, before he can sign judgment ;(e) but it 
 is said to be otherwise in the King's Bench. (/) 
 
 When an order is obtained for time to plead, it is either upon, or with- 
 out terms. The usual terms, when the plaintiff is in time to try his cause, 
 are pleading issuable/, rejoining gratis, and taking short notice of trial, or 
 inquiry ; but if he be not in time, then the terms are pleading issuably 
 only : and when the defendant is an executor or administrator, he must 
 undertake not to plead any judgment confessed by him, since his time for 
 pleading was out(^) for otherwise he might confess judgments in the mean 
 time, and plead them in bar to the plaintiff 's demand. . An issuable plea 
 is a plea in chief to the merits ;{h) upon which the plaintiff may take issue, 
 and go to trial :(/) Therefore a plea in abatement is not an issuable plea:(A;) 
 nor a false plea of judgment recovered ;(Z) nor a plea of alien Qi\emj,[m77i) or 
 other plea, which does not goto the merits.{nn) But a plea of tender has 
 been deemed an issuable plea;(o) and also a plea of the statute of limita- 
 tions,(2^) or, in the King's Bench, that a bail bond was taken for ease and 
 
 (m) 2 H. Blac. 35. 
 
 {n) Head v. iMo7it(jomery, E, 26 Geo. III. C. P., cited by Goidd, J., in 2 H. BLac. 35. 
 
 [a) 2 Moore, G55. 8 Taunt. 592, S. C. 
 
 [b) 3 Bur. 1455. 1 Blac. Rep. 450, S. C. ; and see 2 H. Blac. 35. 1 Bos. & Pul. 479. 
 
 [c) R. H. 59 Geo. III. K.B. ; and see 7 East, 542. 1 Chit. Rep. 647, [a). 
 
 (dd) 4 Taunt. 253. (e) Barnes, 240, 255. Gas. Pr. C. P. 144, S. C. 
 
 (/) Imp. C. P. 7 Ed. 233. 
 
 Iff) 8 Mod. 308 ; and see 1 Bulst. 122, 3. Kinff v. Goodall, E. 31 Geo. III. C. P. Imp. C.P. 
 233. 1 Maule & Sel. 405, 407. 5 Taunt. 333, GG5, 671. 1 Marsh. 70, 280, S. C. 
 
 (h) 7 Durnf. & East, 530. Barnes, 263. 
 
 (i) 2 Bur. 782. 2 Ken. 483, S. C. Barnes, 263. 1 Chit. PI. 4 Ed. 449, 50. 
 
 [k) 1 Bur. 59. Barnes, 263. 
 
 (1) 1 Blac. Rep. 376. 2 Wils. 117. 3 Wills. 33. 1 Moore, 431. 
 
 {mm) 8 Durnf. & East, 71. 
 
 (nn) Valley v. Gardiner, H. 24 Geo. III. K. B. Gillet v. Ridley, E. 29 Geo. III. C. P. 
 
 (o) 1 Bur. 59. Barnes, 263. 1 H. Blac. 369. 
 
 Ip) 3 Durnf. & East, 124. Drinkwat.er v. Claridge, H. 27 Geo. III. C. P. Imp. C. P. 7 Ed. 
 253. 1 Bos. & Pul. 228; but see 1 Blac. Rep. 35. 2 Wils. 253. Stafford \. Eon-niree, E. 24 
 Geo. III. K. B. Bmso?i v. Kiny, H. 25 Geo. III. K. B. 2 Durnf. & East, 390, contra.
 
 OF NOTICE TO PLEAD. 47I 
 
 favour. (y) So where the defendant, in an action on a recognizance of 
 bail, under a judge's order to plead issuably, pleaded nul tid 
 record, and that no ca. sa. *\va9 sued out against the principal, [ *472 ] 
 the court of Common Pleas held, that such pleas might be con- 
 sidered as issuable, and that the plaintiff could not sign judgment as for 
 want of a plea.(rt) As to donurrcrs, there is a distinction between a real 
 and fair demurrer, and a demurrer without good cause :(/') The former is 
 an issuable plea, within the meaning of a judge's order ;(f) the latter is not, 
 but only an evasion of it.((^) In the King's Bench, the defendant, when 
 under terms of pleading issuably, cannot demur special)}' to the replica- 
 tion ; and if he do, the plaintiff may sign judgment, as for want of a plea. 
 5 Dowl. k Ryl, 020, ]}ut, in the Common Tleas, the condition of plead- 
 ing issuably applies only to the stage of the proceedings in which it is im- 
 posed, and does not affect subsequent proceedings : Therefore, where a 
 defendant, being under terms of pleading issuably, put in an issuable plea, 
 to which the plaintiff replied, and gave notice of trial, and the defendant 
 demurred specially to the replication, whereupon the plaintiff signeil judg- 
 ment; the court of Common Pleas held that the judgment was irregular, 
 4 Bing. 2G7. And a defendant, when under terms of pleading issuably, 
 cannot assign special causes of demurrer, even though the causes assigned 
 be matter of substance. (e) But where the plaintiff declared in trespass for 
 breaking and entering his close, &c. and seizing and taking his gooils and 
 chattels, to wit, 100 articles of furniture, and 100 articles of wearing ap- 
 parel, without describing their nature or quality ; and the defendant, beini' 
 under a judge's order to plead issuably, demurred generally to the whole 
 declaration, and the plaintiff signed judgment as for want of a plea; tho 
 court of Common Pleas ordered it to be set aside with costs, as the demur- 
 rer went to the substance of the declaration, the goods taken having been 
 insufficiently described therein. (/) And where the defendant was arlvised 
 that he had substantial ground of demurrer, the court of King's Bench set 
 aside the judgment, signed as for want of a plea, upon terms.(_(7) By re- 
 joining gratis is meant, rejoining without the common four-day rule to 
 rejoin :(/t) And, in the Common Pleas, the plaintiff having tendered an 
 issue to a plea, and demanded a rejoinder, when the defendant was under 
 terms to rejoin gratis, and for want of a rejoinder signed judgment, the 
 court held the judgment regular; but set it aside without costs, because 
 the plaintiff might have added the similiter hiraself.(i) Short notice of a 
 trial in country causes must, in the King's Bench, be given at least four 
 days before the commission day, one day exclusive, and tho other inclu- 
 sive :{Jc) But, in the Common Pleas, two days' notice seems to be sufficient 
 in country causes ;{l) as it is also in town causes, in both courts ; though 
 it is usual to give as much more as the time will admit of. The defendant 
 
 {q) 1 Bur. 605. 
 
 (a) 1 .Moore, 430. (6) 3 Rur. 1788. 9. 1 Chit. Rep. 711. 
 
 (c) 2 Str. 1185. Barnes, 168. 2 Blac. Rep. 923. 3 Wils. 530, S. C. I Chit. Rep. 711. 7 
 Price, 670. 
 
 (./) Siiy. Rep. 80. 7 Durnf. k East, 530. 1 East, 411. Barnes, 271. 2 Blac. Rep. 923, 2 
 Bos. & I'ul.44G. White \. Benson, Yi.bbGQo. III. K. B. 1 Chit. Rep. 711, 12, (a). 
 
 (e) 1 Bing. 379. 8 Moore, 427, S. C. 5 Dowl, & Ryl. 620, accord. 
 
 (/) 8 Moore, 379. 
 
 {(J) 7 Durnf. k East, 530. 1 E.ist, 414, (a), S. C. (A) Barnes, 271. 
 
 ((•) 3 Bo3. & Pul. 443. 
 
 [k) R. E. 30 Geo. III. K. B. 3 Durnf. k East, 660. 
 
 (/) Pr. Reg. 390. Barnes, 301. 
 
 Vol. I.— oO
 
 472 OF IMPARLANCE, AND OF NOTICE TO PLEAD. 
 
 however is not precluded by these terms, from demurring to the replica- 
 tion, if there be good cause. (m) 
 
 When the defendant is under a judge's order for time to plead, on the 
 terms of pleading issuably, and pleads a false plea of judgment reco- 
 vered,(w) or other plea which is not issuable, the plaintiff may consider it 
 as a mere nullity, and sign judgment :(o) and where several pleas 
 [ *47o ] are pleaded, one *of which is not issuable, it will vitiate all 
 others. (a) So, where a defendant, when under an order to plead 
 issuably, puts in a sham demurrer to some of the counts in the declaration, 
 and pleads issuably to the rest, the plaintiflF may consider the whole as a 
 nullity, and sign judgment as for want of a plea.(6) But where it is 
 doubtful whether the plea be issuable, the better way, in term time, is to 
 move the court to set it aside. (c) 
 
 Before the plaintifl", hoAvevcr, can sign judgment, the defendant must 
 have notice to plead; and, unless he be bound by rule of court, or order 
 of a judge, to plead by a time therein limited, a rule to plead must be en- 
 tered in all cases, whether the defendant have appeared or not; and when 
 he has appeared, there must also in general be a demand of plea. 
 
 When the declaration is delivered absolutely, after appearance, a notice 
 to plead must be given ;{d) which is usually indorsed on the declaration, 
 otherwise the defendant need not plead thereto, within the regular time; 
 but if the defendant take an imparlance, for want of such notice, then he 
 must plead at the time allowed him by such imparlance. (c) And if the de- 
 claration be delivered before the essoin day of the term next after the 
 return of the writ, though without a notice to plead, the defendant, we 
 have seen,(/) if he appear and accept the declaration, shall not have an 
 imparlance to the subsequent term. A notice to plead seems also to be 
 necessary, when the declaration is filed or delivered do bene esse, or con- 
 ditionally, (^) though this was formerly doubted in the Common Pleas. (/t) 
 But it is not necessary that the notice to plead should be indorsed on, or 
 given at the time of delivering the declaration : Therefore, where the 
 declaration in the King's Bench was filed on the last day of the second 
 term after the return of the w^rit, but the notice to plead was only given 
 a little before the essoin day of the following term, the court held it to 
 be well enough, the master certifying it to be the practice. (i) And where 
 the plaintifl" having declared in his own right, afterwards declared as exe- 
 cutor, without indorsing the declaration " bi/ the bye" when delivered, but 
 the defendant's attorney was told it was by the bye, the court of King's 
 Bench, we have seen, (A:) on the opinion of the master, held it to be regu- 
 lar. In the Common Pleas, where a declaration Avas delivered without a 
 notice to plead, and some time afterwards a notice in writing was given 
 to the defendant, Avho lived ohowe forty miles from London, to plead in 
 
 {m) R. T. 5 & 6 Geo. IL (6), K. B. 2 Str. 1185. 
 
 In) 1 Blac. Rep. 37t;. 2 Wils. 117. 3 Wils. 33. 1 Moore, 431 ; and see 2 Chit. Rep. 292. 
 (o) 1 Bur. 59. Valley v. Gardiner, H. 24 Geo. IK. K. B. Barnes, 263. 3 Bos. & Pul. 395, C. P. 
 (a) 3 Durnf. & East, 305. (b) 1 East, 411 ; and see Barnes, 314. 
 
 (c) 1 Bur. 59. 2 Blac. Rep. 724. 2 Durnf. & East, 390. 7 Durnf. & East, 530. 1 Bos. & PuL 
 447. 3 Bos. & Pul. 395. 7 East, 383. 4 Taunt. 668. 1 Chit. Rep. 355, («). 
 
 (d) R. T. 5 & 6 Geo. II. K. B. R. E. 3 Geo. II. C. P.; and see Append. Chap. XVIII. | 3. 
 
 (e) Per Our. E. 24 Geo. III. K. B. (/) Ante, 467. 
 
 Iff) R. M. 10 Geo. II. reff. 2, K. B. R. E. 3 Geo. IL C. P. Barnes, 257, 302. 2 New Rep. C. P. 
 223. Append. Chap.XVIIL | 5, 6. 
 
 (h) Barnes, 226, 7, 310. 1 Sel. Pr. 2 Ed. 230. 
 
 (i) 3 Bur. 1452. (A) Ante, 425.
 
 OF THE RULE TO PLEAD, 473 
 
 eiglit days, this was held to be a good declaration and notice, although 
 the notice was not given at the time of the delivery of, or writ- 
 ten on the back of the *dccluration.(a) And in the latter court [ *474 ] 
 it has been holdon, that if a declaration be indorsed to plead in 
 
 " ," it must be understood to mean within the number of days 
 
 allowed by the rules of the court. (A) 
 
 The rule to plead is the order of the court ;(c) and may be entered, on 
 a, 2)rncipe, with the clerk of the rules in the King's Bench, or secondaries 
 in the Common Pleas, at any time after the delivery, or filing and notice 
 of the declaration in term time ; or if the declaration be delivered, or 
 fded and notice given, /owr days exclusive before the end of the term, the 
 rule to plead may be entered at any time during the first four days after 
 term. If the defendant obtain a judge's order for time to plead, either 
 in the same or till tlic next term, the plaintiff when the time is expired, 
 may sign judgment for want of a plea, without giving a rule to plead •,{d) 
 or, if a rule has been already given, without giving a new rule.(e) But, 
 in the Common Pleas, a summons for further time to plead, not attended 
 by the party taking it out, does not waive the necessity of a rule to 
 plead. (/) The clerk of the rules, or secondaries, will accept a rule to 
 plead on the essoin day ; but such rule cannot be entered until the first 
 day of term :{g) and Sunday is a day within this rule, unless it be the 
 last. (A) 
 
 Anciently there were two rules given in the King's Bench, of /our 
 days each ; the first ad respondendum^ the second aH respondendum 
 pere7nptorie.{{) These were afterwards converted into one ei(/ht day 
 rule:(2) but now, four days only are allowed the defendant, in either 
 court, from the time of giving any rule to plead :(k) which four days 
 expire before, with, or after the time for pleading. If they expire be- 
 fore, the plaintiff" must wait till the expiration of the time for pleading, 
 before he can sign judgment for want of a plea : but if they expire with 
 or after that time, the plaintiff, in the King's Bench, is at liberty to sign 
 his judgment, the day after the rule for pleading is out : the declaration 
 having been regularly delivered or filed, and the defendant or his agent 
 being called upon for a plea.(Z) In the Common Pleas, judgment cannot 
 be signed for want of a plea, till the opening of the office in the after- 
 noon of the next day after the rule to plead, (wj) or day given by a judge's 
 order for time to plead,(w) has expired. But if a rule to plead expire on 
 a, dies non juridicus, as on the Purification, kc. the defendant is bound 
 to plead on or before that day; and if he do not, judgment may 
 be signed on the next day.(o) In the Exchequer, the *rule to [ *47o ] 
 plead is said to be a, four day rule, inclusive ; and judgment may 
 be signed, for want of a plea, on the day after it expires. (aa) 
 
 {a) 2 Wils. 137. (i) 2 Bos. & PuLSCS. 
 
 (0) Append. Chnp. XVIIL g 8. 
 
 {d) R. T. 5 & 6 Geo. II. (i), K. B. Starhk v. Wilkes, M. 1 Geo. IF. K. B. 1 Cromp. 3 Ed. 
 162. 4 Barn. & Ores. 386. 6 DowL & Ryl. 390, S. C. Barnes, 243. Gas. Pr. C. P. 07, 141. Pr. 
 Reg. 290, 91, S. C. 1 II. Blac. 88. 7 Taunt. 587. 1 Moore, 320, S. C. ; and see 4 East, 571. 1 
 Taunt. 538. 2 Moore, 220. 
 
 {e) 7 Taunt. 587. 1 Moore, 320, S. C. 
 
 (/) 3 Bos. & Pul. 180. (g) Cas. Pr. C. P. 08. 
 
 \h) 2 Salk. 624. 1 8tr. 86. Rohcrtx r. Quickendu>i,},l. 50 Goo. III. K. B. 11 East, 272, (6). 
 
 (i) Vidian's Introd. II. 2 S.ilk. 517. (A) R. T. 1 Geo. II. K. B. 2 Str. 1192. 
 
 (1) N. H. 2 Geo. II. 3, K. B. (m) Cas. Pr. C. P. 55. 
 
 {n) Id. 67. Pr. Reg. 287, S. C. (o) 2 U. Blac. 616. (aa) 2 Price, 6.
 
 475 
 
 OF THE DEMAND OF A PLEA. 
 
 When a rule to plead has been once entered, and the cause stands over 
 to another term, without any further proceeding, a new rule to plead 
 should regularly be entered for that term, to entitle the plaintiff to sign 
 judgment, unless a judge's order has been obtained for time to plead ;(6) 
 for judgments ought in general to be entered the same term in which rules 
 are given. (c) But when the declaration is amended in the King's Bench, 
 if a rule to plead be entered the same term the amendment is made, 
 though before such amendment, it is sufficient ;(fZ) otherwise a new rule 
 to plead must be entered :(<?) And in the Common Pleas, we have seen,(/) 
 the defendant is entitled in all cases, on amending the declaration, to a 
 new four day rule to plead. When the plaintiff after giving a rule to 
 plead, has been delayed by injunction, he may sign judgment in either 
 court, after the injunction is dissolved, without a new rule.(f/) 
 
 The demand of plea is a notice in writing from the plaintiff's attorney ;(A) 
 and, except when the defendant is in custody of the sheriff ^[ii) and the plain- 
 tiff has declared against him as being in that custody,(M) or is in custody of 
 the warden of the Fleet,(ZZ) or bound down by a judge's order for time to 
 plead,(m7?j) or the declaration has been amended,(«n)mustbe made in every 
 case where the defendant has appeared,(oo) or put in bail ; And, in the Com- 
 mon Pleas, a demand of plea is necessary, after an appearance, though the 
 defendant has not taken the declaration out of the office. (j9) So, where a 
 declaration was delivered on the essoin day of Hilary term, and an impar- 
 lance was given to the defendant till Easter term, when a rule to plead 
 was given, but no demand of plea made, the court of Common Pleas held, 
 that the plaintiff, having signed judgment in Trinity term for want of a 
 plea, was irregular, and set aside the proceedings. (g) In country causes, 
 the demand of plea must be made, in that court, on the agent in town,(r) 
 if there be one ; or if not, on the attorney in the country :(s) And where the 
 defendant was beyond the seas, and his attorney dead, a rule was made 
 absolute, that a demand of plea in the office should be sufficient ; upon affi- 
 davit of service of a rule to show cause on one of the defendant's bail, and 
 
 that the other was not to be found. (^) 
 [ *476 ] *In the King's Bench, a demand of plea may be made at the 
 
 time of delivering the declaration,((i!) and indorsed thereon :{hh) 
 And where a rule to plead has been given, and demand of plea made, and 
 judgment is signed of a subsequent term, there need not be a fresh demand 
 of plea of that term, although there should be a new rule to plead. (cc) But, 
 
 [b) Ante, 474. 
 
 (c) Gilb. K. B. 318. 1 Maule & Sel. 478. 
 
 {d) 2 Salk. 517, 18, 520. R. M. 10 Geo. II. reg. 2, {b), K. B, Yates v. Edmonds, T. 35 Geo. 
 III. K. B. 
 
 (e) 2 Chit. Rep. 332. (/) Ante, 469. 
 
 {g) 2 Bur. 660. Doug. 71. Barnes, 238. Pr. Reg. 26, S. C. 2 Blac. Rep. 784. Ante, 461. 
 
 (A) Append. Chap. XVIII. g 10 ; and see N. M. 1 Geo. II. C. P. Pr. Reg. 280. 
 
 (n) 1 Durnf. & East, 591. 6 Durnf. & East, 524. Ante, 347. 
 
 {kk) 2 Barn. & Cres. 803. 
 
 {11) Imp. C. P. 7 Ed. 231. Ante, 359. 
 
 {mm) R. T. 5 & 6 Geo. II. {b), K. B. 4 East, 571. 1 Taunt. 538. 2 Moore, 220 ; aud see 4 
 Barn. & Cres. 386. 6 Dowl. & Ryl. 390, S. C. 
 
 {nn) 3 Barn. & Aid. 137. 
 
 {00) 1 Wils. 134. 1 Bos. & Pul. 341. 1 Chit. Rep. 737, (a). 
 
 (p) 1 Bos. & Pul. 341 ; but see 1 Chit. Rep. 735. Id. (a). 
 
 {q) 8 Taunt. 33. 1 Moore, 464, S. C. {r) Imp. C. P. 7 EJ. 231. 
 
 (s) Pr. Reg. 281. {t) Barnes, 307. 
 
 (a) 6 Durnf. & East, 689. 1 Dowl. &Ryl. 186. (66) 5 East, 547. 
 
 [cc) Sweet v. John, H. 55 Geo. III. K. B. 1 Chit. Rep. 735, 6, {a).
 
 OF THE DEMAND OF A PLEA. 47G 
 
 in the Common Pleas, a demand of plea must be made after declaration 
 delivered, and rule to plead given : a demand of plea indorsed on the de- 
 claration, ((?) or made before the rule to plead is given, (<') being deemed 
 insuflficient : And it cannot be made, in either court, before the defendant 
 has appeared :(f) and after the plaintifl" has entered an appearance, or 
 filed common bail for him according to the statute, (//) or when the defend- 
 ant is in custody of the 8heriflf,{/0 and the plaintiff has declared against 
 him as being in that custody, (/) or is in custody of the warden, (A-) or bound 
 down by a judge's order for time to plead, (/) or the declaration has been 
 amended,(wi) a demand of plea is unnecessary. So, when the defendant 
 pleads, without taking the declaration out of the ofrice,(/j) or puts in a 
 plea which is considered as a nullity, (o) as a plea in abatement of a term 
 subsequent to the declaration, without an imparlance,(^?j;) or the plea of 
 non assuyjipsit in an action of debt,{cj<j) or nil debet in ass2imp8it,{rr) it 
 operates in general as a waiver of the irregularity in not demanding.' a 
 plea, and will enable the plaintiff to sign judgment for want of it. But 
 where such a plea was put in without authority, by a new attorney for the 
 defendant, without any order for changing his former attorney, the judg- 
 ment which had been signed as for want of a plea, was set asidc.(««) In 
 general, the demand of a plea is a waiver of the justification of bail (^^)[a] 
 but where, after the time for putting in and justifying bail had expired, 
 (one of the bail having been rejected,) time was given to add and justify 
 another bail, Avithout prejudice to the plaintiff, and in the interval he 
 demanded a plea ; the court of King's Bench held, that an attachment 
 against the sheriff for not bringing the body was regular, the added bail not 
 having justified within the time for which indulgence was given. (?<) 
 
 *The plaintiff, in the King's Bench, cannot sign judgment for [ *477 ] 
 want of a plea, till the expiration of twenty-four hours after it 
 has been demanded, whether the time for pleading be or be not expired, 
 ■when such demand was made :{a) And, in that court, if a plea be 
 demanded on Satwdaij, the defendant has twenty-four hours to plead, 
 after the demand, exclusive of Sunday. {b)[Tf\ But judgment maybe signed 
 
 (d) Barnes, 276. («) 4 Taunt. 51. 
 
 (/) 1 Duruf. & East, C35. Per Cur. E. 44 Geo. III. K. B. 5 Doxv-l. k Ryl. 609. 
 
 (g) II. T. 1 Geo. II. K. B. 8 Durnf. & East, 465. 5 Barn. & Ores. 763. Barnes, 249. 2 Bos. 
 & Pul. 218. 
 
 (A) 1 Durnf. & East, 591. 6 Durnf. & East, 524. Ante, 347; but see 2 Bos. & Pul. 367. 
 
 (i) 2 Barn, k Cres. 803. [k] Imp. C. P. 7 Ed. 231. Ante, 359. 
 
 (/) 4 Rust, 571. Taylor v. King, H. 31 Geo. III. C. P. Imp. C. P. 7 Ed. 231. 1 Taunt. 538, 
 S. P. 2 Moore, 220. 
 
 (m) 3 Burn, k Aid. 137. 
 
 (n) 1 Chit. Rep. 735. Imp. C. P. 7 Ed. 420 ; but see 1 Bos. & Pul. 341. 1 Chit. Rep. 735. 
 (a), icmb. contra. 
 
 (o) 1 Chit. Rep. 730, (c). 
 
 (/>;)) 4 Durnf. k East, 520. 2 Smith, R. 393 ; but see 3 Barn, k Aid. 259. 1 Chit. Rep. 
 704, S.C. 
 
 (qq) 6 East, 549. 14 East, 442. 4 Taunt. 164. 1 Chit. Rep. 716, in notis. 
 
 (rr) Barnes, 257. (sn) 6 East, 549. [tt) Ante, 255. 
 
 (m) 1 Dowl. k Ryl. 163 ; and see 4 Dowl. & Ryl. 834. 
 
 (a) 1 Blac. Rop. 50. 1 Durnf. & East, 454. 4 Durnf. k East, 118. 
 
 (b) 4 Durnf. & East, 557. 
 
 [a] a justification of bail after plea pleaded and served, does not make the plea good in 
 a bailable action, unless the plea was served fie Imc mge and with notice ; a plea otlierwise 
 made before bail is perfected is a nullity. Adams v. Mtnton, 6 Cow. 50. Watennun v. Allen, 
 1 Id. 60. Briggs v. Rmce, 7 /(/. 508. 
 
 [b] Accord. Cock v. JJumi, G Johns. R. 325.
 
 477 OF MOTIONS AND RULES, ETC. 
 
 at any time after the twcntj-four hours are expired, provided the time 
 for pleading be then out ; and therefore if the plea be demanded in the 
 morning, the plaintiff is not obliged to wait until the opening of the office, 
 in the afternoon of the following day.(6') In the Common Picas, the rule 
 is, that after a plea has been demanded, the defendant has in all cases till 
 the opening of the office, in the afternoon of the following day, to plead ; 
 and if he do not plead within that time, the rule to plead being expired, 
 the plaintiff may sign judgment. (t^) 
 
 [*478] *CHAPTER XIX. 
 
 Of Motions and Rules in general, and Affidavits in sujoport of 
 them; and the Practice of the Courts thereon, and hy Summons 
 and Order, at a Judge's Chambers. 
 
 As it is frequently necessary, in the course of a suit, to apply to the 
 court where the action is depending, or a judge of that court, it may be 
 proper, before we proceed further, to say somewhat of the manner of 
 doing it ; and of the rules or orders of the courts, and practice by sum- 
 mons and order at a judge's chambers. 
 
 The usual modes of applying to the court are by motion, or petition. A 
 motion is an application to the court, by counsel in the King's Bench, or a 
 Serjeant in the Common Pleas, for a rule or order; which is either granted 
 or refused ; and if granted, is either a rule absolute in the first instance, or 
 only to shoiv cause, or, as it is commonly called, a rule nisi, that is, unless 
 cause be shown to the contrary, which is afterwards, on a subsequent mo- 
 tion, made absolute or discharged. To use the words of an elegant writer 
 on the law and constitution of England :{aa) " The application to a court by 
 counsel is called a motion ; and the order made by a court on any motion, 
 when drawn into form by the officer, is called a rule." But, besides the 
 rules which are moved for in court, there are others made out by the 
 officers as a matter of course, or drawn up on a motion 'paper signed by a 
 counsel or serjeant. 
 
 In the King's Bench, motions and rules are either on the crown side, 
 or on the plea side of the court. In the Common Pleas and Exchequer, 
 there is no croivn side. (6) But, in any of these courts, a rule for an 
 attachment, which is of a criminal nature, may be moved for in the fol- 
 lowing cases : First, against the parties to the suit, for disobedience to a 
 rule or order of the court, by non-payment of costs, on the master's or 
 prothonotary's alloc at ur,{cc) or of money generally, or money and costs ; 
 or for not producing deeds in his possession, (^tZ) &c. : Secondly, against 
 attorneys, for not delivering up deeds,(e) or non-payment of costs,(e) 
 &c. ; or for not performing their undertakings,(/) or otherwise mis- 
 
 (c) 1 Durnf. & East, 454. 
 {d) Gas. Pr. C. P. 17, 18, 54. 
 
 {aa) Wynne, Eunom. Dial. II. ^ 26. And for a general account of the practice on mo- 
 tions in civil suits, see id. § 25, &c. 
 
 (b) 5 Taunt. 503. [cc) Post, Chap. XL. 
 
 (dd) Post, 487 ; and see 8 Moore, 510, 610. 1 Bing. 410, 464, S. C. 
 
 (e) Ante, 86, 7. {/) Ante, 86, 227, 241.
 
 OF MOTIONS AND RULES, ETC. 478 
 
 behaving themselves :(r/) Thirtlly, against ^officers of the court, [ *-lTO ] 
 for extortion, (a) or neglect of duty :{a) Fourthly, against inferior 
 judjes and officers, for acting unjustly, oppressively, or irregularly, in the 
 execution of their duty •,{l>h) or f(jr disobeying tlie king's writs, issuing 
 out of the superior courts, by proceeding in a cause, after it has been put 
 a stop to, or removed by writ of prohibition, cert lor arL{cc) habeas 
 corpm,{cc) supersedeas^ or error,('it2) &c. : Fifthly, against sheriffs^ or 
 other persons iiaving the execution of writs, for not returning i\\Qm,{ee) 
 or bringing into court the body of the defendant, (/^) &c., on being served 
 witli a rule for that purpose : Sixthly, against gaolers, &c., on the Lords' 
 act, for extortion or oppression :(//.'/) Seventhly, against jurymen, in col- 
 lateral matters relating to the discharge of their oflice, such as making 
 default when summoned ; refusing to be sworn, or to give any verdict ; 
 eating or drinking, without leave of the court, and especially at the cost 
 of either party, and other misbehaviours or irregularities of a similar 
 kind :(/i) but not in the mere exercise of their judicial capacities, as by 
 giving a false or erroneous verdict :(/i) Eighthly, against witnesseK, for 
 not attending on a subpa'aa ;{i) refusing to be sworn or examined, or 
 prevaricating in their evidence when sworn :(/c) But, in the Common 
 Pleas, it was not formerly usual to grant an attachment against a witness, 
 for non-attendance upon a subpoena ; and it cannot now be had, unless a 
 clear case of contempt be made out against him, the party aggrieved being 
 left to his remedy by action :(/) Ninthly, against peers of tlie realm, or 
 members of the house of Commons, for disobeying a subpoena,[m) or other 
 process :(n) but they are not liable to be attached, for non-payment of 
 money, pursuant to an award :(o) Lastly, against other persons, for con- 
 tempts committed in the face of the court, not only by an actual broach 
 of the peace, or rude and contumelious behaviour, but also for any other 
 heinous misdemeanour, as by a party's giving false, trifling, and contra- 
 dictory answers, upon an examination in court, concerning his ability to 
 be bail for another, in an action depending in court ;(p) or for contempts 
 committed out of court ; as for a rescue,(r^) or contemptuous words spoken 
 of the court, or its process ;(r) or for using undue means to execute 
 process ;(») or not performing an award, (<) (&c. 
 
 If the contempt be committed in the face of the court, the ofTonder may 
 be instantly apprehended and imprisoned, at the discretion of the judges, 
 without any further proof or examination :(tt) but otherwise it is 
 usual to *apply to the court, on an affidavit of the circumstances, [ •480 ] 
 for a rule for an attachment ; which is either absolute in the first 
 
 (ff) Ante, 86, 88. (a) Ante, 68, 232. 
 
 {lib) 4 Blac. Com. 284. 2 Hawk. P. C. Chap. XXII. § 25, &c. 
 (cc) Ante, 404, 415. ((/</) J'osf, Chap. XLIV. 
 
 (ee) Ante,301, 8. 5 Dowl. & Ryl. 614. (/} Ante, 311, 12, 314. 
 
 ((/ff) Ante, 232. 
 
 (/i) 4 Hlac. Com. 284. 2 Hawk. P. C. Chap. XXII. § 13, &c. 
 (r) I'osf, Chap. XXXV. (h) 4 Blac. Com. 284, 
 
 (l) 1 Barnes, 33,35,497. Pr. Reg. 435. 1 H. Blac. 49. 5 Taunt. 260. 6 Tauut. 9. 1 Marsh. 
 410, S.C. 
 
 (to) Ante, 192. (n) 1 Bur. 63. 
 
 (o) Ante, 192, Post, Chap. XXXVI. 
 
 (p) Cro. Car. 146. 1 Chit. Rep. 116 ; and sec 5 Tannt. 776. Ante, 274, 
 
 (q) Ante, 236, 7. (r) Ante, 169, 70. 
 
 (s) 2 Ken. 372. {t) Post, Chap. XXXVI. 
 
 (u) 4 Blac. Com. 286.
 
 480 or MOTIONS AND RULES, ETC. 
 
 instance, or only to show cause. The rule for an attachment, in the 
 King's Bench, for non-payment of costs, pursuant to the master's allo- 
 catur, is absolute in the first instance, although four terms have elapsed 
 since the taxation, (a) unless it be for non-payment of costs pursuant to 
 an award '.[h) But where it is for the non-payment of money generally, or 
 of money and costs, it is only to show cause :(6') And, if a party obtain a 
 rule for setting aside judgment and execution, on condition of his paying 
 costs, the court will not grant an attachment in the first instance, for 
 non-payment of i]\em.{d) In this court, as well as in the Common Pleas, 
 the rule for an attachment against the sheriff, for not returning the writ, 
 or bringing in the body, is absolute in the first instance ; and may be 
 moved for the last day of tcrm.(f) So, where contemptuous words are 
 spoken of the eou7't, the attachment issues in the first instance ; but where 
 they are spoken of its process, the rule is only to show cause.(/) In all 
 other cases, the rule for an attachment is a rule nisi, in the King's Bench. 
 And where a matter has been referred to the master, the court, on showing 
 cause against an attachment, will not go into the accounts which were the 
 subject of the reference ; the master's allocatur being in the nature of a 
 judgment, and the attachment like a writ of execution :{g) and besides, 
 the party, on going before the master, enters into an undertaking to pay 
 such sum as he shall find to be due.(A) An affidavit to support a rule for 
 an attachment, for not paying money pursuant to the master's allocatur, 
 must show" that at the time of serving the copy, the original was shown to 
 the defendant.(2') In the Common Pleas, all rules for attachments are 
 rules nisi, except against the sheriff, for not returning the writ, or 
 bringing in the body, or for non-payment of costs on the prothonotary's 
 allocatur,[k) which are absolute in the first instance. In the Exchequer, 
 as in the King's Bench, the rule for an attachment for non-payment 
 of costs, on the master's allocatur, is absolute in the first instance, 
 unless it be for non-payment of costs pursuant to an award ',{1) And 
 though, in other cases, there should in general be a rule to show cause, 
 yet where an attorney had been ordered, by a former rule, to pay a sum of 
 money to his client, with the costs of the application, the court granted a 
 rule for an attachment against him, for non-payment of them, absolute in 
 the first instance. (w) 
 
 Motions and affidavits for attachments in civil suits, in the King's Bench, 
 are proceedings on the plea side of the court, until the attachments are 
 
 granted, and are to be entitled with the names of the parties ;(w) 
 [ *481 ] but as soon *as the attachments are granted, the proceedings are 
 
 on the croum side, and from that time the king is to be named as 
 the prosecutor :(aa) And motions and affidavits for attachments are entitled 
 
 (a) 1 Chit. Rep. 723. 
 
 {b) Thomson v. Billingsley, T. 37 Geo. III. K. B. 2 Chit. Rep. 57 ; and see 2 Blac. Rep. 
 892. 1 Price, 341. 
 
 (c) Per Buller, Just. M. 24 Geo. III. K. B. Append. Chap. XXXVI. § 23. 
 
 \d] 2 Chit. Rep. 158. (e) 1 Bur. 651. 5 Bur. 2686. 
 
 (/) Ante, 1G9, 70. (r/j 1 Chit. Rep. 723. 
 
 (A) 1 Ken. 375. Per Cur. M. 45 Geo. III. K. B. 
 
 (i) 7 Dowl. & Ryl. 612. 
 
 [k) 1 Bos. & Pul. 477. Imp. C. P. 6 Ed. 614. Append. Chap. XL. g 9; but see 2 Blac. 
 Rep. 892. 
 
 (/) Forrest, 80. 1 Price, 341, 2. 
 
 (w) 1 Price, 341 ; and see 9 Price, 384. 
 
 («) 3 Durnf. & East, 253. 7 Durnl^ & East, 439, 528. 12 East, 165. 
 
 {aa) 1 Chit. Rep. 727, (a).
 
 OF MOTIONS AND RULES, ETC. 481 
 
 in like manner, in the Common Plea9,(J) and Exchequer. A rule Jiisi for 
 an attachment cannot be moved for the last day of term;(c) nor can it, ■we 
 have seen, be served on a ASu7idai/.{d) 
 
 The attachment is a criminal process, directed to the sheriff, command- 
 ing him to attach the party, so that he have him before the king, or his 
 justices, at We8t)ninstcr, on a certain day, to answer "of and concerning 
 those things Avhich shall there, on his majesty's behalf, be objected against 
 him."((') The party being taken on this writ, cither remains in custody, 
 or puts in bail, before the court(/) or a judge, (for it has been doubted 
 whether he is bailable by the sheriff,)(//) to answer interrogatories, and to 
 appear from day to day, till tlie court shall determine concerning the mat- 
 ters objected against him:(/i) And where the coroner had roturncd cepi 
 corpora to writs of attachment against the shcrifls of JJiddlescx, the court 
 of King's Bench, on the last day of term, granted writs of habeas corpora, 
 without an affidavit, to bring up the bodies of the sheriffs, before one of 
 the judges at chambers, to answer to such matters as should bo there al- 
 leged against them.(/) An attachment however, for non-payment of money, 
 is in the nature of mcane process: And where the party had been taken, 
 and permitted to go at large, and returned again into custody, and con- 
 tinued in custody at the return of the writ, it was holden that the sheriff 
 was not liable to an action for an escape. (A:) 
 
 When the party has been taken upon the attachment, the court, upon 
 motion by his counsel, \i\\\ make a rule, that unless his adversary exhibit 
 interrogatories against him in four days, which must be in term time,(/) he 
 shall be discharged. These interrogatories must bo signed by counsel(?«) 
 or a sergeant, and filed, in the King's Bench, with the master of the crown 
 office, who is to examine the party thereon, mfour days after the interro- 
 gatories are brought in ;(??) but, in the Common Pleas, they are filed with 
 one of the secondaries, (o) who examines him, and afterw^ards makes copies 
 of the depositions for each party: And if the master, or prothonotaries 
 (to whom the matter is generally referred in the Common Pleas,(/)) report 
 that he is in contempt, the court will commit him to the King's Bench, or 
 Fleet prison ; but if the report be in his favour, they will order 
 him to be *discharged, or his recognizance to be vacated. («) [ *482 ] 
 When a plaintiff is brought in on an attachment for a rescue, in 
 the King's Bench, it is the practice of the court to put interrogatories to 
 him, though he do not deny the charge in the affidavits, unless the prose- 
 cutor waive putting them. (66) And, by a rule of that court,(cc') " if judg- 
 ment be not given the same terra, the name of the cause shall be inserted 
 
 (i) 2 Bo3. & Pul. 517, ((7). 
 
 (c) 3 Smitli, R. 118. {d) 8 Duruf. & East, 86. Ante, 218. 
 
 (e) Append. Chap. III. ? 19. 
 
 (/) See Biirnes, 77 ; where the court of Common Plens refused to bail an attorney, who 
 had been conuniited for a crime of a heinous nature, in the first instance. 
 
 {g) Ante, 222, 3. (/i) Imp. C. 1'. 7 Ed. 552. 
 
 (i) 1 Chit. Rep. 249 ; and see 4 Dowl. & Ryl. 393. Aitf, 314. 
 
 (k) 2 Bum. & Aid. 56. (/) Comb. 8. 
 
 (m) R. .M. 34 Geo. II. K. B. 5 Durnf. & East, 474. 
 
 (n) Lil. Pr. R. Reg. 73. 
 
 (o) 2 Blac. Rep. 1110. And for the form of interrogatories in this court, see Append. 
 Chap. III. I 20. 
 
 {p) Imp. C. P. 7 Ed. 552, 3. {a) 3 Bur. 1257. 
 
 (bb) Ante, 237. And see further, as to interrogatories exhibited ia cases of contempts, 
 Willis on Iiiterro(jatorie.i, 28, 9. 
 
 {cc) R. II. 34 Geo. 111. K.B. 5 Durnf. & East, 547, 723.
 
 482 OF MOTIONS AND RULES, ETC. 
 
 in tlic list of motions, appointed to come on peremptorily in the ensuing 
 term, in order that the court may be informed what shall have been done 
 in prosecution of the attachment." 
 
 If the party neglect to appear before the master or secondary, to be ex- 
 amined, or to attend the court when he is directed to come, the court will 
 order his recognizance to be estreated : and if he confess anything mate- 
 rial in his depositions, there is no occasion for witnesses, but the prosecu- 
 tor may move on his confession :(tZ) If he deny part of the contempts only, 
 and confess other part, he shall not be discharged as to those denied, but 
 the truth of them shall be examined, and such punishment inflicted as upon 
 the whole shall appear reasonable ; and if his answer be evasive as to any 
 material part, he shall be punished in the same manner as if he had con- 
 fessed it. The report of the master of the crown office, that the defend- 
 ant and his attorney are in contempt, for not performing an award, &c. is 
 to be taken as a conviction; and on their being brought up for judgment, 
 the court will not receive affidavits in denial of the contempt, but only in 
 mitigation of punishment. (e) But, in the Common Pleas, the prothono- 
 tary's report is not deemed conclusive, against parties who have been put 
 to answer interrogatories before him ; but they may except to the report, 
 on any material point :(/) And where, after making his report against the 
 parties, the prothonotary was directed to inspect an account book belong- 
 ing to one of them, which tended to support the answers given by the 
 parties, but had been accidentally omitted in the first instance, the prose- 
 cutor was not allowed, on his own application, to produce before the pro- 
 thonotary, the clerk who had made the entries in the book.(/) 
 
 Motions and rules on the plea side of the court of King's Bench, and in 
 the Common Pleas, are common or special. Common rules are first, such 
 as are given by the master, filacer, clerk of the papers, or clerk of the 
 errors, in the King's Bench ; or by the protJionotaries, filacers, or clerk of 
 the errors, in the Common Pleas : Secondly, such as are entered with the 
 clerk of the rules in the King's Bench, or secondaries in the Common 
 Pleas, on a prsecipe or note of instructions, made out by the attorneys who 
 apply for them ; and are not founded on any motion in court, either real or 
 supposed : Thirdly, such as were anciently moved for by the at- 
 [ *483 ] torneys *at side-bar, in the King's Bench ; or, in the Common 
 Pleas, at side-bar on the first day of term, and in the treasury 
 chamber on other days ; and are thence called side-bar or treasury rules:(aa) 
 Fourthly, such as are drawn up by the clerk of the 7'ules in the King's 
 Bench, or secondaries in the Common Pleas, without being moved for in 
 court, on producing a motion paper signed by a counsel or serjeant. 
 
 In the King's Bench, rules given by the master (which are called onas- 
 ters rules,) are to declare,(6) or plead in bar, in replevin; and in ordi- 
 nary cases, to reply,(c) rejoin, surrejoin, rebut, surrebut, or join in demur- 
 rer •,[dd) to enter the issue ',{ee) for the defendant to produce the record ;(_^) 
 
 (fZ) Imp. C. P. 7 Ed. 553. (e) 2 Chit. Rep. 57. 
 
 (/) 1 Bing. 272. 8 Moore, 214, S. C. ; and see id. 322. And see further, as to attach- 
 ments for contempts, and the proceedings thereon, 2 Hawk. P. C. Chap. 22, § 1. Bac. Abr. 
 til. Attachment 4 Blac. Com. 283, &c. Barnes, 258. Bingham on Judgments, kc, 277, &c. 
 
 {aa) Sty. Pr. Reg. 575, Ed. 1707. 
 
 (h) Append. Chap. XLV. § 54. 
 
 (c) Post, Chap. XXVIII. Append. Chap. XXVIII. f 1. (dd) Post, Chap. XXIX. 
 
 (ee) Post, Chap. XXX. Append. Chap. XXX. § 40. 
 
 (/) Post, Chap. XXXII.
 
 OF MOTIONS AND RULES, ETC. 4S3 
 
 for a trial hy proviso ;(g) or to return a -writ of certiorari in error :(/() 
 by the Jllacer, to appear to n pone or, recordari,{i) <fcc. ; by the clerk of 
 the papers, to return the paper book ;(/:) or, by the clerk of the errors, 
 for better bail in crror,(Z) to certify the recortl,(/) or assign errors. (/) All 
 master's rules in the King's Bench, are entered with tiie clerk of the 
 rules, and expire in /ojfr clays after service. In the Common Tleas, all 
 rules are given by the secondaries, except rules to appear in scire facias, 
 which are given by i\\Q prothonotaries ;{rii) rules to appear and declare in 
 replevin, and to bring in the body, which are given by i\\ii jUaeers ;{n) and 
 rules for better bail in error, or to certify the record, which are given by 
 the clerk of the errors.(o) 
 
 Common rules entered, on a praecipe, with the clerk of the rules in the 
 King's Bench, are to plead, in ordinary cases, (/;) or avow, in replevin ;{q) 
 or for judgment on 2)osteaH,[r) or in(iuisitions,(«) or in scire facias.it) In 
 the Common IMeas, the rules so entered, with the secondaries, are to de- 
 clare,(if) (except in replevin,) to plead, (x-) reply,(?y) rejoin, surrejoin, rebut, 
 surrebut, or join in demurrer ; to avow, or plead in bar, in replevin : and 
 for attorneys and officers of the court to appear and plead to bills filed 
 against them. (2) These rules are not served on the opposite 
 party ; but, in the Common Pleas, a demand in writing must be [ *4S4 ] 
 made, before judgment can be signed for non-compliance with 
 them. 
 
 Side-bar rules, in the King's Bench, are for the sheriflf to return the 
 ■writ,(rt) or bring in the body ;(W) for the marshal to acknowledge the 
 defendant in his custody ;(cf) for time, or further time, to declare ;((7c7) to 
 discontinue the action, upon payment of costs ;{ee) to be present at tax- 
 ing costs :{ff) or for a scire facias to revive a judgment above seven, and 
 under ^e^i years o\d.{(/g) In the Common Pleas, side-bar or treasury rules 
 are, in addition' to those enumerated in the King's Bench, to take a bill 
 against an attorney off the file ; to bring money into court, if under 
 five pounds ;(7J/) to enter the issue ;(//) for costs, for not proceeding to trial 
 or inquiry, pursuant to notice ;(/i;/i) for leave to enter up judgment on a 
 Avarrant of attorney, above one and under toi years old;(7^) to return a 
 writ of false judgment,(wim) or assign errors thereon ;(m;n) and the common 
 
 (ff) Post, Chap. XXXIII. Append. Chap. XXXIII. ^ 13. 
 
 (h) Post, Chap. XLIV. Append. Chaj). XLIV. g G7. (() Ante, 416, 17. 
 
 (/■•) Post, Chap. XXX. Append. Chap. XXX. § 37. 
 
 (/) Post, Chap. XLIV. Append. Chap. XLIV. § 29,39, 4G. 
 
 Im) Post, Chap. XLIII. 
 
 (n) Ante, 50, 310, 41 G, 17. It should be remembered, however, that the rule to brinp in 
 the body, though given in the first instance by the Jilncer, who issued the process, is after- 
 wards drawn up by the secondaries, and served. 
 
 (o) J'ost, Chap. XLIV. Append. Chap. XLIV. § 29, 39. (p) Ante, 473, &c. 
 
 (q) Ante, 418. (r) Post, Chap. XXXVIII. 
 
 (..) Post, Chap. XXII. XXXVIII. Append. Chap. XXII. § 70. , 
 
 (/) Post, Chap. XLIIL Append. Chap. XLIII. ^ 128. 
 
 (m) Ante, 458. (x) Ante, 474. 
 
 (v) Post, Chap. XXVIII. (z) Ante, 323. 
 
 (a) Ante, 306, 7. (66) Ante, 309, 10, 
 
 (cc) Ante, 363, 4. (dd) Ante, 423, 4. 
 
 (ee) Post, Chap. XXVIIL Append. Chap. XXVIIL 11,8. 
 
 iff) ^""'t Chap. XL. Append. Chap. XL. § 5, 6. 
 
 (fffj) Post, 48.''), (m), Chap. XLIH. Append.' Chap. XLIII. ? 59. 
 
 (hh) Post, Chap. XXV. (fV) Post, Ch^p. XXX. Append. Chap. XXX. 3 42. 
 
 (kk) Post, Chap. XXX IIL (//) Post, 485, 6, (y), Chap. XXL 
 
 {mm) Post, Chap. XLIV. Append. Chap. XLIV. § 152, 15'5.
 
 484 OF MOTIONS AND RULES, ETC. 
 
 consent rule in cjectment.[n) Side-har or treasury rules may be had as a 
 matter of course, by applying for them at the office of the clerk of the 
 rules in the King's Bench, or secondaries in the Common Pleas. The last 
 day of term is said not to be a day for side-har rules in the former court; 
 but if the party was not entitled to such a rule before, he may take it out 
 on the last day of term, or in vacation, dated as of the last day but one. 
 A rule, however, calling on the sheriff to return a writ, isssued in vaca- 
 tion, though ^<3siet^ in term time, is irregular; and an attachment grounded 
 upon it Avill be set aside by the court on motion. (o) 
 
 Commoyi rules drawn up by the clerk of the rules in the King's Bench, 
 on producing a motion paper signed by counsel, are to declare peremptorily, 
 after several rules for time to declare ;(2->) for the master, in vacation^ to 
 compute principal and interest on bills of exchange, or promissory notes, (5) 
 &c. ; to have a good jury on the execution of an inquiry,(5') to change the 
 venue,(r) or bring it back to the common undertaking ;(r) to bring money 
 into court ;(s) to plead several matters,(^) or make several avowries or 
 
 cognizances ',[t) for the defendant to abide by his plea \{u) for a 
 [ *485 ] ^concilium on demurrer, (a) special verdict, (6) or writ of error ;(e) 
 
 for costs, for not proceeding to trial or inquiry, pursuant to no- 
 tice ;(c^) for a special jury,(e) or view;(/) rules by consent^ as to examine 
 witnesses upon interrogatories,(^) to refer causes to arbitrarion,(/i/t) or to en- 
 large the time for making an award ;(^'^) to make a judge's order,(Z:Z:) or order 
 of nisi jpr ills, ill) a rule of court ; or for a scire facias to revive a judgment, 
 above ten and un([Qr fifteen years old.(??im) In the Common Pleas, common 
 rules drawn up by the secondaries, on producing a motion paper signed 
 by a Serjeant, are for the prothonotaries, in vacation^ to compute principal 
 and interest on bills of exchange, or promissory notes, &c. ; for bringing 
 money into court, if it exceed ^ye pounds ;(?iw) to plead several matters, in 
 
 [n) Append. Chap. XLVI. § 64, &c. (0) 1 Durnf. & East, 552. 
 
 Ip) Ante, 424. [q) Post, Chap. XXII. 
 
 \r) Post, Chap. XXIV. Append. Chap. XXIV. § 2, 3, 4. 
 (s) Post, Chap. XXV. Append. Chap. XXV. | 1. 
 (0 Post, Chap. XXVIJ. Append. Chap. XXVII. | 11. 
 
 [u] Id. ^ 14. This rule, however, is unnecessary, in the Common Pleas. Post, Chap. 
 XXVII. 
 
 (a) Post, Chap. XXXI. Append. Chap. XXXI. ^ 1. 
 
 (b) Post, Chap. XXXVII. (c) Post, Chap. XLIV. 
 
 (d) Post, Chap. XXXIII. Append. Chap. XXXIII. ^ 12. 
 
 (e) Post, Chap. XXXIV. Append. Chap. XXXIV. g 24. 
 
 {/) Post, Chap. XXXV. Append. Chap. XXXV. § 30, 31. In the King's Bench, the rule 
 for a view in trespass, is drawn up on a motion paper signed by counsel : but in other ac- 
 tions, it is moved for in court; and in some cases is only a rule to show cause. In the 
 Common Pleas, it is said that a rule for a view is never granted, without an affidavit, in 
 any case, except an action of waste. Barnes, 467. And for the form of the rule, see Ap- 
 pend. Chap. XXXIV. I 33. 
 
 (ff) Post, Chap. XXXV. Append. Chap. XXXV. ^ 12. The rule for examining witnesses 
 upon interrogatories^ which can only be had by consent, is seldom moved for directly; but 
 is commonly incident to, and arises out of some other motion, as to put off the trial, or for 
 judgment as in case of a nonsuit, &c. 
 
 (hh) Post, Chap. XXXVI. Append. Chap. XXXVI. § 1. 
 
 (h) Post, Chap. XXXVI. Append. Chap. XXXVI. | 11. 
 
 (H-) Post, 511. (11) Post, Chap. XXXVI. 
 
 (nun) The rule for this purpose, we have seen, is sometimes only a side-bar or treasury 
 rule, as where the judgment is above seven, and under ten years old. Ante, 484. If it be 
 above ten and under fifteen years old, the rule, as stated in the text, is absolute in the first 
 instance, and may be drawn up on a motion paper signed by counsel ; but if the judgment 
 be above Ji/ieen years old, there must be a rule to show cause. Post, Chap. XLIII . 
 
 {nn) Post, Chap. XXV. Append. Chap. XXV. § 2.
 
 OF MOTIONS AND RULES, ETC. 485 
 
 certain cases which will be mentioned in a subsequent chapter ;{o) for a 
 concilium on demurrer, (/>) special verdict,!'/) or writ of error ;(r) or for a 
 special jury.!,**) Of these, as well as of tlie side-bar or treasury rules, 
 copies should be duly served. 
 
 All rules moved in court, are denominated special rules ; and they are 
 cither al»<<>lute in the first instance, (^) or only ni8i,{u) to show cause. 
 These ruk'S may be considered, as they arise, and succeed one another, in 
 the course of the suit. In the King's Jiench, special rules absolute in the 
 first instance, are for a certiorari, to remove the record of a judgment 
 from an inferior court,(r) or transcript of a record from the courts in 
 Wales, or connixes palatine ;{x) to enter up judgment in term time, on a 
 warrant of attorney, above ten and under tidenty years old ;(/y) 
 for the copyhold tenants *of a manor to inspect and take copies [ *-48(3 ] 
 of court rolls ;(a) for a mandamus, to examine witnesses in 
 India, on statute 13 Geo. III. c. 63, § 44,(i) or for the allowance of a 
 writ of error coram nobis.{c) In the Common Pleas, they are for leave to 
 enter up judgment on a warrant of attorney, above ten and under twenty 
 years old;((7) to have a good jury, on the execution of an in(|uiry ;(<?) for 
 judgment for the plaintiff, on nul tiel record ;{f) for a view;(^) to make 
 a judge's ordcr,(//) or order of nisi prius,[i) a rule of court; or for a scire 
 facias on a judgment, above ten and under tiventy years old '.{k) and, in 
 both courts, to increase issues on writs of distringas, against persons 
 having privilege of parliament ;(/) for a distringas, on the statute 7 & 8 
 Geo. IV. c. 71, § 5, where the defendant cannot be personally served with 
 a summons or attachment, by original ;{in) for the allowance of baU ;{nn) 
 for leave to compound penal actions ;(t>o) for judgment on demurrer,(jt)/j) 
 or writ of error ',{qq) that the verdict bo entered for, or postea delivered 
 to the prevailing party, on a special verdict,(rr) or special case ',{rr) or for 
 a suggestion on the Welch judicature act, to entitle the defendant to a 
 judgment of nonsuit :{ss) And, after a rule of reference to the master or 
 
 (o) Poit, Chap. XXVir. 
 
 {p) Post, Chap. XXXI. {q) Posf, Chap. XXXVII. 
 
 (r) Post, Chap. XLI\'. (s) Post, Chap. XXXIV. 
 
 (t) Append. Chap. XIX. ^ 12. (u) Id. ^ 13, 14. 
 
 (z) Ante, 401, 2, 3 ; 405, G, 7. Post, Chap. XLIV. Append. Chap. XVI. § 11. 
 
 (i/) Post, Chap. XXI. la the King's Bench the rule is absolute in the first inst.incc, un- 
 less the warrant of attorney be above twenty years old, and then it is a rule ni.-ii. 1 Chit. 
 Rep. G18, in notis. 2 Harn. & Cres. 555. 4 Dowl. & Ryl. 5, S. C. In the Common Pleas, if 
 the warant of attorney be above a year old, leave to enter judgment ma}' be given by a 
 side-bar or treamnj rule; ante, 484; but if the warrant be above ten years old, the court 
 must be moved for leave to enter judgment. If the warrant be under twenti/ years old, the 
 rule in that court is absolute in the first instance ; but if it be above twenty years old, it is 
 a rule to show cause. Barnes, 47. Cas. Pr. C. P. 140 ; and see Append. Chap. XIJII. § 00. 
 
 (a) I'ost, Chap. XXIII. If the rule be moved for on behalf of a copyhold tenant, il is ab- 
 solute in the first instance, in the King's Bench ; 3 Durnf. & East, 141 ; but otherwise it is a 
 rule nisi. 7 Durnf. k East, 746. la the Commoa Pleas, it is always a rule to show cause. 
 2 Blac. Rep. lOGl. 
 
 (6) Post, Chap. XXXV. Append. Chap. XXXV. ? 26. 
 
 (c) Post, Chap. XLIV. Append. Chap. XLIV. ^ 22, 
 
 (rf) Post, Chap. XXI. («•) Post, Chap. XXII. 
 
 (/) Post, Chap. XXXII. Append. Chap. XXXII. § 13, 14. 
 
 ((f) Ante, 485, (/). {h) Post, 511. (i) Post, Chap. XXXVL 
 
 (k) Post, Chap. XLIII. Append. Chap. XLIII. g CO. 
 
 (/) Antt, 110, 11, 119. (m) Ante, 113, A'c. 
 
 {nn) Ante, 27G. The motion is to justify bail; but the rule is tor the allowance of it. 
 
 (oo) Post, Chap. XXI. (;>/)) Post, Chap. XXXI. 
 
 (qq) Post, Chap. XLIV. (rr) /'o»<, Chap. XXXVIL 
 
 [ss] Post, Chap. XL. 6 Durnf. & East, 601, (6).
 
 486 OF MOTIONS AND RULES, ETC. 
 
 prothonotaries, either party may move for their report thereon. In some 
 of the preceding cases, the rule may be drawn up on a judge's order in 
 vacation, on producing a motion paper signed by a counsel or serjoant ; 
 as for the master or prothonotaries to compute principal and interest on 
 bills of exchange, or promissory notes, (^) &c. ; to bring money into court, 
 change the venue, or plead several matters ; for a special jm^y, or view ; 
 to have a good jury, on the execution of an inquiry ; or to make a submis- 
 sion to arbitration a rule of court. («) 
 
 *Special rules nisi^ or to show cause, are moved for, in both 
 [ *487 ] courts, on behalf of the pZamf/jf or defendant. On behalf of 
 the plaintiffs they are, in the King's Bench, to discharge the 
 rule for a special jury ;(a) or for a scire facias, to revive a judgment above 
 fifteen years old:(i) In the Common Pleas, for a scire facias to revive a 
 judgment, above tiventy years old;(«?) and, in both courts, for the sale of 
 issues, on a writ of distringas ;{d) to amend the writ,(e) or return; that 
 the money deposited with the sheriff, and paid into court, under statute 
 43 Geo. III. c. 46, § 2, may be paid over to the plaintiff ;(/) to set aside 
 a judgment of nonpros, for irregularity ',{g) for leave to enter up judgment 
 on a warrant of attorney, above twenty years old :{h) to refer it to the 
 master or prothonotaries, in term time, to compute principal and interest 
 on bills of exchange, or promissory notes,(2) &c. ; for the execution of a 
 writ of inquiry before the chief justice,(A;) or a judge at nisi prius ;{Jc) for 
 the defendant to produce a deed in his possession, and give a copy thereof 
 to the plaintiff, when entitled to inspect it, in order that he may declare 
 thereon ;(Z) or to produce the same before the Commissioners of the Stamp 
 office, to be stamped,(w2) or to the plaintiff's attorney, in order that he 
 may ascertain the names of the witnesses, so as to subpoena them ;{n) to 
 discharge the rule for changing the venue, for irregularity ;(o) for a trial 
 at bar,(^;) or in an adjoining cowatj ',[q) to set aside a nonsuit, verdict, or 
 inquisition, and have a new trial, (rr) or inquiry ;(ss) to enter judgment for 
 the plaintiff, non obstante veredicto ;{tt) that the plaintiff may be allowed 
 his costs of suit, in an action on a judgment ;(w2i) to enter up judgment, 
 and take out execution, after verdict against one of several defendants, 
 where the rest have agreed to be bound by it ;(.r) or to take out execution, 
 pending a writ of error. (?/) 
 
 (C) Ante, 484. 
 
 {u) 5 Barn. & Aid. 217. And see stat. 5 Geo. IV. c. lOG, ? 8, for granting rules in vaca- 
 tion, in the courts of Great Sessions in Wales, for a particular of the plaintiff's demand 
 and defendant's set off, &c. 
 
 («) Post, Chap. XXXIV. {b) Ante, 485, [m). 
 
 (c) Post, Chap. XLII. {d) Ante, 111. 
 
 {e) Ante, 130, 161. (/) Ante, 228, 9. 
 
 {g) Ante, 460. (A) Ante, 485, 6, {y). Post, Chap. XXI. 
 
 (?) Post, Chap. XXIT. Append. Chap. XXII. ? .^2. 
 
 [k) Post, Chap. XXII. Append. Chap. XXII. \ 55. 
 
 {I) 2 Chit. Rep. 229, 231. 1 Taunt. 386; and see 4 Taunt. 666. 1 Moore, 465. 8 Tannt. 
 131. 2 Moore, 513, (a), S. C. 3 Moore, 671. 1 Brod. & Bing. 318, S. C. ; but see 6 Taunt. 
 283. Id. 302. 1 Marsh. 610, S. C. 8 Taunt. 131. 2 Moore, 513, &c. 
 
 (to) Cooke Y. Stocks, M. 36 Geo. III. K. B. 4 Taunt. 157. 5 Moore, 71 ; and see 1 Bing. 
 161. 3 Bing. 292. 
 
 («) 2 Chit. Ilcp. 230 ; and see 2'Campb. 95, n. (o) Post, Chap. XXIV. 
 
 [p) Post, Chap. XXXIII. Append. Chap. XXXIII. ? 1. {q) Post, Chap. XXXIII. 
 
 {rr) Post, Chap. XXXVIII. Append. Chap. XXXVIII. ^ 1. 
 
 (ss) Post, Chap. XXII. ' (il) Post, Chap. XXXVIII. 
 
 (mm) Post, Chap. XL. ; and see stat. 43 Geo. III. c. 46, § 4. 
 
 (x) Post, Chap. XLI. (y) Post, Chap. XLIV.
 
 OP MOTIONS AND RULES, ETC. 487 
 
 On behalf of the defendant^ rules to show cause are, in the King's Bench, 
 to consolidate actions \{z) in the Common Pleas, to declare *j)er- 
 emptorili/ ;{(() when the defendant is in custody; to change the [ *488 ] 
 venue •,{b) to plead several matters, except in certain cases ;(c') or 
 for the copyhold tenants of a manor to inspect and take copies of court 
 rolls ;((Z) and, in both courts, they are to reverse an outlawry ;(t') to quash 
 the writ;(/) to set aside proceedings for irregularity in the process,((/) or 
 notice to appear,(/i) or in the delivery, filing, or notice of declaration,!/) or 
 notice of trial or inquiry;!/) and, if the defendant be in custody, to discliarge 
 him on filing cunimon bail, or entering a common appearance ; or, if he has 
 given bail to the sheriff, tiiat the bail bond may be delivered up to be can- 
 celled ;{/) that the money deposited with the sheriiT, and ])aid into court, 
 under the statute 4o Geo. III. c. 40, § 2, maybe repaid to the defendant, 
 or his bail, on putting in and perfecting bail to the action ,(A:) to set aside 
 proceedings on the bail bond,(^) or against the sheriff, for irregularity,(?«) 
 or to stajj them upon terms ;(«) for time to plead, under special circum- 
 stances ;(o) to staj/ proceedings, where the debt sued for appears to be under 
 forty shillings,(p) or the action is brought or conducted on bad or defective 
 grounds,(/;) contrary to good faith, (^?) or without proper authority ;(^j) or 
 that they may be stayed^ pending a writ of error,( p) until security be given 
 for payment of costs,(^j) or the costs are paid of a former action for the same 
 cause ;(/>) to set aside an interlocutory judgment, for irregularity ,(7) or, if 
 regular, on an affidavit of merits ;(</) to strike out superfluous or unnecessary 
 counts ;(r) to withdraw the general issue, and plead it de novo, with a notice 
 of set ofr,(6') or upon bringing money into court ;(s) to add or withdraw spe- 
 cial pleas \{t) to amend the pleadings :{u) for judgment as in case of a non- 
 suit ;(.t'x-) to put off a trial, for the absence of a material witncss(v/_y) or 
 consent to his being examined on intcrrogatories,(25;) or, in the Common 
 Pleas, commission for that purpose ;(*) to set aside a verdict or 
 inquisition, and that there may be a new trial(t) or *inquiry, or [ *4S9 ] 
 (after a point reserved,) that a nonsuit may be entered ;(aa) in 
 
 [< 
 
 (r) Post, Chap. XXIV. Append. Chap. XXIV. § 8. 
 
 \a) Ante, 424. (i) iW/, Chap. XXIV. Append. Chap. XXIV. g 5. 
 
 (c) Post, Chap. XXVII. Append. Chap. XXXVII. g 12. 
 
 (rf) Ante, 486, («). (e) Ante, 138, &c. 
 
 (/) .4/i<e, 161, 1G7. (^) yI/(/c, IGO, 61. i'o«<, Chap. XX. 
 
 Ill) Ante, 167. (i) Post, Chap. XX. 
 
 \k) Ante, 227, 8. (/) Arite, 301, 2. 
 
 (to) Ante, 316, 17. 
 
 (;i) /(/. ihid. And note, one motion may be made in the original action, to stay all the 
 proceedings on the bail bond piven in that action ; and one rule in such case seems to bo 
 sufficient. Nicldcn v. Profit, Same v. T.itjlor, and Same v. Birley, II. 37 Geo. III. K. B. 3 
 Bos. & Pul. 118, C. P. ; and see ante, 304. 
 
 (0) Ante, 4G0, 70. (p) Post, Chap. XX, 
 
 {q) Post, Chap. XXII. 
 
 (ri Post, Chap. XXIV. 
 
 (s) Post, Chap. XXVII. In these and the two following cases, though an application 
 may, under special circumstances, bo made to the court, yet it is more usual to proceed 
 by summons and order, before a judge. 
 
 (<)iVv<, Chap. XXVII. 
 
 (m) Post, Chap. XXIX. Append. Chap. XXIX. ? 11, 12. 
 
 (zx) Post, Chap. X.XXIII. Append. Chap. XXXIII. '6 18. 
 
 [liy] i'o«^ Chap. XXXIII. 
 
 [zz) Ante, 485, {g). Post, Chap. XXXV. Append. Chap. XXXV. I 12, 13. 
 
 (*) Post, Chap. XXXV. Append. Chap. XXXV. ? 16. 
 
 (t) Post, Chap. XXXVIII. Append. Chap. XXXVIII. ? 2. 3. 
 
 [aa] Post, Chap. XXXVIII. Append. Chap. XXXVIII. g 2, 3.
 
 489 OF MOTIONS AND RULES, ETC. 
 
 arrest of judgment, (?>) for the plaintiff to bring the postea into court, anil 
 file the plea roll, so that the defendant may enter a suggestion, to entitle 
 him to costs, on the court of conscience acts ;((?) for a suggestion, after 
 non-suit or verdict, to entitle him to double or treble costs, ((i) &c. ; that 
 he may be allowed his costs of suit, where the plaintiff does not recover 
 the sura for which he was arrested, and had not any reasonable cause for 
 arresting him to that amount :((?) for the discharge of an insolvent debtor, 
 under the statute 48 Geo. III. c. 123 ;(/) or to set aside an execution for 
 irregularity, and discharge the defendant out of custody, or restore to 
 him the money levied. (^) 
 
 The defendant also, as well as the plaintiff, may move for leave to 
 inspect and take copies of books, &c. or have them produced at the 
 trial ;(7i) for a trial at bar,(i) or in an adjoining county :(y^) to set aside an 
 award,(Z) or judge's order :{m) for a repleadcr,(w) or veiiire facias de 
 novo ;{n) for the master or prothonotaries to review their taxation ;(o) or 
 to enter up judgment, nunc pro tunc.{p) 
 
 There are some motions and rules peculiar to the action of ejectment ; 
 such as, on behalf of the lessor of the plaintiff before aj^j^earance, for judg- 
 ment against the casual ejector,(^) in ordinary cases ; or, in the King's 
 Bench, against the real ejector, on a vacant possession ; or, when the tenant 
 cannot be met with, that service of the declaration on a relation or servant 
 may be deemed good service ;(r) or, when a landlord proceeds on the sta- 
 tute 1 Geo. IV. c. 87, that the tenant may give such undertaking, and enter 
 into such recognizances as are required by that statute :(s) after appearance^ 
 and before trial, they are to set aside a release by the nominal plaintiff, or 
 his lessor, or a retraxit and cognovit by the tenant ; or for a trial at bar : 
 and, after trial for leave to take out execution against the casual ejector, 
 when the landlord has been made defendant, and failed at the trial; for an 
 attachment against the defendant, in the King's Bench and Common Pleas,(^) 
 or subpoena in the Exchequer,(?t) for non payment of costs on the consent 
 rule, after a nonsuit, for not confessing lease entry and ouster ; or for an at- 
 tachment, for opposing the execution of the writ of possession, &c. On be- 
 half of the tenant, &c. before app)earance, they are to set aside a judgment 
 against the casual ejector for irregularity^ or, when regular^ 
 [ *490 ] upon an *affidavit of merits, and payment of costs ; the common 
 consent rule •,{aa) for the landlord to be admitted to defend, with or 
 without the tenant ',{bb) or for a tenant in common, joint tenant, or coparce- 
 ner, to confess lease, and entry, and also ouster of the nominal plaintiff, in 
 case an actual ouster of the plaintiff's lessor, by the defendant, shall be 
 proved at the trial, but not otherwise :[cc) after appearance, and before 
 
 {h) Post, Chap. XXXVIII. Append. Chap. XXXVIII. | 4, 5. 
 
 (c) Post, Chap. XL. Append. Chap. XL. § 2, 3 ; and see 8 East, 28. 
 
 [d) Prichard v. Peacock, E. 35 Geo. III. K. B. 
 
 {e) Stat. 43 Geo. III. c. 46, § 3. { f) Ante, 386, &c. T Taunt. 37, 467. 
 
 (ff) Post, Chap. XLI. (h) Post, Chap. XXIIL 
 
 (t) Post, Chap. XXXIII. Append. Chap. XXX III. § 1. 
 
 (k) Post, Chap. XXXin. {1} Post, Chap. XXXVL 
 
 (m) Post, 511. (n) Post, Chap. XXXVIIL 
 
 (o) Post, Chap. XXXIX. (p) Post, Chap. XL. 
 
 (q) Append. Chap. XLVL ? 42, 3, 4. (r) Id. ? 38, 9. 
 
 (s) Id. § 50, 52. (t) Append. Chap. XL. § 9, 10. Chap. XLVI. ? 126. 
 
 (u) Append. Chap. XL. ? 13. Chap. XLVI. ^ 127, 8. 
 
 (aa) Append. Chap. XLVI. § 64, &c. Ibb) Id. § 75, &c. 
 
 (cc) Id. 2 72.
 
 OF MOTIONS AND RULES, ETC. 490 
 
 trial, tlicy are to consolidate ejectments; to stay proceedings against the 
 defendant, until security be given for the payment of costs; or until the 
 costs are paid of a former ejectment ;((i) to stay execution, pending error; 
 or to stay proceedings, on payment of rent, kc. on statute 4 Geo. II. c. 
 28:(g) or on payment of mortgage money, &c. on statute 7 Geo. II. c. 20, 
 § !:(/) and, after trial, for an attachment against the lessor of the plain- 
 tiff, in the King's IJench, or Common rieas,(^) or subjnxtta in the Exche- 
 quer,(A) for non-payment of costs on the consent rule, where the plaintiff 
 is nonsuited upon the merits, or there is a verdict for the defendant ; or 
 for restoring the possession of premises, improperly delivered to the lessor 
 of the plaintiff, under the writ of possession, &c. These motions and rules 
 will be treated of, in the order in -which they occur, in the last chapter of 
 the present work. 
 
 There are other motions and rules, not necessarily connected with any 
 suit ; such as to set aside an annuity, and deliver up the securities to be 
 cancelled, kc. ; to strike an attorney off the roll, for misconduct,(/) or, at 
 his own instance, when there is no complaint against him ;(/c) to re-admit an 
 attorney, who has neglected to take out his certificate for more than a year 
 on payment of the arrears of stamp duty,(Z) kc. ; or to make a submission 
 to arbitration, by bond or agreement, a rule of court. (???) The rule for 
 striking an attorney off the roll at his own instance, or for making a sub- 
 mission to arbitration a rule of court, is drawn up on the signature of coun- 
 sel, in the King's Bench: but in the Common Pleas, it is moved for in 
 court, and absolute in the first instance :{n) In the other cases, the rule 
 is only to show cause. 
 
 Rules, it has been said, arc not records ; but only rcmemhranccs, not en- 
 tered on the rolls of the court. (o) A rule or order drawn up by an oQiccr 
 of a court of justice, and purporting to be the rule or order of the court, is 
 BO considered, until amended or set side.(j9) And if a rule of court be 
 produced under the hand of the proper ofiicer, there is no need to prove it 
 to be a true copy, because it is as an original. (ry) But the allegations in a 
 rule of court, do not prove the facts alleged. (r) 
 
 •A motion is sometimes preceded by a notice ;{a) and is in [ *491 ] 
 general accompanied with an affidavit, or affidavits, of the facts 
 necessary to support it.(6) In the King's Bench, notice of motion is ne- 
 cessary in the case of an information, or to quash a conviction. (ec) And 
 in other cases, though seldom necessary, it is frequently given, in order 
 that the rule nisi may operate as a stay of proceedings; or to save time 
 and expense, by affording the adverse party an opportunity of showing cause 
 in the first instance, or by inducing the court to disallow the costs of pro- 
 ceedings had after notice, and before the motion. The statute 14 Geo. II. 
 c. 17, § 1, requires notice of motion for judgment as in case of a nonsuit ; 
 but, in the King's Bench, the rule to show cause is considered a sufficient 
 
 (d) Id. ? 91. 
 
 (e) Id. l 85, 6, (/) Id. \ 87. 
 
 \g) Append. Chap. XL. I 9, 10. (A) Append. Chap. XLVI. g 127, 8. 
 
 (j) yin/c, 89. {k) Id. ibid. 
 
 (/) Ante, 78, 9, 80. (m) Po.it, Chap. XXXVI. 
 
 (n) Append. Chap. XXXVI. ?, 19. (o) 1 Wils. 40. 2 Ham. & Aid. 61. 
 
 (p) 6 Moore, 501. 3 Brod. & Bing. 188, S. C. ; but see 2 Barn. & Crcs. 45. 3 Dowl. & 
 Ryl. 237, S. C. in Error. 
 
 (q) 1 L(l. Raym. 74.-i ; and see 1 Campb. 102. (r) G Taunt. 19. 
 
 (a) Append. Chap. XIX. § 1, &c. (6) /(/. § 5. 
 (cc) Rex V. Johnson, M. 22 Geo. III. K. B. 
 
 Vol. I.--31
 
 491 or MOTIONS AND RULES, ETC. 
 
 notice of itself ;(£?) though it is otherwise in the Common Pleas :(e) And, in 
 the latter court, a rule nisi is no stay of proceedings, unless notice of mo- 
 tion be given, and an affidavit thereof filed, except in the case of rules for 
 new trials, or in arrest of judgment. In the Exchequer, when a party gives 
 notice of an intended motion, and no one appears on the appointed day to 
 make it, the court will not give the other party, who has attended for the 
 purpose of opposing it, the costs of his attendance, if one notice only has 
 been given. (/) Such attendances, however, have been taken into consi- 
 deration, when motions, of which several notices had been given, have 
 been at length brought on ; and the court have, in certain cases, after the 
 motions have been disposed of, exercised a discretionary power, in giving 
 directions respecting the costs. (/) 
 
 Affidavits are in general sworn in court, or before a judge or haron of 
 the court, where the action is brought ; or before a commissioner autho- 
 rized to take affidavits, by virtue of the statute 29 Car. II. c. 5 ',{g) or, if 
 made for the purpose of holding the defendant to special bail, they may 
 be sworn before the officer who issues the process, or his deputy ;(7i) or, to 
 prove the service of common process, before the clerk of the common bails, 
 or filacer, by the statute 12 Geo. I. c. 29.(2) And, by a late rule of the 
 court of King's Bench,(^) it is ordered, that " no commission for taking 
 affidavits in that court shall be issued to any person practising as a con- 
 veyancer, unless such person be also an attorney or solicitor of one of the 
 courts at Westminster ; and that no such commission shall issue, without 
 an affidavit, made by the person intended to be named therein, that he is 
 not, and doth not intend to become a practising conveyancer, or that he is 
 an attorney or solicitor, duly enrolled in one of the said courts, and hath 
 taken out his certificate for the current year." Which rule was extended, 
 by a subsequent one,(^) to attorneys and solicitors duly enrolled 
 [ *492 ] and *practising in any of the courts of great sessions in Wales, 
 or in either of the counties palatine of Chester, Lancaster, or 
 Durham. 
 
 Affidavits maybe considered with reference to their title, contents, ^Mra^, 
 stamp, and filing, &c. : The title also may be considered, as it respects the 
 court, or the names of the parties. All affidavits should regularly be enti- 
 tled in the court where they are made, or intended to be used ; and in the 
 King's Bench, we have seen, (a) if they be not so entitled, but only sub- 
 scribed with the words, ''''By the Court," at the bottom of the jurat, they 
 are not sufficient to entitle the party to read them ; nor can they be read, 
 if sworn before a commissioner, without stating him to be a commis- 
 sioner of this court, unless they are so entitled. (6) In the Common Pleas, 
 
 [d) Lofft, 265. 
 
 (e) 1 H. Blac. 527. Append. Chap. XXXIII. § 16; and see 2 Taunt. 48. 
 (/) 9 Price, 14. 
 
 (g) For the form of the jurat in these cases, see Append. Chap. XIX. § 6, &c. 
 
 {h) Ante, 154, 164, 5 ; 179. Append. Chap. X. § 1. («) Append. Chap. XII. § 4. 
 
 {k) R. H. 3 & 4 Geo. IV. K. B. 1 Bam. & Cres. 288. 2 Dowl. & Ryl. 438. 
 
 {I) R. E. 4 Geo. IV. K. B. 1 Barn. & Cres. 656. 2 Dowl. & Rjl. 870. And see stat. 5 
 Geo. IV. c. 106, ^ 9, authorizing the judges of the courts of Great Sessions in Wales, to 
 issue commissions, directed to persons resident out of their jurisdiction, for taliing answers, 
 examinations, and aflSdavits, &c. ; and id. g 28, by which commissioners for taliing afiSdavits 
 in the King's Bench, Common Pleas, and Exchequer, or a master extraordinary in Chan- 
 cery, are authorized to take them, of and concerning any matter arising within the jurisdic- 
 tion of the said courts of Great Sessions. 
 
 (a) Ante, 180, 81. Append. Chap. XII. § 4. 
 
 {b) 13 East, 189; but see 7 Durnf. & East, 451.
 
 OF MOTIONS AND RULES, ETC. 492 
 
 ■we have seen, {ante, 170,) an afii<lavit of debt sworn before a commis- 
 sioner in the country, without statin^r him to be a commissioner in the 
 jurat, is insufficient, althou;:^h entitled in this court. 1 Moore & P. 22, 4 
 Bing. 393, S. C. And, in the Common Pleas, a rule nisi was discharged, 
 because the affidavit on which it was obtained, was not entitled in any 
 court, although it appcarc<l from the jurat, that it was sworn before one 
 of t\ic juiIf/t'H of this court. (f) But affidavits sworn before a judge of the 
 court of King's Bench, though not entitled therein, may it seems be 
 read :(rf) And, in the Common Pleas, an affidavit entitled " In the Common 
 Place,'" has been deemed sufficient. (o) 
 
 When a cause is depending in either court, the affidavits should regu- 
 larly be entitled with the christian ami surnames of all the parties,(/) and 
 the character in uhich they sue, or are sued ;(^) -which must also be 
 inserted in the title of affidavits, produced to show cause against any 
 rule:(/i) And an ambiguity in the title, such as styling the plaintiff "assig- 
 nee," without saying of whom, or giving any further explanation, is 
 fatal. (/) But where common process is sued out against A. and several 
 other defendants, in the Common Pleas, if the latter be not brought into 
 court, the affidavit to set aside the proceedings may be entitled in a cause 
 between the plaintiff and A. only :{k) And in an action not bailable, 
 against two, one defendant may, before declaration, well entitle his affida- 
 vits in a cause of A. against B. who is sued with C.(/) When no cause is 
 depending, as in the case of affidavits to hold to bail, it is a rule in the 
 King's Bench, that such affidavits be not entitled in any cause, nor read 
 if filed :(w?) And in the Common Pleas, we have seen,(«) if an affidavit to 
 hold to bail be entitled in a cause, it is bad ; and the defendant may be 
 discharged, on entering a common *appearance. The affidavits 
 on a motion for leave to file a criminal information, in the King's [ *493 ] 
 Bench, ought not to be entitled ; and if they are, cannot be 
 read: The affidavits produced on showing cause may,(rt) or may not, (5) 
 be entitled: but all affidavits made after the rule is absolute, must be enti- 
 tled. ((?c?) So, where a submission to an award is made a rule of court 
 under the statute, there being no action, the affidavits on which to apply 
 for an attachment, for disobeying the award, need not be entitled in any 
 cause ; but the affidavits in answer must.((/c?) In entering up judgment 
 on an old warrant of attorney, the affidavit may be properly entitleil in a 
 cause -.{ee) And, in moving to stay proceedings on a bail bond, the affida- 
 vit on which the motion is made, is to be entitled in the original action, 
 and not in the actions against the bail.(^") Motions and affidavits for 
 
 (c) 1 Bos.& Pul. 271. 
 
 (rf) 13 East, 189. (<•) 4 Iliiig. 101. 
 
 (/) 2 Sulk. 4G1. 2 Durnf. & East, G44. R. M. 38 Geo. III. K. B. 7 Dunif. & East, 454 
 661. 8 Taunt. 647. 2 Moore, 722, S. C. 1 Chit. Rep. 727, 8. 8 Dowl. & Ryl. 423; and 
 see 1 Smith R. 457. 2 Smith R. 394. 1 Bos. & Pul. 36, 227. 3 Price, 199; but see 5 
 Taunt 333. 1 Marsh. 70, S. C. 
 
 (^) 3 Taunt. 377. (A) 7 Durnf. & East, 6G1. 1 Chit. Rep. 727, 8. 
 
 \i) 3 Taunt. 377. 1 Chit. Rep. 728, in nodi. 
 
 \k) 6 Taunt. 5. 1 Marsh. 403, S. C; and see 6 Taunt. 286; but see 1 Chit. Rep. 727, 8, 
 (a), scmh. contra. 
 
 {/} 6 Taunt. 286. (m) R. T. 37 Geo. 111. K. B. 7 Durnf. k East, 454. Ante, 180. 
 
 (n) Ante, 180. (<j) 1 Sir. 704. Andr. 313. 
 
 (b) 6 Durnf. & East, 60 ; and see 11 East, 457. (cc) 6 Durnf. & East, 642. 
 
 {dd) 3 Durnf. & East. 601 ; and see 5 East, 21. 12 East, 166, (a). 
 
 (ee) 1 Barn. & Aid. 507. Id. 508, (a). 
 
 (/) Ante, 304 ; but see 2 Chit. Rep. 109. 7 Moore, 521. 1 Bing. 142, S. C.
 
 498 
 
 OF MOTIONS AND RULES, ETC. 
 
 attachments in civil suits are, we have sccn,((/r/) in the King's Bench, pro- 
 cecdinf^s on the plea side of the court, until the attachments are granted, 
 and arc to he entitled with the names of the parties ;(A/i) hut as soon as 
 the attachments are granted, the proceedings are on the crown side, and 
 from that time the king is to he named the prosecutor : And motions and 
 affidavits for attachments arc entitled in like manner, in the Common 
 Pleas. (?) and Exchequer. On moving for a rule 7iisi for a certiorari, it is, 
 ■we have seen,(^) irregular to entitle the affidavits in any cause ; and if 
 they are entitled, they cannot he read.(^)[A] 
 
 In point of fortn, affidavits begin with stating the names, and places of 
 abode, of the persons by whom they are made : And, in the King's Bench, 
 it is a iu\e,{m) that " the addition of every person making the affidavit, 
 should be inserted therein;" but there is no such rule in the Common 
 Pleas : and, in the latter court, it is not necessary that an affidavit, made 
 by the defendant in the cause, stating his name and place of abode, and 
 styling him defendant, should also contain the addition of his degree. (w) 
 The affidavits should contain a full statement of the circumstances neces- 
 sary to support the application ;(o) and the rather, as it is a rule not to 
 receive supplementary affidavits, on showing cause, without leave of the 
 court :{p) But there is said to be a diversity between affidavits which con- 
 tain new matter, and such as tend only to confirm what was alleged and 
 sworn when the rule was made ; in the latter case, it seems they may be 
 read, but not in the former, (^) Clerical errors, and mistakes in spelling, 
 are not considered a sufficient ground for rejecting an affidavit, 
 [ *494 ] when the meaning is *clear.(a)[B] And when notice of motion 
 has been given it should be sworn that it was duly served. (5) 
 
 By the general practice of all the courts, affidavits sworn before the attor- 
 ney or solicitor in the cause, cannot be read.(c) And this practice extends 
 to affidavits taken before attorneys, as commissioners, in causes wherein 
 they are concerned for the parties on whose behalf such affidavits are 
 made ; except where they are made for the purpose of holding the defend- 
 ant to special bail,(cZ) or entering an appearance in the Common Pleas :(e) 
 and that court will discharge, with costs, a rule obtained by a party on 
 affidavits, which are sworn before his own attorney in the cause. (/) It is 
 also a rule in the Common Pleas,(.9') that " when the acknowledgments 
 of any person or persons levying fines,- or suS"ering recoveries, shall be 
 taken before commissioners, one at least of the commissioners for tak- 
 ing the acknowledgment of any party to such fine or recovery, shall 
 
 lag) Anfe, 480, 81. 
 
 (hh) 3 Durnf. & East, 253. 7 Durnf. & East, 439, 528. 12 East, 165. 
 li) 2 Bos. & Pul. 517, (a). (k) Ante, 400. 
 
 {I) 1 Barn. & Cres. 267. (»«} R. M. 15 Car. II. reg. 1 K. B. Ante, 179. 
 
 (n) 6 Taunt. 73. 
 
 (o) For the forms of the affidavits in particular cases, see 1 Chit. Rep. 102, (a), 316, 321. 
 3 Barn. & Aid. 582. 
 
 {p) Fast, 496, 7, 501. (?) 2 Salk. 461. 
 
 (a) 1 Chit. Rep. 562. (6) Append. Chap. XIX. § 4. 
 
 (c) 2 Ken. 421. 3 Durnf. & East, 403, K. B. 3 Moore, 325, C. P. Wightw. 62. 1 Price, 
 116. 6 Price, 230. 9 Price, 478, Excheq. 3 Atk. 813. 1 Rose, 145, Chan. 
 
 (d) R. E. 15 Geo. II. reg. 2, K. B. R. E. 13 Geo. II. reg. 1, C. P. Ante, 179, 80. 
 
 (e) R. E. 13 Geo. II. reg. 1, C. P. (/) 8 Taunt. 74. 
 
 (g) R. E. 8 Geo. IV. C. P. 4 Bing. 248 ; and see R. H. 7 & 8 Geo. IV. C. P. 4 Bing. 102. 
 
 [a] See Whitney v. Warner, 2 Cow. 299. 
 
 [b] See ante, p. 180, note [a].
 
 OF MOTIONS AND RULES, ETC. 494 
 
 be a person wlio is not concerned as the attorney solicitor or agent, 
 or clerk to the attorney solicitor or agent, of any party thereto ; and 
 that in the affidavit to he made of the due taking of such acknowledjj- 
 ment, it shall he deposed, in addition to the facts now required, by the 
 rules of the court, to bo included in such afTidavit, that one at least of 
 the commissioners taking such acknowledgment, is not the attorney soli- 
 citor or agent, or clerk to the attorney solicitor or agent, of any of tho 
 parties to the fine or recovery, for taking the acknowledgment to which 
 the commission, under which he has acted, has been issued ; and the name 
 and residence of such commissioner shall be stated in such affidavit." But 
 the rule which prohibits the swearing of affidavits before the attorney or 
 solicitor in the cause, does not extend to the attorney's clerk ; and there- 
 fore an affidavit may be taken before a clerk of the attorney in the cause, 
 if such clerk be empowered to take affidavits. (/t) So, in the Common 
 Pleas, if the agent in town be the attorney on record, it is no objection 
 to an affidavit of the party, that it is sworn before his own attorney in the 
 country.(e) 
 
 The jurat of affidavits should state where, when, and before whom they 
 are sworn :(/<;) as that they are SAVorn in court, when there made ; or, if 
 the court be not mentioned at the top of the affidavit, "in the court of 
 King's Bench, Common Pleas, or Exchequer, at Westminster Hall ;"(/) or, 
 if made before a jwlge or baron, that they are SAvorn at his chambers, or 
 house, describing the situation ;(7??) or, if made before a commis- 
 aioner, at the place *where he resides :{a) adding, in each case, [ *495 ] 
 the day of swearing them •,{b) and, if sworn in court, subscribing 
 these words, "By the Court ;"(<?) or, if sworn before a judge, baron, or 
 commissioner, his name ;{d) and, if the court be not mentioned at the top 
 of the affidavit sworn before a commissioner, that he is a commissioner of 
 the court of King's Bench, (e) &c. In the King's Bench and Exchequer, 
 it is a rule, that " where an affidavit is made before a commissioner, by a 
 person who from his signature appears to be illiterate, the commissioner 
 taking the affidavit shall certify, or state in the jurat, that it was read in 
 his presence, to the party making the same, who seemed perfectly to 
 understand it, and wrote his signature in the presence of the commis- 
 sioner. "(/) It is also a rule in these courts, that "upon every affidavit 
 sworn in court, or before any judge or commissioner thereof, and made 
 by two or more deponents, the names of the several persons making such 
 affidavit, shall be written in the jurat ;{g) and that no affidavit be read or 
 made use of, in any matter depending in either of tlicse courts, in the 
 jurat of which there shall be any interlineation or erasure. "(/«//) The 
 same practice obtains in the court of Common Pleas. And, in that court, 
 •if the month be omitted in the jurat of the affidavit, it is defective, and 
 
 (h) a Durnf. k East, 033. (/) 5 Taunt. 80, and see 8 Taunt. 435, 
 
 (A-) 3 Maulu <k Sel. 403, and see 1 Chit. Rep. 228, 405. 
 
 (l) Append. Chap. XIX. § 6. (m) LI. § 7. 
 
 (a) Append. Chap. XIX. § 8. (h) 1 Chit. Rep. 228. 
 
 (c) Append. Chap. XIX. jj 6. (rf) Id. I 7, 8. 
 
 (e) /rf. g 8, but see 1 Moore & P. 22. 4 Ring. 303, S. C. ^n/*-, 179, 402. 
 
 (/) R. E. 31 Geo. III. K. B. 4 Durnf. & East, 284. R. H. 40 Geo. III. & T. 1 Geo. IV. 
 E.xcheq. Man. Ex. Append. 224. 8 Price, 501, 504. Append. Chap. XIX. g 9, and see 1 
 Chit. Rep. 660, in notis. 2 Chit. Rep. 92. 
 
 (</) Append. Chap. XIX. 9 11. 
 
 \hh) R. M. 37 Geo. III. k! 15. 7 Durnf. k East, 82. R. T. 1 Geo. IV. Excheq. 8 Price, 
 501, and see 11 Price, 500. But an erasure over ihe Jurat does not vitiate it. 2 Chit. Rep. 19.
 
 495 OF MOTIONS AND RULES, ETC. 
 
 cannot be amended. (^7) In the Exchequer, it must appear hjtlae jurat of 
 every aOidavit, that it has been sworn by all the deponents ;{kk) but it is 
 not necessary, as in the other courts, that they should be severally named 
 in the jurat, as having been sworn. (ZZ) When an affidavit is made by a 
 foreigner, in the English language, an interpreter must be sworn, by the 
 officer taking the affidavit, to interpret it truly ; and the jurat should state 
 that the interpreter was so sworn, and did so interpret the affidavit : But 
 it is not necessary that any affidavit should be made by the interpreter, 
 or the officer taking the affidavit : It is sufficient that the latter certifies 
 by the jurat, that the above steps were taken. (w) So, in the case of an 
 affidavit made by a marksman, it is sufficient that the officer making the 
 jurat, certifies that it was read over to, and seemed to be understood by 
 the deponent, without any separate affidavit of that fact. But if the 
 affidavit by the party be made in a. foreign language, there must it seems 
 be another affidavit, by an interpreter, to verify a translation of the 
 affidavit of the party. When there is a defect in the jurat of an affidavit 
 on which a motion is made, it cannot be used, nor will time be given, 
 
 except in cases of bail, (w) But though the omission of the form 
 |_ *496 ] directed to be inserted in the jurat *of an affidavit, may be an 
 
 objection to its bemg received in the court whose rules have not 
 been complied Avith, yet still it seems that perjury may be assigned upon 
 it:(a) And on an indictment for perjury, in an answer to a bill in Chan- 
 cery, it was holden, that the recital in the jurat, of the place where the 
 answer purported to be sworn, was sufficient evidence that the oath was 
 administered at the place named. (5) 
 
 By the general stamp acts,(c) " every affidavit, to be filed, read or used 
 in any of the courts of law or equity at Westminster, or of the Great 
 Sessions mWales, or of the counties palatine of Chester, Lancaster, and 
 Durham, or before any judge or master, or other officer of any of the said 
 courts, &c., and the copy of every such affidavit, was formerly subject to 
 the stamp duty of half a crown." In the construction of these acts it was 
 holden that an affidavit made in the same cause, and relating to the same 
 subject matter, only required one stamp, though it were made by several 
 persons : And, in the King's Bench, an affidavit with a single stamp, was 
 deemed sufficient to found several rules, on a quo warranto prosecution. (c?) 
 But in general, an affidavit that related to several causes, must have had 
 as many stamps as there were cases to which it applied :(e) And, in the 
 Common Pleas, where the affidavits in four causes were each of them 
 entitled in all the four, but there was only one stamp on each affidavit, 
 and an objection was taken on this account, the court held the objection 
 fatal ; but allowed the counsel to amend, by striking out three of the 
 names, and reswearing the affidavits in the fourth cause, which made them 
 good affidavits in that cause. (/) In like manner, two separate affidavits 
 required separate stamps, though they were contained on the same 
 paper.(^) And, on showing cause against a rule which had been pre- 
 
 (u) 3 Moore, 236. {kk) 1 Price, 338. {II) 2 Price, 1. 
 
 (w) 4 Barn. & Cres. 358. 6 Dowl. & Ryl. 514, S. C. Ante, 180. 
 
 {n) 2 Chit. Rep. 20. (a) Ry. & Mo. 94. {b) Id. 97. 
 
 (c) 48 Geo. III. c. 149. Sched. Part. II. I III. 55 Geo. III. c. 184. Sched. Part. II. I III. ; 
 but see 4 Bing. 193. 
 
 {d) Rex V. Midler, T. 53 Geo. III. K. B. 1 Chit. Rep. 452, in notis. 
 
 («) Id. 451 ; aad see 2 Chit. Rep. 14. (/) 3 Taunt. 469 ; and see 8 Moore, 238. 
 
 \g) 1 Chit. Rep. 452, in notis.
 
 OF MOTIONS AND RULES, ETC. 496 
 
 \iously before a judge at chambers, the same affidavits could not be used, 
 unless they had been restamped.(/() The stamp duty, however, on affidavits, 
 and copies thereof, was abolished by the statute ') Geo. IV. c. 41. 
 
 The affidavit should be made before the rule is moved for,(i) and pro- 
 duced in court at the time of making the motion. (A-) The party therefore 
 moving for a rule cannot, without withdrawing his motion and moving it 
 again, make use of affidavits //c't? after he obtained his rule 7i{8i.{l) But 
 though affidavits have been used, and a motion made thereon, tliey may bo 
 again referred to, in support of a fresh motion. (w) AVhcn an affidavit 
 made in town has been used, but not before, it should be fib'd with the 
 clerk of the rules in the King's J3ench, in order that it may be given in 
 evidence, if necessary, on an indictment for perjury. (w) But country 
 affidavits must be filed sooner : it being provided by the statute 
 29 Car. II. c. 5, that " all *affidavits sworn before the comniis- [ *4'J7 ] 
 sioners appointed by virtue of that act, shall be filed in the 
 proper office of the court where the action or matter is depending, and 
 then read:" And it is necessary, in the King's Bench, (a) that "all such 
 affidavits be brought to the clerk of the rules of this court, to be filed, in 
 such convenient time that copies of them may be duly made, and delivered 
 to the party filing the same." In the Common Pleas, it is a rule, that 
 " the secondaries shall not file any affidavits, taken before any person that 
 is not commissioned to take the same ; and that no affidavit be road in 
 court, before the same is filed. "(ft) Affidavits of the execution of articles 
 of clerkship, and service under them, are filed with the cliief cleric^ or his 
 deputy, in the King's Bench, or clerk of the wari'ants, in the Common 
 Pleas ;(6') affidavits toehold to bail, with the officer w^ho issues the process, 
 or his deputy ;((Z) affidavits of the service of process, with the clerk of the 
 common bails, or filacer ;[e) affidavits of the truth of pleas in abatement, 
 with the clerk of the papers, or prothonotaries ; and affidavits of increased 
 costs, with the master, or prothonotary ,{f ) who taxes them. And when 
 an affidavit has been read and filed, it becomes a record of the court, and 
 cannot be taken off the file.(^) In the Exchequer, it is a rule, (////) that 
 "all affidavits, to be used on any special application to the court, be filed 
 one clear day before the application is made ; and that Avhere a notice of 
 motion is necessary to be given, the filing of any affidavit, in support of 
 the application, be also mentioned at the foot of the notice, to enable the 
 opposite parties to obtain a copy therefrom :'\hh) But this rule does not 
 extend to tiie filing of affidavits of mere service of notice of motion. (/iA) 
 It is also a rule, in the Exchequer, that " no office copy of any affidavit 
 filed in this court, be received and read, unless such office copy shall have 
 been previously examined, and signed by the attorney or clerk in court 
 making the same, or his accredited agent. "(iV) 
 
 In the King's Bench, an attachment for non-payment of costs, and 
 
 (/i) 4 Moore, 413. (0 3 Price, 259. 
 
 (k) R. H. 36 Geo. III. K. B. ; and see 2 Chit. Rep. 218. 
 
 (/) 1 Chit. Rep. 13G, (o) ; and see 7 Price, 700. 
 
 (m) 2 Chit. Rep. 14. (n) 7 Durnf. k Enst, 315. 
 
 (a) N. M. 9 Geo. II. K. B. (6) R. T. 2 W. k M. rey. 2 C. P. 
 
 (c) Antr, 64. (rf) Ante, 164, 179, 491. 
 
 («) Anff. 241, 2. ( f) R. 11. 11 Geo. II. rey. 1, C. P. 
 
 Iff) 2 Wils. 371. 
 
 (hh) R. n. 1 .1- 2 Geo. IV. Excheq. 9 Price, 83. 
 
 (tij R. E. 2 Geo. IV. Excheq. 9 Price, 298.
 
 497 OF MOTIONS AXD RULES, ETC. 
 
 against the shorifF for not returning the writ, or bringing in the, body, 
 may be moved for the last day of term. (7c) And where the rule to return 
 the writ expires on the last day of term, the sheriff is attachable in the 
 King's Bench, at the rising of the court on that day, if no return be made 
 before ; and the rule for the attachment is regular, though he make his 
 return on a subsequent day in vacation, before he is actually served with 
 the rule, and though, immediately after such service, he tender the sum 
 levied, deducting his poundage. (/) And the court, we have seen,(w?n) will 
 permit insolvents to be brought into court on the last day of term, when 
 the notices expire too late for the last appointed day. But the master's 
 report cannot be moved for on that day, without previous leave 
 [ *498 ] of the court, except in ^extraordinary cases, and upon personal 
 service of the notice :(«) And a motion for a rule to answer the 
 matters of an affidavit cannot be made,(6) or discussed, (<?) on the last day 
 of term, or any motion which would operate as a stay of proceedings,(cZ) 
 unless it appear to the court that, under the circumstances, it could not 
 have been made earlier, (e) So, the courts will not, on the last day of 
 term, hear a motion for a rule nisi for an attachment,(/) or to set aside 
 an award ilg) nor can counsel be heard on that day, to show cause against 
 the latter rule, but the same must be enlarged, and made a peremptory 
 for the next ensuing term.(7i) 
 
 The last day of term is said not to be a day for side-bar rules, in the 
 King's Bench ; though it seems to be otherwise in the Common Pleas : 
 and, in the King's Bench, if the party was entitled to such a rule before, 
 he may take it out on the last day of term, dated as of the preceding 
 day.(^■) A pj'ohibition is not in general grantable the last day of term: 
 but a rule may be obtained on motion, to stay proceedings till the ensuing 
 term ;{kk) and in one instance it was granted on motion the last day of 
 term, leave having been obtained the day before, to move it then.(/Z) A 
 rule nisi for a criminal information against a magistrate, for misconduct 
 in the execution of his office, ought in general to be moved for within the 
 fii'st term after the supposed offence ; and it may be granted at the end 
 of a term, against a magistrate for mal-practices during the term '.{mm) or, 
 where no assizes have intervened, it may be moved for in the seco7id 
 term :{n) though it cannot be moved for so late in that term, as to pre- 
 clude the magistrate from the opportunity of showing cause against it the 
 same term.(o) 
 
 In the Common Pleas, we have seen,(j;) that upon writs of distringas, 
 returnable the last day of term, the plaintiff might formerly have moved, 
 at the rising of the court, to increase issues on the alias or pluries dis- 
 
 (k) 1 Bur. 651. 5 Bur. 2686. Ante, 480. 
 
 (I) 11 East, 591 ; and see 1 Chit. Rep. 249. Ante, 308, 481. 
 
 (mm) Ante, 378. 
 
 (a) 1 Blac. Rep. 311. Per Cur. T. 40 Geo. III. K. B. 
 
 (6) 4 Bur. 2502. 1 Chit. Rep. 744. (c) 1 Chit. Rep. 744. 
 
 (d) Id. ibid. 2 Price, 143 ; but see id. 143, 4. 
 
 (e) Leader v. Harris, M. 37 Geo. III. K. B. Cas. Pr. C. P. 130. 
 (/) 3 Smith R. 118. Ante, A81. 
 
 (ff) Nettleton v. Crosby, H. 38 Geo. III. K. B. 
 
 (h) R. M. 36 Geo. III. K. B. ; and see 1 M'Clel. &Y. 393, where it was said hy JTuUock, B., 
 that no questions on awards are heard, in any court of Westminster Hall, on the last day of 
 term. 
 
 (i) Ante, 484. (kk) Latch, 7. 2 Rol. Rep. 456. 
 
 (//) 3 Bur. 1922. (m) 7 Durnf. & East, 80. 
 
 (n) 13 East, 270. (o) Id. 322. (p) Ante, 111, 312.
 
 OF MOTIONS AND RULES, ETC. 498 
 
 tringas, to be issued in case of non-appearance, on the following day; 
 or for a sale of the issues, to pay the costs of the writs ; or, -svlien a rule 
 to bring in the body expired on the last day of term, for an attachment 
 for not bringing it in, to be issued on the following day, provided bail 
 should not then bo perfected, or the defendant rendered in their dis- 
 charge. But in that court, no motion for an attachment can be made 
 on the last day of term, except for non-payment of costs on the protho- 
 notary's allocatur, or against the sherifi',(Y) for not returning the writ or 
 bringing in the body ; nor can a motion be made on that day, 
 for a rule nisi to change the venue, *unless the declaration [ "499 ] 
 was delivered so late in the term, that the defendant had not 
 an opportunity of making it earlier.(art) So, that court will not enter- 
 tain a motion, on the last day of term, for the amendment of fines or 
 recoveries, or any of the proceedings therein, (6) or on any subject relating 
 thereto ;(f) nor will they set aside judgment, if the dcfemlant could have 
 applied sooner ;((^) nor a motion in arrest of judgment, without previous 
 notice :(g) And Mr. Justice Twisden used to cite the year book oi IJdw. 
 IV. and say, they were to hear no law the last day of term.(/) In tho 
 Exchequer, the court will not, on the last day of term, grant a rule to 
 show cause, why interlocutory judgment should not be set aside, on pay- 
 ment of costs, unless it be clearly shown, by affidavit, that the plaintiflF 
 has lost an opportunity of proceeding to trial :((/) And that court will not 
 hear an argument on demurrer, on the last day of term. (A) 
 
 When a rule nisi is moved for, the party called upon may either show 
 cause against it in the first instance, or on a subsequent day. In the former 
 case, the counsel who applied for the rule has a right to reply in support of 
 it :{i) In the latter, the rule to show cause is drawn up for a particular day 
 in term, appointed by the clerk of the rules in the King's Bench, or second- 
 aries in the Common Pleas, accoi'ding to the place where the transaction 
 appears to have happened, upon the face of the affidavits on which the rule 
 was obtained, and so as to allow the party called upon sufficient time to 
 answer the application : If in town, the rule in the King's Bench is usually 
 drawn up for the fourth day, exclusive of the day of obtaining it ; if in the 
 country, for the sixth day in near, or for the tenth day in distant counties, 
 unless it be otherwise ordered by the court,(/i:) In the Common Pleas, Avhcn 
 the motion is pretty much of course, and the affidavits short, the rule in 
 toion causes is generally drawn up to show cause on the next day but ono 
 after the motion ; but if the affidavits are long, or the matter arises in the 
 country, the rule is commonly drawn up to show cause in about a week: 
 and, previous to the day of showing cause, the rule should be duly served. 
 The service, we may remember, cannot be on a Sunday :{l) And, in the 
 King's Bench, "no rules, orders, or notices, in any cause or matter de- 
 pending in that court, shall be served, nor any proceedings or pleadings 
 
 {q) CftS. Pr. C. p. 51. Pr. Reg. lOf, S. C. 
 \aa) Barnes, 480, 486, 489. Pr. Reg. 426, Y. 
 
 \b) 5 Taunt. 856. 6 Taunt. 652. 2 Marsh. 328, S. C. R. H. 60 Geo. III. & 1 Geo. IV. C. P. 
 4 Moore, 320. 2 Brod. & Bing. 122. 2 Chit. Rep. 379. 
 
 (c) 4 Moore, 1 13. 1 Bro.l. & Bing. 468, S. C. {d) Cas. Pr. C. P. 130. 
 
 (e) Id. 106. Pr. Reg. 238. Barnes, 247, S. C. (/) 2 Salk. 624. 
 
 {g) 13 Price, 225. 
 
 (A) M'Clel. 493 ; but see 13 Price, 247. 
 
 (i) 4 Taunt. 690. {k) 2 Chit. Rep. 372. 
 
 \l) Ante, 218,481.
 
 499 OF MOTIONS AND RULES, ETC. 
 
 delivereil or served, later than ten o'clock at night ; and any service or 
 delivery thereof, after that hour, shall be null and void;"(m) but tlie ser- 
 vice of the copy of a writ of latitat, &c. is not within this rule.(n) 
 [ *500 ] In the Common Pleas, it is a rule that " all *declarations and plead- 
 ings shall be delivered, all demands thereof made, and all notices 
 given, before 7i{ne o'clock in the evening :"(a) which rule has been applied 
 to a notice of motion for judgment as in case of a nonsuit •,{bb) and, in the 
 latter court, the delivery of a notice sealed up in a letter, before wme 
 o'clock at night, in the absence of the attorney to whom it was addressed, 
 was holden to be no service, but from the time when the letter was 
 opened.(c(?) 
 
 To bring a party into contempt, a copy of the rule must be personally 
 served, and the original at the same time shown to ')a\m.{dd) And the court 
 of King's Bench will not grant a rule to dispense with personal service of 
 the master's allocatur for costs, with a view to an attachment, on an affidavit 
 that the defendant keeps out of the way, to avoid being served. (e) In other 
 cases, the same degree of strictness is not required in the service of the rule ; 
 but it is sufficient to leave a copy of it with the person representing the 
 party, at his dwelling house or place of abode :(/) And, in the King's 
 Bench, it does not seem to be necessary to show the original at the time of 
 service :{g) but, in the Common Pleas, it seems that in order to make a per- 
 fect service of a rule, the original rule must be sworn to have been shown 
 to the party, at the time of serving the copy.(7i) It is not the practice, how- 
 ever, to serve enlarged rules; because both parties are before the court :(^') 
 And where the party appears, it cures all irregularity in the service of the 
 rule.(^) In the Exchequer, an affidavit of the service of a rule, by which 
 it is not intended to bring the party into contempt, need not state that the 
 original rule was shown at the time of service. 3 Younge & J. 30. And, in 
 that court, all notices must be given and received in the names of the clerks 
 in court.(?) When a rule is obtained, to set aside proceedings for irregu- 
 larity, and to stay proceedings in the mean time, the proceedings are sus- 
 pended for all purposes, till the rule is discharged :(wim) Therefore, where 
 the plaintiff took an assignment of the bail-bond, pending a rule to show 
 cause why it should not be given up to be cancelled, on the defendant's 
 filing common bail, the court of King's Bench set aside the assignment, as 
 having been made too soon. But when a defendant obtains a rule which 
 stays the plaintiff's proceedings, he is not, we have seen,(w?i) entitled, after 
 it is discharged, to the same time, for taking the next step, as he had when 
 he obtained the rule ; though the defendant in such case should have a 
 reasonable time allowed him, for the purpose of taking his next proceed- 
 ing : and the whole of the day on which the rule is disposed of, has been 
 
 (m) R. M. 41 Geo. III. K. B. 1 East, 132. 
 (n) 2 Chit. Rep. 357. 1 Dowl. & Ryl. 1*72. Ante, 168. 
 (a) R. E. 10 Geo. II. C. P. {bb) 2 Taunt. 48. 
 
 {cc) 3 Taunt. 234. Ante, 261. 
 
 {dd) 3 Durnf. & East, 351. 7 Dowl. & Ryl. 612 ; but see 2 Price, 2. 5 Dowl. & Rjl. 614. 
 (e) 1 Cliit. Rep. 503 ; and see 1 Dowl. & Rjl. 529. 
 (/) 2 Price, 4. 
 
 {g) Belairs v. Poultncy, E. 57 Geo. III. K. B. 1 Chit. Rep. 466, 7, (<x) ; but see 2 Str. 877, 
 semb. contra. 
 
 (h) Barnes, 403. Pr. Reg. 264, S. C. (i) 1 Smith R. 199. 
 
 (k) Noel ^ others v. E^jre, T. 44 Geo. III. K. B. 
 
 (/) 1 Price, 385 ; aud see 5 Price, 559, n. 
 
 [mm) 4 Durnf. & East, 176. Ante, 301. (nn) Ante, 301.
 
 OF MOTIONS AXD RULES, ETC. 500 
 
 deemed such a reasonable time.(o) And if the court direct proceedings to 
 be set aside on terms, as the payment of costs, «S:c. the terms arc 
 considered as a condition precedent ; and till they *are performed, [ *501 ] 
 the proceedings stand, and the plaintiff may pursue them, -with- 
 out applying to the court, (a) 
 
 On the day appointed for that purpose, the party called upon by the 
 rule, (J) or his counsel may show cause against it, either upon or without an 
 affidavit, as circumstances require : And, in showing cause against a rule, the 
 party or his counsel must be prepared with allidavits in supjjort of his whole 
 case; and cannot, after showing cause, come on another day in the same 
 term, with better affidavits. (c) It is also necessary, that an office copy 
 should be taken of the rule, before cause is shown, and of the affidavit upon 
 ■which it was granted ;(rZ) otherwise counsel cannot be heard: And, in tho 
 King's ]>ench, when a special time is limited in any rule, before which any 
 affidavit is required to be filed, no affidavit filed after that time can be made 
 use of in court, or before the master, unless it appear to the satisfaction of 
 the court, that the filing of such affidavit within the time limited, was pre- 
 vented by inevitable accident. (tf) In such case a motion should regularly 
 be made, on the day limited by the rule, that the affidavits may be filed 
 7iunc pro tu)ic.{f) But affidavits wdiich ought to have been filed a iveck 
 before the term, may, under particular circumstances, be read, with leave 
 of the court, though filed only three days before the day of showing 
 cause.(^) And when no particular time is prescribed for filing the affi- 
 davits, they may be sworn and filed at any time before showing cause, 
 though after the day appointed by the rule.(A) Previous to showing 
 cause, it is usual to deliver over the affidavit to the counsel for the rule, 
 •who has a right to make any objection appearing on the face of it ; and 
 if a doubt arise, upon the statement of the facts contained in the affidavit, 
 it is inspected by the judges, or read by the officer of the court. 
 
 If cause be not shown on the day appointed, the counsel for the party 
 obtaining the rule may move, the next day, to make it absolute ;(z) 
 ■which is done as a matter of course, if no cause be shown, on an affidavit 
 of service. (^) So, in the Common Pleas, if a rule be drawn up for a cer- 
 tain day, the plaintiff has till the last moment of that day to show cause, 
 80 that it cannot be made absolute till the next day.(/) And, in the latter 
 court, it seems that cause cannot be shown after the day appointed by tho 
 rule ; but the party called upon must wait until the other party move to 
 make it absolute, unless notice of showing cause on a different day bo 
 previously given. (m) In the Exchequer, a rule to show cause cannot bo 
 made absolute, till the next day after that on which cause is to be shown, 
 even although it have been enlarged :(w) And, in that court, 
 it is said to be *necessary to give the opposite party notice of [ *502 ] 
 an application intended to be made, to discharge a rule nisi, for 
 
 (o) 5 Barn. & Cres. V71 ; and see 4 Barn. & Gres. 970. 1 Powl. k Ryl. 458, S. C. 
 (a) 5 Taunt. 1. {l>) 4 Taunt. 669. 
 
 (c) 1 Chit. Rep. 142 ; and see 5 rrice, 384. M'Clel. 582. 
 
 (d) N. M. 9 Geo. II. K. B. 
 
 (e) R. M. 36 Geo. III. R. B. 
 
 (/) 1 Chit. Rep. 27. (i?) /</. iUJ. ; and see 8 Moore, 523. 
 
 [h) 1 Chit. Rep. 27. (a), 136. 
 
 (i) 3 Price, 198. Append. Chap. XIX. ^ 16. 
 
 {k) Append. Chap. XLX. § 15. (/) 2 Taunt. 174. 
 
 (m) Pr. Reg. 263, 4. (;») 9 Price, 388.
 
 502 OF MOTIONS A^'D RULES, ETC, 
 
 payment of costs for not proceeding to trial. (a) But the matter fre- 
 quently stands over, by consent of parties, or for the accommodation of 
 counsel, till a subsequent day ; when the counsel on either side may bring 
 it on, by moving to make the rule absolute, or discharge it : though if not 
 brought on or enlarged during the same term, it is of no effect, unless 
 revived, as it may be, in any future term, upon being served anew, and 
 motion made to revive it : This is sometimes done, to save the expense 
 of new affidavits, and obviate the objection of its being a second attempt 
 after the first Avas abandoned. And if a rule nisi has been discharged, in 
 consequence of a mistake of counsel, in stating the terms of the affidavits 
 on which it was founded, the case may be reheard in a subsequent term. (6) 
 After the determination of the court of the King's Bench, upon a rule 
 nisi for a mandamus, the question cannot be again discussed, as a special 
 case, until a return be made to the writ.((?) 
 
 When the counsel for the party obtaining the rule is not ready to sup- 
 port it, he may move to enlarge the rule till a future day, in the same or 
 the next term ; which is pretty much of course, when it is in his own 
 delay ; but otherwise the courts will not enlarge the rule without consent, 
 or some evident necessity: and they will never enlarge the plaintiff's rule, 
 when it would have the effect of continuing the defendant in custody. In 
 like manner, when the counsel for the party called upon by the rule is 
 not prepared to show cause against it, he may apply to enlarge the rule 
 till a future day ; which is a matter of right, if the rule was not served in 
 time, so as to give the party an opportunity of answering it ',{d) but other- 
 wise the courts may impose upon him what terms they think proper : and 
 if the rule be enlarged to the next term, they commonly require him to 
 file his affidavits a certain number of days before the term, so as to give 
 the adverse party an opportunity of inspecting them ; in which case, 
 however, the party showing cause need not confine himself to the original 
 affidavits, but is at liberty to read any affidavits made since the term, 
 provided they were filed in time.(e) In cases of executions, and other 
 matters requiring an early decision, the courts, towards the end of the 
 term, will sometimes enlarge the rule till a day in vacation, when it is to 
 be brought on before a judge at chambers. But rules for judgment as in 
 case of a nonsuit in country causes, should be applied for early in an 
 issuable term, in order that the plaintiff" may have sufficient time to show 
 cause in the same term ; or the court will enlarge the rule till the next 
 term, and not permit the parties to discuss it at chambers :(/) And the 
 court will not, at the close of the term, grant a rule nisi, to show cause at 
 
 chambers, when the party could have earlier. (^) In the Common 
 [ *503 ] Pleas, the court will enlarge *no rule for showing cause, unless 
 
 notice be given of motion to enlarge such rule, and affidavit 
 made of such notice '.[aa) And in that court, if a rule be enlarged, it may 
 be made absolute at any time on the last day to which it is enlarged. (65) 
 In the Exchequer, upon an enlarged rule, the affidavits must be filed 
 
 {a) 11 Price, 512. {b) 1 Chit. Rep. 445. 
 
 (c) T Dowl. & Ryl. 708, 
 
 \d) 2 Chit. Rep. 372. 
 
 (e) Wrirjhtson v. Mason, E. 27 Geo. III. K. B. (/) 1 Cliit. Rep. 232. 
 
 {g) 2 Chit. Rep. 266, 
 
 {aa) N. M. 2 Geo. 11. C. P.; and see Cas. Pr. C. P. 67. 
 
 (M) 2 Tauat. 174.
 
 OF MOTIONS AND RULES, ETC. 503 
 
 before showing cause, although it be not so expresscLl iu the rule of 
 enlargement. (c) 
 
 On showing cause against the rule, the courts cither make it absolute, 
 or discharge it ; and that, either •with, or without the costs of the applica- 
 tion, or such costs are directed to abide the event of the suit. But, in 
 the Common Pleas, costs cannot it seems be given, on refusal of a rule to 
 show cause. ((?(/) "When the proceedings are regular, and the a)>plication is 
 made to the favour and indulgence of the courts, the rule to show cause is 
 commoidy made absolute, on payment of costs by the party applying; but 
 when the proceedings are irregular, it is in general made absolute, with costs 
 to be paid by the opposite party,(ct;) unless the rule be opposed in the first 
 instance '-{ff) And when a rule for setting aside the proceedings drawn up 
 Avith costs, (as is commonly the case,) if it be made absolute generally, the 
 l)arty obtaining it is entitled, by the terms of the rule, to the jtayment of 
 costs, which the master or prothonotaries will tax ; and if they are not paid 
 on demand, the courts on motion will grant an attachment. But if a rule 
 nisi be granted for setting aside proceedings for irregularity, without say- 
 ing with costs, and this rule be afterwards made absolute, no cause being 
 shown, it must be made absolute in the terms in which it was moved, without 
 adding costs. (^^) And though the rule be drawn up with costs, yet the 
 courts will sometimes, though rarely, make it absolute without costs,(/t) in 
 Avhich case each party pays his own ; or they will direct the costs to abide 
 the event of the suit, it which case the party ultimately succeeding is entitled 
 to them : And whenever a rule is drawn up with costs, and the courts do 
 not mean the party should have them, they will mention it. In the Ex- 
 chequer, it has been ruled, that if a party have good ground for opposing 
 a motion, he may be entitled to the costs of opposing it, notwithstanding 
 the motion has been granted. (?) 
 
 If, upon showing cause, it appear that there was no ground or founda- 
 tion for the rule, the courts will discharge it, with costs to be paid by the 
 party applying: and it is a general rule, iu the King's Bench, that in all 
 cases where a rule is obtained to show cause, why proceedings should not 
 be set aside for irregularity with costs, and such rule is afterwards dis- 
 charged generally, without any special direction upon the matter of costs, 
 it is understood to be discharged with costs, and the latter rule must be 
 drawn up accordingly.(/i:) But where an afTidavit answered a 
 rule nini, for *setting aside proceedings for irregularity, with [ *o04 ] 
 costs, but was written in a cramped and slovenly hand, the 
 court, on that ground, refused to grant the costs of the application. (a) 
 And if there was any ground for the rule, and it is not drawn up with 
 costs, the court Avill in general discharge it without costs ;{h) or they will 
 sometimes order the costs to abide the event of the suit : And where 
 nothing is said about costs in the rule, or by the courts on making it abso- 
 lute, or discharging it, they are considered as costs in the cause, and must 
 be paid to the party ultimately succeeding, if the rule he made before 
 
 (c) 1 Youngc & J. 326. 
 
 (dd) 2 Blac. Rep. 769 ; and see 1 Man. k Ryl. 142. 
 
 \ee) 1 Chit. Rep. 398, 9, j« nolU. (/) 2 Chit. Rep. 241, 401. 
 
 {gg) Per Cur. U. 37 Geo. III. K. B. ; and see I Chit. Rep. 398, (a). 
 
 (A) Stcbbing v. Hunt, 1 Chit. Rep. 384, 5, in nolis. Id. 397, 399. (i) M'Clel. 10. 
 
 (k) R. M. 37 Geo. III. K. B. 7 Durnf. & East, 82. 4 East, 313. 1 Chit. Rep. 13G, 399. 
 499. 
 
 (a) 8 Dowl. & Rjl. 114. {b) 1 Chit Rep. 399, in nolis.
 
 504 OP MOTIONS AND RULES, ETC. 
 
 judgment ■,{c) but if it be not made till afterwards, they depend entirely 
 on the rule; and if nothing be said therein concerning them, each party 
 Avill have to pay his own costs. If a party obtain a rule to show cause, 
 requiring two things with costs, although he be clearly entitled to one, yet 
 if he fail as to the other, he shall not have costs ; for the adverse party 
 was under the necessity of coming into court to resist the latter. 
 
 In the King's Bench, particular days are appointed for certain business; 
 as Tuesday and Friday/, which are called paper days, for going through 
 the paper of causes, wherein conciliums have been moved for, on the plea 
 %\diQ^dM(\.Wednesday and Saturdai/^ for transacting business on the crown 
 side. All motions or rules in matters of length or consequence, are ap- 
 pointed for certain days, and called on first :{d) And special cases from 
 the assizes should regularly be set down for argument, within the first 
 four days of the following term.(e) But no cause can be set down for 
 argument on the first paper day, or on the four last days of business in 
 term : Yet, upon the day which would otherwise be the last paper day, 
 common things may be set down, unless it be the last day of term. Spe- 
 cial causes are to be entered for argument with the clerk of the papers, 
 at least four days exclusive before the day of argument ;(/) of which 
 notice should be forthwith given to the attorney or agent on the other 
 side : and all such causes must be argued in the order they are entered, 
 and not adjourned to any future day, by consent or otherwise ; unless the 
 court shall for reasonable cause, verified by affidavit, upon application 
 made by either of the parties, their attorney or agent, at least two days 
 before the day of argument, otherwise order.(^) The paper books, in 
 causes entered with the clerk of the papers for argument on Tuesday, 
 must be delivered to the chief justice and the rest of the judges, on the 
 Saturday preceding ; and those entered for argument on Friday, must 
 be delivered on Tuesday preceding. (7i) 
 
 In the Common Pleas, if a special case be made at nisi prius, it may 
 be set down for argument, in the court book or paper kept by 
 [ *505 ] the *secondaries, within the first /oMr day of the term, as a mat- 
 ter of course ; but it cannot be set down afterwards, without a 
 special application to the court : And it is a rule in that court, that no 
 cause be put in the book to be argued, after the last day of arguments, 
 unless the court be thereupon moved, and shall order it. (a) Also, by a 
 rule of the same court,(6) " all special arguments on demurrers, and other 
 special arguments, are to be heard on the day next before the sitting day 
 at nisi prius in Middlesex, and the day next after the sitting day at nisi 
 prius in London, and on no other days :" and no argument is allowed on 
 the first four, or last four days of the term.(cc) All special cases for 
 argument must in this court be set down with the secondaries, four days 
 exclusive before the day of argument ; which is done on producing the 
 
 (c) Id. 559. 10 Moore, 97. (d) Pref. to Bur. V. 
 
 [e) Per Lord Kenyon, in Cutler v. Powell., H. 35 Geo. III. K. B. Lord Mansfield wished to 
 relax this, which is the old rule ; but on consideration, the court of King's Beach, in the 
 above case, thought it right to adhere to it : And in M. 38, Geo. III. this rule not having 
 been observed, the court directed it to be peremptory in future. 
 
 (/) See a former rule of E. 1658. [g) R. M. 30 Geo. II. K. B. 1 Bur. 52. 
 
 (h) R. T. 40 Geo. III. K. B. 1 East, 131. (a) R. T. 12 Geo. I. C. P. 
 
 [fj) II. M. 47 Geo. III. C. P. By a former rule, they were to be heard on Mondays and 
 Tlmrsdnys only, R. H. 42 Geo. III. C. P. 3 Bos. & Pul. 110. ' 
 
 [cc] R. T. 12 Geo. I. (a), C. P.
 
 OF MOTIOXS AND RULES, ETC. 505 
 
 case, signed by a Serjeant on each side, with a motion paper for a con- 
 cilium ; and the rule is drawn up, and cause sot down at tlic same time. 
 Demurrers are set down in like manner on producing the entry on the 
 roll ; and such as are not intended to be argued may be set down of course, 
 for any day except the first four and last four days of term ; but if there 
 be not four days between the day of setting them down and the day of 
 argument, the court must be applied to for leave, which is always given, 
 if it be a demurrer merely for delay, and not intended for argument ; and 
 they may even be set down for the last day of tcrm.(f/) The paper 
 books in this court are required to be be delivered to the lord chief jus- 
 tice, and the other judges, two days (exclusive of the day of such deli- 
 very,) before the day on which the causes shall liave been set down for 
 argument :(<') And, in both courts, the exceptions intended to be insisted 
 upon in argument, should be marked in the margin. (/) In the Exchequer, 
 the court formerly never sat on the plea side on 3Iondai/8 and Thurinlays ; 
 because on those days, until a late act of parliament,(//^) for enabling tiio 
 Lord Chief Baron for the time being to sit alone in e(|uity, the whole court 
 always sat in the Exchequer chamber, bearing causes in equity.(/</t) Since 
 that time, the ihvcQ jyuisnc Barons sit regularly on those days, as well for 
 the dispatch of the ordinary business on the plea side of the court as for 
 liearing motions in equity, unconnected with causes pending before the 
 Lord Chief Baron. (/Ji) But motions in causes proceeding to a hearing be- 
 fore the Lord Chief Baron, can only be made before him, when sitting 
 alone. (/) 
 
 In the King's Bench, all rules enlarged till the next term, (A;) and rules 
 for new trials which stand over from one term to another, (/) are entered in 
 the peremptory paper, and fixed for certain days, called peremp- 
 tory days ; *and must be heard upon the respective days for which [ *506 ] 
 they are made peremptory, unless special ground, by affidavit or 
 otherwise, be shown to the court, for postponing such rules. (a) And for 
 enforcing this practice, it is ordered, that " no rules in causes entered in the 
 peremptory paper be enlarged during the term, or put off from the 
 appointed day, by consent of counsel, or the attorneys concerned therein, 
 without previous application to, and special leave of the court."(^>) In the 
 Common Pleas, enlarged rules are set down in the peremptory or remanet 
 paper, for each of the first four days of the term, and called on after the 
 common motions are disposed of. All rules for new trials, which stand 
 over, are set down in the same paper, and proceeded in at the pleasure of 
 the court : And such matters as have been argued, and in which the 
 court have not given judgment, are likewise set down in the peremptory 
 paper. 
 
 If a rule be drawn up wrong by mistake, the courts will order it to be 
 set right ; or it may be discharged, on terms ;(c) or if made absolute or dis- 
 
 (d) Imp. C.P. 7 Ed. 300, 303, 4; and see Barnes, 1G5. 2 Chit. Rep. 372. 
 
 \e) R. M. 49 Geo. III. C. P. 1 Taunt. 412. 
 
 (/) R. E. 2 Jac. II. revived by R. II. 38 Geo. III. K. B. ; and see R. II. 48 Geo. III. C. P. 
 1 Taunt. 203. 
 
 (gg) r.7 Geo. Ill c. 60. {hh) 9 Price, 15. 
 
 (t) /(/. ilnd. ; and see 4 Price, 309. 
 
 (A) R. M. 30 Geo. II. R. II. 6 Geo. III. R. H. 15 Geo. III. R. M. 17 Geo. III. K. B. 
 Pref. to Bur. V. 1 Bur. 9. 3 Bur. 1842. 
 
 {I) 1 Smith, R. 198. {a) R. H. 36 Geo. III. K. B. 
 
 (6) R. E. 41 Geo. III. K. B. 1 East, 496. (c) 8 Moore, 87.
 
 505 OF MOTIONS AND RULES, ETC. 
 
 charged by surprise, or in consequence of a mistake of counsel, in stating 
 the terms of tlie affidavits on -wliicli it was founded(tZ) the courts will open 
 it. But, in the King's Bench, if any cause shall have been moved in 
 court, in the presence of the counsel of both parties, and the court shall 
 have thereupon made a rule between them, the same shall not be again 
 moved contrary to such rule, under peril of an attachment :(e) And the 
 court of Common Pleas will not open the rule for an attachment, on the 
 mere affidavit of the party, that he has not been served; at least, unless 
 he show some mistake in the service :(/) nor will they rescind a rule, on 
 the ground that, at the time of discussion, the parties omitted to present 
 to the notice of the court, a statute which might have affected its deci- 
 sion. ((/) In the Exchequer, where a rule iiisi for a new trial having been 
 peremptorily fixed for a day in the third term inclusive after being 
 granted, and not having been then supported, was discharged, the court 
 refused to open it in the ensuing terra, on tlie suggestion that instructions 
 had been prepared, and intended to be delivered to counsel, in the pre- 
 ceding term:(A) And if that court open a rule, made absolute on the 
 usual affidavit of service, to give the party an opportunity of showing 
 cause, they will not hear affidavits, sworn after the day on which the rule 
 had been made absolute. (u) 
 
 In hearing motions, the course formerly observed in the King's Bench 
 was, to begin every day with the senior counsel within the bar, and then 
 to call to the next senior in order, and so on, as long as it was convenient 
 to the court to sit ; and to proceed again, in the same manner, upon the 
 next and every subsequent day, although the bar had not been half, or 
 perhaps a quarter gone through, upon any one of the former 
 [ *507 ] days ; so that *the juniors were very often obliged to attend in 
 vain, without being able to bring on their motions, for many suc- 
 cessive days.(rt) This practice bearing hard upon junior counsel. Lord 
 3Iansjield introduced a different rule, which has ever since been adhered 
 to, of going quite through the bar, even to the youngest counsel, before 
 he would begin again with the seniors ; though it should happen to take 
 up two or more days before all the motions which were ready at the bar 
 upon the first day, could be heard. (5) The same course is observed in 
 the Common Pleas ; where they begin with the king's senior serjeant, 
 and go regularly through the bar, before they begin again. In the Ex- 
 chequer, the court will not allow more than two motions to be made suc- 
 cessively by the same counsel, till they have gone through the rest of the 
 bar.(c) 
 
 When a matter comes before the court on a rule to show cause, as on a 
 motion for a new trial,(tZc^) in arrest of judgment, or, in the King's Bench, to 
 
 {d) 1 Chit. Rep. 445. Ante, 502. [e) R. H. 3 Jac. I. K. B. ; and see 2 Chit. Rep. 265, 
 
 (/) 1 New Rep. C. P. 256; and see 5 Taunt. 628. {g) 1 Bing. 398 ; 8 Moore, 462, S. C. 
 
 \h) 1 M'Clel. & Y. 508. {ii) 5 Price, 384. Ante, 501. 
 
 (a) 1 Bur. 57. {h) Id. 58. (c) 4 Price, 345. 
 
 \dd) Iv. Hilary term, 1824, the chief justice intimated to the bar of the court of King's Bench, 
 that as it was of high importance to the public, and to the suitors in the particular causes 
 in -uhich rules nisi for new trials had been granted, that those rules should be disposed of 
 during the term, or so soon after as possible, the court would wish to hear only one counsel 
 on each side: They therefore requested, that ih^ juniors in each case, would not address 
 Ihem, after ihciv scnivr had been heard, unless they fell that he had omitted some important 
 fact, or some material argument, which ought to have been presented to the attention of the 
 court. They did not, however, mean to lay down a rigid rule, that they would bear only 
 one counsel on each side, which might be productive of inconvenience; but they trusted to
 
 OF MOTIONS AND RULES, ETC. 507 
 
 quash an order of sessions, &c. all the counsel are heard on each side; tho 
 counsel who show cause first, and then tho counsel on the other side : If 
 there arc several counsel, the senior begins. When a matter comes before 
 the court on a rule for a conciliam, as on a special verdict, or special case, 
 demurrer, writ of error, or, in the Kinj^'s Bench, on a motion to quash a 
 conviction, kc. one counsel only (commonly the Junior,) is hoard on each 
 side : And as there is only one plaintiff in ejectment, to whom the court can 
 look, if the parties separately interested choose to join in the same ejectment, 
 their interest must be treated as one and the same, as if there were but 
 one plaintiff.(t') So, where a case is sent out of Chancery, for the opinion 
 of the court of Common Pleas, tliey will only hear one counsel for each 
 separate interest; thouf^h the parties who have a common interest, be placed 
 adversely to each other in the suit.(/) On a special verdict or special case, 
 the counsel for the plaintiff begins first,(^) or, on a demurrer, writ of error, 
 or motion to quash a conviction, the counsel for the party objecting : the 
 counsel for the other party is then heard in answer, and the counsel 
 who began first replies. When the defendant is ^brought up for [ *508 ] 
 judgment in the King's Bench, after trial in a criminal case, the 
 defendant's affidavits are first read, and then the prosecutor's affidavits ; after 
 which, the defendant's counsel are first heard, and then the prosecutor's 
 counsel. W^hen he is brought up on a judgment by default, the prosecutor's 
 affidavits are first read, and then the defendant's affidavits ; after which the 
 prosecutor's counsel arc first heard, and then the defendant's counsel. But 
 affidavits are not admissible to aggravate punishment upon a conviction for 
 felony, even though the record be removed into this court :(a) And when 
 there are no affidavits, the defendant's counsel always begin. (6) Upon an 
 appeal to the sessions, against an order of filiation, the respondents are to 
 begin by supporting their order, as in all other cases. (c) But on an appeal 
 against a poor-rate, on the ground that the appellant was over-rated, the 
 practice at the sessions requiring the appellant to begin by proving his 
 case, which the appellant refusing to do, the appeal was dismissed; the 
 court refused a mandamus to the sessions, to rehear the appeal on this 
 objection. (tZ) In the King's Bench, when counsel has had his brief in due 
 time, and is accidentally or inadvertently absent at the time the common 
 paper is called over, the court will, on his moving for that purpose, allow 
 him to take judgment as if he had been present.(<3) But, in the Exchequer, 
 if counsel on either side appear to argue a special case, on the day 
 appointed by the rule for a concilium, and the counsel for tho other party 
 do not attend, the counsel in attendance will be heard, and the court will 
 give judgment in the absence of the other counsel ; and they will not, on 
 any occasion, permit the case to be opened again, for the purpose of 
 giving the counsel who may have been absent an opportunity of arguing 
 it : the necessary attendance of counsel in another court, not being con- 
 
 the discretion of tho bar, not to occupy their time, by going severally through the whole 
 case, where it was not absolutely necessary to the interests of their client. A similar regu- 
 lation was stated to have been made before, in the time of lord Ellciiborou<jh, when there 
 was an arrear of rules for new trials ; which regulation had for some time been rigidly ob- 
 served, but it was understood that it would not be permanent. 
 
 (e) 6 Dowl. & Ryl. 204,per JJayU;/,J. (/) 2 Marsh. 413. 
 
 Iff) Barnes, 155. (a) 6 Barn. & Gres. 148. 9 Dowl. k Ryl. 174, 179, S. C. 
 
 (6) R. .M. 29 Geo. III. K. B. (c) 12 East, 50. 
 
 ((f) 6 Maule & Sel. 57. (e) 2 Chit. Kep. 402, (a). 
 
 Vol. I.— 32
 
 508 OF PETITIONS, ETC. 
 
 sidered to be a sufficient reason for their being absent from this court, on 
 the da J appointed for an argument here.(/) 
 
 After a special argument on a concilium^ it is usual for the courts to call 
 upon each of the counsel or Serjeants concerned, to make a motion ; which 
 is called moving for their argument : but it seems that, in the King's 
 Bench, it is not the practice to call upon the counsel to move for their 
 argument as a matter of course, though it is said to be otherwise in the 
 Common Pleas.(^) And where it was moved, in the latter court, for leave 
 to justify bail, after two Serjeants had moved for their arguments, the 
 court would not receive this motion, till the paper was gone through.(7i) 
 On motions for judgment, without argument, on paper days in the King's 
 Bench, one shilling is paid for each motion, by the counsel making it, to 
 the box; which is called box money, or high bar money, and paid by the 
 secondary on the plea side, into the hands of the clerk of the junior judge, 
 in order to be by him paid over to the judges of the court in equal shares, 
 to be disposed of by them for such charitable purposes, as they 
 [ *509 ] in their ""discretion shall think proper.(aa) On the last day of 
 term, two shillings are paid in that court for the first motion, 
 and one shilling for every motion afterwards. In the Common Pleas, 
 there are no payments of this nature : but, on entering satisfaction on the 
 roll, it is usual for the plaintiff to pay one shilling for every hundred 
 pounds recovered to the secondary, who pays it over to the junior judge's 
 clerk, by whom it is distributed among the prisoners in the Fleet Prison. 
 
 A petition is usually exhibited, in order to obtain some favour or relief, 
 proceeding from the court or a judge, &c., without calling upon the other 
 party to show cause against it ; as for fri^oners to have day rules allowed 
 them by the court in term time ;(55) or to be relieved against the extortion 
 of gaolers,(c) &c., or discharged from imprisonment under the Lords' 
 act;(cZ) or for 'pawpers to be admitted to sue in forma pauperis ;{e) or 
 infants to sue hy prochein amy^ or defend by guardian,{ff) &c. In the 
 case of prisoners, the petition is exhibited to the cou7't ; in the other 
 cases, to a judge at chambers ; or it may be exhibited to the master of the 
 rolls, for an original writ to be issued, after a writ of error on a judgment 
 by default,(^^) or for amending an original vfrit;{hh) to the lo7'ds of the 
 treasury, for the plaintiff to obtain money levied on a capias utlagatum ;{i) 
 to the attorney-general, for the allowance of a writ of error, where the 
 king is concerned ',{k) or to the house of lords, for the plaintiff in error to 
 return a writ of certiorari out of the regular course,(Z) or to have the 
 cause appointed for a short day.(Z) 
 
 Analogous to the proceedings in court, by motion and rule, is the prac- 
 tice by summons and order at a judge's chambers, of which something has 
 been already said in a preceding chapter.(wj) This practice seems to have 
 arisen, partly from the overflowing of the business of the courts in term- 
 time, and partly from the necessity of certain proceedings being had in 
 
 (/) 9 Price, 53 ; but see 1 Younge & J. 511, 536. [g) 1 Wils. 76. 
 
 {h) Pr. Reg. 265. {aa) R. T. 32, 33 Geo. II. K. B. 2 Bur. 867. 
 
 {hb) Ante, 374. Append. Chap. XV. § 57. (c) Ante, 232. 
 
 \d) Ante, 375, &c. Append. Chap. XV. g 63. 
 
 («) Ante, 97. Append. Chap. IV. ^ 8. (/) Ante, 99, 100. Append. Chap. IV. § 11, 12. 
 
 {gg) Ante, 108. Append. Chap. V. § 33. 
 
 (hh) Post, Chap. XLIV. Append. Chap. V, § 36. 
 
 \i) Ante, 138. Append. Chap. VII. I 26. {k) Po.it, Chap. XLIV. 
 
 (l) Id. Append. Chap. XLIV. g 132. (rre) Chap. XVIII. p. 469, &c.
 
 OF THE PRACTICE BY SUMMONS AND ORDER. 509 
 
 vacation, when the courts are not sittinp; : And although extremely 
 burthensome to the judges, yet it manifestly tends to the advantage of 
 the suitor, the case of tlie practitioner, and tlie general advancement of 
 justice, by preventing the expense, trouble and delay, ^vhich would ensue, 
 if an application to the courts were in all cases necessary. 
 
 It was formerly a rule, that " no attorney or other person, should be 
 summoned to attend any justice of the King's Bcncli, nor any matters be 
 transacted before such justice at his chambers, or elsewhere out of court, 
 during the sitting of the court at West7ni7ister.{7i) But this rule has been 
 recently discharged in the King's Bench :(o) and it is now the prac- 
 tice in *all the,courts,((i) for one of the judges to attend daily at [ *510 ] 
 chambers, during term, from half past three until fvc o'clock : in 
 consequence of which, the evening attendance of the judges at chambers, in 
 term-time, is discontinued. Also, by a late act of parliament,(/>) "the judges 
 of the courts of King's Bench and Common Pleas, and barons of the Ex- 
 chequer at Wcstminsto'j and the justices of Chester, are authorized, during 
 their respective circuits for taking the assizes, to grant such and the like 
 summonses, and make such and the like orders, in all actions and prosecu- 
 tions depending in any of his majesty's courts of record a,tWesimi7ister, 
 in which the issue, if brought to trial, would be to be tried upon such their 
 respective circuits, as if such justices of the courts of King's Bench, &c., 
 were respectively judges of the court in which such actions or prosecutions 
 are depending, although such respective justices of the courts of King's 
 Bench, &c., may not be judges of the court in Avhich such actions or prose- 
 cutions are depending; and such summonses and order shall be of the same 
 force and effect, as if such justices of the courts of King's Bench, &c. were 
 respectively judges of the courts in which such actions or prosecutions are 
 depending : And, for the purposes of this act, the counties palatine of Lan- 
 caster, Durham and Chester, shall be taken to be counties on the circuits 
 of the respective justices of the courts of King's Bench, (f) &c." The 
 judges of the courts of Great Sessions in Wales, are also authorized, by 
 statute 5 Geo. IV. c. 106, § 11, 12, to make rules and orders, in all cases 
 at law, when the said courts shall be sitting in any county within their 
 jurisdiction ; and also in all cases, both at law and in equity, when the 
 said courts shall not be sitting in Wales, to hear motions and petitions, 
 and make rules and orders thereon, in vacation, and out of the jurisdiction 
 of the said courts. 
 
 The order of a judge is sometimes absolute in the first instance ; as to 
 hold to bail, ((7) to charge a person in custody on a criminal account with 
 a civil action, or to docket a roll after the lapse of a year, &c. And where 
 a rule is drawn up in term time, as a matter of course, on a motion paper 
 signed by counsel, as to bring money into court, to change tlie venue, to 
 plead several matters, as for a special jury, or view, kc. a judge's order 
 may be had in the first instance, in the King's Bench, for the clerk of the 
 rules to draw it up in vacation, on producing a motion paper so signed. 
 So, in the Common Pleas, a judge's order may be obtained in the first 
 
 (n) R. M. 11 Geo. I. K. B.; and see R. T. 14 Car. II. rrj. 2, K. B. R. II. 17 Geo. II. C. P. 
 (o) R. M. 2 Geo. IV. K. B. 5 Barn. & Aid. 217. 
 
 (a) 5 Barn. & Aid. 217. Notice, M. 3 Geo. IV. C. P. & Excbeq. 7 Moore, 4G0. 11 Price, 
 422. 
 (6) 1 Geo. IV. c. 55, § 5 ; and see 1 Car. & P. 133, n. (o) § 6. 
 
 (<f) Append. Chap. X. § 87.
 
 510 OF THE PRACTICE EY SUMMONS AND ORDER. 
 
 instance, for the secondaries to draw up a rule in vacation, to bring money 
 into court, or for a special jury, on producing a motion paper signed by a 
 sergeant ; for in these cases, a sergeant's hand would be sufficient in term 
 time: but in the other cases, of changing the venue, &c. where an appli- 
 cation must be made to the court in term, a summons must first be served 
 in vacation, for the secondaries to be at liberty to draw up the rule. An 
 order, however, is in general preceded by a summons, for the at- 
 [ *511 ] tendance *of the attorney or agent of the opposite party, before 
 a judge at chambers, to show cause against it : And where a 
 judge has upon hearing a party on summons, refused an order, an appeal 
 can only be made to the court. (a) In some cases, a judge's order is drawn 
 up, in default of appearance, on the first summons ; as for a supersedeas 
 to discharge the defendant out of custody in the King's Bench, for not 
 declaring against him in due time : but in general, there must be three 
 summonses, and an affidavit of attendance thereon,(5) before the judge 
 will make an order for non-attendance. (cc) And in vacation, when the 
 court is not sitting, some things are allowed to be done by a judge at cham- 
 bers, which in term time must be moved in court; as to enter up judg- 
 ment on a warrant of attorney, above one and under ten years old, or to 
 refer it to the master, or prothonotary, to compute principal and interest 
 on bills of exchange, or promissory notes, kQ.:[dd) in the former case, the 
 order is granted in the first instance; but in the latter, it is preceded by 
 three summonses. A judge at chambers will not set aside an execution, or 
 other act of the court; but where the justice of the case requires it, he 
 will stay the proceedings thereon in vacation, to give the party an oppor- 
 tunity of applying to the court in the ensuing term. 
 
 A judge's order for a stay of proceedings, must be drawn up and served 
 forthAvith ; otherwise it will be considered as waived by the party, by whom 
 it has been obtained.(e) The order obtained upon a summons is, however, 
 subject to an appeal, and the validity of it may be impeached in two ways ; 
 either by moving the court to set it aside,(/) or, if made in vacation, by 
 applying, in the next term, to set aside the proceedings that have been had 
 under it.(^) But if the order be acquiesced under, it is as valid as any 
 act of the court :(7i) And, in the King's Bench, a judge's order for a 
 prisoner's discharge under the Lord's act, made out of term, has been held 
 to be final.(e) Indeed, if it become necessary to enforce a judge's order 
 by attachment, or other act of the court, there must be a previous motion 
 to make it a rule of court. (y^) 
 
 (a) 5 Taunt. 850; and see 1 Chit. Rep. 124, 232, 246, {a), 
 {b) Append. Chap. XVIII. g 14 15. [cc) Ante, 369. 
 
 {(Id) Ante, 486. 
 
 (e) 4 Barn. & Cres. 865. 7 Dowl. & Ryl. 422. S. C. [f) I Chit. Rep. 246. 
 
 (^r) 4 Bur. 2569. (h) 1 Taunt 47. 
 
 ({) Doug. 68. Webster v. Wilkinson, H. 26 Geo. III. K. B. 3 Moore, 64. Jameson v. Eaper, 
 id. 65, (a). Ante, 382. 
 
 (k) 4 Bur. 2569. Fer Ld. Eenyon, in Curtis v. Taylor, E. 35 Geo. III. K. B.
 
 OF SETTING ASIDE, AND STAYING PROCEEDINGS. *512 
 
 ♦CHAPTER XX. 
 
 Of SETTING ASIDE, and STAYING rilOCEEDINGS. 
 
 Having stated, in tlio preceding chapters, the various modes of com- 
 mencimj actions, and the proceedings therein to tlie dechiration, on behalf 
 0^ iho ])laintiff, with the time allo^Yed for pleading in ordinary cases, and 
 whatever is peculiar to the proceedings in actions by or against attorneys^ 
 and against prisoners in custody of the sheriff, kc. or of the marshal or 
 warden; and having taken a view of the means of removiny actions from 
 inferior courts, and of motions and rules in general, and the practice by 
 summons and order at a judge's chambers, I shall next proceed to show 
 what is to be done by the defendant, when an action is brought against 
 him ; and in so doing shall consider first, in what case, and upon what 
 grounds, he may move the courts to set aside or stay the proceedings : 
 secondly, what steps arc to be taken by him, when he has no merit? ; and 
 thirdly, if he has, in what manner he should prepare for and make his de- 
 fence to the action, which will lead on to the consideration of p/cas and 
 pleading, &c. Upon a review of which it will appear, that the defendant, 
 according to the circumstances of his case, either applies to the equitable 
 jurisdiction of the court by motion, or relies on his legal ground of defence, 
 by pleading it. 
 
 In the defence of an action, one of the first things to be attended to, on 
 the part of the defendant, is the regularity of the proceedings ; for if they 
 are irregular, the courts, on motion,(a) will set them aside. 
 
 An irregularity may be defined to be, the want of adherence to some 
 prescribed rule or mode of proceeding ; and it consists, either in omitting to 
 do something that is necessary for the due and orderly conducting of a suit, 
 or doing it in an unseasonable time, or improper manner. Thus, the want 
 of notice is an irregularity, whether it be to process, upon a declaration, or 
 of trial or inquiry : so, if the notice be not given in due time, or a proper 
 manner. In general, an irregularity is either in mesne process, or the pro- 
 ceedings thereon before judgment, or in the judgment or execution. If 
 there be any irregularity in the process, or notice to appear thereto, or in 
 the delivery, filing or notice of declaration, or notice of trial or inquiry, 
 the defendant, we have seen,(^) may move the court, on a proper 
 affi,davit,{c) to set aside the proceedings, and, if in custody, for [ *ol3 ] 
 his *discharge on filing common bail, or entering a common 
 appearance ; or, if he has given bail to the sheriff, that the bail bond may 
 be delivered up to be cancelled. A judgment by default is irregular, 
 when the defendant, in an action not bailable, has not been served with 
 a copy of process, or there has been no declaration regularly delivered 
 or filed, and notice thereof given to the defendant •,{aa) or when it is 
 signed before the defendant's appearance, or without entering a rule to. 
 
 (a) For notices of motion, to set aside proceedings for irregularity, see Append. Chap. 
 XX. 2 1,2,3,4. 
 
 (b) Ante, 488. 
 
 (c) Append. Chap. XX. J 5. And for the rule niti thereon, see id. § G, and the notice to 
 plaintiff, not to nrnke it absolute, id. I 1. 
 
 {aa) 4 Taunt. 818.
 
 513 0^ SETTING ASIDE, AND 
 
 plead, or demanding a plea, when necessary ; before the time for pleading 
 is expired ; or after a plea has been regularly delivered or filcd.(6Z') And 
 when an execution is irregular, the defendant may move to set it aside ; 
 and that he be discharged out of custody, or that the money levied may 
 be restored to him.(<?c) 
 
 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 
 when there has been any irregularity, if the party overlook it, and take sub- 
 sequent steps in the cause, he cannot afterwards revert back to the irregu- 
 larity, and object to it.(e) If there be any defect or irregularity therefore in 
 mesne process, or the notice subscribed thereto, or in the service of process, 
 the defendant should take advantage of it before he has appeared :(/) And 
 if the irregularity be in the delivery, filing or notice of declaration, the ap- 
 plication should be made, if possible, tico days at least before the time 
 appointed for the execution of the writ of inquiry.(^) Irregularity in the 
 service of process, however, is waived by the defendant's attorney having 
 written to the plaintiff's attorney, after the process was served, undertaking 
 to appear, receive a declaration, and give security for costs ;(7i) or by the 
 defendant's paying the debt and part of the costs,(i) or admitting the debt 
 subsequently to the service of the writ, and requesting time for the payment 
 of \t.{k) So, where the service of a writ is irregular, but the defendant, on 
 receiving notice of declaration, says, " it is all right ; I will call and settle 
 the debt and costs ;" the irregularity is waived ; 1 Man. & Ryl. 320. And, 
 by taking the declaration out of the office, or obtaining time to put in bail to 
 the action, the defendant, we have seen,(Z) waives all objections to the regu- 
 larity of the process ; the intent of which is only to bring him into court. 
 But this it seems is only a waiver of irregularities in the process, and not in 
 the declaration. (w) Yet, where the plaintiff declared by the lye, before he 
 
 had declared in chief, it was holden, that taking the declaration by 
 [ *514 ] the bye out of the office, was a *waiver of the irregularity.(rt) So, 
 
 where the declaration was delivered at the same time as a bill of 
 particulars which was insufficient, and another order was afterwards ob- 
 tained for better particulars, the court of Common Pleas held, that as the 
 defendant's attorney had not returned the declaration, with the insufficient 
 particulars, he had waived the irregularity -.{b) And if the plaintiff take a 
 plea out of the office, and keep it, he waives any objection to the plea, on 
 the ground of its having been pleaded by a new attorney, without an order 
 to change the former one.(c) In proceeding against prisoners, an irregula- 
 
 ihb) Id. 545. {ec) Ante, 489. Append. Chap. XX. ? 3, 4. 
 
 (d) 3 Durnf. & East, 7. 1 East, 335, 8 Dowl. & Ryl. 450. 9 Price. 637. 
 
 (e) 1 East, 77 ; and see 3 Durnf. & East, 10. 5 Durnf. & East, 254, 464. 1 East, 330. 
 2 Smith R. 391. 2 Chit. Rep. 236, 7. 6 Barn. & Cres. 76. 9 Dowl. & Ryl. 124, S. C. 6 
 Barn. & Cres. 77, {b). 9 Dowl. & Ryl. 18, K. B. 1 H. Blac. 251. 1 Bos. & Pul. 250, 344. 
 1 Taunt. 59. 2 Taunt. 244. 4 Taunt. 545. 6 Taunt. 6. 1 Marsh. 403, S. C. 6 Taunt. 
 185. 1 Moore, 299, C. P. 9 Price, 637. 11 Price, 122, Excheq. 
 
 (/) Ante, 160, 61. 
 
 [g) 2 Smith R. 391. 2 Chit. Rep. 237. Cas. Pr. C. P. 69, 145. Pr. Reg. 127, 242, S. C. 
 Barnes, 255, 6. 2 New Rep. C. P. 75 ; and see N. M. 2 Geo. II. C. P. 6 Price, 15. 
 (h) 1 Chit. Rep. 129 ; and see 2 Chit. Rep. 236. 1 Man. & Ryl. 320, 21, (6). 
 \i) 11 Price, 122. 
 
 (k) 7 Moore, 461. 1 Ring. 132, S. C. {I) Ante, 160. 
 
 (h») 2 New Rep. 0. P. 83 ; and see 4 Durnf. & East, 349. 
 («) 3 East, 342. A7ite, 424, 5, {I). 
 
 [b) 2 Moore, 90 ; and see id. 655. 8 Taunt 592, S. C. 
 
 (c) 2 New Rep. C. P. 509.
 
 STAYING PROCEEDINGS. 514 
 
 rity, we have seen, may be waived by the defendant's pleading,((?) letting 
 judgment go by default, (c) or suffering the plaintiff to charge him in execu- 
 tion. (/) But the giving of a bail bond,(//) or paying or giving security for 
 the debt,(/<) by a defendant under arrest, will not operate as a waiver of the 
 irregularity : And where the defendants had appeared to a scire facias^ 
 after a rule nisi had been obtained for setting aside proceedings, for irregu- 
 larity, the court held, that the rule having been obtained tiie last day of 
 term, which was no stay of proceedings, the defendants were obliged to 
 appear, and therefore it was no waiver.(t) The defendant's pleading, 
 however, to the scire facias, would in such case be a waiver of the irrcgu- 
 larity.(/(:) 
 
 In the King's Bench, it is a rule to refuse motions to set aside process for 
 irregularity, even though no new step has been taken in the cause, unless 
 the defendant make his application in a reasonable time.(^) But, in tho 
 Common Pleas, a defendant may move to set it aside at any time before a 
 new step is taken in the cause. (w) And this was formerly considered as 
 necessary ; it being holdcn, that a defendant who complained of an irregula- 
 rity in process, must, if he had an opportunity, have applied to set it aside, 
 before the plaintiff had taken any further step.(n) But where the plaintifif 
 having served an irregular process, the defendant gave him notice of the 
 irregularity, and that if he proceeded thereon, the defendant would move to 
 set aside the proceedings, this was deemed an exception to the ordinary 
 rule.{o) And now, according to later decisions, the court of Common Pleas 
 will not bind the defendant to any particular time for applying to set aside 
 the proceedings ; nor refuse the application, unless the party who has served 
 the defective process take some step, by which he shows that he means to 
 proceed upon it;(/)) in which case, they expect the application to be made 
 immediately :{p) Therefore, where a defendant has been *served 
 with notice of declaration, and interlocutory judgment signed, [ *515 ] 
 and notice given of executing a writ of inquiry, he is too late 
 to take advantage of a defect in the process.(aa) And though an appear- 
 ance entered by the plaintiff, according to the statute, is not of itself suffi- 
 cient, in the Common Pleas, to cure a mistake in the service of process,(J) 
 yet if notice be afterwards given to the defendant, of the declaration 
 being filed he must apply to the court before judgment.((;) In the Exche- 
 quer, the application to set aside proceedings for irregularity, ought to 
 be made in the first instance ; and where the party cannot satisfactorily 
 account for not applying sooner than he docs, the court will not assist 
 
 (d) Ante, 357. 
 
 (e) Ante, 345. (/) Ante, 357. 
 \g) 7 Durnf. & East, 375 ; but see 4 Moore, 317. 1 Brod. & Bing. 529, S. C. 
 
 (A) 1 Chit. Rep. 468. (i) 6 East, 462 ; and see 13 East, 588. 
 
 {k) 1 Dowl. & Ryl. 181. 
 
 (/) 6 Taunt. 191, 2. 1 Marsh. 551, S. C. per CM.i, Ch. J. Peargon v. Uodggon, M. 55 Geo. 
 III. K. B. 1 Chit. Rep. 14, (6). 6 Taunt. 6. 1 .Miirsh. 403, S. C. 1 Moore, 300. 6 Barn. 
 & Cres. 76. 9 Dowl. & Ryl. 124, S. C. 6 Barn. & Cres. 77 (i). 9 Dowl. & Ryl. 18 ; but 
 Bee 2 Chit. Rep. 165. 
 
 Im) 6 Taunt. 5. 1 Marsh. 403, S. C. 1 Chit. Rep. 14, (6). 
 
 (n) 2 Taunt. 243. (o) 5 Taunt. 330. 
 
 \p) 6 Taunt. 191, 2. 1 Marsh. 551, S. C. ; and see 1 H. Blac. 251. 5 Taunt. 664. 1 
 Moore, 299. 2 Moore, 654. 8 Taunt. 591, S. C. Forrest, 31. 
 
 {aa) 6 Taunt. 191. 1 Marsh. 550, S. C. 
 
 (6) Barnes, 409. 1 Moore, 299. Ante, \(i\, {d). 
 
 (c) Barnes, 242, 3 j 256, 2C9, 296. Pr. Reg. 32, 355. Cas. Vr. C. P. 92, 105, 145, S. C.
 
 515 OF SETTING ASIDE, AND 
 
 him :{d) and it is said to be a rule, that all motions to annul proceedings, 
 on the ground of irregularity, should be made the same term with the 
 proceedings complained oL[e) In disposing of a rule 7iisi, for setting 
 aside all proceedings subsequent to the writ of guo minus, and service 
 thereof, and staying all further proceedings, on payment of the debt and 
 costs of the writ and service, that court would not give an opinion on the 
 alleged unreasonableness of an attorney's bill, stated as the sole ground 
 for supporting the rule ; that being a proper subject of reference to the 
 master : nor would they make such reference a part of the order for dis- 
 charging the original rule.(/) 
 
 There are some distinctions deserving notice, between a mere irregula- 
 rity, and a complete defect in the proceedings : The former may be waived 
 by the adverse party, but not the latter. (_g) For a mere irregularity in the 
 copy,(/i) or service,(2) of process, or in the declaration, (^) &c. the courts 
 will only set aside the proceedings that are irregular, leaving the plaintiflf 
 at liberty to continue his suit from the last regular proceeding ;(Z) but for 
 a complete defect, the proceedings are stayed in toto.{m) On setting 
 aside proceedings for irregularity, the party complained of is in general 
 liable to the payment of costs,(?i) unless the rule be opposed in the first 
 instance ;(o) but on staying them as defective, the costs are in the discre- 
 tion of the court. 
 
 Though the proceeding are regular, yet it sometimes happens that they 
 
 are defective, as where the cause of action is frivolous, or the action 
 
 [ *516 ] *brought or conducted upon insufficient grounds, contrary to good 
 
 faith, or without proper authority : and in such cases, the courts 
 
 on motion will order the proceedings to be stayed, with or without costs, 
 
 according to circumstances. 
 
 When the debt sued for, appears on the face of the declaration, (a) or is 
 admitted by the plaintiff, or his attorney,(6J) or proved by the affidavit of 
 the defendant, (cc) to be nnder forty shillings, and the plaintiff may recover 
 it in an inferior jurisdiction, the courts on motion will stay the proceed- 
 ings ; it being below their dignity to proceed in such an action. Formerly, 
 when the plaintiff demanded more, the court of King's Bench, would not 
 have permitted an affidavit to be read, that the defendant owed him 
 less •,{dd) or that the defendant had applied to the plaintiff for his demand, 
 
 (^) 11 Price, 125. (e) 3 Price, 37. 
 
 (/) 2 M'Clel. & Y. 105. 
 
 (ff) 5 Duruf. & East, 254. 3 East, 155. 4 Barn. & Aid. 288. 1 Bos. & Pul. 383, (a). 2 
 Bos. & Pul. 110, 589. 1 Taunt. 59. 5 Taunt. 664. 2 Price, 9, but see 6 Barn. & Cres. 76. 
 9Dowl. & Ryl. 124, S. G. 6 Barn. & Ores. 77, (6). 9 Dovvl. & Rjl. 18. 
 
 (A) 1 Bing. 65. 7 Moore, 359, S. C. [i) 5 Tauut. 651, 664. 
 
 (k) 4 East, 589. 2 New Rep. 0. P. 82. 5 Taunt. 649. 1 Marsh. 274. 
 
 (I) Ilolloway T. Whalcy, T. 41 Geo. III. K. B. : and see 2 Chit. Rep. 238. 5 Barn. & Aid. 
 893. 
 
 (m) 1 Chit. Rep. 400. 2 Chit. Rep. 237, 239. 
 
 («) Cas. temp. Hardw. 314. (o) 2 Chit. Rep. 241. 
 
 {a) 3 Bur. 1592. 
 
 {bb) 2 Blac. Rep. 754. 2 New Rep. C. P. 84. 
 
 {cc) 4 Duruf. & East, 495. 5 Durnf. & East, 64. White v. Griffiths, T. 35 Geo. III. K. B. ; 
 and see 1 Man. & Ryl. 322, 3, (a). 
 
 {dd) Say. Rep. 219, 240. 3 Bur. 1592. 2 Chit. Rep. 395.
 
 STAYING PROCEEDINGS. 616 
 
 •who sent him a bill for goods, to the amount of 11. 18s. :{c) but the prac- 
 tice has been since altered as above, agreeably to the usage of the court 
 of Exchequer. In the latter court however, on a motion to set aside pro- 
 ceedings as infra dignitatem^ on an affidavit that the debt sued for does 
 not amount to 40«., the court will not inijuirc into the amount, if an affi- 
 davit be put in, on showing cause, that the demand exceeded that sum; 
 but will at once discharge the rule with costs.(/) And it should be ob- 
 served, that an action cannot be brought in the county court, unless the 
 cause of action arise, and the defenclant reside within tlio county :(//) 
 Therefore, though the demand be for less than forty shilling, if the cause 
 of action arise in one county, and the defendant reside in another, the 
 action may be brought in a superior court. (//) In an action for a debt 
 recoverable in a court of requests, where the plaintiff might, after verdict, 
 be deprived of costs, the court of King's Bench will stay the proceed- 
 ings, on payment of the debt, without costs. 1 Man. & ]{yl. 321. In 
 trover^ the Court of Common Pleas would not stay proceedings, on an affi- 
 davit from the defendant, that the cause of action did not amount to 
 forty shillings; the amount of the value of the articles ought to be reco- 
 vered by such action, being mere matter of calculation, to be ascertained 
 by ajury.(7z) And where a defendant, living within the jurisdiction of 
 the court of requests for Westminster, was sued in the King's Bench, for 
 a debt under forty shillings, and neglected to take advantage of the sta- 
 tute 23 Geo. II. c. 27, by pleading it in bar, the court would not, after 
 verdict for the plaintift", either suffer a suggestion to be entered on the 
 record, that the defendant lived within the jurisdiction, or stay the pro- 
 ceedings. (e) So, where a cause has been removed from an inferior court, 
 this court will grant a ijrocedendo, if the debt or damages appear to be 
 under forty shillings :(/c) But the court refused to quash a certiorari upon 
 this ground, in an action for an. assault brought against excise officers, 
 who could not have had an impartial trial in the inferior court. (?) 
 
 *By the statute 21 Jac. I. c. 4, § 1, " all off"enccs against any 
 2'>enal statute, for which any common informer may lawfully [ *ol7 ] 
 ground any popular action, bill, plaint, suit or information, before 
 justices of assize, justices of nisi prius or gaol delivery, justices of oi/er 
 and terminer, or justices of peace in their general or quarter sessions, shall 
 be commenced, sued, prosecuted, tried, recovered and determined, byway 
 of action, &c. before the justices of assize, &c. or before the justices of peace 
 of every county, city, borough, or town corporate, and liberty, having 
 power to inquire of, hear and determine the same, wherein such offences 
 shall be committed, in any of the courts, places of judicature, or liberties 
 aforesaid respectively only, at the choice of the parties which shall com- 
 mence suit, or prosecute for the same, and not elsewhere : with an exception 
 of certain offences, concerning popish recusancy, or for maintenance, 
 champerty, or buying of titles, kc."{a) This statute has been construed 
 to restrain the jui'isdiction of the King's Bench, in actions of debt by 
 
 (c) Per Cur. T. 21 Geo. III. K. B. 
 ( f) 2 Price, 8 ; and sec 2 Cliit. Rep. 305. 
 
 Iff) 6 Durnf. & East, 175. 8 Durnf. & Kast, 235. 1 East, 353, (a). 1 Dowl. & Ryl. 359. 
 2 H. Blac. 29. 1 Bos. & Pul. 75. 3 Bos. ii Pul. 617 ; but see 2 Chit. Rep. 395, 6. 
 (h) 8 Moore, 220. 1 Bing. 270, S. C. 
 (»•) 3 Durnf. & East, 452, 1 East, 354, (a). 
 
 (k) Brownl. JJrcv. Jud. 140. 2 Brownl. 82. Moyle, 69. Clift, 374. 
 {I) 4 Durnf. & East, 499. Ante, 399. (a) I 5.
 
 517 OF SETTING ASIDE, AND 
 
 common informers, in cases where the pen.alty may be sued for by action, 
 bill, plaint, suit or information, either in the courts at Westminster^ or at 
 the assizes or sessions of the peace, as on the statute 5 Eliz. c. 4 : and 
 they cannot in such cases bring debt upon the statute, in the King's 
 Bench, unless the cause of action arise in Middlesex, where the court 
 sits ; but must prosecute by information, &c., before justices of assize, &c., 
 as the statute directs.(5) So, an action to recover a penalty, under the 
 statute 5 & 6 Edw. VI. c. 14, must be brought in the county where the 
 fact was committed, and not commenced in the superior courts at West- 
 minster.(c) But the statute 21 Jac. I. c. 4, is confined to such statutes 
 only as were in being at the time of making it, and does not extend to 
 any offence created since that statute ; so that prosecutions on subsequent 
 penal statutes are not restrained thereby, but that statute is, as to them, 
 as if it were repealed ^^ro tanto.{d) It is also settled, that this statute 
 does not give any new jurisdiction to the justices of assize, &c., where 
 they had none before :(e) and therefore, where the penalty is to be reco- 
 vered by action, &c., or information, either in the courts of record at 
 Westminster only, or in the king's courts, ivherein no essoin^ j^:)ro^ec^zow, 
 or wager of laiv shall he allowed, (which words are held to mean the 
 courts Q>t Westminster,) the statute 21 Jac. I. does not apply :(/) and a 
 suit prosecuted at the assizes, &c., to recover such penalty is erroneous.(^) 
 And, for the same reason, the statute only restrains the proceedings on 
 penal statutes in the superior courts, where the informer, before the passing 
 of that statute, might have sued in the inferior as well as the superior 
 
 courts, by action, bill, plaint, suit, or information. (7i) The true 
 [ *518 ] rule seems to be, that on all *penal laws antecedent to the statute 
 
 21 Jac. I. c. 4, where the justices of assize and superior courts 
 QXWestminster\iQ.VQ a concurrent jurisdiction, both as to the subject matter 
 and mode of proceeding, {aa) the suit must be commenced before justices 
 of assize, or at the sessions, and not before the justices at Westminster : 
 For though the statute 21 Jac. I. gives no new jurisdiction to inferior 
 justices, yet it in terms takes away the jurisdiction of the courts at West- 
 minster. But in suits on those statutes that give debt, &c., and mention 
 not justices of assize or of the peace, or where the inferior court has not 
 a concurrent jurisdiction, both as to the subject matter and mode of 
 proceeding, they must be brought in the superior courts, otherwise there 
 would be a defect of remedy.(W) 
 
 By the same statute, § 4, " no officer or minister of any court of record, 
 shall receive, file or enter of record, any information, bill or plaint, count 
 or declaration, grounded upon the said penal statutes, or any of them, 
 which are appointed to be heard and determined in their proper counties, 
 until the informer or relator hath first taken a corporal oath, before some 
 of the judges of that court, that the offence or offences laid in such infor- 
 mation, &c., was or were not committed in any other county than where, 
 by the said information, &c., the same is or are supposed to have been 
 
 (6) 1 Salk. 373. (c) Willes, 634. 
 
 (d) 1 Salk. 372, 3. Sel. Ni. Pri. 6 Ed. 636, &c. 
 
 (e) Cro. Car. 112. Carth. 465. 4 Durnf. & East, 116. 
 
 (/) Cro. Car. 112. W. Jon. 193. T. Raym. 394. 3 Durnf. & East, 362. 
 (^r) Cro. Car. 146. 2 Str. 1143. 
 
 (A) 4 Durnf. & East, 109. Eex v. Ferris, H. 37 Geo. III. in Scae. 1 Wms. Saund. 6 Ed. 
 312, 6, in notis. 
 
 (aa) 4 Durnf. & East, 116. (bb) Willes, 635, (a). Id. n. 1.
 
 STAYING PROCEEDINGS. 518 
 
 committed ; and that he believcth in his conscience the offence was com- 
 mitted within a year before the information or suit, within the same county 
 where the said information or suit was commenced, the same oath to be 
 there entered of record :"(f) And upon this chxuse of the statute, the 
 proceedin<;s were stayed on motion, in a penal action on the 25 Edw. III. 
 St. 4, c. 'J, where the application was made in an early stage of the cause ; 
 because no affidavit had been filed, that the offence was committed within 
 the county where the action was brought, or within a year before the 
 bringing of it, according to the 21 Jac. I. c. 4.((Z) But in a subsequent 
 case, where the application was not made till after verdict, the court would 
 not stay the proceedings on a similar ground, in a penal action on the 21 
 lien. YIII. c. 13, § 20, for non-residence. (f) 
 
 In an action for hrihcry, on the 2 Geo. 11. c. 24, the courts will stay the 
 proceedings, even after verdict, upon the clause of discovery ;(/) or if 
 there has been any Avilful delay in prosecuting the action. (//) But until 
 the defendant appears to the writ, the question as to the wilfulness of the 
 delay does not arise : Therefore, where the writ was returnable on the 
 first return of Trinity term 1821, and the plaintiff did not declare till the 
 1st of Jioie, 1822, and no appearance had been entered for the defendant; 
 the court held, that the proceedings could not be stayed under the above 
 8tatute.(/i) The proceedings have been stayed in an action on 
 the 18 Geo. II. *c. 34, § 1, for keeping a gaming house ; because, [ *ol9 ] 
 by a previous statute,(a) the penalty is payable on conviction, 
 before a justice of the peace. And they might also, it seems, have been 
 stayed, in an action on the general turnpike act, 13 Geo. III. c. 84, §19,(^>) 
 for using a greater number of horses than is thereby allowed for drawing 
 wagons, &c., on the ground of its being necessary by reason of deep snow 
 or ice ; but, in order to stay the proceedings on that ground, an applica- 
 tion must be made to the court above, in which the action is brought, and 
 the defence is not available at nisi prius.[cc) In an action for non-resi- 
 dence^ on the statute 43 Geo. III. c. 84, § 12, the proceedings were stayed 
 after declaration, in the Common Pleas, on the statute 54 Geo. III. 
 c. -.[dd) But the court would not stay the proceedings, on a writ 
 suggested to be the commencement of an action for non-residence, before 
 the delivery of the declaration, without some other evidence of the nature 
 of the action -.{ee) and they refused to extend the relief of the statute, to a 
 case where the defendant had obtained a rule to compound, before it had 
 passcd.(/) 
 
 I 
 
 (f) I 5. {d) 2 Diirnf. & East, 274. 
 
 \c) 3 Dunif. & East, 3G2 ; find see 2 Str. 1081. 1 H. Blac. 546. 3 Maule & Sel. 429. 
 
 (/) 4 Bur. 2287. 1 Hlac. Rep. GC5, S. C. ; but see 3 Wils. 35. 2 Wms. Suund. 5 Ed. 
 148, b, c, where the party was put to his audita querela. 
 
 {g) 3 Durnf. & East, 5 ; but see the case of Irwin, qui tarn v. Sir William Manners, E. 44 
 Geo. III. K. B. 
 
 {h) 1 Dowl. & Ryl. 512. {a) 12 Geo. II. c. 28, § 1. 
 
 (i) This statute has been since repealed, by stat. 3 Geo. IV. c. 126 | and see slat. 4 Geo. 
 IV. c. 95, to explain and amend the latter act. 
 
 {ec) 1 1 East, 484. 
 
 {dd) 5 Taunt. 305. This statute was continued by the 54 Geo. III. c. 44. And, by tho 
 statute 54 Geo. III. c. 54, g 4, the court, or a judge, is autliori/.ed to stay the proceedings 
 in such an action, upon certain conditions : And for determinations on this statute, see 6 
 Taunt. 629. 1 Mar.sh. 368. 5 Taunt. 807. 1 Marsh. 372, 8. G. 5 Taunt. 843. 1 Marsh. 387, 
 S. C. G Taunt. 198. 1 Marsh. 547, S. C. See also the statute 67 Geo. III. c. 99, I 5, &c., 
 for enforcing the residence of spiritual persons on their benefices. 
 
 {ee) 5 Tauut. 304. (/) Id. 306.
 
 5]9 OF SETTING ASIDE, AND 
 
 Actions or prosecutions for the recovery of penalties on the revenue laws, 
 must, by several acts of parliament, be commenced and carried on in the 
 name of the attorney general, or other officer of the revenue. Thus, by 
 the 2G Geo. III. c. 77, § 13, "if an action be commenced or prosecuted, 
 for tlie recovery of any penalty or forfeitute, by virtue of any act relating 
 to the customs or excise, unless the same be commenced and prosecuted in 
 the name of the attorney general, or some officer of the said revenues, the 
 same, and all proceedings therein, are declared to be null and void ; and 
 the court shall not permit or suffer any proceedings to be had there- 
 upon.'X^') By the 36 Geo. III. c. 104, § 38, "it shall not be lawful for 
 any person or persons to commence or enter, or cause or procure to be 
 commenced or entered, or filed or prosecuted, any action, suit, bill, plaint, 
 or information, for the recovery of any penalty or penalties, inflicted by 
 any of the laws touching or concerning lotteries, or by that act, unless the 
 same be commenced, entered, filed and prosecuted, in the name of his 
 majesty's attorney general, in the court of Exchequer atWestminster, if 
 the offence shall be committed in England; or, in the name of his 
 majesty's advocate general in the court of Exchequer in Scot- 
 ia *520 ] land, if the offence be there committed : *And if any action, 
 &c., shall be commenced or entered in any other person's name 
 or names, the same, and all proceedings thereupon had, are declared 
 to be null and void ; and the court where such proceedings shall be so 
 commenced, shall caused the same to be stayed." And there is a similar 
 clause in the statute 44 Geo. III. c. 98, § 10, with respect to actions, &c., 
 for the recovery of penalties incurred by virtue of that or any other act or 
 acts of parliament, relating to his majesty's stamp duties, or any other 
 duties under the management of the commissioners of the duties on stamped 
 vellum, parchment and paper, (a) 
 
 By the Bank acts,(5) the courts were authorized to stay proceedings, 
 in actions brought against the governor and company of the Bank of 
 England, during the continuance of the restriction thereby imposed on 
 payments by the said governor and company in cash, to compel payment 
 of any note of the said governor and company expressed to be payable on 
 demand ; or of any note of the said governor and company, made payable 
 otherwise than on demand, or of any other debt, which the said governor 
 and company should be willing to pay in their notes expressed to be pay- 
 able on demand ; until the expiration of the time limited for the continuance 
 of such restriction. 
 
 By the annuity act, 17 Geo. III. c. 26, § 1, it was enacted, that " a 
 memorial of every deed, bond, instrument, or other assurance, whereby 
 any annuity or rent charge should be granted for one or more life or lives, 
 or for any term of years, or greater estate, determinable on one or more 
 life or lives, should within tiventy days of the execution of such deed, &c., 
 be inrolled in the high court of Chancery ; and should contain the day of 
 the month, and the year, when the deed, &c., bore date, and the names of 
 all the parties, and for whom any of them were trustees, and of all the 
 
 {g) And see 6 Geo. IV. c. 108, \ 100 accord.: and, by ? 101, of that statute, the attorney 
 general may enter a 7ioli prosequi, on informations exhibited for penalties. 
 
 (a) And see the statute 35 Geo. III. c. 55, ? 16. 
 
 [b) 37 Geo. III. c. 45, I 2. 37 Geo. III. c. 91, ? 1. 38 Geo. III. c. 1, § 1. 43 Geo. III. 
 c. 18. 59 Geo. III. c. 23. But by stat. 59 Geo. III. c. 49, § 1, the restrictions on payments 
 in cash, under these several acts, finally ceased and determined, on the first day of May, 
 1823.
 
 STAYING PROCEEDINGS. 620 
 
 "Mtnesses ; and should set forth the annual sum or sums to be paid, and 
 the name of the person or persons for whose life or lives the annuity was 
 granted, and the consideration or considerations for granting the same ; 
 otherwise every such deed, &c., should be null and void, to all intents and 
 purposes." By a subsequent clause,(c) it was further enacted, that " in 
 every deed, instrument, or other assurance, wlicrcby any annuity or rent 
 charge should be granted, or attempted to be granted, the couHideration 
 really and bond fide y (which shouM be in money only,) and also the name 
 or names of the persons by whom, and on whose behalf, the said considera- 
 tion, or any part thereof, should be advanced, should be fully and truly 
 set forth and described in words at length ; and in case the same should 
 not be fully and truly set forth and described, every such deed, kc, should 
 be null and void, to all intents and purposes." 
 
 ♦And, by the fourth section of the act, "if any part of the 
 consideration should be returned to the person advancing the [ *o21 ] 
 same ; or, in case the consideration, or any part of it, was paid 
 in notes, if any of the notes, with the privity and consent of the person 
 advancing tlie same, should not be paid when due, or shouM be cancelled 
 or destroyed, without being first paid ; or if the consideration, or any part 
 of it, was paid in goods ; or if any part of the consideration was retained^ 
 on pretence of answering the future payments of the annuity, or any other 
 pretence ; in all and every of the aforesaid cases, it should and might be 
 lawful for the person by whom the annuity or rent charge was made pay- 
 able, to apply to the court in which any action was brought for payment 
 of the annuity, or judgment entered, by motion, to stay proceedings on 
 the judgment, or action; and if it should appear to the court, that such 
 practices as aforesaid, or any of them had been used, it should and might 
 be lawful for the court to order the deed, bond, instrument or other 
 assurance, to be cancelled, and the judgment, if any had been entered, to 
 be vacated." 
 
 By this latter clause the courts had, in certain cases, an express juris- 
 diction given them, by motion, to stay proceedings in an action brought 
 for payment of the annuity, or on a judgment entered ; and to order the 
 deed, &c., to be cancelled, and the judgment to be vacated. In other 
 cases, not specially provided for by the above clause, where a warrant of 
 attorney has been given to confess a judgment, or judgment has been 
 entered up in the King's Bench, for securing the payment of an annuity, 
 the court, in virtue of their general jurisdiction, will enter into the 
 validity of the warrant of attorney, or judgment, upon motion ; and if 
 the provisions of the act have not been complied with, will vacate the 
 warrant of attorney, or set aside the judgment. (a) And judgment wag 
 set aside for want of a memorial, though it had been omitted at the 
 request of the grantor.(/*) But where an action was brought by executors^ 
 on a bond given by the defendant to their testator, for securing an 
 annuity, and, upon a plea of nan eat factum, they obtained a verdict and 
 
 (c) § 3. 
 
 (a) 4 Durnf. & East, G04. 1 11. RIac. C59. 4 Iko. Ch. Cas. 310. 2 Yes. jun. 133, S. C. 
 6 Durnf. & East, 737. 1 Bos. & Pul. 451. 3 Taunt. 540. 10 .Moore, 172. 2 Bing. 475, 
 S. C. But where a warrant of attorney was given to enter up judgment in the Common 
 Pleas, upon which judgment was entered up by mistalve in the King's Bench, it seems that 
 the latter court, though they will set aside the judgment, will not order the warrant of 
 attorney to be vacated. G East, 241, (<7). 
 
 (6) 2 Chit. Rep. 34.
 
 521 
 
 OF SETTING ASIDE, AND 
 
 iudTment, and levied execution thereon, the court held this not to be a 
 case where they could give relief, upon a summary application under the 
 annuity act, for a defect in the memorial ;(cc) for the act only meant to 
 refer to such judgments on warrants of attorney, as were intended to be 
 a part of the security for the annuity, and not to extend to cases where a 
 judgment is obtained in the ordinary course of law, on any instrument 
 
 given for securing the same.(t?) And the court of Common Pleas 
 [ *522 ] set aside a judgment and warrant of attorney, *given to secure an 
 
 annuity, for a defect in the memorial, without costs, because it was 
 the case of an executor.(a) 
 
 Upon the fourth section of the act, it has been holden, that the appli- 
 cation to the court should be made by the person by whom the annuity is 
 ■payable ;(6) but the court in one instance set aside a judgment entered on 
 the annuity bond, and execution sued out thereon, for a defect in the 
 memorial, upon the application of a judgment creditor of the grantor, with 
 a view of letting in a subsequent judgment of his own.((?) In a later case 
 however, where the grantor of an annuity had assigned a lease for secur- 
 ing the payment of it, and afterwards sold his interest in the lease to a 
 fair purchaser, it was holden that the latter was not entitled, under that 
 section, to apply to the court, to have the security delivered up to be can- 
 celled, because the memorial required by the act was not duly register- 
 ed. (cicZ) And where the attorney for the grantor of an annuity, at the 
 time of the payment of the purchase money, took and retained an unrea- 
 sonable part thereof for the expenses of the deed, the court on that ground 
 would not set aside the annuity. (e) By the above section, the courts are 
 expressly authorized to order the deed, &c. to be cancelled, as well as to 
 set aside the judgment, or stay the proceedings : But where the applica- 
 tion is made to the general jurisdiction of the court, it seems that they will 
 only vacate the warrant of attorney, or set aside the judgment or execu- 
 tion ; and not make any order respecting the deeds, &c. which are declared 
 by the act to be null and void, to all intents and purposes. (/) And in 
 general, the fourth section of the act is not imperative on the court ; but 
 it is in their discretion, either to vacate the securities given for an annuity, 
 in case of a violation of that clause of the act, or to do so on certain terms, 
 or to refuse to do so, according to the circumstances of each particular 
 case.(^) 
 
 By the statute 53 Geo. III. c. 141, § 1, the former act was repealed, 
 save and except so far as regarded any annuities or rent charges which 
 had been previously granted : And it is enacted thereby, that " within 
 thirty days after the execution of every deed, bond, instrument, or other 
 assurance whereby any annuity or rent charge shall, from and after the 
 passing of that act, be granted for one or more life or lives, or for any term 
 of years, or greater estate, determinable on one or more life or lives, a me- 
 morial of the date of every such deed, bond, instrument, or other assurance, 
 of the names of all the parties, and of all the witnesses thereto, and of the 
 person or persons for whose life or lives such annuity or rent charge shall be 
 
 (cc) 1 Durnf. & East; 495. 
 
 (d) Per Ld. Kenyan, 7 Durnf. & East, 496. (fl) 1 Boa. & Pul. 335. 
 
 (i) 7 Moore, 63. 3 Brod. & Bing. 255, S. C. (c) 5 Durnf. & East, 9. 
 
 {(Id) 6 Durnf. & East, 403 ; but see 2 East, 563. (e) 1 Taunt. 596. 
 
 (/) 2 Yes./u/i. 138. 6 Durnf. & East, 404, 739. 7 Durnf. & East, 253. 3 East, 500, 1 
 
 Marsh. 483. 10 Moore, 172. 2 Bing. 475, S. C. ; but see I Bos. & Pul. 66, 482. 
 {g) 6 Barn, k Aid. 61. 2 Dowl. & Rjl. 150, S. C.
 
 STATING PROCEEDINGS. 522 
 
 granted, and of the person or persons by "whom the same is to be 
 beneficially received, the pecuniary consideration or *considera- [ *523 ] 
 tions for granting the same, and the annual sum or sums to be 
 paid, shall be inrolled in the high court of Chancery, in the form or to 
 the effect therein mentioned, -with such alterations therein, as the nature 
 and circumstances of any particular case may reasonably re(iuire : other- 
 wise every such deed, bond, instrument, or other assurance, shall be null 
 and void, to all intents and purposes. "(a) And that " in every deed, bontl, 
 instrument, or other assurance, whereby any annuity or rent charge shall, 
 from and after the passing of that act, be granted, or attempted to be 
 granted, for one or more life or lives, or for any term of years, or greater 
 estate, determinable on one or more life or lives, where the person or per- 
 sons, to whom such annuity shall be granted, or secured to be paid, shall 
 not be entitled thereto beneficially, the name or names of the person or 
 persons who is or are intended to take the annuity beneficially, shall be 
 described in such or the like manner, as is therein before recjuired, in the 
 inrolment; otherwise every such deed, instrument, or other assurance, 
 shall be null and void."(^) 
 
 And "if any part of the consideration for the purchase of any such an- 
 nuity or rent charge, shall be returned to the person advancing the same ; 
 or in case such consideration, or any part of it, shall be paid in notcs^ if 
 any of the notes, with the privity and consent of the person advancing the 
 same, shall not be paid when due, or shall be cancelled or destroyed, with- 
 out being first paid ; or if such consideration is expressed to be paid in 
 money, but the same, or any part of it, shall be paid in goods ; or if the 
 consideration, or any part of it, shall be retained, on pretence of answer- 
 ing the future payments of the annuity or rent charge, or on any other 
 pretence ; in all and every the aforesaid cases, it shall be lawful for the 
 person by whom the annuity or rent charge is made payable, or whose 
 property is liable to be charged or affected thereby, to apply to the court, 
 in which any action shall be brought for payment of the annuity or rent 
 charge, or judgment entered, by motion, to stay proceedings on the action 
 or judgment; and if it shall appear to the court that such practices as 
 aforesaid, or any of them, have been used, it shall and may be lawful for 
 the court to order every deed, bond, instrument, or other assurance where- 
 by the annuity or rent charge is secured, to be cancelled, and the judg- 
 ment, if any has been entered, to be vacated. "(c) This act does not extend 
 to Scotland or Ireland ;[d) nor to any annuity or rent charge given by 
 will, or by marriage settlement, or for the advancement of a child ; nor 
 to any annuity or rent charge secured upon freehold, or copyhold or cus- 
 tomary lands, in Great Britain or Ireland, or in any of his majesty's pos- 
 sessions beyond seas, of equal or greater annual value than the said annuity, 
 over and above any other annuity and the interest of any principal sum 
 charged or secured thereon, of which the grantee had notice at the time of 
 the grant, whereof the grantor is seised in fee simple, or fee tail in posses- 
 sion, or the fee simple whereof in possession the grantor is enabled 
 to charge at the time of the *grant; or secured by the actual trans- [ *524 ] 
 fer of stock, in any of the public funds, the dividends whereof are 
 of equal or greater annual value than the said annuity ; nor to any voluntary 
 annuity or rent charge, granted without regard to pecuniary consideration, 
 
 (a) 2 2. (6)2 4. {c)2 6. ((f) 2 10-
 
 524 OF SETTING ASIDE, AND 
 
 or money's worth ; nor to any annuity or rent charge granted hy any body 
 corporate, or under any authority or trust created by act of parliament." 
 
 A mere sureti/, who charges with the payment of an annuity his estate 
 in fee simple, of which he was seized in possession at the time of granting 
 it, and which was of greater annual value than the annuity, is considered as 
 a grantor, within the meaning of the annuity acts ;(aa) and therefore, in 
 such case, no memorial is required.(66) Where, on a fair and ho7idjide sale 
 of an interest in land, the consideration, in part or in the whole, is an an- 
 nuity to be paid to the vendor, such consideration is not 2^, pecuniary con- 
 sideration, or money's worth, Avithin the meaning of the statute 58 Geo. 
 III. c. 141. Therefore, where the plaintiff had assigned an interest in 
 coal mines to the defendant, in consideration of an annuity for her life, 
 and for the payment of which a bond was conditioned ; the court of Com- 
 mon Pleas held, that such bond did not require inrolment.(e) A memo- 
 rial of an annuity deed, inrolled within thirty days after execution of the 
 deed by the grantee, is good, though inrolled before execution by the 
 grantor, ((^) And a memorial, when necessary, need not state that the 
 annuity is redeemable ;(e) nor the name of the party, to whom the war- 
 rant of attorney for securing it was given ;(e) nor for what penal sum it 
 authorizes a confession of judgment. (/) 
 
 It is sufficient to state in the memorial, that the annuity was granted 
 for the lives of A. B. &c. (naming them,) without stating their description, 
 by residence or otherwise, or adding that the annuity was granted for 
 their joint lives, or the life of the survivor, or for a term of years deter- 
 minable on those lives. (/) And where an annuity deed contained a cove- 
 nant by the grantor, that he would not at any time during the continu- 
 ance of the annuity, go upon the seas, or to parts beyond them, without first 
 giving the grantee seyewdays notice in writing of such his intention, in order 
 to enable him to pay such additional premiums of insurance as might be 
 incurred on account thereof, which premiums the grantor covenanted to 
 pay to the grantee ; the court of Common Pleas held, that it was not 
 necessary to state such covenants in the memorial, under the statute. (^) 
 So, where the grantor of an annuity assigned a policy of insurance on his 
 own life to the grantee, whereby the latter was enabled to insure the life 
 of the former at a less premium than he otherwise could have done, the 
 court held, that such assignment was no part of the considera- 
 [ *525 ] tion, and need not therefore have *been set out in the memo- 
 rial.(a) So, where an annuity was granted by an indenture, 
 which also contained a release of a former annuity ; the court held, that it 
 was sufficient to describe the annuity deed in the memorial, as a grant of 
 an annuity.(6) 
 
 When part of the consideration for an annuity had been deposited in the 
 hands of the grantee's attorney, till certain houses, out of which the 
 
 {aa) 17 Geo. III. c. 26, § 8. 53 Geo. III. c. 141, ^ 10. (W) 5 Barn. & Aid. 444. 
 
 (c) 5 Moore, 479. 2 Brod. & Bing. 702, S. C. ; and see 5 Moore, 629, on stat. 17 Geo. III. 
 c. 26, and 2 Barn. & Ores. 875. 4 Dowl. & Ryl. 549, S. C. 4 Bing. 214, on stat. 53 Geo. III. 
 c. 141. 
 
 {d) 3 Bing. 215. 6 Barn. & Cres. 49. 9 Dowl. & Ryl. 113, S. C. in Error. 
 
 (e) 3 Barn. & Aid. 206. (/) 4 Barn. & Aid. 281. 
 
 ig) 5 Moore, 63. 
 
 [a] 2 Barn. & Cres. 232. 3 Dowl. & Ryl. 263, S. C. ; and see 2 Barn. & Gres. 251. 3 Dowl. 
 & Ryl. 485, S. C. 6 Barn. & Cres. 689. 
 
 (6) 6 Barn. & Cres. 366.
 
 STAYmO PROCEEDINGS. 525 
 
 annuity Avas granted, should be completed, but it appeared that the money 
 deposited had all been paid over to the j^rantor, in a short time after the 
 date of the deeds, and there was no fraud in the transaction, the court re- 
 fused to set aside the annuity, on the ground that the power given to them 
 by the above act was discretionary, and that this was not the case of a 
 fraudulent retainer contemplated by the act.(<.-) ]iut where, upon the grant 
 of an annuity, the agent of the grantee, on paying ihe consideration 
 money, retained^ or caused to be returned to him, a considerable sum for 
 the expense of deeds, investigating title, journeys, &c., (two witnesses, 
 brought from a considerable distance for the purpose of attesting the exe- 
 cution of the annuity deed, having first retired,) the Court of Common 
 Pleas hejd this to be an illegal retainer, for which the grantee was respon- 
 sible ; and on that ground set aside the annuity, ten years after ii had been 
 granted and acted on, though tiic grantee alleged tliat he had given no 
 authority for, and was ignorant of, such retaincr.((Z) And where an an- 
 nuity being in arrear, and the rents of an estate on which it was secured 
 being unpaid, the trustee of the estate, who had negotiated the annuity 
 between the grantor and grantee, advanced a sum to the latter, in antici- 
 pation of the coming rents, and received from him, on such advance, tho 
 commission he usually received on annuity payments, the court of Com- 
 mon Pleas set aside an execution, which, the rents proving insullicient, 
 ■was afterwards issued for this sum, in the name of the grantee, against 
 one who, as surety for the payment of the annuity, had given a warrant 
 of attorney, to confess judgment ;(t') and also another execution, which, 
 under similar circumstances, the grantee afterwards issued for this sum, 
 against the grantor. (/) 
 
 It having been decided by the court of the King's Bench, that the me- 
 morial of an annuity must contain the description and place of residence 
 of the witnesses to the annuity deed,((/) it w^as, in consequence of that de- 
 cision, enacted and declared, by the statute 3 Geo. IV. c. 92,(/i) that "by 
 the said act of the fifty-third year of the reign of his late majesty, no further 
 or other description of the subscribing witness or witnesses to any deed, 
 bond, instrument, or other assurance, whereby any annuity or rent charge 
 was or might be granted, was required in the memorial thei-eof, 
 besides *the names of all such Avitnesses; and that so the said act [ *520 ] 
 should be deemed, construed and taken." And, in a case arising 
 after the passing of 3 Geo. IV. c. 02, where the Avitnosscs to the deeds 
 were an attorney's clerks, the court of Common Pleas held, that they Avere 
 sufficiently described in the memorial, as clerks to their employer, stating 
 his place of residence.(a) It having been determined, hoAvever, by the 
 court of King's Bench, that the memorial of an annuity must contain the 
 christian names of the subscribing witnesses to the securities; the initials 
 of their christian names not being deemed sufficient •,{I>) it Avas enacted and 
 
 (r) 4 Barn. & Aid. 281. 
 
 {d} 1 BinfT. 234. 8 Moore, 100, S. C. ; and see 6 Moore, 491. 8 Moore, 302. 1 Bing. 
 287, S. C. 8 Moore, 320, n. 9 Moore, 703. 2 Bing. 370, S. C. 3 Bing. 177. 4 Bing. 26. 
 6 Barn. & Cres. 165. 
 
 (c) I Bing. 171. 7 Moore, 579, S. C. ; and see 8 Moore, 224. 1 Bing. 274, S. C. 8 Moore, 
 324. 1 Bing. 316, S. C. 6 Barn. & Cres. 165. 
 
 (/) 1 Bing. 190. 7 Moore, 621, S. C. 
 
 Iff) 5 Barn, k Aid. 444, 717. 1 Dowl. & Ryl. 374, S. C. (h) I 1. 
 
 (a) 1 Bing. 77. 7 Moore, 382, S. C. ; and see 1 Bing. 292. 
 
 (6) 2 Barn. & Cres. 1. 3 Dowl. & Ryl. 185, S. C. ; and see 6 Dowl. & Rvl. 292. 5 Barn. 
 & Cres. 258. 7 Dowl. & Ryl. 773, S. C. 
 
 Vol. l— 33
 
 52G OP SETTING ASIDE, AND 
 
 declared, by the statute 7 Geo. IV. c. 75, that " by the said act of 53 Geo. 
 III. c. 141, no further or other name or names of the subscribing witness 
 or witnesses to any deed, bond, instrument, or other assurance, whereby 
 any annuity or rent charge is or may be granted, is or are required in the 
 memorial thereof, besides the names of all such Avitnesses, as they shall 
 appear signed to their attestations respectively, of the execution of such 
 deed, kc. ; and so the said act shall be deemed, construed and taken :" 
 And if the witnesses to the deed are accurately described in the memorial, 
 it is sufficient, though they did not see the parties execute. (c) 
 
 Doubts having also arisen, whether under the said act of the fifty-third 
 year of the reign of his late majesty, the omission to enrol a memorial of 
 any one of the assurances for securing an annuity or rent charge, did not 
 vitiate the whole transaction, notwithstanding the enrolment of a memorial 
 of another deed, bond, instrument or other assurance, granting the same,(cZ^ 
 is was further enacted and declared, by the statute 3 Geo. IV. c. 92, (e) 
 that " every deed, bond, instrument, or other assurance, granting any an- 
 nuity or rent charge, and of which a memorial shall have been, or shall be 
 duly enrolled, pursuant to the said act, notwithstanding the omission to 
 enrol any other deed, bond, instrument, or assurance, for securing such 
 annuity or rent charge, shall be valid and effectual, according to the in- 
 tent meaning and true effect thereof, notwithstanding a memorial of any 
 other deed, bond, instrument, or assurance, for securing the same annuity, 
 shall not have been duly enrolled, pursuant to the said act: Provided al- 
 ways, that nothing therein contained, shall extend to give any other force 
 or validity, to any deed, bond, instrument, or other assurance, of which a 
 memorial shall have been duly enrolled as aforesaid, than such deed, bond, 
 instrument, or other assurance, would have had, if any deed, bond, instru- 
 ment, or other assurance, for securing the same annuity, of which a memo- 
 rial shall not have been duly enrolled, had never been executed." 
 [ *527 ]| *The laches of the party applying, under the above acts, does 
 not, it seems, furnish of itself an answer to the application. (a) 
 But where it appeared that he had acquiesced in the payment of the an- 
 nuity, and had lain by till the persons acquainted with the original trans- 
 action were dead, the court refused to interfere, and relieve him in a 
 summary way.(5) So, where an ejectment was brought to recover posses- 
 sion of lands extended under an elegit, upon a judgment confessed, which 
 had been entered up on a warrant of attorney given for securing an an- 
 nuity, it was holden to be too late for the grantor to object to the con- 
 sideration of the annuity, upon a summary application for staying the pro- 
 ceedings, after verdict in such ejectment ; because he had an opportunity 
 of making his defence to the action.(c(?) And it seems that an annuity paid 
 without objection for more than six years, shall be protected, by analogy 
 
 (c) 3 Bing. 215. 6 Barn. & Cres. 49. 9 Dowl. & Ryl. 113, S. C. in error. 
 
 {d} 4 Bro. Ch. Cas. 310. 2 Ves. jun. 154, S. C. 6 Durnf. & East, 471. 8 Durnf. & East, 
 183. 1 Bos. & Pul. 451. 2 East, 563. 3 East, 500. 6 East, 243 ; but see 4 Durnf. & East 
 694. 6 Taunt. 124. 1 Marsh. 478, S. C, by which it seems, that the courts would only 
 have set aside the deeds whicli were defective, or not properly memorialized. 
 
 (e) § 2. 
 
 [a) Grant v. Folei/, T. 23 Geo. III. K. B. ; and see 1 Bos. & Pul. 451. 8 Taunt. 435. 4 
 Moore, 402. 2 Brod. & Bing. 19, S. C. 
 
 (6) 5 Durnf. & East, 139 5" and see 8 Durnf. & East, 323. 2 East, 85, 565. 2 Chit. Rep. 
 32, 3. 4 Dowl. & Ryl. 344. 7 Taunt. 596. 
 
 (cc) 1 Durnf. & East, 540; and see id. 495. Ante, 521.
 
 STAYING PROCEEDINGS. 527 
 
 to the statute of limitations, against any objection dehors the memorial, 
 for a siijjposeJ defect of consideration, without strong reasons to the con- 
 trary.(t/) But where the objection to the annuity was, that some of the 
 deeds were not witnessed by all the persons mentioned in the memorial, 
 the court on application set aside tbe warrant (»f attorney, tli(>u<.'h at the 
 distance of near tuunfi/ years, and after tbe [)rincipal parlies and witnesses 
 to the transaction were dead ; tbe merits of such objection not depending 
 on any testimony lost by the delay. (c) And a sco-e facias to revive a 
 judgment entered up by warrant of attorney, given to secure the payment 
 of an annuity, and n fieri facias issued thereon, have been holden, in the 
 Excbeciuer, not to be such proceedings, as to call upon the grantor of the 
 annuity to avail himself of an objection to tbe memorial. (/) 
 
 If a question, respecting the validity of an annuity, has been decided by 
 a court of competent jurisdiction, the court of Kings Bench will not suffer 
 it to be agitated again, if the point has been directly determined; but that 
 is not the case, where the question has only incidentally occurred, and has 
 not been positively decided. (</) In a modern case however, where, upon a 
 previous application to set aside an annuity, for non-compliance witli the 
 rc([uisitcs of the act, the rule was discharged upon discussion of the merits, 
 the court of King's Bench would not entertain a similar application be- 
 tween the same parties, on the same state of facts, though grounded upon 
 a new objection to the annuity, which was not before urged or considcred.(/<) 
 And "where a rule to show cause is obtained in this court, for the purpose 
 of setting aside an annuity or annuities, the several objections thereto, in- 
 tended to be insisted upon by tlic counsel, at the time of making the rule 
 absolute, must be stated in the rule nisi:"[i) which practice has also been 
 adopted in the court of Common Pleas. 
 
 *In an action of trespass, the proceedings were stayed, in tlie [ *.528 ] 
 court of King's Bench, on the ground that the plaintiff had be- 
 fore brought an action of replevi)i, and recovered damages for the same 
 cause of action. (a) But, in a qui tarn action for insuring lottery tickets, 
 contrary to the 16 Geo. III. c. 34, the court of King's Bench would not 
 stay the proceedings, upon an affidavit of the defendant, that a former 
 action had been brought against him in the Common Pleas, for the same 
 offence, in which he had had leave to compound; but said he must plead 
 such matter specially. (^>) And the court would not stay the proceedings, 
 in an action against a sheriff's officer, on the 32 Geo. II. c. 2S, § 12, 
 though a similar action had been commenced against the sheriff, for the 
 same offence. (c) Yet, where actions had been brought against both, and 
 a verdict obtained in each, the court stayed the proceedin<Ts, on payment 
 of one penalty, and the costs in both actions.((?c/) So, where A. and B. 
 having recovered in separate actions for libels, against different parties 
 engaged in the management and pul)lication of the same newspaper, com- 
 menced fresh actions against the same parties, each suing that party against 
 
 (d) 2 East, 85. 
 
 (f) Id. 5G3; and sec 8 Taunt. 435. 4 Moore, 402. 2 Bred, k Bing. 19, S. C. 
 
 (/) Forrest, 125. 
 
 Iff) 6 Durnf. k East, 471 ; and see 8 Dtirnf. & East, 328. 2 E.ast, 85, 5C5. 
 
 (A) 7 DurnC. & East, 455 : and see id. 495, 540. 1 East, 537. 2 East, 5G5, G. 13 East, 590. 
 
 (i) R. T. 42 Geo. III. K. B. 2 East, 5G9. 
 
 (a) Lamb v. XuU, T. 29 Geo. III. K. B. ; and see 1 Bing. 307. 
 
 (6) Cowp. 744. (c) 2 Durnf. & East, 512. 
 
 (dd) Id. 712.
 
 528 OF SETTING ASIDE, AND 
 
 whom tlic otlicr had recovered, the court would not interfere in a summary 
 way, to set aside the latter proceedings. (e) And where the plaintifi" brought 
 replevin for goods levied under a warrant of distress, for an assessment 
 made by a special sessions under the highway act, 13 Geo. III. c. 78, § 47, 
 on tlie ground of the premises for which he was assessed, being situated 
 without the township which was liable to repair the road, the court of 
 Common Pleas refused to set aside the proceedings. (/) And they would 
 not stay proceedings in an action, on the ground of a bill depending in 
 Chancery for the same cause ;(^) nor in order to abide the event of a de- 
 cision in the mayor's court, as to the existence of the debt, on a foreign 
 attachment. (/i) So, in a late case, the court of King's Bench refused to 
 stay execution after verdict and judgment, which was affirmed on error, 
 until the trial of an indictment for perjury against two of the plaintiff's 
 witnesses in the action ; and because this seemed to be a new and danger- 
 ous experiment, the court ordered the rule to be discharged with costs. (^) 
 
 And where a true bill of indictment for perjury was found, and 
 [ *529 ] the judge at the assizes having refused to try it, on *account of 
 
 nianife3t imperfections in the record, a new bill was preferred, 
 whereupon the defendant was found guilty, but a new trial Avas granted ; 
 and then the prosecutor, instead of taking down the old record again, pre- 
 ferred a new indictment for the same offence, and removed it into the 
 King's Bench by certiorari; the court refused to stay the proceedings 
 upon that indictment, until the prosecutor paid the costs of the former 
 proceedings. («) 
 
 In an action brought against the sheriff, for money levied under di, fieri 
 facias, without any previous demand, the court of King's Bench stayed 
 the proceedings, upon payment of the sum levied, without costs. (6) But 
 the court of Common Pleas would not stay the proceedings, in an action 
 for the escape of a certificated bankrupt, taken in execution, and released 
 by the sheriff upon production of his certificate :[c) nor, in an action on a 
 replevin bond, because the action was commenced before breach ; for it 
 might have been pleaded :((?) So, where a plaintiff deposited a negotiable 
 instrument, on which he was suing, in the hands of a third person, at the 
 same time giving him notice of the action ; the court held, that he did not 
 thereby part with his right of action ; and though the depositary sued on 
 the same instrument, they would not, at the instance of the defendant, 
 stay the proceedings in the first action. (ee) And that court refused to stay 
 the proceedings in an action brought by the provisional assignee of the 
 
 («) 2 Bos. & Pul. 69. 
 
 {/) 2 New Rep. g. P. 399; and see 6 Durnf. & East, 522. 8 Taunt. 521. 2 Moore, 574, 
 S. C, accord. Where an act of parliament orders a distress and sale of goods, as for a 
 penalty, after conviction, on the game laws, 1 Str. 567. 8 Mod. 208, 9, S. C. 2 Str. 1184; 
 or on the highway act, 1 Barnardist. K. B. 110; Willes, G68 ; or for a fine imposed on an 
 officer, by commissioners of land tax, Bunb. 14 ; or for the wages of labourers, on the statute 
 20 Geo. II. c. 19, I 1 ; 3 Moore, 294, this is in the nature of an execution ; and the conviction 
 being conclusive, a replevin will not lie : But the court in these cases will not stay the pro- 
 ceedings ; though, in some of them, they granted an attachment for contempt against the 
 officer for granting, and the party for obtaining the replevm : and see Gilb. Rep. 121, 2. Bac. 
 Abr. tit. Eeplevin, C. Bradshaw's case, Willes, 672, (6). 2 Blac. Rep. 1330. 3 Maule & Sel. 
 625. 2 Dowl. & Ryl. 13. 
 
 (g) 2 Bos. & Pul. 137; and see 9 Price, 391. 
 
 {h) 6 Taunt. 74. (?) 4 Maule & Sel. 140, 
 
 (a) 5 Barn. & Cres. 761. 8 Dowl. & Ryl. 500, S. C. 
 
 h) 3 Barn. & Aid. 696. (c) 4 Taunt. 631. 
 
 (d) 5 Taunt. 776. (ee) 1 Taunt. 109.
 
 STAYING PROCEEDINGS. 529 
 
 insolvent debtors' court, on an objection tliat it was not proved, at the 
 trial of the cause, that the assi^^nee had the authority of the latter court 
 to proceed, pursuant to tlie statute 1 Geo. IV. c. Ill), § ll.(/) 
 
 When an action is broui^ht pending a reference, which it has been agreed 
 shall operate as a stay of proceedings,(</) or otherwise contrary to good 
 faith, the courts will nut sufter the plaintiff to proceed in it: And they will 
 stay the jjroceedings, when the action is brought by an attorney, without 
 proper authority; for otherwise the defendant niigbt Ije twice charged. (A) 
 So, where an action was brouglit against an agent fur prize money, the 
 court of King's Bench set aside the proceedings, Avith costs to be paid by 
 the attorney; because the letter of attorney from the plaintiff, to receive 
 the prize money, Avas not duly attested, pursuant to the 20 Geo. II. c. 24, 
 § t3.(i) And, in the Common Pleas, Avliere claims were made on a prize 
 agent, by several persons, for prize money due to a sailor, he was per- 
 mitted, as a public officer, to pay the money into court, fur the benefit of 
 the claimant who should prove his ai^^hority to receive it. (A:) But where 
 a feme covert living apart from her husband, under a sentence of separa- 
 tion, with alimony allowed pendente lite in the ecclesiastical 
 court, brought trespass in her ^husband's name, for breaking and [ *530 ] 
 entering her house, and takinjj her goods, the court of Kin^f's 
 Bench refused, on the application of the defendants, to set aside the pro- 
 ceedings ; though supported by an afhdavit of the husband, that tlie action 
 was brought without his authority. (a) 
 
 On showing cause against a rule for staying proceedings, in an action 
 on a promissory note, in the King's Bench, on an affidavit that the note 
 was obtained without consideration, it being objected that the court would 
 not interfere in this matter, which was proper for the trial of the cause ; 
 the court said, it was often done on such applications, if the other side did 
 not contradict the assertion of the defendant ; but when there were con- 
 tradictory affidavits, the court would not interfere in this summary way, 
 but put the defendant to insist on it as a defence at the trial. (i) And 
 where an action had been settled, by payment of the debt, and giving a 
 note of hand for the costs, amounting to \l. Ws. ^d. which note not being 
 paid on demand, the plaintiff's attorney signed judgment, the court set it 
 aside; saying, that by taking the debt, and note for the costs, the amount 
 was liquidated, and judgment could not be signed in an action that was so 
 settled; ami that an action might certainly have been brought on the note 
 in the county court, and the value recovered, at much less expense than 
 by signing judgment in the court above. (c) But where there was an under- 
 taking to pay the costs of an action in a limited time, and they were not 
 so paid, it was holdcn that the plaintiflf might proceed in the action for 
 nominal damages.(c?) 
 
 There are other grounds for staying the proceedings ; not absolutely, 
 
 (/•) 3 Ring. 370. {g) Post, Ch^p. XXXVI.: but see 2 Moore, 30. 
 
 (h) 1 Diiriif. & Ea.'t, 62. 1 Chit. Rep. 104; but see id. VXi, (/>). Ante, 93. 
 \i) O'Unra V. Innrs, .M. 27 Geo. III. K. R. ; and see the statutes 26 Geo. III. c. 63, § 1, 2. 
 32 Geo. III. c. 34, § 1, 2. 55 Geo. III. c. 60. 1 Ros. & Pul. 161. Miin Ex. Pr. 407. 
 (k) 1 Taunt. 16G. (a) 9 East, 471 ; and see 2 Chit. Rep. 392. 
 
 \h) Tnnv^r v. Tiujlor, E. 23 Geo. III. K. R. 
 \c) Brown, Executor, \. Midilleton, E. 22 (ieo. III. K. B. 
 id) Butcher v. Holland, II. 25 Geo. III. K. B.
 
 530 f P SETTING ASIDE, AND 
 
 but for a time, or until somctliing be clone for the benefit of the defendant: 
 These arc, pending a writ of error ; until security be given for the pay- 
 ment of costs ; or until the costs are paid, of a former action for the same 
 cause. 
 
 A writ of error regularly sued out is a supersedeas of execution, in the 
 King's Bench, from the time of its allowance ;(e) or, in the Common Pleas, 
 from the delivery of it to the clerk of the errors :(/) provided bail, when 
 requisite, be put in thereon in due time.(^) But this does not prevent the 
 plaintifi" from proceeding by scire facias, or action of debt on the judg- 
 ment, against the principal ; nor, after the return of non est inventus to a 
 capias ad satisfaciendum, by scire facias, or action of debt on the recog- 
 nizance, against the bail. In such cases, however, if the writ of error be 
 not evidently brought for the mere purpose of delay, the courts will stay 
 the proceedings upon terms, pending the writ of error. (7^) But this is not 
 a matter of course :(?') and if it be apparent to the court, that the writ of 
 error is brought merely for delay, they will not stay the proceed- 
 [ *531 ] ings.(A:) *How that is to be made out, depends upon the circum- 
 stances of each particular case. In general, the court will not 
 stay the proceedings, where the defendant or his attorney has declared, 
 that the writ of error was brought only for delay, or used expressions 
 tantamount to such a declaration :(«) But the declaration of an attorney's 
 clerk, (S) or of one of several defendants, (c) or the belief oi the plaintiff, or 
 his diXtomej ,{dd) that it is brought for delay, is not sufficient ; nor that 
 the defendant had acknowledged the debt to be due, before and since the 
 commencement of the action ',{ee) nor that he had said to the plaintiff, that 
 when he could put off the matter no longer, he would go to gaol ',{ff) nor 
 that his attorney had declared, that the debt would be settled, and that 
 time was all the defendant wanted. (^^) The court of King's Bench, in one 
 C3ise,{hh) ordered the proceedings to be stayed, pending a wi'it of error, on 
 a judgment of nonsuit; although there was no declaration of the defend- 
 ant, or his attorney, that it was brought for delay : and there was a similar 
 decision in the Common Pleas. (lY) But it is now settled, in both courts, 
 that the proceedings cannot be stayed, pending a writ of error on such 
 fudgment, unless some real error be pointed out.(M) And where the de- 
 fendants, on a judgment recovered in the Common Pleas, first brought a 
 
 (e) 1 Salk. 321. 1 Bur. 340. (/) Barnes, 205, 209. 
 
 Iff) 2 Str. V81. 1 Durnf. & East. 279 ; aiid'see 2 Chit. Rep. 106. 
 
 (A) 1 Str. 419. 1 Wils. 120. 3 Bur. 1389. Cowp. T2. 3 Durnf. & East, 78. 
 
 (i) 2 Durnf. & East. 78, 
 
 (k) Carter y. Roberts, M. 28 Geo. III. K. B. Per Buller, J. 4 Durnf. & East, 436, n, (c). 
 1 Smith, R. 335, accord. Cowp. 72, semb. contra. 
 
 (a) 3 Durnf. & East, 79. 5 Durnf k East, 714. 2 H. Blac. 30. 2 Bos. & Pul. 329. 
 Forrest, 26, 7. 2 Chit. Rep. 191. 2 Maule & Sel. 474, 476. 1 Barn. & Cres. 287. 6 Dowl. 
 & Ryl. 509. 3 Bing. 169. 
 
 (6) Per Cur. M. 45 Geo. III. K. B. 2 Smith, R. 60, S. C. 2 Chit. Rep. 193. 
 
 {c) 9 Moore, 503. 2 Bing. 304, S. C. 
 
 {d) 3 Durnf. & East, 78. Cleyhorn v. Ireland, E. 28 Geo. III. K. B. 2 Price, 299. 3 
 Dowl. & Ryl. 233, 4. 
 
 {ee) 6 Moore, 45. 
 
 (/) Per Cur. M. 41 Geo. III. K. B.; and see 2 Chit. Rep. 191. 7 Taunt. 537. 1 Moore, 
 253, S. C. 9 Price, 606. 
 
 {gg) 1 New Rep. C. P. 307 ; and see 9 Price. 606. {hh) 5 Durnf. k East, 669. 
 
 {ii) Bishop V. Fry, T. 2 Geo. IV. C. P. 
 
 (M) 4 Durnf. & East, 436. 2 Dowl. & Rvl. 208, K. B. 1 H. Blac. 432. 9 Moore, 609. 2 
 Bing. 626, S. C. C. P.
 
 STAYING PROCEEDINGS. 531 
 
 writ of error in tlic King's Bench, and tlion bronglit another returnable in 
 rjirliiiiiient, after which they nonprossed the first writ of error, and then 
 obtained a rule to nhow cause, why the procccdinfrs in an action upon the 
 jud<i;niont brouglit in the King's Ik-nch should not be stayed, pending the 
 secoTul writ of error, the latter court ilischarged the rule witii costs ; as it 
 plainly appeared, from the defendant's own conduct, tiiat there was no 
 foundation for a writ of error, and that it could only be brought for vexa- 
 tious purposes.{/) 
 
 In order to stay the proceedings in an action of debt on judgment, pend- 
 ing a writ of error, it is necessary, if the action be bailable, that the de- 
 fendant should be first in court, by putting in and jierfccting bail.(/«) 
 And where an action is brought upon a judgment of the Common IMeas, 
 the court of King's Bench will not stay the procceilings, pending a writ of 
 error, without the defendant's giving judgment in the second ac- 
 tion,{«) and *undertaking not to bring a writ of error upon that [ *r>32 ] 
 judgment.(fl) But if the action be brouglit uiX)n a judgment of 
 the King's Bench, these terms make no part of the rule ; because in 
 general, actions on judgments are vexatious, and the plaintifi' might have 
 his execution on the first judgment :{b) And where the proceedings were 
 stayed without imposing these terms, and the plaintiff died before judg- 
 ment affirmed, the court would not afterwards permit judgment to be entered 
 nuncpro tunc.ic) 
 
 If the defendant bring a writ of error, after which the plaintiff bring 
 an action on the judgment and recover, he cannot sue out execution on 
 the second judgment, in the King's Bench, till the writ of error be deter- 
 mined. (tZ) But where, several years having elapsed after judgment ob- 
 tained, the plaintifi' brouglit an action upon the judgment, and after judg- 
 ment signed in that action, the defendant sued out a writ of error upon 
 the first judgment ; the court of King's Bench held, that the plaintiff 
 might notwithstanding take out execution on the second judgment :(e) And 
 80, in the Common Pleas, the plaintiff may take out execution on the 
 second judgment, notwithstanding the writ of error, unless the defendant 
 move to stay the proceedings. (/) 
 
 On a scire facias, or action of dcht on recognizance against bail, when 
 a writ of error is allowed on the judgment in the original action, bc^fore 
 the expiration of the time allowed for the bail to surrender their principal, 
 the court of King's Bench, without regard to the time when the applica- 
 tion is made, will stay the proceedings, until the writ of error be ileter- 
 mined;(^) the bail undertaking io pay the condemnation money, or sur- 
 render the defendant into the custody of the marshal, within four days 
 next after the determination of the writ of error, in case the same shall be 
 
 {I) 2 Durnf. & East, T8 ; but sec C Durnf. & East, 400. 
 
 (»() 5 Diirnf. & East, 9. G Dunif. k East, 4r)5. 5 Burn. & Aid. 903. 
 
 (n) Per Buller, J. T. 21 Geo. HI. K. B. 1 Durnf. & East, 038 ; and sec Cas. Pr. C. P. 112. 
 Pr. Reg. 82, S. C. 
 
 (a) Cowp. 72. Swann v. Boiil/on, H. 35 Geo. III. K. B. ; and see 2 Blac. Rep. 780, C. P. 
 
 {b) Per Buller, J. T. 21 Geo. HI. K. B. 1 Durnf. & East, 038 ; and see Cas. Pr. C. P. 112. 
 Pr. Rep. 82, S. C. 
 
 (c) 1 Durnf. & East, 037. 
 
 ((/) 3 Durnf. & Ea.at, 643. 4 Bur. 2454, S. P.; but see 1 Str. 526, srmb. centra. 
 
 ic) 3 Barn. & Aid. 275 ; and see 1 Sir. 520, accord. 
 
 \j) Barnes, 202. Cas. Pr. C. P. 129, S. C. Willcs, 183. Cas. Pr. C. P. 159, S. G. Willes, 
 184. Barnes, 203, S. C. 
 
 (jf) 1 Str. 419.
 
 532 OF SETTING ASIDE, AND 
 
 determined in favour of the defendant in error -.{Ji) And so, in tlie Common 
 Pleas, where the application is made by the bail, within the time allowed 
 for surrendering their principal, the court w^ill stay the proceedings against 
 them, pending the writ of error, without their giving judgment in the scire 
 facias, or action of debt on the recognizance ; which would preclude them 
 from surrendering the defendant.(^) But if the bail in that court do not 
 apply to stay the proceedings pending error, till their time to surrender is 
 out, the court will not give them any time for that purpose, but on\j four 
 days to pay the money in, after the judgment is affirmed :{k) And in such 
 case, they must undertake to pay not only the condemnation 
 [ *533 ] money, but also the costs of the action against themselves, *the 
 costs of the application, and, where there is no bail in error, the 
 costs of the proceedings in error. (a) In the Exchequer, when a writ of 
 error is allowed in the original action, and the bail apply within the time 
 allowed them for surrendering their principal, the court will give them the 
 same time to surrender him after judgment affirmed, or writ of error non- 
 prossed, as they would have had at the time of the allowance of the writ 
 of error :(6) And where the application is not made by the bail, until after 
 the expiration of the time allow"ed for surrendering the principal, the court 
 will stay proceedings against them, until the writ of error brought in the 
 original action is determined. (c) But bail, in that court, are not allowed 
 four days to surrender their principal, after the determination of a writ of 
 error, where the plaintijBf has proceeded by subpoena, and the writ of error 
 was brought after the return of the capias ad satisfaciendum.{d) 
 
 Where error was not brought till it was too late for the bail to sur- 
 render, the court of King's Bench in one case would not stay the proceed- 
 ings. (e) But, in a subsequent case,(/) the proceedings were stayed; the 
 bail undertaking to pay the condemnation money, and the costs on the 
 scire facias, in four days after affirmance ; and in this case, there being 
 no bail on the writ of error, the court made the bail also undertake to pay 
 the costs on the writ of error, in case the judgment was affirmed; and 
 said, it was a favour they were asking, and they Avould make them submit 
 to equitable terms. By the affirmance of the judgment in these cases, is 
 meant the final affirmance of it ; and therefore where the judgment on a 
 writ of error was affirmed in the Exchequer Chamber, and afterwards an- 
 other writ of error was brought, 'returnable in Parliament, the proceedings 
 against the bail were further stayed, till the determination of the second 
 writ of error. ((/) 
 
 The plaintiff got judgment on the scii^e facias against bail, pending 
 error by the principal, and took them in execution; and, on their moving 
 to be discharged, the court of King's Bench said: "Though you might 
 have applied, and had the proceedings stayed, yet we will not set them 
 aside : If an action of debt had been brought upon the judgment, we should 
 have granted an imparlance, if it had been asked: but we never set aside 
 the judgment, w'hen it is once signed ; because we take it you, by your 
 
 (A) 1 Bur. 340. 11 East, 316; but see 2 Str. 781, 872, 1270. 3 East, 546, semb. cmtra. 
 
 {i) Barnes, 6G, 68. Cas. Pr. C. P. 112. Pr. Reg. 82, S. C. 
 
 (/.•) 1 New Rep. C. P. 67. 11 East, 319 ; and see Barnes, 86. 
 
 («) 1 New Rep. C. P. 67. {h) 2 Price, 296. 
 
 (c) Forrest, 2^. [d) Wightw. 79. Ante^ 284. 
 
 (c) 1 Str. 443. (/•) 2 Str. 877. 
 
 {g) 5 Bur. 2819.
 
 STAYING PROCEEDINGS. 533 
 
 not applying in time, liave submitted to meet the plaintiff. Quod fieri non 
 debet, factum vaJet.'\h) 
 
 In eject )nent,{i) or actions quitam^ik) when the lessor of tlie plaintiff, or 
 the plaintifl' himself", is unknown to the (k-fciidant, tlu' latter may call for 
 an account of liis residence or place of abode, from the opposite attorney; 
 and if he refuse to give it, or give in a fictitious account, of a person "vvho 
 cannot be found, the courts ■will stay the proceedings, until secu- 
 rity be *given for the payment of costs. («) So, in a joint action [ *534 ] 
 by three plaintiffs for a libel, the defendant may call on the at- 
 torney of one of them, for an account of the places of residence and occu- 
 pations of the other two.(/') So, in an action of trenpaHH and aasault, the 
 court compelled the plaintiff to disclose to the defendants his proper addi- 
 tion and place of residence ; his identity being material to their defence 
 on the trial, and the proceedings were staj'ed until the disclosure was 
 made.(6') And, Avhere the defendant in assu))ij>f<it having pleaded in abate- 
 ment, that four others were jointly liable with himself, the jilaintiff applied 
 to the defendant's attorney to give the places of residence and additions of 
 those persons, Avhich he refused, unless the action were discontinued ; the 
 court of King's Bench, under these circumstances, made a rule absolute 
 for the defendant to deliver such particulars, or in default thereof for set- 
 ting aside the plea.(f?) But, except in the above instances, the defendant 
 is not allowed to call on the plaintiff's attorney, for an account of the re- 
 sidence or place of abode of his client :(e) And after verdict in a penal 
 action, the court of Common Pleas would not compel an attorney to dis- 
 cover it.(/) 
 
 It was not formerly usual to require security for costs, where the plain- 
 tiff resided abroad, (7) except in ejeetynenf ,(Jih) or actions f^?'?' tam:(ii) For it 
 was considered, that such a proceeding might have affected trade, by ex- 
 cluding foreigners from our courts ; and would be a means of clogging the 
 course of justice. But now, although a plaintiff is not compellable to give 
 security for costs, merely as a foreigner, if he reside in this country ;{kk) 
 yet, whether he be a foreigner or native, if he reside abroad, out of the 
 reach of the process of the court, the proceedings may in general be 
 stayed, on a proper affidavit,{l) till his return, or security be given for the 
 payment of costs :(77t) And upon this ground proceedings have been stayed, 
 
 (A) 1 Str. 52G. Barnes, 202, accord; but see 4 Bur. 2454. 3 Durnf. & East, 643, semb. 
 contra. 
 
 (t) 2 Str. 681. Ad. Eject. 2 Ed. 315. 
 
 (k) 2 Str. 697, 705. Barnes, 126. 
 
 (a) Ad. Eject. 2 Ed. 315. (b) 6 Moore, 110. 
 
 (c) 5 Barn. & Aid. 540. 1 Dowl. k Ryl. 174, S. C. 
 
 (d) 4 Baru. & Aid. 93 ; and see 1 Younge & J. 257. 
 
 (e) 2 Str. 705; but sec 1 Str. 402. 
 
 (/) 1 H. Blac. 534; and see Barnes, 126. 
 
 Iff) 2 Str. 1206. 1 Wils. 266. Say. Costs, 155. 2 Bur. 1026. 4 Bur. 2105. Cowp. 24, 
 158, 322. 1 II. Blac. 106. And see 2 Anstr. 359, by which it ?cems that, in the Exchequer, 
 a phiintiff re.sldinc; abroad is not compellable to give security for costs. 
 
 {/ih) 2 Bur. 1177. Say. Costs, 531, S. C. 
 
 (ii) 1 Str. 697. 2 Str. 1206. 1 Wils. 266. 
 
 {kk) 1 Ken. 469. Say. Costs, 155, C, S. C. 1 II. Blac. 106. 6 Taunt. 20. 1 Marsh. 421, 
 S. C. 3 Moore. 78. 8 Taunt. 737, S. C. 
 
 (I) Append. Chap. XX. § 9. 
 
 (wj) Elan V. Ree.s, H. 24 Geo. III. K. B. Lando v. Corbftt Sr ot/icm. M. 26 Geo. III. K. B. 
 1 Durnf. & East, 267, 362, 491. 2 U. Blac. 118. 2 Anstr. 359. 1 Taunt. 64. 2 Chit. Rep. 
 162, (o).
 
 534 OF SETTING ASIDE, AND 
 
 wlicrc tlic plaintiff has been resident in Scotland, [71) or Ircland.{6) So, if 
 the plaintiff, being a foreigner by birth, and having no house of trade or 
 permanent residence in this country, has expressed his determination of 
 going abroad, to reside there permanently, the court will compel him to 
 
 give security for costs. (p) And where the plaintiff, after issue 
 [ *535 ] joined, has *been convicted of felony, and received sentence of 
 
 transportation, the court of King's Bench will compel him, or his 
 attorney, to give security for costs, retrospective as well as prospective. (a) 
 In an action by executors, the plaintiffs, residing abroad, may be compelled 
 to give security for costs :(i) And, by a late act of parliament,(c) it may 
 be required in an action for non-residence. A defendant in replevin, re- 
 siding out of the jurisdiction of the court, is compellable to give security for 
 costs.(c?) And where a plaintiff in error resides abroad, he may be com- 
 pelled to give such security : and in default thereof, the defendant in error 
 will be permitted to proceed on his judgment, notwithstanding the Avrit of 
 error. (e) The rule requiring such security, however, has been relaxed by 
 the court of Common Pleas, in favour of foreign seamen, serving on board 
 English ships ;(/) or being in the habit of navigating them to and from 
 the ports of this country :(^) And where the plaintiff was a prisoner in 
 France,{li) or an English officer serving in South America,{i) that court 
 refused to grant a rule, compelling him to give security for costs. The 
 reason for obliging a plaintiff to give such security, is not mutual : There- 
 fore, where a defendant moves that the plaintiff, residing abroad, should 
 give security for costs, the court will not make the rule mutual, on the 
 ground that the defendant is also resident abroad. (A) If the plaintiff be a 
 native of England, and go abroad for a mere temporary purpose, the court 
 will not compel him to give security for costs. (Z) And if one of several 
 plaintiffs reside in this country, the courts will not require security to be 
 given for costs, though the other plaintiff be a foreigner, residing abroad ;(m) 
 even though the first-mentioned plaintiff be a bankrupt, in execution for 
 deht.(nn) In the Exchequer, plaintiffs, being resident in a foreign country, 
 out of the jurisdiction, may be restrained from proceeding, until they give 
 security for costs. (00) 
 
 The above are the principal, and were formerly considered as the only 
 grounds upon which the proceedings can be stayed, for want of security 
 for costs : It being holden, that they shall not be stayed, even in eject- 
 ment,{pp) or a qui tarn action, ((^^) merely on account of the poverty of the 
 plaintiff, or his lessor; or because the plaintiff is protected as a foreign 
 
 {n) M'Lean v. Austin, M. 36 Geo. III. K. B. Sherify. Farguharson, M. 37 Geo. III. K. B. 
 S. P. 6 Taunt. 3*79. 2 Marsh. 80, S. C; but see 2 Bur. 1026. 
 
 (0) 1 Durnf. & East, 362. Stillv.3PIver, M. 36 Geo. III. K. B. 2 Chit. Rep. 151, 4 
 Moore, 356. 5 Barn. & Aid. 265. 1 M'Clel. & Y. 213. 
 
 (p) 5 Barn. & Aid. 908. 1 Dowl. & Ryl. 560, S. C. (a) 1 Barn. & Aid. 159. 
 
 (b) 3 Moore, 602. 1 Brod. & Bing. 277, S. C. (c) 57 Geo. III. c. 99, § 45. 
 
 (d) 4 Moore, 280. 1 Brod. & Bing. 505, S. C. (e) 5 Barn. & Aid. 265. 
 
 (f) 2 H. Blac. 383. 1 Bos. & Pul. 96. 
 
 (ff) 2 Taunt. 253 ; and see 3 Moore, 33. 8 Taunt. 711, S. C. (h) 1 Taunt. 18. 
 
 (i) 3 Moore, 77. 8 Taunt. 736, S. C. (h) 6 Taunt. 379. 2 Marsh. 80, S. C. 
 
 (1) 2 Chit. Rep. 152 ; and see 7 Moore, 613. 
 (m) 1 East, 431. 7 Taunt. 307. 
 
 (nn) 1 East, 431. 1 Marsh. 478, n. (oo) 13 Price, 603 ; and see id. 489. 
 
 (pp) Cas. Pr. C. P. 15; and see 2 Str. 1121. Goodlitle v. 3Iayo, H. 29 Geo. III. K. B. 
 Ante, 98, 9, 
 
 (yy) Cowp. 24. Barnes, 126. 2 H. Blac. 27.
 
 STAYING PROCEEDINGS. 535 
 
 ambappador/r) or liis servant ;(«) or, in ejectment, -wlicre the lesf?or of the 
 plaintiil' is known, of full age, and resident in this country. (f) 
 The court *of Kinj^'s IV-nch will not stay proceedings on a quo [ *53G ] 
 warranto information, until the f)rosecutor give security for costs, 
 on the ground that the relator is in insolvent circumstances, -where it ap- 
 pears that he is a corporator, and no fraud is suggested. (a) And the court 
 of Common Pleas refused to require the plaintiff to give security for costs, 
 although it was sworn that he was insolvent, and that the action was 
 brought in his name, for the benefit of J. S. who was alone beneficially 
 interested in the result. (/') So, Avhere an insolvent de])tor, having assigned 
 liis property under the insolvent acts, brought an action to recover a debt 
 incurred before the assignment, the assignees having refused to sue, that 
 court would neither set aside the proceedings in such action, nor require 
 the insolvent to give security for costs. (c) But where the plaintiff had 
 been discharged under the insolvent act, after issue joined and before no- 
 tice of trial given, the court of King's Bench stayed the proceedings, until 
 the assignee, or some creditor of the plaintiff, should give security for 
 costs.(cZ) And where, in trespass against parish officers for distraining for 
 poors' rates, it appeared that the plaintiff had refused to pay the rates by 
 the desire of his ' landlord, who was also attorney in the cause, the court 
 stayed the proceedings, until he gave security for the costs. ((^) An infant 
 plaintiff cannot be compelled to give security for costs, on the ground of 
 the insolvency of his prochein ami ;{f) nor an uncertificated bankrupty 
 suing for his own benefit, as for the produce of his earnings since the bank- 
 ruptcy ;{c/) though it is otherwise, where the action is brought or proceeded 
 in by a bankrupt, whether certificated or uncertificated, for the benefit of 
 his assignees :(//) And where the plaintiff having become bankrupt before 
 plea pleaded, the defendant obtained an order for giving security for costs, 
 and afterwards pleaded bankruptcy, the court of King's Bench held that 
 the plea could not be set aside ; but that the order for giving security for 
 costs should be rescinded, the plaintiff paying the costs of that application, 
 and the defendant's rule discharged. (i) So, where a commission of bank- 
 rupt issued against the plaintiff, who was gone with his family to Kew 
 York, upon the petition of the defendant, who was the onl}^ creditor, and 
 chose himself sole assignee ; and the plaintiff brought an action against 
 the defendant, to try the commission ; the court of Common Pleas refused 
 to stay the proceedings, till he should give security for costs ; for in this 
 case, the defendant having possessed himself of all the plaintiff's property 
 as assignee, had thereby rendered it impossible for the latter to give any 
 
 (r) 5 Manle & Sel. 503. 
 
 (.s) nririfx qui tarn v. Solomon, T. 25 Geo. III. K. B. ; but see 2 P. "Wms. 4,"i2. 1 Eq. Cas. 
 Abr. 350. pi. 4. 
 
 (t) 1 Ournf. k East, 491; and see 2 II. Blac. 383. 1 Bos. k Pul. OG. 2 Bos. k Piil. 23G, 
 437. All. Eject. 2 Ed. 315, 16. 
 
 (a) 2 Maule & Sel. 346 ; and see 2 Chit. Rep. 3G0, (a). (b) T Moore, 344. 
 
 (c) 6 Taunt. 123. 1 .Marsh. 477, S. C. 
 
 (rf) 2 Barn, k Cres. 579. 4 Dowl. & Ryl. 81, S. C. 
 
 (e) 5 Barn, k Cres. 208. 
 
 (/•) 1 yUxrsh. 4. 2 Dowl. k Rvl. 423; and .see 2 Chit. Rep. 359. Ante, 102. 
 
 (ff) Cohni V. licU, T. 44 Goo. "ill. K. B. ; and see 7 Durnf. k East, 297. 1 East, 431. 2 
 Taunt. 61. 7 Moore. 345. 
 
 {/,) 7 Durnf. &: East, 20G. Sanders v. riir.ir, H. 35 Geo. III. K. B. Cohen v. Bell, T. 44 
 Geo. III. K. B. 3 Maule & Sel. 283. RoberUona V. Arnold, H. 58 Geo. III. K. B. 2 CUit. 
 Rep. 150. / 
 
 (i) 1 Obit. Rep. 215.
 
 536 OF SETTING ASIDE, AND 
 
 ]ilcclgc or counter security to those ayIio miglit become bound for 
 [ *5o7 ] liiui.(/t) *And that court would not compel such security, in an 
 
 action brought by assignees, on the ground that one of the plain- 
 tiffs was a bankrupt, and the other a prisoner in Newgate.{ci) 
 
 The motion for a rule to compel security for costs, should in all cases 
 be made as soon as the defendant can reasonably do it, after knowledge of 
 the fact of the plaintiff's residence abroad ;{b) and a rule has been granted, 
 in the King's Bench, after plea pleaded :(6') but where it might have been 
 made earlier, it comes too late after issue joined, and notice of trial 
 given. ((7) In the Common Pleas, on moving for a rule nisi, to compel the 
 plaintiff to give security for costs, the defendant must state in what stage 
 the proceedings are ; and the court will not grant the rule 7iisi, in a cause 
 in which interlocutory judgment has been signed, until the judgment has 
 been set aside. (e) But in that court it does not seem to be necessary that 
 the motion should be made before issue joined ;(/) though, after a defend- 
 ant has undertaken to accept short notice of trial, he cannot compel a 
 plaintiff, resident abroad, to give security for costs.(^) In the Exchequer, 
 the application ought to be made in the earliest stage of the proceedings ; 
 and the court will not grant it in any case, after issue joined. (A) The de- 
 fendant, if sued alone, must put in bail previous to the application :(^) But 
 if a foreigner sue two defendants, and only one of them put in bail, that 
 one may require the plaintiff to give security for costs, without putting in 
 bail for the other defendant. (^) It was formerly the practice, in the King's 
 Bench, to compel the plaintiff to give security for costs, without requiring 
 a previous application to be made to him, or his attorney :(/) but it was after- 
 wards determined, that where the plaintiff resided in this country, the court 
 would not grant a rule requiring him to give such security, on the ground 
 of bankruptcy, &c. unless application had been made to him for that pur- 
 pose, (m) A distinction however was made, between compelling security 
 for costs, and ordering a stay of proceedings ; it having been determined, 
 that where the plaintiff resided abroad, the court would compel security 
 for costs, without a previous application to his attorney ; but they would 
 not order a stay of proceedings, unless such application had been made.(?i) 
 And at length it was decided, agreeably to the original practice, and seems 
 to be now settled, that the court will grant a rule for the plaintiff to 
 give security for costs, though an application has not been made to 
 
 (k) 2 New Rep. C. P. 352, 
 
 (a) 2 Taunt. 61. 
 
 (b) 2 Chit. Rep. 151, («). 
 
 (c) Id. 151 ; and for the form of the rule nisi in K. B. see Append. Chap. XX. | 10. 
 
 (d) 5 East, 338. v. Cazenovc, T. 44 Geo. III. K. B. 2 Chit. Rep. 359. Du Belloix 
 
 V. Lord Wnterpark, E. 2 Geo. IV. 1 Dowl. & Ryl. 348, (a). 5 Barn. & Aid. 702. 1 Dowl. & 
 EyI. 348, S. 0. accord. 6 Durnf. & East, 597, contra. 
 
 (e) 1 Marsh. 376. 
 if) J'!- 4, 5. 
 
 (</) 3 Taunt. 272; and see Steel v. Lacy, id. 273, (a). I Brod. & Bing. 218, per Dallas, Ch. 
 J. 7 Moore, 361. 1 Bing. 67, S. C. 
 
 (h) 5 Price, 610 ; and see 1 M'Clel. & Y. 213. 
 
 (i) 4 Diirnf. & East, 697. 2 Chit. Rep. 152. 
 
 (k) 6 Durnf. & East, 496. 
 
 (l) Per Baylcy, 3. 1 Barn. & Aid. 332. 
 
 (wi) 3 Maule & Sel. 283 ; and see 2 Smith, R. 661. 
 
 (»} I Earn, & Aid. 331 ; and see 2 Chit. Rep. 151.
 
 STAYING PROCEEDINGS. 537 
 
 hiin, if it appear upon the *affi(lavits, that the ease is such as to [ *538 ] 
 require the security to be given. (f/) 
 
 In a second ejectment, the courts will stay the proceedings, until the 
 costs are paid of a prior one, for the trial of the same title ;(/>) and also the 
 costs of an action, if any has been brought, for the mesne profits. (<;•) In 
 other actions, it was not formerly usual to stay the proceedings in a second 
 action, until the costs were paid of a prior one for the same cause ;(»/) and 
 partieularly if the merits did not come in question on the former trial. (c) 
 And there is said to be no general rule, by whieh a plaintitV is compelled 
 to j)ay the costs of a first action, before he is suffered to proceed with the 
 second: If that were the case, it might in many instances work inju.stice; 
 for the plaintiff might have no other means of paying the costs, than by 
 proceeding for the recovery of his dcbt.(/) And therefore, where a plain- 
 tiff having declared in af<i<u))ipf(it, against trustees of a turnpike road 
 generdUjj, went to trial, and withdrew his record, and after suffi-riuf him- 
 self to be nonprossed, sued the same trustees a second time A// name, for 
 the same cause of action; the court refused to stay the proceedings in the 
 second action, until the costs of the first were paid. ((7) So where a plain- 
 tiff, being nonsuited, was taken in execution by the defendant for the costs, 
 and whilst in execution, brought another action for the same cause : the 
 court refused to stay further proceedings in the second actirm, until the 
 costs of the first were paid. (A) And it seems, that where proceedings have 
 been set aside for irregularity, the plaintiff is not bound to pay the costs 
 of them, before he commences a fresh action. (e) But in actions of tort, for 
 a malicious arrest or prosecution, or for a trespass, &c. the court will compel 
 the plaintiff to pay the costs of a first action, before he is allowed to pro- 
 ceed in a second for the same cause :(/f) And in actions for the recovery 
 of a debt, though they will not in general stay the proceedings in a second 
 action, until the costs of a former one are paid, yet of late years this has 
 been done in several instances, on the ground of vexation ;(/) 
 and *that, Avhether the former action was in the same or a dif- [ *539 ] 
 ferent court.(art) In the King's Bench, this practice was not for- 
 
 (a) 2 Chit. Rep. l.'iO. And for the form of the notice of motion, and ajjldavit to sta_v pro- 
 ceedings, till security be given for costs, see Append. Chap. XX. g 8, 9. And for tiie rule 
 in K. B. for stij'ing proceedings in ejectment, till such security be given, see Append. Chup. 
 XLVI. I 89. 
 
 {h) 1 Salk. 255, 258, 9. 1 Str. 548, 554. 8 Mod. 225, S. C. 2 Str. 1152, 120G. ^S'miVA 
 ex dim. Jordan v. Roe, M. 22 Geo. III. K. B. 1 Durnf. & East, 492. 1 Chit. Hep. 195, K. B. 
 Pr. Reg. 174. Barnes, 133. 2 Blac. Rep. 904. Say. Costs, 239, S. C. 2 Blac. Rep. 1158, 
 1180, C. P. 
 
 (c) 4 East, 585. But they will not extend the rule, so as to include the damar/cs in the 
 action for the mesne profits, however vexatious the proceedings of the lessor of the plaintiff 
 may have been. 15 East, 233. 
 
 (d) 2 Str. 1206. Cov/p. 322. Say. Costs, 251, S. C. 1 Durnf. & East, 491, 2, K. B. 
 Barnes, 125, C. P.; but see 1 Vent. 100. 
 
 (c) 1 Ld. Raym. 697. 2 Blac. Rep. 809. 1 IT. Blac. 10. 
 
 (/) 7Vr Bat/leif, J. 3 Dowl. & Ryl. 54. 8 Dowl. & Ryl. 43. 
 
 Iff) 3 Dowl. & Rvl. 53. 
 
 ("/() 8 Dowl. k Ryl. 42. 
 
 (t) 2 riiit. Rep. 146. 
 
 (k) 2 Durnf. k Ea.-^t, 511. 8 Taunt. 407. 2 Moore, 460, S. C. 3 Dowl. & Rvl. 54. 
 
 (7) Bondv. Goorh, K. 23 Ceo. III. K. B. Sav. Costs, 245,247. 2 Blac. Rep. 741. 3 Wils. 
 149, S. C. C. P. ; but see 1 H. Blac. 10. 2 Sniith, R. 423. 
 
 {aa) Nevitt v. Lade, E. 24 Geo. III. K. B. 1 Taunt. 565. 8 Taunt. 407. 2 Moore, 460. 
 S. C.
 
 I 
 
 539 OF SETTING ASIDE, AND STAYING PROCEEDINGS. 
 
 merly confined to cases where a trial was had in the former action ; but 
 applied equally where the cause was put an end to by a judgment of non- 
 ros,{a) or as in a case of nonsuit.(6) And, where an action was brought 
 y husband and wife, the court stayed the proceedings, until the payment 
 of costs in a former action, at the suit of the husband only ; it being for the 
 same demand. (c) In the Common Pleas, the court, it is said, never inter- 
 feres, unless the merits of the case have been tried in the former action.((Z) 
 But where the plaintiff discontinued an action stayed in the King's Bench 
 by a consolidation rule, and commenced an action against the same de- 
 fendant for the same cause in the Common Pleas, that court stayed 
 the proceedings, until after the trial of the cause mentioned in the 
 rule.(e)[l] 
 
 (a) Nevitt v. Lade, E. 24 Geo. III. K. B. 1 Taunt. 565. 8 Taunt. 407. 2 Moore, 460, 
 S C 
 ' (b) Per Cur. M. 41 Geo. III. K. B. Ad. Eject. 2 Ed. 318. 
 (cy Lampley and ivife v. Sands, H. 25 Geo. III. K. B. 
 \d) 3 Bos. & Pul. 23, {a) ; and see 2 Blac. Rep. 809. 1 H. Blac. 10. 
 (e) 1 Taunt. 565. 
 
 [1] It may here be proper to notice, as connected with the subject of staying proceed- 
 ings, the provisions of the statute 1 & 2 W. IV. c. 58, to enable courts of law to give relief 
 against adverse claims, made upon persons having no interest in the subject of such claims. 
 These provisions are of two kinds ; first, such as relate to the property in money or goods, 
 where claims are made by different parties, one of whom has brought an action against the 
 person in possession of them, and the defendant does not claim any interest therein ; and 
 secondly, for the relief of sheriffs and other officers, in execution of process against goods 
 and chattels. 
 
 Before the making of the above statute, it often happened, that a person sued at law for 
 the recovery of money or goods, wherein he had no interest, and which were also claimed 
 of him by some third party, had no means of relieving himself from such adverse claims, 
 but by a suit in equity against the plaintiff and such third party, usually called a bill of 
 Interpleader, which was attended with expense and delay ; for remedy whereof, it is enacted 
 by the above statute, that " upon application made by or on the behalf of any defendant, 
 sued in any of his majesty's courts of law at Westminster, or in the court of Common Pleas 
 of the county palatine of Lancaster, or the court of pleas in the county palatine oi Durham, 
 in any action of assumpsit, debt, detinue, or trover, such application being made after decla- 
 ration and before plea, by affidavit or otherwise, showing that such defendant does not claim 
 any interest in the subject-matter of the suit, but that the right thereto is claimed, or sup- 
 posed to belong to some third party, who has sued, or is expected to sue for the same, and 
 that such defendant does not in any manner collude with such third party, but is ready to 
 bring into court, or to pay or dispose of the subject-matter of the action, in such manner 
 as the court, or any judge thereof, may order or direct; it shall be lawful for the court, or 
 any judge thereof, to make rules, and orders, calling upon such third party to appear, and 
 to state the nature and particulars of his claim, and maintain or relinquish his claim ; and 
 upon such rule or order, to hear the allegations as well of such third party as of the plain- 
 tiff, and in the mean time to stay the proceedings in such action ; and finally, to order such 
 third party to make himself defendant in the same, or some other action, or to proceed to 
 trial on one or more, feigned issue or issues ; and also to direct which of the parties shall be 
 plaintiff or defendant on such trial; or, with the consent of the plaintiff and such third 
 party, their counsel or attorneys, to dispose of the merits of their claims, and determine the 
 same, in a summary manner; and to make such other rules and orders therein, as to costs 
 and all other matters, as may appear to be just and reasonable : Stat. 1 & 2 W. IV. c. 58, 
 § 1 ; and that the judgment in any such action or issue as may be directed by the court or 
 judge, and the decision of the court or judge in a summary manner, shall be final and con- 
 clusive against the parties, and all persons claiming hj, from, or under them." Id. § 2. 
 
 " That if such third party shall not appear, upon such rule or order, to maintain or relin- 
 quish his claim, being duly served therewith, or shall neglect or refuse to comply with any 
 rule or order to be made after appearance, it shall be lawful for the court or judge to declare 
 such third party, and all persons claiming by, from, or under him, to be for ever barred from 
 prosecuting his claim against the original defendant, his executors or administrators ; saving,
 
 OF PAYING DEBT AND COSTS, ETC. *540 
 
 ♦CIIAPTER XXI. 
 Of Compromising, and Compounding the Action. [a] 
 When the proceedings are regular, and cannot be stayed, on any of the 
 
 nevertheless, the right or clftini of such third party ftgainst tiie phiintifT; ftiid tliereiipon to 
 make such order, between such defendant and the phiintiff, as to costs and other nuUters, 
 a3 may appear just and reasonable." Id. \ 3. 
 
 " Provided always, that no order shall be made in pnrsuance of that act, by a single 
 judge of the court of pleas of the said county palatine of Durham, who shall not also be a 
 judge of one of the said courts at Westinimtcr : and that every order to be made in pursu- 
 ance of that act, by a single judge not sitting in oi)cn court, shall be liable to be rescinded 
 or altered by the court, in like manner as other orders made by a single judge." Id. § 4. 
 "Provided, also, that if, upon application to a judge in the first instance, or in any later 
 
 [a] The compromise of doubtful claims is a good consideration to uphold a contract, and 
 courts will not investigate the merits or demerits of the ditl'erent claims, for the purpose of 
 setting aside such compromise. Fisher v. May, 2 Bibb, 449. Taylor v. Patrick, 1 Bibb, 1G8, 
 S. P. Union Bank v. Geary, 5 Pet. 114. But a compromise obtained from a party ignorant 
 of his rights, will be set aside by a court of chancery. Anderson v. Bacon, 1 Marsh. 51. Or 
 founded on misinformation and delusion. Mosby v. Leeds, 3 Call, 439. Or if it be obtained 
 from a plaintiff, through the misrepresentation of a witness, and by the inliuence of his tes- 
 timony and the persuasion of arbitrators to whom the matter in di.-put(! had iieen suljiuittcd, 
 if the defendant knew of slich misrepresentation, and unduly availed himself of such influ- 
 ence, lloge v. Iloye, 1 Watts, 163. 
 
 A party who has agreed by way of compromise, to abide the action of the legislature on 
 his rights, cannot, in avoidance of his agreement, avail himself of the unconstitutionality of 
 an act that destroys his claim. ^Valker v. Lipton, 3 Dana, 5. Where two parties claim title 
 to land, and they compromise by one party's conveying the land with warranty, and the 
 other party pacing him a sum of money for such conveyance, the adjustment is binding if 
 there be no fraud or imposition in obtaining it. Moore v. Fitzivatcr, 2 Rand. 442. A pro- 
 missory note, given to compromise a contingent liability, cannot be avoided by showing that 
 the maker was not in fact or in law liable, llolcomb v. Stimpxon, 8 Verm. 141. If j)arties 
 compromise after an action of ejectment is brought, and the defendant buys the idaintiff's 
 title and mortgages the premises to secure the purchase money, and judgment is obtained 
 on the mortgage, and the premises are sold, and an action of ejectment is brought to recover 
 possession, the defendant cannot in this action, defend his possession by the same evidence 
 which he might have given in the first action. The compromise concludes him. BennetCx. 
 I'aine, 5 Watts, 259. Paine v. Bennett, 2 Watts, 427. If a vendor of land covenants that if 
 any part of it is lost, he will convey, of another tract, two acres for one, and a paramount 
 title appears, of whichj the vendor has notice, and he sells the laud out of which indem- 
 nity was to be made for a price per acre equal to that which he received for the tract first 
 sold, he may be held accountable to the first vendee for the proceeds of twice as many acres 
 as he lost, though the amount be double the sum which such vendee paid for it ; and the 
 vendor's bond given for a compromise on this principle cannot be relieved against. Butler v. 
 Triplett, 1 Dana, 154. 
 
 Propositions made by either party, on a treaty for compromising their diffionltics, if in- 
 effectual, are not to be used in evidence in a future action in court. Baird v. Rice, 1 Call, 
 18. Williams v. Price, 5 M\inf. 507. Spcncc v. Spcnce, 4 Watts, 1(38. Miller v. Halsri/, 2 
 Green, 49. A fortiori, an unaccepted ofl'er of compromise cannot be set up in bar of an 
 action on the disputed claim, 2 Green, 49. Nor is an unexecuted agreement of compromise 
 evidence, on trial between the i)arties. Sjieiice v. Spmce, 4 Watts, 10."). Where a suit has 
 been compromised, and a doubtful question settled, it will not be opened unless there has 
 been fraud or imposition, especially where the agreement of compromise indicates an inten- 
 tion to end the matter iu dispute. ]yorralVs Accounts, 5 Watts & Serg. HI. A. and B.
 
 540 OF PAYING DEBT AND COSTS, ETC. 
 
 grounds stated in tlic preceding chapter, the defendant in general, if lie 
 
 stn"-e of the proceedings, he sliall think the matter more fit for the decision of the conrt, it 
 shall be lawful for him to refer the matter to the court ; and thereupon the court shall and 
 may hear and dispose of the same, in the same manner as if the proceeding had originally 
 commenced by rule of court, instead of the order of a judge." Id. g 5. 
 
 This statute is confined to actions of assumpsit, debt, detinue, and trover: and therefore, 
 where the declaration contained a count in case, as well as in trover, the court would not 
 interfere: Laicre.nce v. Mattheu-s, 5 Dowl. Rep. 149. 12 Leg. Obs. 230, S. C. And the court 
 cannot give relief to stakeholders, who are only threatened with proceedings : an action 
 must be brought, and the plaintiff declare, before the court can interfere. I'arker v. Lin- 
 nett, 2 Dowl. Rep. 502. 8 Leg. Obs. 398, S. C, per Patteson, J. So, where a defendant ob- 
 tained a rule under the interpleader act, upon a suggestion that a third party claimed the 
 amount in his hands for which he was sued, and it afterwards appeared tliat the defendant 
 had no just expectation that he should be sued by the third party, the court discharged the 
 rule, with costs. Harrison v. Payne, 2 Hodges, 107. It has also been decided, that a party 
 who, by his own act, is placed in a situation to be sued, cannot call on the court to substi- 
 tute another defendant in his stead: Belcher v. Smith, 9 Bing. 82. 2 Moore & S. 184, S. C. 
 And the liolder of title deeds cannot apply to the court for protection against opposing 
 claims. S)iiith v. Wheeler, 1 Gale, 163. So, a rule for interpleading will not be granted, 
 after a suit has been stayed by injunction. Arayne v. Lloyd, 1 Bing. N. R. 720. 1 Hodges, 
 166. 1 Scott, 609, S. C. And a contested claim to a reward advertised for the apprehen- 
 sion of a felon, cannot be made the subject of a motion under the above act. Grant v. Fry, 
 4 Dowl. Rep. 135. ColUs v. Lee, 1 Hodges, 204. A defendant who is sued for the recovery 
 of property in his possession, in which he has no interest, but which is claimed by a third 
 person, cannot apply to be relieved under the interpleader act against the claims of the 
 plaintiff and such third party, if he has an indemnity from the claimant. Tucker v. Morris, 
 
 1 Dowl. Rep. 639. 1 Cromp. & M. 73, S. C. And the case of a wharfinger, who claims a 
 lien on goods for wharfage, &c., which attaches only upon one of the parties by whom the 
 goods are claimed, is not, it seems, within the meaning of the statute. Braddick v. Smith, 
 
 2 Moore & S. 131. 9 Bing. 84, S. C; but see Gladstone v. White, 1 Hodges, 386. But a lien 
 attaching upon the goods in dispute, and which must be satisfied by whichever party ulti- 
 matelyturns out to be entitled to them, does not prevent the party who holds the goods from 
 applying to the court for relief, under the above act. Cotter v. Bank of England, 3 Moore 
 & S. 180. 2 Dowl. Rep. 728, S. 0. And where goods consigned to A. and warehoused at 
 the London docks, were claimed by B., and the dock company having required an indem- 
 nity of A., the original consignee, before delivering them to him, A. refused, and brought an 
 action of trover, with counts for special damage, for the detention : on motion by the company 
 for relief, under the interpleader act, B.not appearing upon due notice, the court held that the 
 claim of B. against the company, was barred ; but that A. ought not, by reason of the act, 
 
 being in litigation with regard to a tract of land, entered into articles of compromise by 
 which it was agreed that B. should " have full possession of the land," reserving to A. " the 
 one half of a mill site." Held, that these articles of agreement conveyed to B. no title, and 
 did not estop A. from asserting any subsequently acquired rights against B., or any purchase 
 from him. Walton v. Neuson, 1 Humph. 140. Where one party offers to pay or give the 
 other a certain sum by way of compromise, and the offer is rejected, it is in no way obliga- 
 tory; nor is it an admission of the fact that the defendant owed the sum offered; and when 
 a proposition of that kind is rejected, the rights of the parties remain precisely as they were 
 before it was made. Poteat v. Budget, 4 Dev. & Batt. 208. A party's admission of particular 
 facts are receivable in evidence against him, though they were made while he was negotia- 
 ting for a compromise. Dickinson v. Dickinson, 9 ilet. 471. 3Ioimt v. Bogert, Anthon, 190. 
 In the trial of an action of trover, evidence was received that the defendant, while negoti- 
 ating with the plaintiff for a compromise of the suit, admitted that he had sold the property 
 in question, and that the plaintiff' had demanded it of him, and that the plaintiff then said 
 to him, •' I suppose you would do better by me than you offered yesterday." Held, that 
 these admissions of the defendant were properly received, and that though the words spoken 
 by the plaintiff, if they had been unconnected with the other conversation of the parties, 
 would have been inadmissable, yet that they were not, when taken in connection with that 
 other conversation, so objectionable as to require that the verdict for the plaintiff should be 
 set aside. Dickinson \. Dickinson, 9 Met, 471. The rule excluding offers of compromise 
 made by a party, from being given in evidence against him, was much considered in Brown v. 
 Shields, 6 Leigh, 440, which will repay perusal.
 
 OF PAYING DEBT AND COSTS, ETC. 540 
 
 has no merits, citlier settles or compromises the action, by paying or 
 giving security for the debt ami costs, compounils it, (if penal,) confesses 
 it, or lets judgment go by default. 
 
 In actions for the recovery of a sum certain, where the parties are agreed 
 as to the amount of the debt, it is of course to stiiy the proceedings, on pay- 
 ment of the same, together with the costs of the action. (a) But Avhere the 
 prothonotary, on a rule to stay proceedings on payment of debt and costs, 
 refused to allow costs, on account of gross miscf»nduct on the part of the 
 plaintifi"'s attorney, the court of Common Pleas would not direct the pro- 
 thonotary to review his taxation. (i) If the parties are not agreed, the 
 defendant cannot move to stay the proceedings ; but must either pay into 
 court, on the common rule, what he conceives to be due, or let judgment go 
 by default: and, in actions (or general damages, wherein the defendant can- 
 not pay money into court, he has no option, but must let judgment go by 
 default, unless he can settle amicably with the plaintiff. A judge's order, 
 that upon payment of debt and costs by a certain day, all proceedings shall 
 bo sta3'ed, is only conditional on the defendant : and therefore, if the debt 
 and costs are not paid, the plaintiff must proceed in the action. (c) But the 
 order is sometimes drawn up, so as to make it obligatory on the defendant 
 
 {(t) For the form of the summons and order, to stay proceedings, on payment of debt and 
 costs, see Append. Chap. XXI. ? 1, 2. 
 (6) 1 Bing. C9. 7 Moore, 3(30,' «. C. 
 (c) 11 East, 319; and see 2 New Rep. 0. P. 473. 8 Moore, 102. 
 
 to be precluded from recovering for his special damage, if any ; Lucas v. London Dock 
 Company, 4 Barn. & Ad. 378. Where an auctioneer has one action brought against him 
 in the Common Pleas, ami another in the King's Bench, by different claimants, for the same 
 property, he must, in order to relieve himself under the Interpleader act, obtain rules in 
 botli courts; Allen v. Gillt;/, 3 Dowl. Rep. 143 : And if part of a sum claimed by the par- 
 ties has been paid to one of them, before an adverse claim made, the adverse claimant has 
 a right to have the whole sum he claims paid into court, on the holder's applying for relief 
 under the act; Alhnv. (lill<]i, 3 Dowl. Uep. 143. 
 
 On an application to a judge at chambers, under the interpleader act, an order having 
 been made, by consent of all parties, to refer the cause, on certain terms, to a barrister, 
 instead of an issue being directed, the court refused to grant a rule nisi for varying the 
 order, by introducing a fresh term into the reference, in consequence of information wiiicli 
 one of the parties (an administratri.v) had obtained, since the hearing at chambers ; Drake 
 V. Broicn, 2 Cromp. M. & R. 270. And where the plaintiff, in an issue directed under the 
 interpleader act, does not proceed to the trial of it, the court will not jjeruiit another per- 
 son's name to be substituted, without making the plaintiff originally appointed a ]>arty to 
 the rule. Li/fhil v. JJiddlr, 5 Dowl. Rep. 244. The costs of the applicant, where he has 
 acted I'ond fide, will, in the first instance, be directed to be paid out of the fund, or i)ro- 
 ceeds of the goods in dispute, to be repaid by the party ultimately unsuccessful ; Duear v. 
 Mackintosh, 3 Moore & S. 174. 2 Dowl. Rep. 734, S. C. \^<i(l<'r v. JJank <>/ Eni/lnnd, 3 Moore 
 & S. 180 2 Dowl. Rej). 728, S. C. rarkcr v. Linnet, 2 Dowl. Rep. .')G2. 8 Leg. Obs. 31*8, S. C. 
 per J'atlCKon, J. A(/ar v. Blolhyn, 1 Tyr. & G. 160. And wiiere an issue has been directed 
 by the court, to try the rights of contending parties to the property in question, and the 
 intermediate party has paid money into court, to abide llie event of the issue, the success- 
 ful party cannot move to have the money ])aid out to him, until final judgment ha? been 
 signed; Cooper v. Lead Smelling/ Cowpan;/, 2 Moore k S. 714, 810. 1> Bing. ♦534. 1 Dowl. 
 Rep. 728, S. C. For the notice of motion, and rules of court in tiiis rase, see Append, to 
 Tidd. Sup. 1833, p. 29G, 7. In the Exchequer, a rule nisi, under the first section of the in- 
 terpleader act, is no stay of proceedings, unless notice of the motion for that purpose has 
 been given to the parties against whom it has been obtained ; Smith v. Wheeler, 9 Leg. Obs. 
 318. And nlthongli, it has been said, cause cannot he shown at chambers against such a 
 rule obtained by a sheriff, under the sixth section of the act, Slimc v. Roberts, 2 Dowl. Rep. 
 25. G Leg. Obs. 444, 5, .S. C. Brackenliury v. Laurie, 3 Dowl. Rep. 180, I'CT Alderson, B. ; but 
 see I'oueler v. Lock, 4 Nev. k M. 852, 3, per Ld. Dennian, Ch. J. Jienmes v. Cross, 4 Dowl. 
 Pep. 122. Ilaileji [or Haines) v. Disney, 1 Hodges. 1K9, 2 Scott, 183, S. C. contra, yet it may 
 be so shown, wiiere the rule has been obtained undor the lirst section ; Smith v. Whieler 1 
 Gale, 15. 3 Dowl. Rep. 4;!1. 9 Leg. Obs. 318, S. C. ' 
 
 Vol. i.—oi
 
 540 OF PAYING DEBT AND COSTS, ETC. 
 
 to pay the costs, in which case the phiintlff rjay proceed for the recovery of 
 them by attachment.(f?) And an attorney who stays proceedings, upon 
 an undertaking to pay costs, is bound to fulfil his engagement, although 
 his client die before bail is put in.(e) 
 
 The practice of staying the proceedings, on payment of the debt and 
 costs, though frequently confounded with, is in reality very different from 
 that of bringing money into court, on the common rule ; upon which the pro- 
 ceedings are not always stayed, but the plaintiff is at liberty to proceed 
 at his peril, for more than the sum brought in : And the practice we are 
 now treating of extends to every sort of action, brought for the 
 [ *541 ] recovery of a *sum certain ; as assumpsit or covenant to pay 
 raoney,(a) and dcht for rent,(/>) &c. If separate actions are 
 brought against the acceptor, drawer, and indorser of a bill of exchange, 
 the court of King's Bench will stay proceedings against the drawer, or 
 any of the indorsers, on payment of the bill, and costs of that action ; 
 but not against the acceptor, without payment of costs in all the actions :(c) 
 And if the plaintiff proceed to judgment, the proceedings may still be 
 stayed, on payment of the debt and costs ;(c?t?) but in that case, each de- 
 fendant is only liable for his own costs, and the plaintiff cannot take out 
 execution against one defendant, for the costs of another. So, where 
 separate actions were brought against several persons for the same debt, 
 who, (if at all) were jointly liable, the defendant in one action having 
 paid the debt and costs in that action, the court stayed the proceedings 
 in the others, without costs. (t'(^) Where an indorsement was made upon a 
 note of hand by the payee, that if the interest was paid on stipulated 
 days during his life, the note should be given up ; default having been 
 made in payment of the interest, the court of Common Pleas refused to 
 stay the proceedings, on payment of it, and costs. (/) 
 
 In debt for the penalty of five pounds, for killing a hare, with no other 
 count, the court of King's Bench let the defendant bring in the penalty 
 and costs. (</) And where the action was brought for several penalties, 
 the defendant had leave to pay one penalty into court, leaving the plain- 
 tiff at liberty to proceed for the rest.(7i) In deht on a single bill, proceed- 
 ings were stayed by the court of Common Pleas, on payment by the 
 obligor of principal and costs, without interest. (i) And so, in deht on bond, 
 conditioned for the performance of covenants, or to account, indemnify, &c. 
 or on a bastardy bond, the proceedings may be stayed, on payment of the 
 •whole penalty and costs. (^) But, in an action on a money bond, the 
 court of King's Bench, in one case,(Z) would not stay the proceedings, on 
 payment of the penalty ; being of opinion, that damages might be reco- 
 vered beyond that amount. This case, however, seems to have been since 
 
 {d) 11 East, 321. Barnes, 283. Pr. Reg. 259. 
 
 (e) 10 Moore, 360. 3 Bing. 70, S. C. 
 
 (a) 8 Durnf. & East, 326, 410. {h) Cas. temp. Hardw. 173. 
 
 (c) 4 Durnf. & East, 691 ; but see 2 Barn. & Aid. 192. 2 Dowl. & Ryl. 57. Ante, 315. 
 
 {dd) 1 Str. 515. 
 
 (ee) 6 Barn. & Cres. 124. 9 Dowl. & Ryl. 126, S. 0. (/) 4 Taunt. 227. 
 
 [g) 2 Str. 1217 ; and see 2 Ken. 292. 2 Blac. Rep. 1052. 
 
 (h) Per Cur. E. 22 Geo. III. K. B. Ilarcourl v. Kna2)p, H. 23 Geo. III. K. B. 
 
 (i) 1 Bos. & Pul. 337 ; but see 2 Ld. Raym. 773. 
 
 {k) 2 Blac. Rep. 1190. 6 Duruf. & East, 303. 1 Taunt. 220. 2 Marsh. 226; and see 6 
 East, 110. 
 
 (I) 2 Durnf. & East, 388 ; and see Ry. & Mo. 105. 
 
 {m) 6 Durnf. & East, 303. 1 Taunt. 220 ; and see 1 Atk. 75. Doug. 49. 3 Bro. Chan. Cas. 
 489, 496. 1 East, 436. 3 Price, 219. 1 Madd. Chan. 613. Ry. & Mo. 105.
 
 OF PAYING DEBT AND COSTS, ETC. 541 
 
 overruled ;(m) antl it is now settled, that the proceedings may be stayed 
 in all cases, on payment of the penalty and costs. We have already secn,(?^) 
 in wliat cases the courts will stay the proceedings, in actions upon bail 
 bonds : It will be sufficient to add in this place, tiiat as tiie bail may ren- 
 der the principal, after an as.sigumcnt of the bail bond, and before 
 they justify,(o) so, wlien they have rendered him, tiie proceedings [ *542 ] 
 on the bail bond maybe stayed, on payment of costs,(a) provided 
 the plaintiff has not lost a trial. But in order to stay the proceedings on 
 the bail bond, the bail, in the Common Pleas, must pay the costs of the 
 actions against the principal and the other bail, as well as the debt and 
 his own costs [{b) though it is otherwise in the King's Bench, wliere the 
 court, we have seen,{t') will stay the proceedings in all the actions on the 
 bail bond, on payment of the costs of one of them. In an action of debt 
 on recognizance, where the proceedings are stayed on payment of the 
 debt and costs, the bail above must pay the costs in tliat, as well as the 
 debt and costs in the original action, though they apply within the time 
 allowed them for surrendering tlie principal :(d) But where the principal 
 is surrendered in time, the plaintiff cannot afterAvards proceed against the 
 bail, for the recovery of costs, in the action on the recognizance.(t') 
 
 In debt on bond, conditioned for the payment of a less sum, it was usual 
 for the courts, even before the statute 4 Ann. c. IG, § 13, to relieve the de- 
 fendant against the penalty of the bond, on payment of the principal, inte- 
 rest and costs; but then the whole penalty must have been brought into court, 
 and Avhen the plaintiff was satisfied, the defendant might have taken what 
 remained. (/) By the above statute it is enacted, that "if at any time, 
 pending an action upon any such bond with a penalty, the defendant shall 
 bring into court all the principal money and interest due on the bond, and 
 also such costs as have been expended in any suit or suits in law or equity 
 upon such bond, the said money, so brought in, shall be deemed and taken 
 to be in full satisfaction and discharge of the said bond ; and the court shall 
 and may give judgment to discharge every such defendant of and from the 
 same accordingly." Upon this statute, the application to the court may be 
 and is usually made before judgment :((/) And in an action upon a bond, 
 conditioned for the payment of money generally, without naming any day 
 of payment, the court of King's Bench will refer it to the master to com- 
 pute interest, as well as the principal and costs ;(/() interest being 
 due on such a bond, though not *e.\pressly reserved. (aa) And the [ *o43 ] 
 
 (h) Ante, 302, 3. (o) 5 Durnf. & Enst, 401. 
 
 (a) 5 Duruf. & East, 534 ; and sec 7 Durnf. & East, 529. 2 Durnf. & East, 222. 
 
 (6) 2 niac. Rep. 81G. (c) AnU, 300. 
 
 (rf) 5 Durnf. & East, 363. 3 Bos. & Pul. 13, accord. 
 
 (e) JJiiwsim V. Shulcr, T. 26 Geo. III. K. B. Jiartrnm tj- othert r. TIoh-cU, T. 31 Geo. III. 
 K. B. 3 East, 306. 16 East, 108, 9 ; and see R. T. 1 Ann. rcg. 1 K. B. R. M. 16r)4, I 12, C. P. 
 It was indeed said by the court, upon reference to the master, in the case of Hughes v. 
 I'oiiievin, 15 East, 254, that it was usual to pay the costs, when the proceeding on the re- 
 cognizance was by action ; and accordingly a rule was made in tiiat case, for the payment 
 of them ; and a similar rule was made, in the case of Thomax v. lini/lcti's bail, E. 53 Geo. 
 III. K. B. But these decisions were overruled by the court, in a subsequent caso of Cres- 
 wcll V. Ileum .V another, 1 Maule & Sol. 742. And it seems to be now settled, as staled in 
 the te.\t, tliat where the principal is surrendered in time, the plainlHf cannot afterwards 
 proceed against the bail, for the recovery of cost.", in an acliou on the recognizance. 
 
 (/) 2 Salk. 597. 6 Mod. 101 ; and see 3 Bur. 1370. 
 
 {g) 3 .Moore, 590. 
 
 (h) For the notice of motion for this purpose, sec Append. Chap. XXI. \ 3. 
 
 {aa) 7 Durnf. & East, 124 ; but see 1 Dos. & Pul. 337. Ante, 541.
 
 5 13 OF PAYING DEBT AND COSTS, ETC. 
 
 plaintiff is entitled to the costs of proceedings in equity, relating 
 to the same matter ;(/>/>) but not to the costs of a former suit, wherein the 
 judgment has been reversed on a writ of error :{cc) for there is no reason, 
 why tlie defendant should pay for the error or mistake of the plaintiif. In 
 the Exchequer, the court granted an application, on behalf of the defen- 
 dants, to refer it to the master, to see what was due for principal inte- 
 rest and costs on a bond, which was the cause of action ; and to stay all 
 proceedings, upon payment of the sum due and costs. (fZ) But that court 
 would not refer it to the master, to take an account of what was actually 
 due for principal and interest upon a bond, after it had been put in suit, 
 and the plaintiff had obtained a verdict thereon. (<?) 
 
 It was formerly holden, that this statute did not extend to an action of 
 debt on bond, conditioned for the payment of an annuity^ or of money by 
 instalments. (/) But it is now settled, upon the equity of the statute, 
 tliat in such an action, when the defendant is solvent, the courts will stay 
 the proceedings, on payment of the arrears and costs, and giving judg- 
 ment as a security for future payments, with a stay of execution till they 
 become due '.{g) And where, in an action on an annuity bond, it appeared 
 that there were mutual accounts subsisting between the parties, the court 
 of King's Bench made a rule for referring them to the master; and that 
 upon payment of what, if anything, should be found due to the plaintiff, 
 all further proceedings should be stayed. (/t) But the courts will not stay 
 the proceedings, when the defendant appears to be insolvent ; or the bond 
 is conditioned for the payment of a gross sum of money absolutely, at a 
 day certain, and afterwards defeazanced, in consequence of a subsequent 
 agreement to pay the money by instalments ;{i) or where, though the bond 
 be conditioned for the payment of money by instalments, it is expressly 
 agreed, that if default be made in any one payment, the bond is to stand 
 in force for the whole principal and interest then remaining due.(^) So, 
 where the defendant gave a warrant of attorney to secure a sum certain, 
 to be paid half yearly by instalments, with interest, on specified days, and 
 that the plaintiff should be at liberty to enter up judgment tliereon imme- 
 diately, " but no execution to be issued, till default made in payment of 
 the said sum, with interest as aforesaid, by the instalments, and in the 
 manner hereinbefore mentioned;" the court held, that the plaintiff might 
 take out execution for the whole, on default of payment of the first instal- 
 ment. (^) If default be made in payment of the interest on a 
 [ *544 ] bond, the principal whereof is not yet due, the courts will not 
 stay proceedings, on *payment of the interest and costs ;(«) but 
 judgment must be entered as a security for future payments, with a stay 
 of execution till they become dae ; though it seems that execution may in such 
 case be restrained to the intere-st and costs. (r/) And if an instalment of an 
 annuity secured by bond, be not paid on the day, the bond is forfeited, 
 and the penalty is the debt in law ; therefore, where the defendant had 
 
 [bh] Cas. temp. Hardw. 116 ; but see 2 Str. 699, contra. [cc] 2 Str. 699. 
 
 [d) M'CleL 309. 
 
 (e) 3 Price, 219. (/) 1 Atk. 118. 1 Str. 515. 
 
 {</) 2 Str. 814, 957. 2 Blac. Rep. 706. Barnes, 288. 1 Barn. & Aid. 214; and see 2 Barn. 
 & Ores. 82. 3 Dowl. & Ryl. 278, S. C. 
 
 (A) Wdkinmn .J- Jordan, H. 23 Geo. III. K. B. 
 
 (i) 3 Rur. 1370. (/c) 2 Blac. Rep. 953. 
 
 (Z) 1 Maule & Sel. 706. 
 
 {a) 2 Taunt. 3S7. 1 Barn. & Aid. 214.
 
 OF PAYING DEBT AND COSTS, ETC. 544 
 
 been charged in execution for tlie penalty of 1000/. under such circum- 
 stances, previous to the insolvent act of 84 Geo. III. c. 69, the court of 
 King's Bench refused to order that sum to be reduced in the marshal's 
 book, to the sum actually due for the arrears of the annuity, in order that 
 he might take the benefit of that act.(/>) 
 
 In actions for j/oural damages, it is a rule, that the proceedings cannot 
 be stayed, on making satisfaction to the plaintiff: And accordingly, in an 
 action against the sheriff, for a false return to a fieri facias, the court of 
 King's Bench refused to stay the proceedings, on payment of the money 
 levied. (c) But there are some exceptions to this rule. In replevin for in- 
 stance, where the defendant avows for rent, the courts will stay the pro- 
 ceedings, on bringing it into court, and payment of costs, (</) But the pro- 
 ceedings cannot be stayed, when the avowry is for damage feazant ;[e) 
 because the courts in such case have no rule to guide them in ascertaininji 
 the damages. Where the defendant in replevin made cognizance as bailiff 
 of the lord of a manor, under a distress on the plaintiff as constable of a 
 township, for palfre}' rent, the court of Common Pleas would not stay the 
 proceedings, upon payment of costs, on the application of the defendant. (/) 
 But, in a subsequent case, where cognizance was made by the defendants, 
 as bailiffs of the commissioners appointed by an inclosure act, under a 
 warrant of distress, for non-payment of several sums of money, ordered 
 by the commissioners to be paid by the plaintiff by virtue of the said act, 
 the proceedings in replevin were stayed by the court of King's Bench, on 
 payment of the costs of the action and distress and replevying the goods, 
 and delivering up tlie replevin bond to be cancelled ; there being no spe- 
 cial damage.(<7) There is indeed a case, where the latter court, under 
 particular circumstances, stayed the proceedings in an action of ^?-cs/)ass for 
 seizing goods, on the defendant's undertaking to restore the goods, or pay 
 the full value of them, with the costs of the action :(//) But this seems to 
 be contrary to their usual practice, in actions of that nature ; and in a 
 subsequent case, the court of Exchequer refused to stay the proceedings 
 in such an action, upon the like terms, where it would not end the suit, 
 and particularly as the value of the goods was not admitted. (i) So, where 
 the assignees of a bankrupt, in their own names, and not in their charac- 
 ter of assignees, brought trespass against the sheriff and execution credi- 
 tor, for seizing goods, consisting of stock on a farm which had belonged 
 to the bankrupt, and on the issuing of the commission, the assignees took 
 possession of the farm, managed it for the benefit of the creditors, and 
 purchased additional stock and farming utensils, and continued in posses- 
 sion several months before the goods were seized by the sheriff under a 
 fieri facias ; the court of King's Bench refused to stay the proceedings 
 in the action of trespass. 7 Barn. & Ores. 379. 
 
 *In trover for money, the courts will give the defendant leave [ *545 ] 
 to bring it into court ;{a) And where trover is brought for a spe- 
 cific chattel, of an ascertained quantity and quality, and unattended with 
 any circumstance that can enhance the damages above the real value, the 
 courts will make an order for staying the proceedings, upon delivering it to 
 
 [h) G Durnf. & East, 39!) ; but see 2 Blac. Rep. 760. 
 
 (r) 7 Durnf. & East, 335. 
 
 (rf) 2 Salk. 597. 1 H. Blac. 24. 1 Bos. & Bui. 382. (e) 8 Mod. 379. 
 
 ( /•) 3 Bos. & Pul. 603. (y) 3 .Maule & Sel. 525. 
 
 (h) 7 Durnf. & East, 53. (i) 3 Anstr. 896. (a) 1 Str. 142.
 
 545 OF WARRANTS OF ATTORNEY. 
 
 the plaintiff, and payment of costs :(J) And this is the more reasonable, as 
 the action of trover comes in place of the old action of detinue. But the 
 courts will not stay the proceedings, ^\hen there is an uncertainty, either as 
 to the quantity or quality of the thing demanded •,{cc) or there is any tort 
 that may enhance the damages above the real value, and there is no rule 
 ^vhereby to estimate the additional damages. (t?) In trover for a promissory 
 note, alleged to have been dishonoured, the court of King's Bench made 
 an order for staying the proceedings, upon delivering up the note, and 
 payment of costs, with liberty for the plaintiff to proceed for damage sus- 
 tained, but not for nominal damages, by reason of the detention. (e) And, 
 in a subsequent case, where trover was brought by the assignees of a 
 bankrupt, for a steam engine, &c., the court made a special rule for 
 staying the proceedings, on delivering to the plaintiffs a part of the goods 
 for which the action was brought, and payment of costs up to that time, 
 provided the plaintiffs would accept thereof in discharge of the action ; or 
 otherwise, that the articles delivered should be struck out of the declara- 
 tion, and the plaintiffs be subject to costs, unless they should obtain a 
 verdict for the remainder of the goods, or prove a deterioration of the part 
 delivered up.(/) But, in an action of trover^ where the value of the goods 
 converted was not ascertained, the court of Common Pleas refused to stay 
 proceedings, upon delivery of the goods to the plaintiff, or payment of the 
 value of them.(^) 
 
 The security usually given by the defendant to the plaintiff, on com- 
 promising an action, and which is also frequently given where no action is 
 depending, is a warrant of attorney ; so called, from its authorizing the 
 attorney or attorneys, to whom it is directed, to appear for the defendant, 
 and receive a declaration, in an action to be brought against him, and 
 thereupon to confess the same action, or suffer judgment therein to pass by 
 default,(7t) &c. And, by a late rule of all the courts,(i) " every attorney, 
 and side clerk in the office of pleas of the Exchequer, or other person who 
 shall prepare any warrant of attorney to confess judgment, which 
 [ *546 ] is to be *subject to any defeazance, must cause such defeazance 
 to be written on the same paper or parchment, on which the 
 warrant of attorney is written ; or cause a memorandum in writing to be 
 made on such warrant of attorney, containing the substance and effect of 
 such defeazance,"(a) In the construction of this rule, it has been deter- 
 mined, that if the attorney employed to prepare a warrant of attorney to 
 confess judgment, which is to be made subject to a defeazance, neglect to 
 insert such defeazance on the warrant, the security is not thereby avoided 
 against the innocent party ; but the attorney is guilty of a breach of duty 
 
 (b) 3 Bur. 1364. Say. Rep. 80. 2 Eunom. 144, 5. Cas. Pr. C. P. 59, 130. Barnes, 281. Pr. 
 Reg. 2C0, S. C. ; but see 2 Salk. 597. 2 Str. 822. Id. 1191. 1 Wila. 23, S. C. Say. Rep. 120. 
 9 Price, 460, contra. 
 
 (cc) Barnes, 284. {d) 3 Bur. 1364. 2 Blac. Rep. 902. 
 
 (e) Moss V. Thwaite, H. 17 Geo. III. K. B. 
 
 (/) £runsdo7i and others, assignees, ^x., v. Austin, T. 34 Geo. III. K. B. ; and see 7 Durnf. 
 & East, 54. 1 Moore & P. 254. 4 Bing. 462, S. C. 
 
 [g) 3 Bing. 601. {h) Append. Chap. XXI. § 4. 
 
 [i) R. M. 42 Geo. III. 2 East, 136. K. B. R. M. 43 Geo. III. 3 Bos. & Pul. 310. C. P. R. M. 
 43 Geo. III. in Scac. Man. Ex. Append. 225. 8 Price, 505. 
 
 (a) Append. Chap. XXI. § 5.
 
 OF WARRANTS OF ATTORNEY. 546 
 
 imposed on him by the court, and answerable fur it on motion :{f>) And 
 the court of Kinj^'s Bench will not set aside a warrant of attorney, on tlie 
 ground that the defeazance only states the amount of the sum secured by 
 the judgment, without noticing collateral securities. (f) So, in the Common 
 Pleas, the rule does not require the consideration of a judgment to bo 
 indorsed on a warrant of attorney :((?<?) And if a warrant of attorney be 
 given to confess judgment absolutely for a certain sum, although it be 
 understood between the parties that it is given only to indemnify the 
 plaintiff against his suretyship for a smaller sum, that is not sucli a 
 defeazance as is necessary to be indorsed on the warrant of attorney ; 
 and the plaintiff need not defer execution till the contingency happen. (c) 
 It is no ground for impeaching an annuity, that the memorial does not 
 state the defeazance of the warrant of attorney, in the recital of that 
 instrument; it being explicitly set out in the recital of the deed.(/) But 
 if the defeazance on a warrant of attorney state that it is given to secure 
 the payment of a sum on demand, and, in case default shall be made, 
 then judgment to be entered up, and execution issue, an actual demand 
 must be made, and a proposal to settle amicably docs not amount to such 
 a demand. (//) Where a warrant of attorney was given with a defeazance, 
 stating it to be given as a security for a certain sum, and lawful interest 
 thereon ; the court held, that it was to be construed as a continuing 
 security, and not merely as a security for money then due.(/i) 
 
 A warrant of attorney to confess judgment need not be by deed ; nor 
 docs it refjuire an attesting witness. (i) This instrument was formerly 
 liable to the stamp duty of ten shillings only, though it contained an 
 authority to release errors \[h) But it was afterwards made liable to the 
 stamp duty o^ fifteen shillings : And by the last general stamp act,(?) "a 
 warrant of attorney, with or without a release of errors, which is given as 
 a security for the payment of any sum or sums of money, or for 
 the ^transfer of any share or shares in any of the government or [ *547 ] 
 parliamentary stocks or funds, or in the stock and funds of the 
 governor and company of the Bank of England, or of the East India 
 company, or South Sea company, is subject to the same duty as a bond 
 for the like purpose ; save and except where such payment or transfer 18 
 already secured by a bond, mortgage, or other security, which has pi.id 
 the ad valorem duty on bonds or mortgages : and also except where the 
 warrant of attorney is given for securing any sum or sums of money, for 
 which the person giving the same is in custody under an arrest : and in 
 those cases, it is subject to a duty of one pound." A defeazance, however, 
 upon a warrant of attorney, does not re({uire a separate stamp from that 
 upon the warrant of attorney :(a) And where an instrument has an insuf- 
 ficient stamp, it may at any time be made available, by affixing a proper 
 
 (6) 14 East, 576. 7 Taunt. 307. 1 .Nfoorc. 54, S. C. 
 
 (r) 2 Barn. & Aid. 568. 1 Chit. Reji. .311, S. C. ; but see 3 Taunt. 235, »rm6. contra ; which 
 latter case, however, seems to be now overruled. 
 
 {dd) 3 Taunt. 465. 
 
 \c) Id. ibid. ; and see 7 Taunt. 307. 1 Moore, 54, S. C. 
 
 (/) 6 Taunt. 189. 1 Nfarsh. 533, S. C. 
 
 {g) 5 Moore, 307. 2 Hrod. k Bing. 464, S. C. 
 
 (h) 5 Barn, k Cres. 165. 7 Dowl. & Ryl. 824, S. C. ; and sec 4 Bing. 154. 
 
 \i) 5 Taunt. 264; and see 4 Kast, 431. 1 Chit. Rep. 707. {k) 4 East, 431. 
 
 (/) 55 Geo. III. c. 184. Inched. Part T. Part II. ? III. ; and see the statutes 44 Geo. III. c. 98. 
 Sched A. 48 Geo. TIL c. 149. Schfd. Part II. I III. 
 
 (a) 1 New Rep. C. P. 279.
 
 547 OF WARRANTS OF ATTORNEY. 
 
 Stamp, and pajin;^ the penalty : Therefore, where a rule nisi'wa.s obtained 
 to set aside a judgment on a warrant of attorney, on the ground of an 
 insuilieient stamp, the court of Common Picas discharged the rule, the 
 instrument having been properly stamped since the motion. (5) 
 
 Every warrant of attorney should be given voluntarily, and for a good 
 consideration : Therefore, if a warrant of attorney be obtained by fraud, (c) 
 or misrepresentation, (cZ) or for a corrupt and usurious consideration, (ge) or 
 for securing an annuity which is void by the annuity act,(j^) or to induce 
 the plaintiff to live in prostitution with the defendant,(^) the courts will 
 order it to be delivered up, and set aside the judgment and proceedings, if 
 any, wliich have been had under it. And the court of King's Bench will 
 set aside a judgment founded on an usurious security, without compelling 
 the defendant to repay the principal and interest.(7«) But, in the Common 
 Pleas, where securities had been acted on, and the money partly paid by 
 the borrower, the court would not set aside a judgment and execution on 
 the ground of usury, but upon the terms of the defendant's repaying the 
 principal and legal interest. (z) And that court would not decide the 
 question, whether a joint stock company was a nuisance, within the statute 
 6 Geo. I. c. 18, upon motion to set aside a judgment confessed to them on 
 a warrant of attorney.(Z:) So, where a joint warrant of attorney had been 
 altered after its execution, in the christian name of one of the parties, 
 who had re-executed the same, without the knowdedge of the other, the 
 court refused, on the application of the former, to set aside the judgment 
 which had been signed thereon. (?) And a subsequent assignment of goods, 
 for the sum secured by a Avarrant of attorney, is not a waiver of 
 [ *548 ] the ^warrant of attorney. (a) If a warrant of attorney be given 
 by an infant,(55) or by one of several executors to confess a judg- 
 ment against all,(t'c') the courts will order it to be delivered up, &c. : And 
 a joint warrant of attorney, to confess a judgment by an infant and 
 another, may be vacated against the infant only. (dd) But a warrant of 
 attorney under seal, executed by one person for himself and his partner, 
 in the absence of the latter, but with his consent, is a sufficient authority 
 for signing judgment against both.(e) And where a young man gave bills 
 for the amount of a gaming debt, and when they were due, renewed them 
 with the holder, and for the last bills, wdien due, confessed a judgment by 
 warrant of attorney, the court of Common Pleas would not set aside the 
 judgment, unless he could affect the holder of the bills with notice, but 
 permitted him to try that fact in an issue. (/) A warrant of attorney 
 given to confess a judgment at the suit of a feme covert, is void :{gg) 
 And the court, on motion, set aside a judgment on a warrant of attorney, 
 given by a feme covert, although she had been divorced a mensd et 
 
 (b) 1 Taunt. 174. 2 Marsh. 480, S. C. 
 
 (c) Doug. 196. 4 Tauat. 478 ; and see 4 Barn. & Aid. 691. 10 Moore, 97. 2 Bing. 441, S. C. 
 
 (d) 2 Ken. 294. {ee) Cowp. 727. 1 Bos. & Pul. 270. 4 Barn. & Aid. 92. 
 (/) Ante, 521, 2. (ff) James v. Uoskins, T. 25 Geo. III. K. B. 
 (A) 4 Barn. & Aid. 92. '(i) 1 Tautit. 413. 
 
 (k) 4 Taunt. 587. (/) 8 Taunt. 439. 2 Moore, 495, S. C. 
 
 (a) 2 Chit. Rep. 423. 
 
 (bh) 1 H. Blac. 75. Chambers v. Burnett, T. 32 Geo. III. G. P. Imp. C. P. 7 Ed. 597. 10 
 Moore, 97. 2 Bing. 475, S. C. 
 {cc) 1 Str. 20 ; and see 1 Rol. Abr. 929, pi. 5. 2 Yes. & B. 54. 1 Chit. Rep. 708, in noiis. 
 (dd) 2 Blac. Rep. 1133. 1 Chit. Rep. 708, in notis. 
 (ee) 1 Chit. Rep. 707 ; but see 10 Moore, 389. 3 Bing. 101, S. C. 
 (/) 4 Taunt. 683. (ffff) 2 Wils. 3.
 
 OF WARRANTS OF ATTORNEY. 548 
 
 t7ioro.{hh) But where a feme covert, -who lived by licrself, and acted as a 
 feme sole, gave a warrant of attorney to confess a judgment, and after- 
 wards moved to set aside the judgment, because she Avas covert, the court 
 of King's Bench would not relieve her, but put her to her writ of error,(/j) 
 And where it appeared, by the pl:iintifl"s uilidavit, that .'^he was resident 
 in an enemy's country, the court of Common Pleas refused to allow judg- 
 ment to be entered up on an old warrant of attorney. (/r A-) 
 
 When the defendant is in custody by arrest, it is a rule of both courts,(/?) 
 that " no bailiff or sheriff's officer shall presume to exact or take from liira, 
 any warrant to acknowledge a judgment, but in the presence of an attorney 
 for the defendant, who sluill subscribe his name thereto: which warrant 
 shall be produced, when the judgment is acknowledged ; and if any bailiff 
 or sheriff's officer shall offeml therein, he shall be severely punished : 
 And no attorney shall acknowledge or enter, or cause to be acknowledged 
 or entered, any judgment, by colour of any warrant, gotten from any 
 defendant being under arrest, otherwise than as aforesaid." Upon this 
 rule, the defendant, in the Common Pleas, was hohlen to be in custody, 
 though the officer left him for some time, whilst the plaintiff got from him 
 the warrant of attorney :(?») And, in that court, a defendant lodging within 
 the rules of the Fleet, at the house of the officer who arrested 
 him, and who was his security to the warden, was *deemcd to be [ *549 ] 
 a prisoner within the meaning of the rule.(rt) So, where a 
 defendant, on being arrested at the suit of a third person, is taken to the 
 house of a sheriff's officer, to whom he voluntarily offers to give a warrant 
 of attorney, it is necessary for an attorney to be present on his part, at 
 the time of its execution. (6) But it having been deemed sufficient for the 
 plaintiff's attorney to be present, and subscribe the warrant, as attorney 
 for the defendant,((?) another rule was made, in the King's Bench. ((^) that 
 " no warrnnt of attorney executed by any person in custody of a sheriff 
 or other officer, for the confessing of judgment, shall be valid or of any 
 force, unless there be present some attorney on the behalf of such person 
 in custody, to be expressly named by him, and attending at his request, to 
 inform him of the nature and effect of such warrant of attorney, before 
 the same is executed ; which attorney shall subscribe his name as a witness 
 to the due execution thereof." And, to prevent frauds and impositions in 
 the execution of warrants of attorney for confessing judgments, a rule was 
 made in the Common Pleas, that " every warrant of attorney for confessing 
 judgment, shall be read over by the person who is to execute the same, or 
 by some other person to him, before the execution thereof: and that if 
 judgment shall be entered up on any such Avarrant of attorney, which shall 
 not be so read over as aforesaid, such judgment, upon motion, may be set 
 aside as irregular :"(c) But this latter rule appears to be disused. (/) 
 
 The object of these rules was not merely to procure the attendance of an 
 attorney, to explain the nature of the instrument to be executed, but also to 
 advise the defendant confidentially, and as a friend; and rules thus framed 
 for the protection of a prisoner, cannot be waived by him, when in a situa- 
 
 (hh) 6 Mimle & Scl. 73. (ii) 1 Salk. 400 ; and see 3 Bos. & Pul. 128, 220- 
 
 {kk} 2 New Rep. C. 1'. 97. 
 
 (H) R. E. 15 Cur. II. rey. 2, K. B. R. H. 14 & 15 Car. II. rr/jr. 4, C. P. 
 
 (m) Cas. Pr. C. P. 128. (a) 2 Blac. Rep. 12y7 ; and see id. 1097. 
 
 (h) 2 Moore, 17G. 8 Taunt. 233, S. C. (c) 2 Str. 1245. 
 
 (rf) R. K. 4 Geo. II. K. B. 2 Sir. 902. Cowp. 281. 
 
 [e) R. T. 14 & 15 Geo. II. C. P. (/) 2 H. Blac. 383.
 
 549 OF WARRANTS OF ATTORNEY. 
 
 tion Avlicrc lie is incapable of exercising his judgment : Therefore, when a 
 defendant in custody executes a warrant of attorney to confess a judgment, 
 there must be an attorney present on his part ; the presence of the plaintilf's 
 attorney being insufficient, though the defendant consent to his acting as his 
 attorney also.((7) And, in the Common Pleas, if a prisoner on mesne pro- 
 cess give a warrant of attorney, the rule that his attorney must be present 
 is not dispensed with, though two other persons not in custody join in the 
 warrant :(/<) The presence of an attorney's clerk is not sufficient. (z) And 
 the above rules have been construed to extend to warrants of attorney 
 executed abroad. (^) 
 
 But still it is sufficient, if there be an attorney present on behalf of the 
 defendant, though he be not an attorney of the same court in which the 
 judgment is to be entered :(l) And, in the Common Pleas, if the defend- 
 ant himself be an attorney, or practise as such, it is deemed suffi- 
 [ *550 ] cient,*though no other attorney be present on his behalf.(a) So, 
 a Avarrant of attorney given by a defendant in custody, was in 
 that court holden to be good, where an attorney was present on his behalf, 
 though he was a total stranger to the defendant, and introduced by the 
 plaintiff's attorney.(5) These rules only extend to warrants of attorney 
 given by a defendant in custody upon mesne process in a civil action, to 
 a plaintiff at whose suit he is in custody : Therefore, where a warrant of 
 attorney is given by a defendant in custody upon process of e.vecution,{c) 
 or upon criminal process,(t?)or to a third person, at whose suit the defend- 
 ant is not in custody,(g) an attorney's presence is unnecessary. And where a 
 warrant of attorney was executed in the presence of an attorney's clerk, 
 and it appeared from the defendant's affidavit, that he was the more 
 induced to execute it, because he had been informed, that if he did exe- 
 cute it under an arrest, and without his attorney being present, it would 
 be void, the court refused to set aside the proceedings. (/) 
 
 On the other hand, though the case is not strictly within the rule, yet 
 the courts will sometimes interpose and give relief, under particular cir- 
 cumstances ; for it is their province to guard against the arts of designing 
 men, practised upon persons under the pressure of distress and imprison- 
 ment. Thus, if it could be shown, that a party, even in execution, had 
 been prevailed on to acknowledge a judgment, for more money than was 
 really due, the courts would give relief under the circumstances ;{gg) 
 because cases of fraud and impositions are exceptions to all rules whatso- 
 ever. And in a case where, interlocutory judgment being signed against 
 a prisoner in custody of the marshal, the plaintiff's attorney took a cogno- 
 vit from 'him for 2001. with a defeazance on paying 49Z. (the real debt,) 
 and costs, but no attorney was present on the part of the defendant ; 
 though this case was not strictly within the rule, which only mentions 
 prisoners in custody of sheriffs' officers, yet the court of King's Bench 
 
 (g) 7 Durnf. & East, 8. 1 East, 2i3, per Lawrence, J. 
 
 (A) 2 Taunt. 49. (0 Barnes, 42. 
 
 [k) 2 Str. 1247. (l) 1 Str. 530. Barnes, 44. 
 
 (a) Barnes, 37. Cas. Pr. C. P. 94, S. C. 
 
 (b) 4 Taunt. 797. 
 
 (c) 2 Str. 1245. Cowp. 281. 1 Durnf. & East, TIS. 7 Durnf. & East, 19, S. P. 
 
 (d) 4 Durnf. & East, 433. 
 
 (e) 5 Mod. 144. 2 Ld. Rajm. 797. 3 Bur. 1792. Cowp. 142. 1 East, 241. 2 Moore, 175. 
 (/) Cowp. 142. [ffg) Id. 281.
 
 OF WARRANTS OF ATTORNEY. 550 
 
 interfered for the relief of the prisoner.(/t) So where a defendant, on 
 being arrested by a sherifTs ollicer, gave a cognovit to the plaintiff, who 
 ■was attorney in tiie cause, without an attorney being present on his part, 
 such cognovit was holden to be void, by tlie court of Common Pleas, 
 although tlie plaintiff swore lie did not know the defendant was in cus- 
 tody.(/) But, in the King's Bench, a cognovit given by a deft'n<lant in 
 custody on mesne process is valid, altliough no attorney be [tresent on the 
 part of the defendant, unless it be shown that some undue advantage was 
 taken of h.\va.{kk) 
 
 By the course of the courts, a warrant of attorney given to confess a 
 judgment is not revocable ; and if the party giving, endeavour to 
 rev(.)ke *it, the courts will notwithstanding give the other j)arty [ "551 ] 
 leave to enter up judgment. (a) But the death of either party is, 
 generally speaking, a countermand of the warrant of attorney :(i) And 
 therefore, upon a motion to enter up judgment on an old warrant of attor- 
 ney, if it appear to the courts that either party is dead, they will not grant 
 the motion. (c) Yet, if the warrant of attorney be to enter up judgment 
 at the suit of A. his executors or administrators, it seems that on the 
 death of A., the courts will give his executors or administrators leave to 
 enter up judgment thereon. (c?) And if either party die in vacation, within 
 a year after giving the warrant of attorney, judgment may be entered up 
 of course, at any time after, in that vacation ;{e) and it will be a good 
 judgment at common law, as of the preceding term, though it be not so 
 upon the statute of frauds, in respect of purchasers, but from the sign- 
 ing :(/) And even where the party dies after a year, if the courts can 
 be prevailed upon to grant a rule for entering up judgment, they will not 
 afterwards set it aside.(/7) When a Avarrant of attorney is given to enter 
 up judgment at the suit of two persons, judgment may be entered up 
 thereon, after the death of one of them, in the name of the survivor.(//7<) 
 And, in the Common Pleas, where a warrant of attorney was given by 
 two persons, to enter up judgment on a joint bond against me, not us, the 
 court, after the death of one of them, gave leave to enter up judgment 
 against the other.(M) But a joint Avarrant of attorney, given to enter up 
 judgment against us, upon a joint and several bond, will not, in either 
 court, authorize the entering up judgment against the survivor only.(/t:) 
 And a judge at chambers will never make an order for entering up judg- 
 ment on a warrant of attorney, against a surviving defendant. 
 When a warrant of attorney is given to a feme sole, who marries before 
 
 (/i) 3 Durnf. & East, 616; and see 1 East, 242, (a). 8 Dowl. & Ryl. f.G. 
 (i) 7 Taunt. 701. 1 Moore, 428, S. C. ; and see 2 Taunt. 360. Arnold v. Lowe, T. 57 Geo. 
 III. C. P. 7 Taunt. 703, (a). 
 (kk) 1 Chit. Rep. 2G7. 
 
 (a) 2 Ld. Rayra. IGG, 850. 1 Salk. 87. 7 Mod. 93, S. C. 2 Esp. Rep. 5G5. 
 (h) Co. Lit. 52, b. 1 Vent. 310. 
 (f) 2 Str. 718, 1081. 8 Durnf. & East, 257. Vin. Abr. tit. Judgment, W. 7. Barnes, 270. 
 
 (d) Barnes, 44, 5. 
 
 (e) T. Raym. 18. 2 Ld. Raym. 7G6, 850. 1 Salk. 87. 7 Mod. 2, 93, S. C. 2 Str. 882. 3 P. 
 Wrus. 399. 6 Durnf. k East, 3G8. 7 Durnf. & East, 20. Cas. Pr. C. P. 11. Willes, 427, 8. 
 Barnes, 2G7, 8, 270 ; but see Cas. Pr. C. P. 6, contra. 
 
 (/) 1 Salk. 401. 7 Mod. 39, S. C. Jd. 93. 6 Durnf. & East, 368. 7 Durnf. k East, 20. 
 ((/) 2 Str. 882, 1081. Vin. Abr. tit. Judgment, W. 7. Barnes, 270. 
 
 (hh) Barnes, 40. Jd. 48. 1 Wiis. 312. Say. Rep. 6, S. C. 2 Blac. Rep. 1301. 2 Manle k Seh 
 76. 7 Taunt. 453. I Moore, 145, S. C. 1 Younge k J. 206 ; but sec Barnes, 45, contra, 
 (ii) Barnes, 53. 1 Chit. Hep. 315, «« iwlis ; but sec 7 Taunt. 453. 1 Moore, 145, S. C. 
 \k) 15 East, 592. 7 Taunt. 453. 1 Moore, 145, S. C.j and see 1 Chit. Kep. 322, (<»).
 
 551 OF WARRANTS OF ATTORNEY. 
 
 judgment, the autliority is not deemed to be countermanded or revoked ; 
 because it is for the husband's advantage :{l) And therefore, notwithstanding 
 the marriage, judgment maybe entered up in the names of the husband and 
 •wife. But, in order to warrant this entry, there should be a previous ap- 
 plication to the court, founded on an affidavit of the marriage, and of the 
 due execution of the warrant of attorney, and non-payment of 
 [ *552 ] *the debt.(aa) And, in an early case,(W) it was ruled upon mo- 
 tion, that if a woman give a warrant of attorney, and then marry, 
 the plaintiff may file a bill, and enter judgment, against both husband and 
 wife, by the practice of the court. But, in a subsequent case,((?c) it is said, 
 that if a feme sole give a w'arrant to confess a judgment, and marry before 
 it is entered, the warrant is countermanded, and judgment shall not be 
 entered against husband and wife, for that w^ould charge the husband.(c?) 
 In a still later case, however, judgment was allowed to be entered up 
 against husband and wife, on a warrant of attorney given by the feme, 
 diwi sola.{e) 
 
 In entering up judgment on a warrant of attorney, the authority given 
 by it must be strictly pursued : Therefore, if a plaintiff enter up judgment 
 in debt on a miitiiatus, on a warrant of attorney to enter up judgment in 
 debt on bond, the court will set it aside as irregular.(/) So, judgment 
 cannot be entered up against two defendants, on a warrant of attorney to 
 confess a judgment against th7'ee persons, one of whom afterwards refused, 
 to execute; and the judgment against the two was set aside on motion, 
 but without costs, and on the terms of no action being brought. ((/) And 
 if a warrant of attorney be given to appear and confess judgment of a 
 particular term, the judgment should be entered accordingly of that term, 
 and cannot be entered of any other. (A) But if the warrant of attorney 
 be given, to appear and confess judgment generally, or, (as is most usual,) 
 of a particular or any subsequent term, judgment may be entered of any 
 term after giving the warrant. (/) Where a warrant of attorney was given 
 in vacation, and judgment was entered up thereon as of the preceding 
 term, the court of King's Bench ordered the judgment to be set aside, for 
 the danger that might otherwise ensue to purchasers :{k) And where a 
 warrant of attorney was given to confess judgment, at the suit of an exe- 
 cutor, as of the preceding term, when the testator was living, and the 
 judgment was entered up accordingly, the court held it to be irregular ;(Z?) 
 for the attorney could have no authority to appear in that term, at the 
 suit of the executor, and the judgment must be considered of that term, 
 though to other purposes the day of signing is material. 
 
 Within a year and a day next after the date of the warrant, judgment 
 
 (I) 12 Mod. 383. 7 Mod. 53. 1 Salk. 117, S. C. Barnes, 45. 
 (aa) 3 Bur. 1471. 6 Dowl. & Ryl. 46. 
 (bb) 1 Show. 91. Say. Rep. 6. 3 Bur. 1470, S. C. cited. 
 [cc] 1 Salk. 399. 7 Mod. 53, S. C. cited. 
 
 (d) Tamenqucere; for it seems as reasonable that he should be charged in this case, as 
 for a bond or other debt, which he is liable for during the coverture, though not after. 1 
 Salk. 117, cites 1 Rol. Abr. 351, F. 1, G. 2. F. N. B. 120, F; and see 4 Bast, 522. 
 
 (e) 2 Chit. Rep. 117. 
 
 (/) 8 Durnf. & East, 153. Per Cur. T. 45 Geo. III. K. B. 
 \g) 1 Chit. Rep. 322. {h) 1 Mod. 1. 7 Mod. 53. 
 
 (i) Id. ibid. Barnes, 52. 
 
 \k) 1 Sid. 222. But note, this was before the statute of frauds, by which judgments 
 affect purchasers, only from the time of signing. 
 (//) 2 Str. 1121.
 
 OF WARRANTS OF ATTORNEY. 552 
 
 may Lo cntcreil of course, without apj'lying to the court, or a judge. Cut 
 if it be not entered within that time, the court of King's Bench must he 
 moved in ter7n time,(?«) or, if the warrant of attorney be not above ten 
 years ohl, an application may be made to a judge in vacation, 
 for leave to enter *up the judgment, on an ttfridnvit of the due [ *o53 ] 
 execution of the warrant of attorney, that the debt, or part of 
 it, is still duo, and that the parties are living.{(f) This alfidavit may be 
 properly entitled in the cause in which judgment is entered up :(/>) And 
 it seems that an affidavit, sworn before a justice of the peace in Scotland, 
 is admissible, if the handwriting of the justice be authenticated. (c) If 
 the warrant of attorney be above ten years old, the application must be 
 made to the court ; and where it is above tivcntif years old, there must in 
 general be a rule to show cause,((/t/) founded on an affiilavit, stating facts 
 which rebut the presumption of ])ayment.((') But where, upon such a 
 warrant of attorney, the party had admitted the debt within two months 
 preceding the motion, the court granted it absolute in the first instance. (/) 
 In the Common Pleas, if a warrant of attorney to enter ju<lguient be above 
 a year and under ten years old, leave to enter judgment may be given by 
 a side-bar or treasury rule ;(_</) and accordingly, the practice in that court 
 is, for the plaintift"s attorney to move at side-bar on the Jim t day of term, 
 or in the treasury chamber on other days, for leave to enter up judgment, 
 •which is granted of course, on the usual affidavit ; and theieupon the 
 secondaries will draw up the rule: In vacation, a judge at chambers will 
 make an order for entering up the judgment. But if the warrant of 
 attorney be above ten years, the court must be moved for leave to enter 
 up judgment. (^) If the warrant of attorney be under ttcoiti/ years old, 
 the common affidavit of the due execution of the warrant, that the debt is 
 unpaid, and parties living, is sufficient to induce the court to grant an 
 absolute rule ; but if the warrant be above twentij years old, the rule must 
 be to show cause, and served on the defendant :(/() And where judgment 
 had not been entered within a year and a day, on a warrant of attorney 
 given with a j^ost obit bond, and the obligee did not apply for leave to 
 enter it till after the death of the person on whose death it was payable, 
 the court of Common Pleas would not grant leave, without a rule to show 
 cause. (z) If judgment, however, be entered up on a warrant of attorney*, 
 more than a year old, without leave of the court, the objection, though 
 available if urged at the instance of the defendant himself, cannot be taken 
 advantage of by a third party, a stranger to the proceeding, as a ground 
 of irregularity. (A;) 
 
 The affidavit of the due execution of the warrant of attorney, should 
 regularly be made by the attesting witness ; or, if he cannot be met 
 
 (m) 3 Salk. 322. 7 Mod. 94. 6 Mod. 212. 1 Wils. 3G, arg. 
 
 (a) Append. Chap. XXI. g G ; and for tlie form of tlie rule, see id. § 7. 
 
 (b) 1 Barn, k Aid. 567, 8, (a). Ante, 493. 
 
 (c) 1 Chit. Rep. 721, 2. But an aflidavit sworn before a justice of the peace at Edinburgh^ 
 was deemed in.-ufficient for entering up judgment on an old wnrnuit of attorney, in the ca^e 
 of Knight v. llnmell, M. 46 Geo. III. K. B. And, in the case of Sinclair v. Afgigneen of lien- 
 toiil M. 23 Geo. III. K. B., it was said, that the aflidavit should have been made before a 
 lord of session. 
 
 (dd) 1 Chit. Rep. 618, in nnfif. Ante, 485, 6, (;/), 487. 
 
 (e) 2 Barn. & Cres. 555. 4 Dowl. & R\l. 5, S. C. 
 
 ( f) Blahdey v. Vincfnt, T. 'i% Geo. HI. K. B. {g) Barnes. 47. 
 
 (h) Id. ibid'.; and see Cas. Pr. C. P. 145, G. (ij 1 II. B'.ac. 94. 
 
 (/.) 1 Dowl. & Ryl. 558. Ante, 551.
 
 553 OF WARRANTS OF ATTORNEY. 
 
 [ *554 ] wit]i,(^) *or reside out of the jurisdiction of the court, (a) an 
 affidavit verifying his handwriting will be deemed sufficient. But 
 the court must be informed by affidavit, of the endeavours which have been 
 made to find him, before they will admit secondary evidence ;{b) and, in 
 the King's Bench, the acknowledgment of the warrant of attorney by the 
 defendant, will be no waiver of the objection :{c) but, in the Common Pleas, 
 if A. agree to acknowledge an old warrant of attorney given by him, so as 
 to enable B. to enter up judgment thereon, judgment may be entered up, 
 under a judge's order, without an affidavit of the attesting witness. (cZ) If 
 the witness Avill not join in the necessary affidavit, the court will compel 
 him, by rule, to do so.(ee) And where the plaintiS', being a lunatic, did not 
 swear that the money was unpaid, but another did, who had received the 
 interest upon the bond for three years, ever since the plaintiff was lunatic, 
 the court of Common Pleas held this to be sufficient. (^) In the King's 
 Bench, if the defendant reside in town, it should appear by the affidavit, 
 that he was alive at a ce7'tain time, within two or three days, or, if in the 
 country, within a iveek or ten days, before the application is made ; an affi- 
 davit that he was alive on or about a particular day, being deemed insuffi- 
 cient :{g) And as all judgments, in actions by hilly relate to the first day 
 in full term, (and the judgment on a warrant of attorney is always so 
 entered,) it must be positively/ sworn that the defendant was alive, either 
 on the first, or upon some subsequent day in full term :{h) Information 
 and belief, even though the party keep out of the way to avoid being seen, 
 is not sufficient :(z) And judgment cannot be entered up on a joint war- 
 rant of attorney, against any of the makers of it, unless they are all 
 proved to be alive within the term.(Z:) In the Common Pleas, it must in 
 general appear by the affidavit, that the defendant was alive within a 
 fortniglit before the making of the application :{ll) And by a late rule,(w) 
 the affidavit must state that "he was alive, at a day within the term in 
 which the motion is made :" in the construction of which rule, it has been 
 holden not to be sufficient to swear that he was alive on the essoin day.(w) 
 But where the defendant resides abroad, a longer time is of course 
 allowed, according to circumstances :(o) and, in a late case, the court gave 
 leave to enter up judgment, on an old warrant of attorney in Michaelmas 
 term ; the affidavit stating, that the defendant was alive at New 
 [ *555 ] South Wales, in the *month of August preceding, as appeared 
 by a letter received from him of that date, and that deponent 
 verily believed him to be still alive. («a) 
 
 By a late rule of all the courts,(&5) " no judgment can be signed upon any 
 
 {I) 1 Chit. Rep. 743. 
 
 (a) 1 Chit. Rep. 744. {b) Id. 743, {b). 4 Taunt. 132. 
 
 (c) 1 Chit. Rep. 743, 4. (/) 2 Bos. & Pul. 85. 
 
 {ee) 1 Str. 1. Barnes, 58. 1 Price, 308. 1 Chit. Rep. 743, (6). Caffin cj- another v. Idle, M. 
 3 Geo. IV. K. B. 
 
 (/) Barnes, 42. 
 
 lo) Per Cur. H. 41 Geo. III. K. B. 1 Chit. Rep. 617, {a). 
 
 [h] 4 Maule & Sel. 174. 1 Chit. Rep. 314, 617, (a). 
 
 {*■) 1 Chit. Rep. 314. {k) Id. ibid. 
 
 (11) Per IleaUi, J. T. 33 Geo. III. C. P. Imp. C. P. 7 Ed. 451. 
 
 {m) R. T. 59 Geo. III. C. P. 1 Brod. & Ring. 385. 3 Moore, 606. 2 Chit. Rep. 380, 81. 
 
 \n) 4 Moore, 2. 
 
 (o) Barnes, 54, 256. Cas. Pr. C. P. 145. Willes, GQ, S. C. 9 Moore, 389. 2 Bing. 204, S. C. 
 
 {aa) 2 Dowl. & Ryl. 12 ; and see 9 Moore, 389. 2 Bing. 204, S. C. 
 
 {hh) R. M. 42 Geo. III. 2 East, 136, K. B. R. M. 43 Geo. III. 3 Bos. & Pul. 310, C. P.R. M. 
 43 Geo. III. in Scac. Man. Ex. Append. 224, 5. 8 Price, 505.
 
 OF WARRANTS OF ATTORNEY. 555 
 
 •warrant, authorizing an attorney to confess judgment, without such war- 
 rant being delivered to, and filed by the clerk of the dockets, or master in 
 the Exchequer ; who is ordered to file the warrants, in the order in which 
 they are received." And, by the statute 3 Geo. IV. c. 3*.), § 1, (the pro- 
 vision*} of which are extended to assignees of insolvent debtors, by the 
 statutes 5 Geo. IV. c. Gl, § lU, k 7 Geo. IV. c. 57, § 33,) " if the holder 
 shall think fit, every warrant of attorney to confess judgment in any per- 
 sonal action, or a true copy thereof, and of the attestation thereof, and 
 the defeazance and indorsements thereon, in case such warrant of attor- 
 ney shall be given to confess judgment in his majesty's court of King's 
 Lench at IWatminster, or a true copy thereof, in case such warrant of 
 attorney shall be given to confess judgment in any other court, shall, 
 Avithin (nrnti/-one days after tlie execution of such warrant of attorney, 
 be filed, together with an affidavit of the time of the execution thereof, 
 with the clerk of the dockets and judgments in the said court of King's 
 Bench : And if, at any time after the expiration of twenty-one days next 
 after the execution of swch warrant of attorney, a commission of bankrupt 
 shall be issued against the person who shall have given such warrant of 
 attorney, under which he shall be duly found and declared a bankrupt, 
 then and in such case, unless such warrant of attorney, or a copy tlicreof, 
 shall have been filed as aforesaid, within the said space of twenty-one 
 days from the execution thereof, or unless judgment shall have been 
 signed, or execution issued, on such warrant of attorney, within the same 
 period, such warrant of attorney, and the judgment and execution thereon, 
 shall be deemed fraudulent and void against the assignees under such 
 commission; and such assignees shall be entitled to recover back and 
 receive, for the use of the creditors of such bankrupts at large, all and 
 every the moneys levied, or efi'ects seized, under and by virtue of such 
 judgment and execution. (c) And if such warrant of attorney shall be 
 given subject to any defeazance or condition, such defeazance or condition 
 shall be written on the same paper or parchment on which such warrant 
 of attorney shall be written, before the time when the same, or a copy 
 thereof respectively, shall be filed ; otherwise such warrant of attorney 
 shall be null and void, to all intents and purpose3.((^) By the above sta- 
 tute,(»') the officer of the court is required to keep a book, containing an 
 alphabetical list and particulars of each warrant of attorney, and cognovit 
 actionem, given by any defendant: And the judges are authorized to 
 order a memorandum of satisfaction to be written upon such 
 warrant of attorney, cognovit actionem, or copy ^thereof respec- [ *5o(j ] 
 tively, as aforesaid, if it shall appear that the debt for which such _ 
 warrant of attorney, or cofjnovit actionem, is given as a security, shall 
 have been satisfied or discharged.((Tf) But the fourth section of the sta- 
 tute 3 Geo. IV. c. 31>, which re(iuires the defeazance to a warrant of 
 attorney to be written on the paper or parchment on which the instrument 
 itself is written, applies only to such warrants of attorney, &c. as fall 
 within the former sections of the act, viz. warrants of attorney which, in 
 the event of not being filed within twenty-one days after execution, are 
 void against the assignees of a bankrupt ; and consequently a warrant of 
 attorney subject to a defeazance, not written on the same paper or parch- 
 
 (f) ^ 2. Tlic provisions of this clause, however, arc not repealed bj stat. 6 Geo. IV. c. IG, 
 2 81. which is confined to executions bond Jtdr issued. 1 Moody & M. 8. 
 [d] I 4. Ante, 545, G. (c) g 5. (a) § 8.
 
 566 OF COMPOUNDIN« PENAL ACTIONS. 
 
 mcnt, is not void ao-ainst the assignee of an insolvent debtor. 6 Barn k 
 Ores. 440 per Ld. Tcnterden, Ch. J. Bayley and Littledale, Js. ; Ilolroyd, 
 J. dissentiente. 
 
 The judgment upon a warrant of attorney, being in debt, is always 
 final; and signed in like manner as a final judgment by confession or 
 default in an adverse suit, which will be treated of in the next chapter. 
 To prove the time of signing the judgment, however, the day-book kept 
 at the judgment office is not evidence; but an office copy of the judgment 
 ought to bo produced, or the docket of the judgment.(i) 
 
 In order to compound a penal action, an application must be made to 
 the court wherein it is depending, founded upon the statute 18 Eliz. c. 5, 
 § 3,((?6') by which it is enacted, that "no common informer or plaintiff shall or 
 may compound or agree with any person or persons that shall offend, or that 
 shall be surjmised to offend, against any penal statute, for an offence com- 
 mitted, or pretended to be committed, but after answer made in court, to 
 the information or suit in that behalf exhibited or prosecuted ; nor after an- 
 swer, but by the order or consent of the court in which the same informa- 
 tion or suit shall be depending ; upon pain of standing on the pillory, being 
 disabled to sue on a penal statute, and forfeiting ten pounds, half to the king 
 and half to the party grieved:" And, by a previous statute, (cM) "actions 
 popular prosecuted by collusion, shall be no bar to those which are prose- 
 cuted with good faith ; and the defendant, being lawfully condemned or 
 attainted of covin or collusion, shall suffer imprisonment for two years." 
 But these statutes extend only to common informers, and not to cases where 
 the penalty is given to the party grieved. (e) And, in the Common Pleas, 
 a notice of action required by a penal statute, was held to be no com- 
 mencement of the suit, so as to subject the plaintiff or his agent to an 
 attachment, for attempting to compound an offence, previous to the suing 
 out of the writ.(/) 
 
 The application for leave to compound a penal action must be made to 
 the court in baric, and not at nisi 2^^' ins, on the trial of the cause :{g) and 
 it is made by consent,(7i) upon an affidavit, setting forth the nature of the 
 action, the state of the cause, the agreement of the parties, and that no 
 more than a certain sum is given or taken, (?) &c., Avhich application should 
 regularly be made in an early stage of the cause ; but under favourable 
 circumstances, it may be made after verdict :(A;) And in one 
 [ *557 ] case, where the *defendant was in execution, the court of King's 
 Bench, on an affidavit of his poverty, gave the plaintiff leave to 
 compound with him. (a) But, in the Common Pleas, where part of the 
 penalty goes to the king, the consent of the crown must be obtained, before 
 the motion can be granted for leave to compound a penal action, whether 
 
 (b) 5 Esp. Rep. 177 ; and see 2 New Rep. C. P. 474. 1 Moore & P. 236. 
 (cc) Made perpetual by 27 Eliz. c. 10. (dd) 4 Hen. VII. c. 20. 
 
 (e) 1 Salk. 30 ; and see the statute 18 Eliz. c. 5, g 6. 2 Hawk. P. C. 279. 
 (/) 2 Blac. Rep. 781. {;/) 1 Chit. Rep. 381. 
 
 (A) Barnes, 118. Pr. Reg. 226, S. 0. 
 
 (i) R.— 2 Jac. I. ^ 5, C. P. And for the form of the affidavit, see Append. Chap. XXI. § 9, 
 and for the form of the rule thereon, id. § 10. 
 
 (k) Per Cur. H. 22 Geo. III. K. B. 5 Durnf. & East, 93. 1 Bos. & Pul. 18. 1 Chit. Rep. 381. 
 (a) 1 Str. 167.
 
 OF COMPOUNDING PENAL ACTIONS. 557 
 
 the verdict lias passed for tlie plaintiff or Tiot.{h) Upon the application 
 being made, it is in the discretion of the courts to pive or withliohl their 
 leave to compound ;((■) and it was refused by tlie court of King's Bcncii, in 
 a case where an action was brought on the statute 25 Geo. II. c. 3<), for 
 keeping a disorderly house. (tf) So, where part of the penalty was given 
 to the poor, the court would not give the parties leave to compound a penal 
 action, on the statute KJ Geo. II. c. ll>, although the overseers, at a vestry, 
 had agreed to coinjiound it, without receiving any part of the penalty. (rf) 
 On a bona fide composition, (//') though not on a collusive im(\[Jf') the jtlain- 
 tift" may be allowed a reasonable sum for his costs. And, in compounding 
 a penal action on the post-horse act, which gives costs to the prosecutor, 
 the court of Common Pleas allowed him to receive the deficient duties, not 
 amounting to 40^. and full costs of suit, thougli exceeding together the 40x. 
 paid to the crown. (////) But where no costs are given to the j)laintifl", as iu 
 an action on the statute of usury, the crown is entitled to a moiety of the 
 sum agreed to be paid to the plaintift' for his costs ; for whatever the 
 defendant may pay under the name of costs, is considered in fact as an 
 addition to the penalty. (///<) 
 
 When leave is given to compound a qui tarn action, it is a general rule, 
 that the king's half of the composition sh.all be paid into the hands of the 
 master of the crown office in the King's Bench, (»') or one of tlie prothono- 
 taries in the Common Pleas, (A") for the use of his majesty ; whieh is now 
 usually done before the rule is drawn up. And where the defendant in a 
 qui tarn action obtained a rule to stay proceedings, on paying a sum agreed 
 upon between him and the plaintiff, the court of King's Bench considered 
 it as an undertaking by him to pay that sum ; and for the non-payment of 
 it, granted an attachment :(/) But for preventing any doubt in future, an 
 order was made, that " every rule to be drawn up for compounding any 
 qui tarn action do express, that the defendant doth undertake to pay the 
 sum for which the court has given him leave to compound such action. "(w) 
 So, in the Common Pleas, where a defendant, in a penal action, obtains a 
 rule to stay proceedings on payment of part of the penalties, the court will 
 grant an attachment against him for non-payment :(?<) And in 
 *that court it is a rule, on compounding information on penal [ '''.>o8 ] 
 statutes, that "if the defendant, after composition made with the 
 informer, do not voluntarily come in to answer unto the king for his fine, 
 to be taxed and assessed by the justices of this court for his majesty's use, 
 then a capias ad mt infacienduni jincm shall be awarded against him, to 
 compel him thereunto ; whereupon tbe fine, being set and assessed, shall 
 be presently paid in: and satisfaction ])eing thereupon made, and entered 
 by the prothonotary upon the roll of the said infornuition, shall be for ever 
 a full and final discharge of the defendant for the same offence. "(a) Tbe 
 
 {})) I Taunt. 10.'!, 5 Taunt. 2G8. For the prococdinp.'' on informations on penal statutes, 
 and tiic manner of conijjounding them, in the Common Pleas, see R. — 2 Jac. I. § 5, R. M. 
 12 Jac. I. R. H. 20 Jac. I. C. P. 
 
 (c) 1 Wils. 79, 130. 
 
 \d) JirHii V. Beale. M. 38 Geo. III. K. R., and sec 2 Rlac. Rep. 1157. 
 
 (ee) 2 Smith R. 195. (/) 2 Rlac. Rep. 1157. 
 
 Iffff) 1 Bos. & Pul. 51. (hh) 2 Taunt. 213. 
 
 (iV) R. M. 57 Geo. HI. K. R. 4 Bur. 1929; and see 2 Blac. Rep. 1154. 
 
 (k) 2 Blac. Rep. 1154, 1157. (/) 5 Durnf k Kast, 257. 
 
 hi) R. E. 33 Geo. III. K. B. (>i) 7 Taunt. 43. 2 Marsh. 35S, S. C. 
 
 (a) R. M. 12 Jac. I. C. P. 
 
 Vol. I.— 35
 
 558 OF JUDGMENT BY CONFESSION. 
 
 plaintiff, in compounding a penal action by consent, having by mistake 
 abandoned a good cause of action, the court of Common Pleas refused to 
 interfere, and rescind the order made thereon.(6) 
 
 [*559] *CHAPTER XXII. 
 
 Of Judgments ly Confession, and Default ; the Assessment of Da- 
 mages, hy Reference to the Master or Prothonotaries, or hy Writ 
 of Inquiry ; and Proceedings on the Statute 8 &; 9 W. III. c. 11, § 8. 
 
 When the defendant, having no merits, cannot compromise or compound 
 the action, it is usual for him to confess it, or let judgment go by default. 
 
 The objects proposed by confessing an action are twofold ; first, in an 
 action for damages, to save the expense of executing a writ of inquiry ; 
 and secondly, to obtain terms, such as a stay of execution, &c. And the 
 confession,(aa) or, as it is usually called from the entry of it, a cognovit 
 actionem, is either before or after plea pleaded ; in the latter case, the plea 
 being withdrawn, it is called a confession, or cognovit actionem relicta veri- 
 ficatione.ihh) 
 
 An opinion formerly prevailed, that the confession of an action could not 
 regularly be made before declaration, and particularly if the cause of action 
 were not expressed in the process ; for if a bill of Middlesex or latitat, 
 &c. were sued out in a plea of trespass, the confession of that action it was 
 supposed would be nugatory ; and therefore in such case, if the parties com- 
 promised before declaration, a warrant of attorney to confess judgment 
 should have been taken, instead of a cognovit, as a security for the debt 
 and costs. But it is said to have been the constant practice in the Com- 
 mon Pleas, to take cognovits before declaration, and judgments have been 
 entered thereon : which practice was recognized, in a late case, by that 
 court. (c) And, in the Exchequer, the court would not set aside a judgment 
 entered up on a cognovit, and order the money levied thereon to be 
 restored, on the ground that no process had been actually served on the 
 defendant, before he signed the cognovit, nor was at that time sued out ; 
 it appearing that instructions had been then transmitted to the agent of 
 the plaintiff's attorney in London, from the country, to issue a quo minus, 
 which was afterwards accordingly issued, tested of course after the date of 
 the cognovit.(d) In general, however, the confession is made after decla- 
 ration, and before plea ; and written on the declaration, or back of the 
 inquiry, or on plain paper, thus ; " I confess this action, or (if in 
 [*560] debt,) the *debt in this cause, and that the plaintiff hath sustained 
 damages to such an amount, besides his costs and charges, to be 
 taxed by the master," in the King's Bench, or " prothonotaries," in the 
 Common Pleas : then follow the terms, if any are agreed on, as that " no 
 judgment shall be entered up, or execution issue, until default shall be made 
 in payment of the debt, or damages, and costs, by a certain day ; and that 
 no writ of error shall be brought, or bill in equity filed ; but that in case 
 
 (6) 5 Taunt. 850. 
 
 (aa) Append. Chap. XXII. §1,2. (bb) Id. § 3. 
 
 (c) 1 Taunt. 701. 1 Moore, 428, S. C. (rf) 8 Price, 513.
 
 OF JUDGMENT BY CONFESSION. 500 
 
 default shall be made, tlio plaintiff shall be at liberty to enter up jmlfrment, 
 and take out execution, for the (K'l>t, or daina^cs, and costs, tof^ethcr with 
 slicrift's poundage, and all otlier incidental expenses. "(a) A mere cogno- 
 vit need not be stamped, unless it contain any terms of agreement between 
 the partie8.(i) But if given by a prisoner, in custody of a nhcriffif officer, 
 it seems that an attorney must be present, on behalf of the defendant, to 
 attest the execution of it, in the Common Pleas ;(<-c) thctugh if it be given 
 by a prisoner in custody of the marshal^ it is otherwise :(//(/) And in the 
 King's Bench, we have seen,(f;) a cognovit given by a defendant in custody 
 on mesne process is valid, although no attorney be present on the part of 
 the defendant, unless it be shown that some undue advantage was taken 
 of him. When tlie confession is after plea ])leaded, the defen<lant's attorney, 
 or his clerk, ought to come in person before the master to withdraw it, in 
 the King's Bench ;(^f) but this is unnecessary in the Conunon IMeas.f//) 
 
 Again, tlie confession is either of the whole or part of tlie cause of action. 
 If it be of the whole, and not upon terms, the plaintift"s attorney may 
 immediately sign final judgment,(/j) and take out execution thereon ; but 
 if it be not of the whole, he can only sign judgment for the part confessed, 
 and the action must proceed for the residue. When a judgment is con- 
 fessed upon terms, in the King's Bench, it being in effect but a conditional 
 judgment, the court will take notice of it, and see the terms performed: 
 but when the judgment is acknowledged absolutely, and a subseriuent agree- 
 ment made, this does not affect the judgment ; and the court will take no 
 notice of it, but put the party to his action on the agreement. (i) It has 
 been Baid,(?") that the court cannot hold plea of an agreement upon motion : 
 But it is usual in practice, to set aside a judgment entered up, and execu- 
 tion taken out, contrary to the agreement of the parties, at the time of 
 confessing the judgment. (A:) And where the plaintiff, on the eve of trial, 
 accepted from the defendant a cognovit for a certain sum, payable 
 at a future day, in full discharge of the action, and *the master, [*561] 
 on the taxation, allowed the plaintiff costs previous to the cognovit ; 
 the court refused to admit the plaintifi"s affidavit, stating a verbal 
 agreement that he should have such costs, in case the defendant made 
 default in payment, and that he had made such default, and made the rule 
 for the disallowance of such costs absolute. (aa) 
 
 By a late rule of the court of King's Bench, (/>^) "no judgment can be 
 signed upon any cognovit^ without such cognoint being first produced to 
 the clerk of the dockets, and, after taxation of the costs, filed with him." 
 And, by the statute 3 Geo. IV. c. 89, § 3, "every cognovit actionem 
 given by any defendant in any personal action, in case the action, in which 
 such cognovit actionem shall be given, shall be in the said court of King's 
 Bench, or a true copy of such cognovit actionem, in case the action wherein 
 
 (fl) Append. Chap. XXII. ? 1. 
 
 {h) Per Cur. M. 42 Geo. III. K. 2 Bo.^. k Pul. 1.''.0, C. P. 4 East, 188. 1 Car. & P. 
 532. 
 
 (fc) 2 Taunt. 360. Arnold v. Lowe, T. 57 Geo. III. C. P. 7 Taunt. 70.3, (a). Id. 701. 
 1 Moore, 428, S. C, and sec 3 Durnf. & East, OKi. 1 East, 242, («). 8 Dowl. k RyJ. 56. 
 
 {dd) 3 Durnf. k East, 616. 8 Dowl. k Ryl. 5G. Ante^ 650. 
 
 (e) Ante, 550. 
 
 (/) 1 Ld. Ra^-m. 345. Imp. K. B. 10 Ed. 422. {g) Imp. C P. 7 Ed. 439. 
 
 {h) Ajipond. Chap. XXII. <! 5. Ac. 15, kc (i) 1 Salk. 400. 
 
 (k) G Mod. 14; and see 2 Blac. Rep. 043. [nn] 7 Dowl. k Ryl. 375. 
 
 \bb) R. H. 2 & 3 Geo. IV. K. B. 5 Barn, k Aid. 560. 1 Dowl. k Ryl. 471. 2 Chit. Rep. 
 377.
 
 551 OF JUDGMENT BY CONFESSION. 
 
 the same is given shall be in any other court, shall, together with an affidavit 
 of the time of the execution thereof, be filed with the said clerk, in like 
 manner as warrants of attorney, or copies thereof, and affidavits, (c) within 
 the space of twenty-one day after such cognovit actionem shall have been 
 executed ; otherwise such cognovit actionem^ and any judgment entered up 
 thereon, and any execution taken out on such judgment, shall be deemed 
 fraudulent and void against the assignees of the person giving such cognovit 
 actionem, under a commission of bankrupt issued against him after the 
 expiration of the said space of 21 days, in like manner as warrants of 
 attorney, and judgments and executions thereon, are deemed and taken to 
 be fraudulent and void by that act.(c) And, if such cognovit actionem 
 shall be given subject to any defeazance or condition, such defeazance or 
 condition shall be written on the same paper or parchment on which such 
 cognovit actionem shall be written, before the time when the same, or a 
 copy thereof respectively, shall be filed ; otherwise such cognovit actionem 
 shall be null and void, to all intents and purposes. "(c?) These provisions 
 were extended to the assignees of insolvent debtors, by the 5 Geo. IV. c. 
 61, § 16, and 7 Geo. IV. c. 57, § 33. And, by the latter statute,(e) " in 
 all cases where any prisoner, who shall petition the court for relief under 
 that act, shall have executed any warrant of attorney to confess judgment, 
 or shall have given any cognovit actionem, whether for a valuable consi- 
 deration or otherwise, no person shall, after the commencement of the 
 imprisonment of such prisoner, avail himself, or herself, of any execution 
 issued upon any judgment obtained upon such warrant of attorney or cogno- 
 vit actionem, either by seizure and sale of the property of such prisoner, 
 or by sale of such property theretofore seized, or any part thereof; but that 
 any person or persons, to whom any sum or sums of money shall be due 
 in respect of any such warrant of attorney or cognovit actionem, shall and 
 may be a creditor or creditors for the same, under that act." 
 
 *A bond, upon the face of it, appeared to be conditioned for 
 [ *562 ] the payment of a sum certain, but by an indenture of the same 
 date, declaring the purposes for which the bond was executed, 
 it was agreed that it should be lawful for the obligees to commence an 
 action upon the bond, and proceed to judgment, whenever they should 
 think fit ; and upon judgment being obtained to issue execution, and that 
 the judgment should be a security for the payment to the obligees, on 
 demand, of all sums of money which then were or might thereafter 
 become due to them: a judgment having been entered up by virtue of 
 this deed, the obligees issued execution, without assigning breaches or 
 executing a writ of inquiry ; and the court held, that the indenture, by 
 virtue of which the judgment was entered up, was in legal effect a cogno- 
 vit actionem, within the meaning of the 3d section of the statute 3 Geo. 
 IV. c. 39 ; or if not, that it was a contrivance to defeat the provisions of 
 that statute : and the indenture not having been filed with the proper offi- 
 cer, within twenty-one days after its execution, nor judgment entered up 
 within that period, as required by the statute, the court, upon application 
 by the assignees of the obligor, who had become bankrupt, ordered the 
 execution to be withdrawn. (a) 
 
 If a cognovit be given by an attorney, it seems that the plaintiff must 
 
 (c) Ante, 555. {d) I 5. (e) § 34. 
 
 (a) 5 Barn. & Cres. 650. 8 Dowl. & Ryl. 424, S. C.
 
 OF JUDGMENT BY DEFAULT. 562 
 
 first file a hill against bim, before be signs judgment tbereon :{}>) and in 
 general, common bail must be filed for tbe defendant upon a cognovit ; 
 tbougb, if judgment lias been irregularly signed, witbout filing common 
 bail for tbe defendant according to tbe statute, till after tbe term succeeil- 
 ing tliat in wbicb tbe writ "was returnal)le, and after tbe jutlgment itself 
 has been entered up, tbe dci'i'ndant, we bavc seen,(r-) baving given a cmj- 
 novit, is estopped from ol)jecting to tbe irregularity, if tbe ]»laiiitiff bag 
 filed common bail nunc pro tunc, before tbe time of making tbe objection. 
 We have also 8een,((^ in what cases the bail are, or are not discharged, by 
 taking a cognovit from tbe principal. And a certificate, it may be remem- 
 bered, will discbarge a cognovit, given after a secret act of bankruptcy, for 
 a debt previously due, with interest and costs.(e) 
 
 Judgment by default, which is an implied confession of the action, is 
 either by 7ion sum informatu8{f) where the defendant's attorney, having 
 appeared, .says that he is not informed of any answer to be given to tbe 
 action ; or by nil dicit,((/) where tbe defendant himself appears, but says 
 nothing in bar or preclusion thereof :[a] And tbe latter judgment, which is 
 the more usual, is either for want of any plea at all ; or for want of an 
 issuable plea, after a judge's order for time, on tbe terms of pleading 
 issuably ; or when the defendant pleads a plea not adapted to 
 the nature of *the action, or which may be considered as a nul- [ *5G3 ] 
 lity, or is false and vexatious, or not pleaded in due time, or 
 proper manner. 
 
 On the expiration of the time for pleading, a rule to plead liaving been 
 given, and a plea demanded, when necessary, tbe plaintiff's attorney should 
 search for a plea, if not delivered to him, with tbe clerk of the papers, who 
 receives special pleas in the King's Bench, and with the clerk of tbe judg- 
 ments, who keeps the general issue book at tbe King's Bench office, or at 
 
 (6) Walker v. Wolley, H. 37 Geo. III. K. B. 7 Durnf. & East, 207.(a)- 
 
 (c) Ante, 242. (d) Ante, 295. 
 
 (c) 1 Chit. Ilcp. 16. Ante. 210 ; but see 2 Taunt. G8. 2 Rose, 112, S. C. semb. contra. 
 
 (f) Append. Chap. XXII. ^ 2."), &c. 
 
 (</) Append. Chap. XXII. g 34, &c. 71, &c. 88, 9. 
 
 [.\] There must be service of the process, and in .some states ai)pearance, or there can be no 
 judfrment; SmilhcAion t. OnntK, Wri^'bt. .^74. Lew v. JJuncmi, 2 Hrevard. 2<"i.!. Wunv. Tndtl, 
 1 Ahi. 1 !!'.>. Druer v. Spence, 3 Id. :i8. If(i/i.vm v. Emanuel, 8 Post, 442. .S'hm7/i v. JJnnirh JJnuk, 
 5 Ala. 26. J'rentiss v. Mellen, I Smedes & Marsh, 521. Harris v. Jlontio, 1 How. Miss. 106. 
 Davis V. Jordan, 5 Id. 295. liozman v. Brower, 6 Id. 43. Purvis v. Forbes, 5 Id. 518. Gil- 
 breath V. Kuy Kendall, 1 Pike, 50. Moore v. ]Vatkins, Id. 208. Wol/ord v. Ilotrrll, 2 Pike, 
 1. Bascom V. Young, 7 Mis. 1. January y. Henry, 3 Munr. 8. Rany v. The Governor, ,\-c., 
 4 Blackf. 2. Bliss v. Wilson, Id. 109. Kltnger v. Brownell, 5 Id. 332. Miller v. Bett„rf. 6 
 Jd. 30. Garrett v. Phelps, 1 Scam. 331 ; neither will service upon one in an action against 
 several suflice to take judpment upon against tliose not served ; Teal v. Russell, 2 Scam. 
 319. Rus.iell V. Iloyan. 1 Id. .".,^2. C<de v. Wnyiier, 2 Pike, 154. 
 
 Where tbe conduct of the idiiinlin' lias been fair, and tlie proceeding.^ regular, a judgment 
 by default will not be reversed merely to allow a trial upon the merits : Murat v. Bolton, 1 
 Green. 304. But the defendant may avail himself of rad'cal defects; Farrer v. Bebee, Geo. 
 Dccis., Part 2, p. 125. Gilbreath v. Kuy Krndnll. 1 Pike, 80; although this should be done 
 at the first opportunity after the defect or irregularity is discovered ; Ryder v. Twiss, 3 
 Scam. 4. 
 
 A judgment by default may be set aside on motion, affidavit of merits and payment of 
 costs, if the opportunity of trial be not thereby lost ; Porter v. Johnson, 2 How. Miss. 136. 
 J'rore v. Fvlsotn, 4 Id. 282. Miller v. Alexander, Coxe, 400.
 
 >63 
 
 OF JUDGMENT BY DEFAULT. 
 
 the protlionotaries' office in the Common Pleas ; and if no plea be deli- 
 vered, or found at either of those offices, the plaintiff's attorney may sign 
 jud<finent, as for want of a plea : And judgment may be signed in like 
 manner, if the defendant do not rejoin, (a) plead to a new assignment, or 
 join in demurrer, when necessary; or, in the King's Bench, if he do not 
 return the paper or demurrer book in due time. If the defendant plead 
 a false plea of judgment recovered,(5) or other plea that is not issuable, (e) 
 after a judge's order for time to plead, on the terms of pleading issuably, 
 the plaintiff, we have seen,(f) may consider the plea as a nullity, and sign 
 judgment. So if the defendant, being under an order to plead issuably, 
 plead several pleas, one of which is not issuable, the plaintiff, in the King's 
 Bench, may sign judgment as for want of a plea, although the other pleas 
 are issuable :[d) Where the defendant had obtained an order for staying 
 proceedings, upon payment of debt and costs, which had been taxed, and 
 afterwards abandoned the order, and pleaded a judgment recovered, the 
 court held, that the plaintiff was at liberty to sign judgment, the plea filed 
 being a fraud upon the judge's order. (e) And judgment may be signed 
 in the Common Pleas, if a declaration in debt demand two thousand 
 pounds, and contain several counts, each of which states a less sum, e. g. 
 five hundred pounds, and the defendant being under terms of pleading 
 issuably, plead thereto, that he does not owe the said sum of five hundred 
 pounds. (/) But if the defendant, when under an order to plead issuably, 
 put in a plea which, though informal, goes to the substance of the action, 
 the plaintiff cannot sign judgment, as for want of a plea ;(^) nor can 
 judgment be signed, if one of several pleas be merely demurrable. (7i) 
 And, in the Common Pleas, where a defendant, being under terms to plead 
 issuably, put in an issuable plea, to which the plaintiff replied, and gave 
 notice of trial, and the defendant demurred specially to the replication, 
 whereupon the plaintiff signed judgment ; the court held that the judg- 
 ment was irregular ; 4 Bing. 267. Ayite, 472. 
 
 When the defendant pleads a plea not adapted to the nature of the 
 action, as nil debet in assumpsit^ii) or non assumpsit in debt,[k) &c., the 
 plaintiff may consider it as a nullity, and sign judgment. But a plea in 
 assumpsit, that the defendant did not undertake, (omitting the 
 [ *564 ] words "or *promise,") in manner and form, &c., with a conclu- 
 sion to the country, is not so unintelligible, as to entitle the plain- 
 tiff to sign judgment as for want of a plea.(«flf) So, the plea of 7iil debet 
 in an action of debt on judgment,(bb) or not guilty in an action of debt on 
 a penal statute, (cc) is not such a nullity as will warrant the plaintiff in 
 signing judgment ; nor can judgment be signed in a qui tarn action, for 
 entitling the plea with the names of the parties, without the addition of 
 
 \t 
 
 (a) 5 Durnf. & East, 152. 
 
 (b) 1 Blac. Rep. 376. 2 Wils. IIV. 3 Wils. 33. 1 Moore, 431. Ante, 4T2. 
 
 (c) Ante, 472. 
 
 (d) 3 Durnf. & East, 305 ; and see 1 East, 411. Barnes, 314. Ante, 472, 3. 
 
 (c) 2 Chit. Rep. 292. (/) 3 Bos. & Pul. 174; but see 1 Dowl. & Ryl. 473. 
 
 Iff) 5 Durnf. & East, 152 ; and see i Chit. Rep. 355.(a) 1 Dowl. & Ryl. 359. 
 
 (h) King V. Barber, M. 30 Geo. III. K. B. 
 
 (i) Barnes, 257 ; but see Cas. temp. Hard. 179. Lawes on Pleading, 529. 1 Chit. Rep. 
 716, in notis. And see Lawes on Pleading, 527, &c. 5 Mod. 92. 2 Str. 1022. Cas. temp. 
 Hard. 173, S. C. 1 Chit. Rep. 715, 16 ;(a) and the cases there cited, as to the validity of a 
 plea of not guilty in assumpsit, or non assumpsit in an action of tort. 
 
 (k) Ante, 476. (aa) 3 Dowl. & Ryl. 622. 
 
 (66) 2 Chit. Rep. 239. {cc) 1 Durnf. & East, 462 ; and gee 3 Bos. & Pul. 111.
 
 OF JUDGMENT BY DEFAULT. 564 
 
 qui tarn, &c., to the plaintiff's namc.((f) So, a plea, in debt for 1800?. 
 that the defendant does not owe the said sum of 10/. above demanded, &c., 
 is, it seems, sufficient, and the amount may be rejected as surplusage.(^) 
 And a misstatement of the defendant's christian name, in the commence- 
 ment of his plea, does not entitle the plaintifl' to treat it as a nullity, and 
 sign judgment as for want of a plea.(_f) 
 
 In the King's Beneli, when a plea is clearly absurd on the face of it, as 
 where it attempts to set up as a defence, a judgnu-nt recovered in the Ex- 
 chc({uer in Ireland, before the cause of action accrued, the plaintiff may 
 consider it as a nullity, and sign judgment as for want of a plea, without 
 a previous application to the court :(^) And a plea of set off for money 
 due on a recognizance, and also for money due uptm promises, pleatlcd to 
 an action of debt on bond, as if to an action of aHiocnipKit, was holden in 
 that court to be a nullity, and that the plaintiff might sign judgment. (//) 
 So, where a sham plea was pleaded, of judgments recovered in the court 
 of pie-poudre in Bartholomew Fair, in terms obviously denoting fictitious 
 proceedings, the court reprobated the practice ; and, considering the plea 
 as a nullity, suffered the plaintiff to sign judgment as for want of a plea, 
 and made the defendant's attorney pay the costs of it, and of the applica- 
 tion. (<) And where the defendant first pleaded in abatement, and after- 
 wards, without applying to the court for leave to withdraw that plea, 
 pleaded a judgment recovered, the court held that the plaintift' was at 
 liberty to sign judgment as for want of a plca.(A:) So, in the Common 
 Pleas, where the defendant pleaded the statute of additions in abatement, 
 the court held the plea to be a nullity, and gave the plaintift' leave to sign 
 judgment :(/) and Lord Alranhni, in delivering the opinion of the court, 
 observed, that perhaps it would have been the more regular mode of pro- 
 ceeding for the plaintiff to have signed judgment as for Avant of a plea, 
 without any application to the court, and thus have put the defendant to 
 move to have that judgment set aside.(7?i) In the latter court, if the de- 
 fendant plead a subtle plea, to ensnare the plaintiff, the court will permit 
 the plaintiff to sign judgment, unless the defendant Avill amend. (??) But, 
 unless the plea be manifestly absurd on the face of it, or probably a sham 
 *plea,(rt) the plaintiff in the King's Bench, will not be justified 
 in signing judgment as for want of a plea, without a previous [ *5G5 ] 
 application to the court \{b) which is also necessary, after the de- 
 fendant has been ruled to abide by his plea.(^') If the defendant plead 
 in abatement, without an affidavit of the truth of the plea, (</(/) or a plea 
 of tender without paying money into court,(fV') or if, after craving oifer of 
 a deed, he do not set forth the whole of it,(^') the plaintiff, in either of 
 
 (d) 1 East, 333. 
 
 (e) 1 Dowl. & Rvl. 473. 1 Moore & P. 27G, but sec 3 Bos. & Pul. 1T4. 
 (/•) 7 Dowl. & livl. nil. 
 
 (ff) 1 Cliit. Hc]). "5'2."). 6, in nolis, and see 4 Taunt. 668. 1 Dowl. & Rvl. 577. 
 (A) 2 Maule & Sol. fJOfi. (i) 10 East, 237. 
 
 (k) 5 Dowl. & Kvl. 623. 
 
 \l) 3 Bo.s. & Pul. 3fP5, and see 7 East, 383. 2 New Rep. C. P. 188. 4 Taunt. 668. 
 hn) 3 Bos. & Pul. 398. (") 3 Taunt. 33:t. 
 
 (a) 6 Maule & Sel. 133. (b) 1 Chit. Rep. 525, in notia. 
 
 \c) Id. .56.'i, in nolix. 5 Maule, k Sel. 518, S. C. 
 
 (<W) Pr. Reg. C. P. 4. Forrest, 144 ; and see 1 Str. 639. 2 Ld. Raym. 1409, S. C. 2 
 Moore, 213 ; but see 1 Str. 638. 
 (ee) 1 Str. 638. Barnes. 252. 
 (/) 4 Duruf. k East, 370. Slater v. Ilorne, E. 34 Geo. III. K. B. 5 Durnf. k East, 662, 3.
 
 5gg OF JUDGMENT BY DEFAULT. 
 
 these cases, may sign judgment as for want of a plea. But judgment can- 
 not be signed, in the King's Bench, after a plea in abatement, because the 
 affidavit to verify the truth of it was sworn before the defendant's attor- 
 ney :(//) And in general, when the matter is doubtful, it is the safest 
 course not to sign judgment, but to take issue on the plea, demur thereto, 
 or move the court to set it aside. (/«) 
 
 AVhen shayyi pleas, however, are pleaded, calculated to raise issues re- 
 quiring different modes of trial, as a set off for money due on a recogni- 
 zance or judgment, the issue upon which is triable by the record^ and for 
 money due on simple contract, the issue upon which is triable by the 
 country, the court of King's Bench, on an affidavit that the pleas are 
 false, will sufier the plaintiff to sign judgment as for want of a plea, and 
 make the defendant, or his attorney, pay the costs occasioned by the 
 pleas, with the costs of the application. (z) And the plaintiff may sign 
 judgment, as for want of a plea, if the plea be palpably a sham plea. (A;) 
 So, where a sham plea is such as to make it necessary for the plaintiffs 
 attorney to consult counsel, and thereby cause delay and expense, the 
 court will permit the plaintiff to sign judgment, and make the attorney 
 pay the costs -.{l) And, in a similar case, the costs were ordered to be paid 
 by the attorney, though it appeared that he was expressly instructed by 
 the defendant to plead a dilatory plea.(wi) But the court of King's Bench 
 will not grant a rule for the plaintiff to sign judgment as for want of a 
 plea, merely on an affidavit that the plea is false, unless it be also shown 
 that it is vexatious, and calculated to create unnecessary delay and ex- 
 pense. (?i) And where the defendant, after delaying the plaintiff, and de- 
 luding him with promises of payment, pleaded a plea of judgment reco- 
 vered, the court of Common Pleas refused to set the plea aside, and permit 
 the plaintiff to sign judgment.(o) So where the defendant, in an action 
 against the drawer of a bill of exchange, pleaded the delivery of twenty 
 pipes of port wine in satisfaction ; that court refused to allow the plaintiff 
 to sign judgment as for want of a plea, although it was sworn that the 
 plea Avas altogether false ; and intimated that in future such applications 
 
 would be discharged with costs. 1 Moore & P. 338. 4 Bing. 
 [ *566 ] 512, S. C. To support a motion for leave to sign *judgment 
 
 as for want of a plea, on the ground that improper pleas have 
 been pleaded, there must be an affidavit, in the King's Bench, that they 
 are untrue. (a) But if such pleas have been pleaded under a rule to plead 
 double, it is not necessary first to move to set aside the rule. (a) 
 
 When the defendant pleads before he has appeared, (&) or taken the de- 
 claration out of the office,((?) or before the bail are perfected in a bailable 
 
 {g) 3 Maule & Sel. 154. 
 
 (h) Ante, 473 ; but see 4 Taunt. 668. 2 Moore, 213. 
 
 (?) 2 Barn. & Aid. 197 ; and see 1 Chit. Rep. 564, (a). 
 
 \k) 6 Maule & Sel. 134. 
 
 (/) 2 Barn. & Aid. 199. 5 Barn. & Aid. 750, 751, (a). 1 Dowl. & Ryl. 446, 448, S. C. 
 2 Chit. Rep. 335. 
 
 (to) 1 Chit. Rep. 182 ; but see 3 Dowl. & Ryl. 233, 4. 
 
 {n) 1 Chit. Rep. 524, 5; and see id. 355. 1 Dowl. & Rvl. 359. 2 Barn. & Cres. 81. 3 
 Dowl. & Ryl. 231, S. C. Per Cur. M. 4 Geo. IV. C. P. ; but see 1 Barn. & Cres. 286. 2 
 Dowl. & Ryl. 661, S. C. contra. 
 
 (o) 1 Bing. 380. 8 Moore, 437, S. C. 
 
 (a) 2 Barn. & Aid. 777. 1 Chit. Rep. 564, S. C. {b) 2 Chit. Rep. 8. 
 
 (c) 1 Chit. Rep. 735. Imp. C. P. 7 Ed. 420. 2 Chit. Rep. 7, [a) ; but see 1 Bos. & Pul. 
 341, semb. contra. 1 Chit. Rep. 735, (a). 2 Chit. Rep. 7.
 
 OF JUDGMENT BY DEFAULT. 566 
 
 cau8e,(^) the plaintiff may consider the plea as a nullity, and sign judgment. 
 So, if the defendant plead in aljatement after a f/oural inij)arlaiice, or to the 
 jurisdiction of the court after a apcciul iniparhmee, the plaintiff, we have 
 8een,(«!) may sign judgment as for want of a plea : And judgment may be 
 signed, when he pleads in abatement, after the expiration o^ four days 
 inclusive from the delivery, or filing and notice of declaration. (/) So, if 
 the defendant plead in abatement to one count, and in bar to others, after 
 the/o?/r days allowed for pleading in abatement, it seems that the jdaintiff 
 may sign judgment. (r/) But a judge's summons returnable before judg- 
 ment signed, though after the time for pleading has expired, operates as a 
 stay of proceedings ;(/i) therefore, the plaintiff in such case cannot sign 
 judgment, without first attending the summons ■.{h) And, in general, thoughi 
 a plea be not pleaded in due time, yet if the other party do not take ad- \ 
 vantage of it immediately, the defendant may deliver his plea at any time 
 before judgment is actually signed against him.(«) 
 
 In the King's Bench, when a plea of solvit ad diem, which ought to bo 
 delivered to the plaintiff's attorney, is entered in the general issue book, (A:) 
 or a plea is fled in the office of the clerk of papers, that ought to be de- 
 livered to the plaintiff 's attorney, (/)the plaintiff nuiy consider it as a nul- 
 lity, and sign judgment ; as he may also, in the Common Pleas, if the general 
 issue be not delivered in /o/*/n,(w)or if a plea be pleaded by an attorney of 
 another court, (n) and judgment may be signed in that court, when a de- 
 fendant files two pleas at several times on the same day, in order to mislead 
 the plaintiff by the second plea.(o) So, if several pleas be filed, to tho 
 whole or part of a declaration, without a rule to plead several 
 ♦matters being drawn up, or instructions given for it to the clerk [ *o67 3 
 of the rules, they are considered, in the King's Bench, as a 
 nullity, and the plaintiff may sign judgment ;(rt) though it seems that, in 
 the Common Pleas, the practice is for the defendant to apply to the court, 
 to strike out one of them :(b) And, in both courts, the plaintiff may sign 
 judgment, if the plea, when necessary, be not signed by a counsel, (c) or 
 Serjeant. ((7c^ A judgment by default, we have seen, (cc) is irregular, when 
 the defendant, in an action not bailable, has not been served with a copy 
 of process ; or when there has been no declaration regularly delivered, or 
 
 (d) Ante, 465, 6. (e) Ante, 4G3, 476. 
 
 (/) 1 Durnf. & East, 211, 689. 
 
 (g) Mardndale v. Harding, M. 58 Geo. HI. K. B. 1 Chit. Rep. 716, in twtU. 
 
 Ih) 1 Chit. Kep. 93. Ante, 470. 
 
 \i) 1 Durnf. & East, 16. 4 Durnf. & East, 195, 6. 5 Durnf. & East, 35. 
 
 \k) 5 Durnf. & East, 661. 
 
 (I) 2 Burn. & Aid. 392. 1 Chit. Rep. 211, S. C. Id. 225. But the peneral issue may be 
 filed with tlie clerk of the judgments. Id. 715. And see R. T. 2 Jac. I. reg. 1. R. T. 16 
 Car. II. R. M. 2 W. & M. K. B. as to delivering pleas, that ought to be filed in the office of 
 the clerk of the papers. 
 
 (m) Cas. Pr. C. P. 126. Pr. Reg. 306, S. C. Barnes, 239, S. P. Oibson v. Ilotueman, E. 
 66 Geo. III. K. B. 1 Chit. Rep. 647, {a). 
 
 (n) Barnes, 259. Pr. Reg. 307, S. C. But if the plaintiff take a plea out of the office, 
 and keep it he waives any ()l)je(tion to the i)lea. on the ground of it.< having been i)leaded by 
 a new attorney without an order to change the attorney, 2 New Rep. C. P. 509; but see 
 Barnes, 252, xemh. contra. 
 
 (o) 3 Taunt. 386. 
 
 (a) Per Bnller, J., in Bedford ^ Gatfield, H. 26 Geo. III. K. B. Ante, 472, 3 ; 563. 
 
 (6) 1 Bos. & Pul. 415. 
 
 (c) R. E. 18 Car. II. K. B. ; and see 6 Durnf. k East. 496. 2 Chit. Rep. 319. 
 
 (dd) Pr. Reg. 282. 3 Bos. k Pul. 171. 3 Tauut. 386. 2 Moore, 220. 
 
 (ee) Ante, 513.
 
 567 0^ JUDGMENT BY DEFAULT. 
 
 filed and notice thereof given to the defendant ;(^) or when it is signed 
 before the defendant's appearance, or without entering a rule to plead, or 
 demanding a plea, when necessary ; or before the time for pleading is expired ; 
 or after a plea has been regularly delivered, or filed. (^^) So, when the 
 plaintiff declares absolutely, before the defendant has appeared, he cannot 
 sign judgment, after plea, for want of his appearance :(/i) And a judgment 
 signed contrary to good faith may be set aside. (z) But if a defendant 
 accept a declaration, and act as if an appearance had been entered for him, 
 the court will not afterwards permit him to set aside a judgment, on the 
 ground of his not having appeared. (^) And an irregular judgment cannot 
 be set aside, after the defendant has given a cognovit ;{l) or attended and 
 cross-examined the witnesses, on the execution of a writ of inquiry.(m) 
 
 The plaintiff may waive a judgment by default ;(w) or, if irregular^ the 
 defendant may move the court to set it aside. But the motion for this pur- 
 pose must be made in term time, or notice given of it in vacation, tiuo days 
 at least before the day appointed for executing the inquiry, (o) And in the 
 Common Pleas, it is said there can be no motion to set aside a judgment the 
 last day of term, unless it appear that the defendant could not have applied 
 sooner.(p) Ifthe judgment be regular, yet when the plaintifi'has not lost 
 a trial, the courts on motion will set it aside, upon an affidavit of merits ; 
 the defendant undertaking to pay the costs, (^) to plead issuably instanter,{r) 
 take short notice of trial,(.S') and give judgment of the term when necessary, 
 
 so as to put the plaintiff in the same situation as if *the judgment had 
 [*568] had not been set aside.(a) But the courts will not set aside a regular 
 
 judgment, to give the defendant advantage of a nicety in pleading ;(6) 
 or to let him in to plead any matter which does not go to the merits of 
 the cause. (c)[a] So, where a defendant, having a good legal defence, had 
 ruefsed equitable terms of compromise, the coui't of Common Pleas would 
 not set aside the judgment, and permit him to plead.(c?) But the statute 
 of limitations is considered as a plea to the merits :(e) and in the latter 
 court, the defendant has been allowed to plead his bankruptcy, (/) or infan- 
 cy. (^) In the King's Bench, the affidavit of merits must appear to have been 
 
 iff) 4 Taunt. 818. {gg) Id. 545. 
 
 {h) Per Cur. M. 44 Geo. III. K. B. (j) 13 Price, 489. 
 
 {k) 1 New Rep. C. P. 309. 
 
 {I) V Durnf. & East, 206. Ante, 242, 562. {in) 4 Taunt. 545. 
 
 {n) T. 23 Car. I. K. B. Cas. Pr. C. P. 124. Pr. Reg. 294. Barnes, 251, S. C. 
 
 (o) Ante, 513. {p) Cas. Pr. C. P. 130. Ante, 499. 
 
 {q) 1 Salk. 402. 2 Salk. 518. Barnes, 242. 1 Chit. Rep. 226, 232. 
 
 (r) Instanter, it has been said, means within twenty-four hours. Pryce v. Hodgson, E. 
 25 Geo. III. K. B. ; and see 1 Taunt. 343. Scd qucere, by whom this account of hours is to 
 be kept ; and whether instanter, as applied to the subject-matter, may not more properlj^ be 
 taken to mean, "before the rising of the court," when the act is to be done in court; or 
 "before the shutting of the office on the same night," when the act is to be done there? 6 
 East, 587, (h). 
 
 {s) Barnes, 242. 1 Chit. Rep. 226, 232. 
 
 (a) 2 Str. 823, 975. 1 Ken. 343. 1 Bur. 568. 2 Ken. 290, S. C. Per Cur. T. 24 Geo. 
 III. K. B. 
 
 (b) 2 Str. 1242. 
 
 (c) 1 Blac. Rep. 35. Stafford v. Rowntree, E. 24 Geo. III. K. B. 
 {d) 4 Taunt. 885. 
 
 (e) 2 Durnf. & East, 390. Mackenzie v. Higgins, H. 22 Geo. III. K. B. 1 Bos. & Pul. 228. 
 Ante, 471. 
 
 (/) 1 Bos. & Pul. 52. (g) 5 Taunt. 856. 1 Marsh. 391, S. C. 
 
 [a] See ante, p. 562, note [a].
 
 OF JUDGMENT BY DEFAULT. 5G8 
 
 made by the defendant, or his attorney or ardent :(/j^) And an affidavit, that 
 the defendant is advised and helives he lias a good defence to the action, 
 will not satisfy the condition of a rule which reijuires him to swear to a 
 good defence "on the merits. "(t;'] In general, the affidavit is made by 
 the defendant's attorney \{k/c) and, in the Coinniun IMeas, if it l>e made by 
 any otiier person than the defendant, he must swear either that he is the defend- 
 ant's attorney, or managing clerk to the defendant's attorney. (/) On setting 
 aside a judgment and execution for irregularity, the court of King's Bench 
 will restrain the defendant from bringing an action of trespasSy unless 
 a strong case for damages be shown. (?«) 
 
 A judgment by default is intfrhcutori/ or final. AVhen the action sounds 
 in danuiges, as in af(Sti»n>,H(t, covenant^ trover, tratjtaHx, &c., the judgment 
 is only interlocutory, [a] '' that the plaintiff ought to recover his damages," 
 leaving the amount of them to be afterwards ascertained :(//) And the j'ldg- 
 ment for the plaintiff, in these actions, is also interlocutory, on demurrer, 
 or nul tiel record. In debt, the judgment is commonly final ;{o) though a 
 writ of inquiry is sometimes necessary, or may be sued out, for assessing 
 them.(^>) In the King's Bench, the judgment, whether interhtcutory or 
 final, is signed on a ])aper, called a judgment pa])er, with the clerk of the 
 judgments ; an incipitur being first entered on a roll, of the term it is signed : 
 In the Common Pleas, it is signed on a judgment paper, by the prothono- 
 taries ; warrants of attorney being first written on parchment, and filed with 
 the clerk of the warrants. And, on a final judgment in both comets, no 
 rule for judgment being necessary, the plaintiff may in general proceed 
 immediately to tax his costs, and take out execution. 
 
 Formerly, it appears, no judgments, either by non siaa informatus or 
 nihil dicit, could have been entered of record in the Common Pleas, with- 
 out the notice and commandment of the judges ; nor any costs of 
 suit *given upon any of the said judgments, before the costs were [ *569 j 
 taxed and allowed by some of the judges of this court. Aftcr- 
 Avards, the prothonotaries were deputed and appointed by the court, to take 
 order for the entering of all such judgments, before they were entered of 
 record ; and a rule was made, for preventing abuses, that " no clerk or 
 attorney should enter of record any of the said judgment, or set down any 
 costs of suit thereon, before the said costs were rated and allowed by one 
 of the judges of this court, or by the prothonotary in whose office the same 
 should be entered of record, and Avarrant given by him, under his hand, 
 for the entering of the said judgTuent :"(a) And, by a subse<pient rule, " the 
 prothonotaries shall not sign any judgment by confession, either by non 
 sum informatus or nihil dicit, unless the same be brought to be signed 
 within twenty days after the end of Trinity, Michaehnan, or Hilary term, 
 and at or before the first day of Trinity term, in every year; unless the 
 attorney or clerk do produce before them a warrant or warrants of attor- 
 ney, bearing date after the end of such term, and then the judgments on 
 such warrants so produced, may be signed at or before the essoin day of 
 
 {hh) 1 Chit. Rep. 97. (iV) 1 Dowl. k Rvl. 155; but sec 13 Price, 260. 
 
 {kk) P,r Cur. H. 37 Goo. III. K. B. (/)'3 Tiiunt. 403. 
 
 (m) 1 Chit. Rup. 134; and see id. 238. (n) Append. Chap. XXII. \ 34, &c. 
 
 (o) /</. § 71, &c. \p) Post, 573. 
 
 (a) R. E. 11 Jac. I. C. P. 
 
 [a] See Smith v. Vandcrherat, 1 McCord, 328.
 
 569 0*" JUDGMENT BY DEFAULT. 
 
 the succeecHno; term in every year, and not after :"(5) But, notwithstand- 
 ing this rule, judgments are now signed at any time in the vacation. (c) It 
 is also a rule in the Common Pleas, that " no judgment whatever, except 
 final judgments upon posteas and writs of inquiry and non prosses, shall be 
 signed by any of the prothonotarics of this court, unless the stamp of the 
 clerk of the warrants be first impressed on the paper whereon such judg- 
 ment is to be signed, Avhereby it may appear that warrants of attorney are 
 duly filed :" ((7) And accordingly, the practice in that court, on signing 
 judgment by default, &c., is to file the warrants of attorney on unstamped 
 parchment, with the clerk of the warrants, who marks the judgment paper, 
 before judgment is signed thereon by the prothonotaries. 
 
 In the King's Bench by bill, or in the Common Pleas, judgments by de- 
 fault are entered on a roll of the term of which they are signed ; but, in 
 the King's Bench by original, they are entered of the term of the declara- 
 tion : and, in the latter court, the entry is the same, whether the judgment 
 be for want of a plea, or for not rejoining, surrebutting, or joining in de- 
 murrer, or for not returning the paper book ; but, in the Common Pleas, 
 where the pleadings are supposed to be entered of record as they are pleaded, 
 the judgment roll states the previous proceedings, and the particular default 
 upon which the judgment is given. In the King's Bench, the entries are 
 made by the plaintiff's attorney ; in the Common Pleas, by the clerk of 
 the judgments, with whom the writ of inquiry is left for that purpose ;(e) 
 and there is no necessity, in that court, for a subsequent continuance 
 between the parties, after judgment by default, and writ of inquiry 
 awarded :(/) but, in the King's Bench, it is said to be otherwise. 
 [ *570 ] *By the late bankrupt act,(a) it is provided, that " no credi- 
 tor, though for a valuable consideration, who shall sue out execu- 
 tion upon any judgment obtained by default, confession, or nil dicit, shall 
 avail himself of such execution, to the prejudice of other fair creditors, but 
 shall be paid rateable with such creditors." On this statute, the court of 
 King's Bench would not set aside an execution issued upon a judgment 
 obtained by nil elicit, and served and levied by seizure upon the property 
 of a bankrupt, before his bankruptcy ; the statute not rendering the exe- 
 cution in such case void, but merely enacting, that the plaintiff in such 
 execution shall be paid rateably with the other creditors. (6i) And where 
 A. having a debt from B. secured by warrant of attorney, entered up 
 judgment by non sum informatus, issued a. fieri facias, and took from the 
 sheriff a bill of sale of the goods seized, and B. having soon afterwards be- 
 come bankrupt, his assignees took possession of and sold the goods so 
 transferred to A. who brought an action of trover for them ; the court held, 
 that he was not a creditor having security for his debt, within the above 
 statute, and that he was entitled to recover, 6 Barn. & Cres. 479. 
 
 After interlocutory judgment, the amount of the damages sustained by the 
 
 (o) R. T. 29 Car. 11 reg. 5, 0. P. 
 (c) Id. (a). 
 
 {d) R. M. 5 Geo. II. C. P.; and see R. H. 14 & 15 Car. II. reg. 2. R. H. 2 & 3 Jac. II. C. 
 P. Ante, 96. 
 
 (e) R. T. 13 Geo. II. reff. 2, C. P. 
 
 (/) 11 Co. 6, b. Yelv. 91. 1 Rol. Abr. 48G. (a) 6 Geo. IV. c. 16, § 108. 
 
 (bb) 5 Barn. & Cres. 392. 8 Dowl. & Rjl. 159, S. C.
 
 OF THE ASSESSMENT OF DAMAGES, ETC. 570 
 
 plaintifFis ascertained, cither by reference to the master in tlic King's Bench, 
 or prothonotaries in tlie Common Pleas, or by writ of inquiry. In general, a 
 writ of inquiry is awarded : but this is a mere inquest of office, to inform the 
 conscience of the court; wlio, if they please, may tiiemselves assess the damages 
 with the assent of the pl;iintitV,(^') (tr direct them to be assessed by the pro- 
 per officer. And it is accordingly the practice, in actions upon bills of ex- 
 change and promissory notes, instead of executing a writ of incjuiry, to 
 apply to the court in term time,((/) on an affidavit(<') of the nature of the 
 action, &c., for a rule to show cause, (/) why it should not be referred to 
 the master in the King's Bench, or prothonotaries in the Common lMe:is,(f/) 
 to see what is due for principal and interest, and to tax the j)laiiitifl' his 
 costs, atul Avhy final judgment should not be signed for that sum, withotit 
 executing a writ of iiMiuiry ; upon which the court will make the rule ab- 
 8olute,(/t) on an affidavit of service, unless good cause be shown to the 
 contrary :(«') In tiacation, a judge on summons, and the signature of coun- 
 sel, will grant his Jiat,{k) for drawing up the rulc.(/) And a similar rule 
 or order may be obtained, in actions on covenants for the payment of a 
 sum certain, (/«) as upon a mortgage,(n) or for rent,(o) or arrears 
 of an *annuity,(a) &c. ; or an awar(l.(?>) So, where there Avas a [ *571 ] 
 denmrrer to one count on a bill of exchange, and judgment for 
 the plaintiff, and a plea to other counts on which issue was joined, the 
 court of King's Bench referred it to the master, to see what was due to 
 the plaintiff on the former.((7) In such case, however, a nolle prosequi 
 must be entered on the other counts. (f?(Z) But this entry need not be 
 made before the reference to the master : It is sufficient, if done at any 
 time before final judgment. (ec) 
 
 In the King's Bench, where interlocutory judgment was signed, and the 
 plaintiff died on a subsequent day in the term, the court granted a rule to 
 compute principal and interest on the bill on which the action was 
 brought 'iff) and a similar rule Avas made absolute, on producing a copy 
 of the bill, verified by affidavit of the plaintiff's attorney; the original 
 having been stolen out of his pocket, and no tidings of it obtained. (.7//) 
 In the Exchequer, it was not formerly usual to refer the question of da- 
 mages to the master, in actions upon bills of exchange, &c. ;{hh) but this 
 
 (r) 2 Wms. Saund. 5 Ed. 107, (2). 2 Wils. 372, 374. 3 Wils. Gl, 2 Doug. 31 G. Watson 
 V. Predion, E. 25 Uoo. III. C. P. 1 H. Blac. 252, 529, 542. 4 Duruf. k Kiist, 275. 7 Durnf. 
 & East, 44G, 7. 4 Taunt. 148, 9. 1 Chit. Rep. G21, n. And in confirmation of this doc- 
 trine, it may be observed, that the courts have tlic power of setting aside inf|uisitioiis for 
 small or e.\-cessive damages; and in some cases of increasing them. Say. Dam. 173, &c. 
 and see 1 Rol. Abr. 572. Com. Dig. tit. Damages, E. 1, 2. 
 
 Id) Per Cur. T. 25 Geo. III. K. B. (c) Append. Chap. XXII. g 30. 
 
 (/) /(/. § 31. [g) 1 H. Blac. 541. 
 
 (A) Append. Chap. XXII. ^ 32. 1 Chit. Rep. 4Gn, {b). 
 
 \i) 4 Durnf. & Ea.st, 275; and see 1 H. Blac. 252, 520, 541. 2 Bos. & Pnl. 55. And for 
 the form of the judgment upon this rule, see Append. Chap. XXII. g 34, 5, G. Chap. XXXI. 
 
 {k) Append. Chap. XXII. g 33. 
 
 (/) 2 Smith R. 4G, 7, in noti.i. (m) Doug. 316. 
 (n) 8 Durnf. & East, 32G ; and .see 2 Chit. Rep. 234, .5; 2G5, (</). 
 
 (0) 8 Durnf. & East, 410. 6 Taunt. 35G. 13 Price, 53 ; but see 14 East, G22. G Moore, 
 331. 
 
 (a) 2 Chit. Rep. 32. (b) Per Cur., in Meggison ^ , K. B. 
 
 \cc) 7 Durnf. k East, 473. {dd) 2 Smith R. 4G, 47, in notis. 
 
 (ee) Per Cur. II. 48 Geo. III. K. B. (/) 1 Maule & Sel. 229. 
 
 (gg) 3 Maule & Sel. 281 ; and see 2 Chit. Rep. 233, (a). 
 {hh) 1 Austr. 249.
 
 671 
 
 OF THE ASSESSMENT OF DAMAGES, ETC. 
 
 practice has since been adopted, and put upon the same footing as in the 
 other courts.(») 
 
 The practice we are now speaking of is confined to cases, where it ap- 
 pears on the declaration, that the action is brought upon bills of exchange 
 or promissory notes,[kk) or other actions wherein the quantum of damages 
 depends on figures, and may be as well ascertained by the master or pro- 
 thonotarics, as before a jury : And therefore, where the defendant had 
 suflerod judgment by default, in an action of assumpsit on a foreign judg- 
 ment, the court of King's Bench refused to make the rule absolute, for a 
 reference to the master ; saying, this was an attempt to carry the rule 
 further than had yet been done ; and as there was no instance of the 
 kind, they would not make a precedent for it.(ll) In a subsequent 
 case,(?n?«) the court refused to make the rule absolute, in an action upon 
 a bill of exchange ior foreign money ; the value of which is uncertain, and 
 can only be ascertained by a jury :(h) and, in another case,(o) they would 
 not direct the master to allow re-exchayige, in an action upon a bill of ex- 
 change drawn in Scotland, upon and accepted by the defendant in I^ng- 
 land. It should also be observed, that such a rule cannot be had in as- 
 su7}ipsit for a certain sum, due upon an agreement ;[p) nor in an action 
 upon a bottomree bond ;[q) or to ascertain the damages sustained by the 
 
 plaintifl", in an action of debt on a judgment recovered on a bill 
 [ *572 ] of exchange :(r) And in covenant *on a deed, whereby the plain- 
 
 tifis covenanted to indemnify the Bank of England against ad- 
 vances to L. and B. on bills to the amount of 100,000?. and the defendant 
 and others agreed to sub-indemnify the plaintiff's to the same amount, in 
 certain aliquot proportions, of which the defendant's proportion was 5000/., 
 and the plaintiffs alleged that they had been obliged to pay the whole 
 100,000/. to the Bank, and demanded of the defendant his proportion of 
 5000/., in which action the plaintifis had judgment on demurrer ; the court 
 of King's Bench refused to refer it to the master, to compute the principal 
 and interest due on the deed, considering that it was not a mere question 
 of computation of principal and interest, but that it was open to the de- 
 fendant, before the sheriff's jury, to enter into questions of collateral satis- 
 faction of the plaintiff's demand, from securities and effects of L. and B. 
 the principals, in their hands. (a)[A] 
 
 The plaintiff, in the King's Bench, may obtain a rule for referring a bill 
 of exchange to the master, on the day on which interlocutory judgment is 
 signed for want of a plea,(/») or for not producing the record ;(c) but where 
 
 {i 
 
 (it) 4 Price, 134. Chitty on Bills, 5 Ed. 474. 
 
 (kk) 8 Durnf. & East, 648. 
 
 (U) 4 Durnf. & East, 493; and see 1 Maule & Sel. 173. 4 Campb. 380. 1 Stark. Ni. 
 Pri. 219, S. C, by which it appears, that the plaintiff is not entitled to interest on a foreign 
 judgment. 
 
 {mm) 5 Durnf. & East, 87. 
 
 (7?) Cro Eliz. 536. Cro. Jac. 618. 1 Chit. Rep. 621. 627. 
 
 (o) 12 East, 420. (p) Per Cur. H. 37 Geo. III. K. B. 
 
 Iq) PuUn V. Nicholson, E. 38 Geo. III. K. B. 
 
 ir) 8 Durnf & East, 395. 2 Chit. Rep. 233. 
 
 \a\ 14 East, C22 ; and see 2 Barn. & Cres. 348. 3 Dowl. & Ryl. 613, S. C. 
 
 (6) 3 Maule & Sel. 109. (c) 5 Barn. & Aid. 752. 1 Dowl. & Ryl. 444, S. C. 
 
 [a] So a mistake in a writ of inquiry of the formal description of the court, before 
 ■which it is returned, is cured by the statute of jeofails. Richardson v. Backus, 1 Johns. 59. 
 The appearance of the defendant on the execution of the writ cures irregularities in pre- 
 vious proceedings unobjected to. White v. Rankcn, 2 Blackf. 78.
 
 OF THE WRIT OP INQUIRY. 572 
 
 it is signed upon demurrer, it has been the practice not to move for such 
 rule until the following day :{d) And, in that court, the rule absolute for 
 computing principal and interest on a bill of exchange, must be served on 
 the defendant, before final judgment can be signed, as well as the rule 
 nisi ;{(') and in serving the latter rule, where there are two defendants, the 
 service should be on both ;(y') but it is suflicient to serve a copy of the rule, 
 without showing the original. (/) It has also Ijeen decided, in the King's 
 Bench, that the plaintiiFs attorney is not bound to serve the defendant 
 with notice of computing principal and interest, on a rule or order of re- 
 ference, (_r/) or a copy of the master's appointment for that purpose, (/<) un- 
 less the defendant has obtained and served him with a rule to be present 
 at the taxation ;(/) the defendant having notice of the proeeeding, bv ser- 
 vice of the rule nisi, so as to be present if he pleases. But, in the Com- 
 mon Pleas, notice must be given to the defendant, of the prothonotary's 
 appointment to compute principal and interest on a bill of exchange :{k) 
 The reason is said to be, that this proceeding of a reference to the protho- 
 notary is substituted for a writ of inquiry ; and as it is necessary for the 
 plaintiff to give notice to the defendant of the execution of such writ, so 
 he nnist give him notice of the prothonotary's appointment to compute 
 principal and interest, in order that he may have an opportunity of bring- 
 ing forward any facts which may have occurred, to reduce the 
 sum which the plaintiff seeks to *recover.(a) And where judg- [ *573 ] 
 ment has gone by default on a promissory note, no irregularity 
 previous to the judgment can be shown as cause against referring the note 
 to the master or prothonotary.(6) 
 
 A writ of inquiry of damages is a judicial writ, issuing out of the court 
 where the action is brought ; and must be sued out, after interlocutory 
 judgment, in all actions wherein damages are recoverable, as in asmnnpsitj 
 covenant, case, tresjMSS, &c., except where they are referred to the master 
 or prothonotaries, on bills of exchange or promissory notes, &c., or are 
 confessed by the defendant. After ^';ioZ judgment, a writ of incpiiry is in 
 general unnecessary ; and the court of King's Bench would not direct such 
 a writ to be executed, at the instance of the defendant, after judgment by 
 default in an action of debt. But where an action is brought on a judg- 
 ment, the plaintiff may have a writ of inquiry, after judgment by default, 
 to recover interest, by way of damages, for the detention of the debt.(^c') 
 
 (d) 3 Maule & Sel. 100 ; and see 3 Smith R. 179. 
 
 (e) 1 Chit. Rep. 4G6, 468. 
 
 (/) Flindl V. BigufU S; another, .M. 56 Geo. III. K. R. 1 Chit. Rep. 4«6, (a). 
 
 ((/) Sellers v. Tiifton, H. 54 Geo. III. K. D. Imp. K. B. 10 VA. 410. The same point vras 
 ruled by Bai/lejj, J., in H. 5(5 Geo. III. K. R. 1 Chit. Rep. 407, i;i nnlin ; and see tiie casca 
 of Clark V. Wood, and Farmer v. Wood, E. 50 Geo. III. K. H. Id. 406 (a), accord. 
 
 (h) 1 Chit. Rep. 469, 70; G93. 
 
 (i) Id. 6!)3. (k) 4 Taunt 487. 
 
 Uj) 4 Taunt. 487. {h) 1 Bos. & rul. 309. 2 Chit. Rep. 119. 
 
 (p) 7 Durnf. & East, 440 ; and .=;ee 2 Durnf. & East, 78. 9. 8 Durnf. k Ea.st. 395. 1 East, 
 436. 1 Maule k Sel. 171. 1 Chit. Rep. 473, 027. 2 Chit. Rep. 233. 1 Dowl. & Ryl. 16. 
 1 Bing. 368. But tlie plaintiff is not entitled to interest on a forrirjn judgment ; 1 Maule «k 
 Sel. 173. 4 Campb. 380. 1 Stark. Ni. I'ri. 219, S. C. ; butseel Ea.«t. 430, snnh. contra. 
 And it seems to be a rule, in other cases, that interest on the judgment is allowed only 
 where the original debt carried intere.st. 3 Price, 250 ; and sec 8 Moore, 413. 1 Bing. 308, 
 S. C. cited.
 
 i73 
 
 OF THE WRIT OF INQUIRY. 
 
 And in actions upon bonds, or on any penal sum, for nonperformance of 
 covenants, &c., a writ of inquiry is necessary, for assessing the damages, 
 after judgment for the plaintiff on demurrer, or by confession or nihil 
 dicit, by the statute 8 & 9 W. III. c. 11, § 8. In actions on the statute 
 2 & 3 Edw. VI. c. 13, for not setting out tithes, there must also be a writ 
 of incjuiry, after judgment by default, to ascertain the value of the tithes. (i^) 
 So, in an action of debt for foreign money, a jury must find the value of 
 the money :{d) And it seems, that in debt for use and occupation, a writ 
 of inquiry is necessary, after judgment by default, before signing final 
 judgment. ((^) 
 
 The writ of inquiry is directed to the sheriff of the county where the 
 venue is laid \{e) setting forth the proceedings which have been had in the 
 cause ; " and that the phiintiff ought to recover his damages, by occasion 
 of the premises : But because it is unknown what damages he hath sus- 
 tained by occasion thereof, the sheriff is commanded, that by the oath of 
 twelve honest and lawful men of his county, he diligently inquire the same ; 
 and return the inquisition into court. "(/) It was formerly doubted, 
 whether a writ of inquiry could be directed to the sheriff of a Welch 
 
 county \{g) but it is now settled that it may.(A) In an action on 
 [ *574 ] the *case upon two promises, there was a judgment by default 
 
 as to the first promise, and as to the second, a nolle jyrosequi: 
 A writ of inquiry was taken out, to inquire what damages the plaintiff had 
 sustained, br/ occasion of the premises ; and upon the return of this, it was 
 moved to amend the writ, and make it, by occasion of the not performing 
 of the frst promise : and upon the authority of Baker v. Campbell,(a) the 
 writ was amended in this case ; the record of the judgment by default 
 being a warrant to amend by.(6) So, if the award of the writ of inquiry 
 on the roll be right, the teste of the writ, if wrong, may be amended 
 
 The Avrit of inquiry is engrossed on parchment ; and, in the King's 
 Bench, it is sealed only ; but, in the Common Pleas, it is signed by the 
 prothonotaries, and afterwards sealed. And it should be returnable on a 
 general return or day certain, according to the nature of the proceedings : 
 if by original, on a general return ; if by bill, on a day certain. But 
 w^here, in an action by bill against an attorney, the writ of inquiry was 
 returnable on a general return, it was holden not to be error ; but only a 
 miscontinuance, and cured by the statutes of jeofails. (c?cZ) 
 
 When the jury, upon the trial of an issue, omit to assess the damages, 
 the omission may in some cases be supplied by a writ of inquiry -.{ee) As to 
 which it seems, that where the matter omitted to be inquired by the prin- 
 cipal jury, is such as goes to the very point of the issue, and upon which, 
 if it had been found by the jury, an attaint would have lain against them 
 by the party, if they had given a false verdict, there such matter cannot 
 be supplied by a writ of inquiry ; because thereby the party might have 
 
 {d) 5 Barn. & Aid. 885. 1 Dowl. & Ryl. 529, S. C. ; and see 1 Chit. Rep. 627. 
 (e) 2 Lil. P. R. 721. (/) Append. Chap. XXII. | 47, &c. 
 
 {g) Doug. 262, 3. Lord Mansfield and BuUer, J., thought it might be directed to the 
 sheriff of the next English county. 
 
 {h) Williams v. Williams, T. 26 Geo. III. K. B. (a) E. 4 Ann. K. B. 
 
 (b) 1 Str. 684 ; and see Cas. temp. Hardw. 314. 
 
 (c) 4 East, 173 ; and see 1 Dowl. & Ryl. 26G, 211, per Bayley, J. 
 {dd) 2 Str. 947. Say. Rep. 245. 
 
 (ee) Cheyney's case, 10 Co. 118.
 
 OF THE WRIT OP INQUIRY. 574 
 
 lost his attaint, ■which would not lie upon an inquest of office. (/) Thus, 
 in detinue, where the jury omitted to assess the value of the goods, the 
 court refused to supply the omission by a writ of in(juiry.(</) And so 
 where the jury who try the issue in replevin upon a distress f<jr rent, omit 
 to inquire of the rent in arrear, and value of the iroods or cattle distrained, 
 pursuant to the statute 17 Car. II. c. 7, no writ of imjuiry can be after- 
 wards awarded, to supply the omission ',(h^ for, by the words of the statute, 
 these matters are to be inquired of by the same jury who try the issue. (i) 
 And in like manner, where no damages are given on trying the traverse of 
 the return to a writ of inandanius, this omission cannot be supj)li('d by a 
 writ of in([uiry.(A:) So, where, in an action for a liiiel, tlie defendant 
 pleaded the general issue, and i'l(//it sj)ecial pleas of justification ; and the 
 jury, at the trial, found a verdict for the plaintiff on the general 
 issue, and two of *the special pleas, without assessing damages, [ *575 ] 
 and for the defendant on the other pleas ; and the court, on 
 motion to enter up judgment for the plaintiff non obstante veredicto, decided 
 that the latter pleas were ill, and awarded a writ of inquiry to assess the 
 damages, and final judgment was entered thereon, in the King's Bench ;(aa) 
 the court of Exchequer Chamber, on a writ of error, reversed the judgment 
 as to the award of the writ of inquiry, and final judgment thereon, and 
 remitted the record to the court of King's Bench, with a direction for that 
 court to award a venire de novo, to try the general issue, and issue joined 
 on the two special pleas on which the finding was for the plaintiff; holding 
 the verdict on these issues to be void, because no damages had been 
 a,ssessed :(b) And a venire de novo was awarded, when the jury, in an 
 action of waste, had omitted to find the place wasted.(t') 
 
 But where the matter omitted to be inquired by the principal jury, doth 
 not go to the point in issue, or necessary conse(iuence thereof, but is merely 
 collateral, as the four usual iiiquiries on a quare impedit,{d) there such 
 matter may be supplied by a Avrit of infjuiry, without any damage to the 
 party ; because if the same had been inquired of by the principal jury, it 
 would have been, as to those particulars, no more than an inquest of office, 
 upon Avhich an attaint would not \\Q.{e) So, where the parties being at 
 issue in assumpsit, a demurrer was joined upon the evidence, and the jury 
 discharged, without assessing the damages; and afterwards judgment was 
 given for the plaintiff", and a writ of inquiry of damages awarded ; the 
 court held, that though the same jury might have assessed the damages 
 conditionally, yet it may as well be done by a writ of in(juiry of damages, 
 when the demurrer is determined ; and the most usual course is, when 
 there is a demurrer upon evidence, to discharge the jury without further 
 inquiry. (^) So, in trespass or replevin against overseers of the poor, acting 
 
 (/) Carth. 362. 2 Str. 1052. 3 Brod. & Bing. 298. But the writ of a«aint is now abo- 
 lished, by the statute G (Jeo. IV. c. oO, g 60. 
 
 (g) Chet/ney's case, 19 Co. 119, b. 1 Sid. 246. T. Raym. 124. 1 Kcb. 882. 1 Salk. 206. 
 1 Sel. Ni. "Pri". 6 Ed. 670. 
 
 (A) 1 Sid. 380. T. Kaym. 170. 1 Vent. 40. 2 Keb. 409. 1 Lev. 255. 2 Str. 1052. Cas. 
 temp. Hnrdw. 295, S. C. 2 Bhuk. Rep. 7G3. Gilb. Dist. 165. 
 
 (i) 1 Salk. 205, 6. Cas. temp. Hardw. 141, 295. 
 
 (fc) 2 Str. 1052. 
 
 (aa) 3 Barn. & Aid. 702. 
 
 (b) 3 Brod. & Bing. 297. 7 Moore, 200, S. 0. 
 
 (c) 9 Moore, 497. 2 Bing. 262, S. C. 
 (rf) Chei/ne7/'.i case, 10 Co. 118. 
 
 (e) Carth. 362. {//) Ore. Car. 143. 
 
 Vol. I.— 36
 
 g»^g OF THE WRIT OF INQUIRY. 
 
 virtute officii, if the plaintiff be non8uit,(<7) or have a verdict against him,(^) 
 and the jury are discharged, without inquiring of the treble damages, pur- 
 suant to the statute 43 Eliz. c. 2, § 19, the defect may be supplied by a 
 writ of inquiry ; because such inquiry is no more than an inquest of office. 
 In such case, as a ground for awarding a writ of inquiry, it is necessary to 
 enter a suggestion upon the roll, that the defendants were overseers of the 
 poor ; and that the action was brought against them, for something done 
 by virtue of their office. (z) And a writ of inquiry may be sued out, after 
 a writ of second deliverance, on a judgment of nonsuit in replevin, for 
 want of a declaration, in the Common Pleas. (A;) But upon an avowry for 
 rates made on plaintiff's lands, under the statute 50 Geo. III. 
 [ *576 ] c. xlvii, where *the plaintiffs were nonsuited, it was holden that 
 the defendant was not entitled to a writ of inquiry of damages, 
 the act only giving treble costs. (a) 
 
 The writ of inquiry in ordinary cases may be executed, on due notice, 
 before the sheriff or his deputy ',[hh) or by leave of the court, under special 
 circumstances, before the chief justice,(cc) or a judge of assize, as an 
 assistant to the sheriff :((id!) And where the writ of inquiry is executed 
 before the chief justice, or a judge of assize, it is usual to move for the 
 sheriff to return a good jury.(ce) The motion for this purpose is a motion 
 of course in the King's Bench, requiring only counsel's signature '-{ff) 
 In the Common Pleas, it is made in court, and the rule is absolute in the 
 first instance. (^^) But an inquisition taken before two under-sheriffs extra- 
 ordinary, was set aside by the court of Common Pleas ; for the high sheriff 
 can appoint no more than one under-sheriff extraordinary, to take an 
 inquest. (A/i) 
 
 The notice of inquiry should be in writing ',{ii) and if the defendant have 
 appeared, and his attorney be known, it should be delivered to such attor- 
 ney •.{kk) But if the defendant have not appeared,(?) or his attorney be 
 unknown,(m) the notice should be delivered to the defendant himself, or 
 left at his place of abode : And, in a joint action, the notice of inquiry 
 ought to be given to both defendants. (w) In country causes, if an agent 
 be employed, notice of inquiry, in the King's Bench, should be delivered 
 to the agent in town, who issues the subpoenas, and not to the attorney in 
 the country ;(o) but, in the Common Pleas, it seems that it may be given 
 
 {g) 1 Rol. Rep. 2T2. 2 Rol. Rep. 112. 5 Mod. 76, 7, 118. Carth. 362. I Salk. 205. 
 Skin. 595. Comb. 344, S. C. 
 
 {h) Cas. <emj9.Hardw. 138. 2 Str. 1021, S. C. Say. Rep. 214. 3 Wils. 442. 2 Blac. Rep. 
 921, S. C. 
 
 (i) Cas. temp. Hardw. 138. Say. Rep. 214. {k) 2 Wils. 116. 
 
 \a) 6 Maule & Sel. 128. {bh) 2 Wils. 379. 
 
 {cc) 12 Mod. 519. 1 Str. 612. 2 Str. 853. Barnes, 135, 6, 233. 2 Wils. 378. Aris v. 
 Dickie, H. 43 Geo. III. K. B. And for the form of the rule, and aflBdavit of service, see 
 Append. Chap. XXII, I 56, 7. 
 
 {dd) 12 Mod, 610. Barnes, 135. {ee) Append. Chap. XXII, g 55. 
 
 (/) Ante, 484. {gg) Ante, 486. 
 
 (M) 2 AVils. 378 ; and see Barnes, 413. Pr. 451, S. C. 
 
 («) R. AL 4 Ann.(c) K. B. Cas. Pr. C. P. 3. 
 
 (M) Say. Rep. 133, K. B. Cas. P. R. C. P. 62. Pr. Reg. 276, 396, 442, S. C. Barnes, 300, 
 306, S. P. 
 
 II) R. T. 1 Geo. II. K. B. R. M. 1 Geo. II. reg. 1, C. P. 
 
 (m) Say. Rep. 133, K. B. Cas. Pr. C. P. 62. Pr. Reg. 276, 396, 442, S. C. Pr. Reg. 126, S. P. 
 
 ln\ Pr. Reg. 443. 
 
 (o) 3 East, 568. In a former case it had been ruled, agreeably to the practice of the 
 Common Pleas, that the notice of inquiry might be given either to the attorney in the 
 country, or to the agent in town. Bell v. Trevera, M. 23 Geo. III. K. B.
 
 OF THE WRIT OF INQUIRY. 576 
 
 either to the attorney in the country, or to the agent in tov;n.{p) If the 
 venue be laid in London or Middlesex^ and the defendant Hve within forty 
 coviputed[q) miles from London., there must in rrt-neral be liifJit days' notice 
 of inquiry, exclusive of the day it is given, (r) and induifivf of that on which 
 the inquiry is executed ;(r) which notice is also suflicieiit in country 
 causes :(«) for the statute 14 Geo. II. c. 17, § 4, which requires ten days* 
 notice of trial at the assizes, does not extend to notices of inquiry. But 
 where the venue is laid in London or Middlesex, and the defend- 
 ant lives above forti/ *computed miles from London, there must [ */>77 ] 
 he fourteeji days' notice of inquiry :(</) And iSunda^ ih to be 
 accounted a day in these notices, uidess it be the day on which the notice 
 is given. (^) In the Exchequer it is a rule,(c) that " ei</ht days' notice shall 
 be given of the execution of writs of inc^uiry, in all cases, except where the 
 venue is laid in London or Middlesex, and the defendants reside above 
 forti/ miles distant therefrom ; and that where the venue is laid in London 
 or Middlesex, and the defendants reside ahove forty miles distant there- 
 from, /owr^tY'/i days' notice of the execution of writs of in([uiry shall be 
 given :"(6') which notices are required to be entered by the attorneys or 
 side clerks of the oflSce of pleas, in the book of orders kept in such office, 
 and a written notice of such entries left at the seat in the said office, of 
 the attorney or clerk in court concerned for the defendant, or at his 
 chambers or place of residence. (c) 
 
 The object of the statute, in requiring fourteen days' notice to be given 
 to defendants residing sibove forti/ miles from town, was to secure to them 
 the full benefit of the notice for eight days, part of which time would neces- 
 sarily be consumed in its reaching them in the country, and in giving them 
 time to communicate upon it with their agents in town ; and therefore a 
 defendant, who was residing at an hotel in town, from the time of his arrest 
 till he Avas served with notice of executing the writ of inquiry, was holden 
 not to be entitled to more than eight days' notice in a town cause, though 
 his general residence was above forty miles from town.(d') So, where the 
 defendant was residing in London, before and at the commencement of the 
 action, eight days' notice of executing a writ of inquiry was deemed suffi- 
 cient, though the defendant had in the intermediate time permanently 
 removed above forty miles from London, inasmuch as he had not given the 
 plaintiff previous notice of such removal. (e) But a defendant who is mas- 
 ter of a vessel belonging to a port above forty miles from London, and who 
 has no regular residence on shore, is entitled to fourteeri days' notice of 
 executing a writ of inquiry. (/) In replevin, after judgment given on 
 demurrer for the avowant, fifteen days' notice of executing the writ of 
 inquiry must be given to the plaintiff, in like manner as where he is non- 
 suited before issue joined, on the statute 17 Car. 11 c. 7, § 2.(g) Short notice 
 of inquiry is two days at least :(A) And where a terms notice of trial is 
 
 {p) Barnes, 305. [q) 2 Str. 9r)4. 1216. 
 
 (r) Stv. P. R. tit. Notice, 421. 6 Mod. 146. R. M. 4 Ann.(c) 8 Mod. 21, K. B. R. M. 
 1654, g 21, C. P. 
 («) R. M. 1654, § 21, C. P. 
 
 (a) R. M. 4 Ann. (c), K. B. R. M. 1654, § 21, C. P. 
 
 (b) R. M. 4 Ann. (r), K. H. 8 Mod. 21. 
 
 (c) R. H. .39 (Jco. III. in Scac. Man. Ex. Append. 224. 8 Price, 503, 4. 
 \d) 7 East, 624. (e) 12 East, 427. 
 
 (/) 6 Taunt. 450. 2 Marsh. 151, S. C. 
 
 {g) 6 Taunt. 57. 1 Marsh. 444, S. C. Append. Chap. XLV. \ 78. 
 
 (A) Barnes, 301. Pr. Reg. 390, S. C.
 
 ryrn OF THE WRIT OF INQUIRY. 
 
 required, there must, at the same distance of time, be the like notice of 
 innuiry :(/) -which notice may it seems be given, in the King's Bench, before 
 the first day in full term ;(/c) but, in the Common Pleas, it must be given 
 before the essoin day of the fifth, or other subsequent term ;(Z) 
 [ *578 ] *and, in the former court, it may be given at once, without any pre- 
 vious notice of a general intention to proceed in the cause. (a) 
 In the King's Bench, when the plaintiff upon any pleading of the defen- 
 dant, tenders an issue, and the paper book is made up and delivered with 
 notice of trial, and the defendant strikes out the similiter, and returns the 
 book with a demurrer, if judgment be given thereon for the plaintiff" and a 
 writ of inquiry be necessary to ascertain the damages, the defendant's 
 attorney shall be obliged to accept notice of executing the writ of inquiry, 
 from the time of giving the notice of trial ;(5) but the plaintiff" in such case 
 ought to give notice of the hour and place of executing the inquiry. (c) In 
 the Common Pleas it is a rule, that, "in every cause where the plaintiff" con- 
 cludes to the country, and gives notice of trial upon the back of his plead- 
 ing, if the defendant do not join issue thereon before the rule is out, the 
 defendant's attorney shall, after judgment obtained, be obliged to accept 
 notice of executing a writ of inquiry, from the time that notice of trial was 
 BO given on the back of such pleading '.'"{dd) And it is also a rule in that 
 court, that " where the defendant demurs to the plaintiff"'s declaration, the 
 defendant's attorney shall be obliged to accept notice of executing the writ 
 of inquiry, on the back of the joinder in demurrer :" And where the defen- 
 dant pleads such a dilatory plea as the plaintiff" is obliged to demur to, his 
 attorney shall accept notice of executing the writ of inquiry, on the back 
 of the demurrer :" (eg) So, upon an issue of nul tiel record, notice of 
 executing a writ of inquiry, may be given, in the Common Pleas, upon the 
 issue book, as well as upon a joinder in demurrer.(^) In like manner, it 
 is a rule in the Exchequer,(^) that " in all cases where the plaintiff" con- 
 cludes to the country, the plaintiff"s attorney or clerk in court may give 
 notice of trial, at the time of delivering his replication or other subsequent 
 pleading, in case issue shall be joined thereon, or of executing a writ of 
 inquiry in default of joining issue ; which shall be deemed good notice of 
 trial, from the time of the delivery of such replication, or other subsequent 
 pleading, in case issue shall be joined ; and if the defendant do not join 
 issue on such replication, or other subsequent pleading, and the plaintiff" 
 sign judgment for want thereof, the defendant's attorney or clerk in court 
 shall take notice of executing a writ of inquiry, from the time that notice 
 thereof was given as aforesaid : And that in all cases where the defendant 
 demurs to the plaintiff"s declaration, replication, or other subsequent plead- 
 ing, the defendant's attorney or clerk in court shall be obliged to accept 
 notice of executing a writ of inquiry, on the back of the joinder in demurrer ; 
 and in case the defendant pleads a dilatory plea, to which the plaintiff" 
 is obliged to demur, the defendant's attorney or clerk in court 
 [ *579 ] shall be obliged *to accept notice of executing a writ of inquiry, 
 on the back of such demurrer." 
 
 (?) 2 Str. 1100. Pr. Reg. 444. R. E. 13 Geo. II. reg. 2 C. P. R. T. 26 & 27 Geo. II. g 5, in 
 Scac. Man. Ex. Append. 211, 212. 
 
 (k) Imp. K. B. 10 Ed. 412. (I) R. E. 13 Geo. II. C. P. 
 
 (a) Smith V. Paul, M. 46 Geo. III. K. B. 3 Smith R. 101, S. C. 
 
 (b) R. H. 8 Geo. I. K. B. (c) Id. (a). 
 
 (dd) R. H. 6 Geo. I. reg. 1, C. P. (ee) R. T. 10 Geo. I. C. P. 
 
 (/) Pr. Reg. 443. (g) R. T. 26 & 27 Geo. II. § 4, in Scac. Man. Ex. Append. 211.
 
 OF THE WRIT OF INQUIRY. 579 
 
 When the Inquiry is to be executed before the chief justice, or a judge 
 of assize, the notice shouhi be /jjiven for the sittinffs or assizes generally ;(f/) 
 but otherwise the notice shoidd exi)ress the particular time and place of 
 executing it.(/>) A writ of inquiry may be executed at any time before, or 
 on the <lay it is returnable ;{(■) but not on a Sundai/ :[<l) and ■where the 
 notice wjis to execute it bj/ ten o'clock, the court set it aside for uncer- 
 tainty.{e) So, in the Common I'leas, notice of exeoiting a writ of inquiry 
 between the hours of ten or eleven and two o'clock, has been deemed insuffi- 
 cient :(/) but notice of executing an inijuiry at eleven o'clock is good, if 
 executed before twelve :(////) And, in that court, where notice was given 
 of executing a writ of in(|uiry on TacHdnj/ the fourteenth d;iy d'l 'lanudry 
 instant, when the fourteenth of Januarij fell on a T/turn(l(ii/, the court 
 refused to set aside the execution of the writ of incjuiry on that ground, 
 rejecting the word Tuesday as surplusage. (A) So, where notice of execut- 
 ing a writ of in<[uiry was given for Wednesday the eleventh of June instant 
 when Wednesday fell on the tenth of June, on which day the writ (»f 
 inquiry was executed, the court refused to set it aside, the defendant not 
 swearing that he was thereby misled. (^) The usual way is to give notice 
 that the inquiry will be executed between two certain hours,(A') as between 
 ten and twelve o'clock in the forenoon, or between /(9?ir and six in the after- 
 noon of a particular day, on or before the return of the writ. On a notice 
 of inquiry so given, however, the party is not tied down to the precise time 
 fixed by the notice ; for the sheriff may have prior business, which m;iy 
 last beyond it : Therefore, where notice was given of executing an in(iuiry, 
 between ten and twelve o'clock, and the irregularity complained of was, 
 that the defendant and his witnesses attended till twelve, and after the 
 hour was elapsed, and they were gone, the writ was executed ; the court 
 of King's Bench refused to set aside the inquisition, conceiving it was 
 clearly a trick of the defendant's attorney, to leave the place immediately 
 after the hour was passed. (Z) 
 
 With regard to the place of executing an inquiry, it must be executed 
 within the county where the action is laid. In London, inquiries are exe- 
 cuted at the secondaries' office, No. 28, in Coleman street ; in Middlesex^ 
 at the sheriff's office, in Red Lion square ; and in other counties, at a cer- 
 tain place appointed for that purpose : and the notice should be given 
 accordingly. Any irregularity, however, in the notice of incpiiry, 
 or in the *time and place of executing it, is cured by the aj)pear- [ *oS0 ] 
 ance of the defendant or his attorney, and making a defence on 
 the execution of the writ.(aa) 
 
 Notice of inquiry may be continued,{bb) or countermanded,{cc) in like 
 manner as notice of trial : but, in the King's Bench, the continuance or 
 countermand of notice of inc^uiry nmst be delivered to the agent in town, 
 and not to the attorney in the co\intrj.{dd) A notice of incjuiry can be con- 
 
 (ffl) Barnes, 13.'», 6. Append. Chnp. XXII. ^ 60, 63, 4. 
 
 (6) Say. Rep. 181. K. H. IJarnes, 207, 2<J'J, 300, 301. Pr. Reg. 446, 7, S. C. ; and see 
 Append. Chap. XXII. ? 57, 8, 9. 
 
 (c) 2 Ld. Ravm. 1449. (d) 1 Str. .{87. 
 
 (r) 2 Str. 1142. (/) Barnes, 296. 7. Pr. Reg. 445, S. C. 
 
 {(jf/) Barnes, 302. Pr. Reg. 446, S. C. (A) 3 Bos. k Piil. 1. 
 
 (ij 1 Chit. Rep. 11 ; but .see id. 615. 
 
 (k) Say. Rep. 181. Barnes, 296. Pr. Reg. 445, S. C. (/) Doug. 198. 
 
 (aa) Barnes, 233, 309, 413. Pr. Reg. 451, S. C. 
 
 {bb) Append. Chap. XXlI.g 63. (cc) Id. § 64. 
 
 {dd) Imp. K. B. 10 Ed. 415.
 
 680 
 
 OF THE WRIT OF INQUIRY. 
 
 tinued but once ;{e) and the notice of continuance should be served two days 
 previous to the time appointed for executing the inquiry :(e) but if notice 
 of a writ of inquiry, to be executed at a particular hour and place, be con- 
 tinued, the notice of continuance need not express any hour or place.(/) 
 The notice of countermand ought to be in writing •,[g) and may in this court 
 be given to the attorney in the country, as well as the agent in town :[h) 
 And it seems, that where eight days' notice is sufficient for executing an 
 inquiry, ttvo days' notice of countermand will serve ; but if fourteen days' 
 notice of inquiry be requisite, then there must be six days' notice of coun- 
 termand. (i) 
 
 In London and Middlesex, the writ must be left at the sheriflf's office, 
 the day before the time appointed for its execution :{k) and if either party 
 propose to attend by counsel, he should give notice thereof to his adver- 
 sary ;(Z) or he will not be allowed for it in costs. If such notice be not 
 given, the sheriff, if required, will postpone the execution of the inquiry, 
 till the other party has an opportunity of attending by counsel :{m) And, 
 in the King's Bench, it is in all cases in the discretion of the master, on 
 the taxation of costs, to allow or disallow the fee to counsel, as well as the 
 expense of preparing the brief, &c.(w) Previous to the execution of the 
 inquiry, witnesses may be subpoenaed on either side :{o) and the execution 
 of it may be adjourned by the sheriff, after it is entered upon.(j3) If the 
 plaintiff do not proceed to execute the inquiry according to notice, or coun- 
 termand in time, the defendant, on an affidavit of attendance and neces- 
 sary expenses, shall have his costs, to be taxed by the master or prothono- 
 taries.((/) The motion for this purpose is a motion of course, in the King's 
 Bench, requiring only counsel's signature : In the Common Pleas, the costs 
 are granted on a side-bar or treasury rule. 
 
 Letting judgment go by default is an admission of the cause of action : 
 and therefore, where the action is founded on a contract, the de- 
 
 *581 ] fendant *cannot give in evidence that it was fraudulent. (a) So, 
 in an action on a promissory note or bill of exchange, the note 
 or bill need not be proved, though it must be produced before the jury, in 
 order to see whether any money appears to have been paid upon it. (6) 
 So, where an action was brought on a policy of assurance on a foreign ship, 
 wherein there was a stipulation, that the policy should be deemed sufficient 
 proof of interest, the plaintiff, on the writ of inquiry, was only bound to 
 prove the defendant's subscription to the policy, without giving any evi- 
 dence of interest.(e) And suffering judgment by default, in an action for 
 
 (e) Barnes, 297. 2 Chit. Rep. 220. (/) 1 Bos. & Pul. 363. 
 
 Iff) R. M. 4 Ann. (c), K. B. Cas. Pr. C. P. 3. 
 
 (h) Cas. Pr. C. P. 48, 9 ; 120. Pr. Reg. 393. Barnes, 298, S. C. 
 
 (i) Imp. C. P. 1 Ed. 431. (k) R. H. 24 Geo. III. K. B. & C. P. 
 
 (I) Append. Chap. XXII. | 65. (»«) 5 Price, 641. 
 
 (n) Ullock V. Ilemsworth, T. 6 Geo. IV. K. B. 
 
 (o) For the process of subpoena on a writ of inquiry, and the subjioena ticket, see Append. 
 Chap. XXII. § 66, 7, 8. 
 
 (p) 2 Str. 853, 1259. 
 
 (?) 1 Str. 317. 2 Str. 728. R. H. 8 Geo. I. (a), K. B. R. T. 13 Geo. II. reg. 1 C. P. 
 Previous to which latter rule, it appears that costs were not allowed in the Common Pleas, 
 for not executing a writ of inquiry according to notice. Cas. Pr. C. P. 86. Pr. Reg. 448, 
 S. C. 
 
 {a\ 1 Str. 612. 
 
 (6) 2 Str. 1149. Barnes, 233, 4. 3 Wils. 155. 2 Blac. Rep. 748, S. C. Doug. 316. 
 Milieu V. Lyne, H. 25 Geo. III. K. B. 3 Durnf. & East, 301. 1 H. Blac. 543. Ry. & Mo. 41. 
 
 (c) Doug. 315.
 
 OF THE WRIT OF INQUIRY. 581 
 
 use and occupation, amounts to an admission that the defendant occupied 
 a house under the phiintiff, who need not show that it was his own house ; 
 and if the defendant iu.sist that he did not o('C'U|ty the particuhir house to 
 which the evidence has heen directed, hut some otiier, he must prove the 
 fact.((/) On the execution of a writ of in(iuiry, though it has not heen 
 usual, a sheriff's jury ought to give interest, in eases where the courts at 
 Westminster would allow it.(<') And although the jury, on the execution of 
 a writ of inquiry, cannot give interest in an action for work and lahour, 
 yet where they have deducted ten per cent, on the whole amount of the 
 plaintiff's demand, in conformity with an agreement hctween the parties, 
 that such deduction sliould be made for ready money, they may re-allow 
 the plaintiff" a proportional part of that deduction, on the balance found to 
 be due to him, and which had remained for a considerable time unpaid. (/) 
 If the defendant, in an action for words spoken of an attorney, let judg- 
 ment go by default, and, on the execution of the writ of inquiry, neither 
 plaintiff" nor defendant goes into evidence of any kind, the jury may give 
 such moderate damages as they think ought to be paid, for the speaking of 
 an attorney the words laid in the declaration. (i^r) 
 
 On the return day of the inquiry, the plaintiff", in the King's Bench, 
 should give a rule for judgment,(7t) with the clerk of the rules; which ex- 
 pires in four days :[i) and, on the expiration of such rule,(i) the sheriff", 
 being called upon for his return, will deliver it, with the in(iuisition,(/:) to 
 the plaintiff"8 attorney ; who taxes his costs thereon Avith the master. In 
 the Common Pleas, there is no rule for judgment given on the return of 
 the inquiry, but the plaintiff"'8 attorney waits four days after the return 
 day, inclusive of both days ; after which, the inquisition being previously 
 obtained from the sheriff", the prothonotaries will tax the costs thereon :(/) 
 And, in that court when final judgment is signed upon an inquisition on a 
 writ of inquiry, the inquisition must immediately be left with the 
 *clerk of the judgments, and shall not afterwards be taken out [ *582 ] 
 of the office, without leave of the court. (aa) 
 
 Pending the rule for judgment, or time allowed in the Common Pleas, 
 the defendant may move to set aside the inquisition, for want of due 
 notice -.{hh) or on account of an objection to the jury, or mode of returning 
 them, as that some of the jury were debtors taken out of prison for the 
 purpose of attcnding,(c) or that they were returned by the ])lainliff"'s 
 attorney ;(c?(i) or for excessive damages. (t'c) And where the damages are 
 obviously too small, (^) and there has been any contrivance by the defcnd- 
 2iHt,{ffg) or surprise on the plaintifi',(A/i) or the sheriff" or jury have been 
 
 (d) Doris V. J[oldMp, E. 54 Geo. III. K. B. 1 Chit. Rep. 644, 5, {a). 
 
 \c) 6 Taunt. 346. 
 
 (/•) 9 Price, l.'U. 
 
 (q) 1 Car. k P. 4T7, 8. 3 Barn, k Cres. 427. 5 Dowl. k Ryl. 276, S. C. 
 
 (h) Append. Chap. XXII. § 70. (0 1 Salk. 399. 
 
 (k) Append. Chap. XXII. \ 69, 86, 7. 
 
 \l) Imp. C. P. 7 Ed. 437. 
 
 [an] R. T. 13 Geo. II. reg. 2 C. P. 
 
 {hb) Sty. P. R. 421. Pr. Reg. 446, 7, 8. 
 
 (c) 4 Durnf. k East, 473 ; but see 2 Str. 1159. 
 
 \dd) Cowp. 112. For the qualification of jurors, on inquests, &c., and fining them for non- 
 attendance, see Stat. 6 Geo. IV. c. 50, § 52, 3. 
 
 {ee) 2 Leon. 214. 3 Leon. 177, S. C. 3 Bur. 1846. 3 Wils. 63; but see 11 East, 23. 1 
 Chit. Rep. 729. 5 Price, 641. 
 
 (/) 3 Barn, k Cres. 533. {gg) 2 Salk. 047. 
 
 \hh) 1 Str. 515. 2 Str. 1259.
 
 ^g2 OF THE WRIT OF INQUIRY. 
 
 mistaken in point of law,(z) but not otherwise, (A:) the plaintiff may, at any 
 time before final judgment signed,(?) move to set aside the inquisition. 
 But the court will not grant a rule for setting aside an inquisition, after 
 judgment by default, in an action for words, on the ground that the under- 
 slieriff directed the jury to consider the poverty of the defendant, in 
 mitigation of damages. (?»,) On motion to set aside an inquisition, taken 
 on a writ of inquiry before the under-sheriff, for excessive damages, the 
 court would not admit minutes of what passed before the under-sheriff to 
 be read, unless verified by affidavit ; and such motion cannot be supported, 
 on the affidavits of the parties themselves, unless corroborated by others. (w) 
 And where the defendant moved to set aside an inquisition for excessive 
 damages, the court of King's Bench imposed the terms of bringing part of 
 the damages into court, before they granted a rule to show cause. (o) 
 
 If two defendants in trespass suffer judgment by default, and the plaintiff 
 execute writs of inquiry, and take several damages against them separately, 
 it is irregular ; and if the plaintiff enter up final judgment for those several 
 damages against the defendants, it is erroneous. But the court of King's 
 Bench will permit the plaintiff to set aside his own proceedings, before final 
 judgment, on payment of costs. (jw) And if the plaintiff, on the execution 
 of the writ of inquiry, give no evidence on one or more of the counts in 
 his declaration, he may afterwards sue for the causes of action 
 [ *583 ] contained in those counts : Thus, where the plaintiff in a former 
 *action declared on a promissory note, and for goods sold, but 
 upon executing a writ of inquiry, after judgment by default, gave no 
 evidence on the count for goods sold, and took his damages for the amount 
 of his promissory note only, the court of King's Bench ruled, that the 
 judgment thereupon was no bar to his recovering, in a subsequent action, 
 for the goods sold.(a) 
 
 The want of a writ of inquiry is aided by the statute of jeofails. (5) And 
 where a WTit of inquiry had been many years executed, and costs taxed 
 upon it, but no final judgment entered up ; there being occasion to prove 
 the debt in Chancery, and the writ of inquiry being lost, a rule was made, 
 in the King's Bench, for a new writ of inquiry and inquisition, according 
 to the sheriff's notes, and that the master should indorse the costs, which 
 by the commitment book appeared to have been taxed. (cc) After an award 
 of a writ of inquiry of damages, if final judgment be given for a certain 
 sum, with the plaintiff's assent, it is no cause of error, although the record 
 contain no entry of an inquisition executed. (^) 
 
 (i) 2 Salk. 647. 1 Str. 425. 8 Mod. 196. 2 Str. 1259. 6 Durnf. & East. 608. 1 Chit. 
 Rep. 644, (a). 8 Dowl. & Ryl. 69. 
 
 (A-) 2 Leon. 214. 3 Leon." 177, S. C. Barnes, 230. Pr. Reg. 450, S. C. 2 Str. 940. 2 
 Barnard. K. B. 177, S. C. Dong. 509. 2 Durnf. & East, 261. 
 
 (/) M'Cidlock V. Willcocks, M. 37 Geo. III. K. B. 2 Wils. 379, C. P. 
 
 (w) 1 Chit. Rep. 644. And as to the evidence, in an action for seducing the plaintiff's 
 daughter, see 3 Campb. 519. 5 Price, 641. 
 
 (n) 10 Moore, 106. 
 
 (o) 1 Chit. Rep. 729 ; and see 2 Chit. Rep. 219. 
 
 (p) 6 Durnf. k East, 199. 
 
 {a) 6 Durnf. & East, 607 ; and see 1 Chit. Rep. 645, in notis. Per Cur. E. 55 Geo. III. 
 K. B. 
 
 (h) 2 Str. 878. 
 
 (cc) Id. 1077. 
 
 (d) 4 Taunt. 148.
 
 OF PROCEEDINGS ON THE STATUTE, ETC. 583 
 
 After final judf^ment, wo have 8een,((') a writ of iiKjuiry is in ^'cneral 
 unnecessary. But, by the statute 8 & 9 W. III. c. 11, § 8, it is enacted, 
 that " in all actions upon any bond or bonds, or on any ])cnal sum, for 
 non-performance of any covenants or a^iroements in any indenture, deed or 
 writing contained, if judgment shall be given for the plaintifl' on a demurrer, 
 or by confession or ui/n'l Jirit, the plaintiff upon the roll may HUi/t/t'st as 
 many breaches of the covenants and agreements as he shall think fit ; ujxui 
 which shall issue a writ to the sheriff of that county where the action shall 
 be brought, to summon a jury to appear before the justices or justice of 
 assi/.e or nt'ni jjrius of that county, to inquire of the truth of every one of 
 those breaches, and to assess the damages that the plaintifi' shall have sus- 
 tained thereby ; in which writ it shall be commanded to the said justices or 
 justice of assize or nisi prius, that he or they shall make return thereof to 
 the court from whence the same shall issue, at the time in such writ men- 
 tioned : And in case the defendant or defendants, after snch jud<pncnt(f) 
 entered, and before any execution executed, shall pay into the court where 
 the action shall be brought, to the use of the plaintiff or plaintiffs, or his or 
 their executors or administrators, such damages so to be assessed, by reason 
 of all or any of the breaches of such covenants, together with the costs of 
 suit, a stay of execution of the said judgment shall be entered upon record ; 
 or if, by reason of any execution executed, the plaintiff or plaintiffs, or his 
 or their executors or administrators, shall be fully paid or satis- 
 fied all *such damages so to be assessed, together with his or [ *584 ] 
 their costs of suit, and all reasonable charges and expenses for 
 executing the said execution, the body, lands or goods of the defendant 
 shall be thereupon forthwith discharged from the said execution, which 
 shall likewise be entered upon record : But notwithstanding, in each case, 
 such judgment shall remain, continue and be as a further security to answer 
 to the plaintiff or plaintiffs, and his or their executors or administrators, 
 such damages as shall or may be sustained, for further breach of any 
 covenant or covenants in the same indenture deed or writing contained." 
 
 This statute w^as made in favour of defendants ; and it is highly 
 remedial, being calculated to protect them against the payment of 
 more money than is justly due, and to take away the necessity of pro- 
 ceedings in equity, to obtain relief against an unconscientious demand of 
 the whole penalty, in cases where small damages only have accrued -.{a) 
 and accordingly, it has received a very liberal construction. Where cove- 
 nants and agreements are contained in the condition of a bond, they are 
 holden to be within the statute, as well as where they are in a different 
 instrument :(6) And though it was formerly doubted,(c) yet it is now settled, 
 that the statute is comjmhory on the plaintiff, to proceed in the method it 
 prescribes.(c?) A bond conditioned for the ])ayinentof an annuity, {>(•) or of 
 money by instalments, (^) is holden to be within the statute ; or a bond 
 
 (f) Ante, 573. 
 
 (/) The judgment here spoken of, by reference to a former part of the statute, seems to 
 be the common law judgment for the penalty. 
 
 ((/) 5 Duriif. k East, iVM. 
 
 {b) 2 Bur. 772. 2 Ken. 492, S. C. 2 Bur. 820. 2 Ken. 530, S. C. 2 Blac. Rep. 843. 
 Doug. .519. 
 
 Ic) Cora. Rep. 376. 
 
 \d) 2 Wils. 377. Sftv. Dam. 67, R. C. Cowp. 357. Daubcny v. Hogarth, E. 27 Geo. Ill, 
 K. B. Per Cur. H. 41 Geo. III. K. B. 13 East, 3, {a). 
 
 {ee) 2 Bur. 820. 2 Ken. 530, S. C. 5 Durnf. & East, 538, 636. 8 Duruf k East. 126. 
 
 (/) 6 East, 550. 2 Smith R. 663, S. C.
 
 534 OF PROCEEDINGS ON THE STATUTE, ETC. 
 
 conditioned to perform an award. (</) And where a bond, upon the face of 
 it, appeared to be conditioned for the payment of a sum certain, but by an 
 indenture of the same date, declaring the purposes for Avhich the bond was 
 executed, it was agreed that it should be lawful for the obligees to com- 
 mence an action upon the bond, and to proceed to judgment, whenever 
 they should think fit ; and upon judgment being obtained to issue execu- 
 tion, and that the judgment should be a security for the payment to the 
 obligees, on demand, of all sums of money which then were, or might 
 thereafter become due to them ; and judgment having been entered up by 
 virtue of this deed, the obligees issued execution, without assigning breaches 
 or executing a writ of inquiry ; the court held, that this was a bond sub- 
 stantially conditioned for the performance of an agreement, within the 
 statute 8 & 9 W. III. c. 11, § 8, and that the obligees ought to have 
 assigned breaches thereon. (A) But the provisions of the statute do not 
 extend to post obit bonds,(z) or other bonds conditioned for the payment 
 of money, ik) which are provided for by the statute 4 Ann. c. 16, 
 [ *585 ] § 13 ; nor to bail,[l) or replevin[m) bonds ; *nor, as it seems, to 
 bonds given to the Lord Chancellor, by the petitioning creditor 
 for a commission of bankrupt, under the statute 6 Geo. IV. c. 16, § 13 -.{a) 
 And where judgment is entered upon a warrant of attorney, it is not 
 within the statute. (6) It is not necessary for the crown to assign breaches, 
 under the above statute ; and if any one breach be proved, the crown is 
 entitled to judgment.(c) 
 
 In cases where the statute applies, judgment is signed for the penalty as 
 at common law •,{dd) but it can only stand as a security for the damages 
 sustained : and, after signing judgment, the plaintiff must proceed on the 
 statute, by suggesting breaches on the roll •,{ee) of which a copy should be 
 given to the defendant, (^) with notice of inquiry for the sittings or 
 assizes.(^(7) A writ of inquiry (A A) is then sued out, and delivered to the 
 sheriff; who summons the jury, and returns the jury process, with a panel 
 of the names of the jurors, and the writ being executed, is returned to the 
 court, with the finding of the jury,(2Y) and execution awarded for the 
 damages and costs : But no second judgment is given by the court, on the 
 return of the inquiry. (A; A;) On the execution of a writ of inquiry on this 
 statute, after judgment on demurrer, the execution of an instrument which 
 the defendant had stated, in setting out the condition of the bond in his 
 plea, need not be proved :[ll) But, in debt on bond conditioned for the 
 performance of covenants, if the condition be not set out in the pleadings, 
 
 (g) G East, 613. 2 Smith R. 666, S. C. 
 (A) 5 Barn. & Ores. 650. 8 Dowl. & Ryl. 424, S. C. 
 
 [i) 2 Campb. 285, n. 2 Barn. & Cres. 82, 89, &c. 3 Dowl. & Ryl. 278, 281, &c. S. C. 
 {k) 2 Moore, 220. 
 
 (I) Selby and others, assignees, ^c. v. Serres, E. 41 Geo. III. K. B. 2 Bos. & Pul. 446, 
 C. P. 
 
 (m) Manle & Sel. 155. 
 
 (a) 7 Durnf. & East, 300. 3 East, 22. 
 
 (b) 2 Taunt. 195. 3 Taunt. 74. 5 Taunt. 264; and see 16 East, 164. 
 
 (c) 1 Younge & J. 171. 
 
 (dd) 2 Bur. 825. 2 Ken. 532, 3, S. C. Cowp. 357. 
 
 fee) Append. Chap. XXII. § 75, 6, 7, 8, 9. 
 
 iff) M'Clel. 568. 
 
 (gg) Append. Chap. XXII. g 85. (hh) Id. ^ 80, 81, 2, 3, 4. 
 
 (») Id. I 86, 7. 
 
 {kk) 3 Bos. & Pul. 607. 3 Dow. 1 ; and see 1 Man. & Ryl. 496, (a). 
 
 [U) 1 Esp. Rep. 157; and see 1 Bos. & Pul. 368.
 
 OF OYER, AND COPY OF DEEDS, ETC. 685 
 
 the plaintiff, on executing a writ of inquiry under the statute 8 & 9 W. 
 III. c. 11, must prove that the bond mentioned in the suggestion, and 
 produced to the jury, is that on which the action was brought. (w) 
 
 *C II AFTER XX II I. [♦586] 
 
 Of Oyer, and Copy 0/ Deeds, S^c. ; Inspection, awcT Copies 0/ Written 
 Instruments, Books, Court Rolls, S^c; ancZ Particulars of De- 
 mand, or Set off. 
 
 Hitherto we have supposed the action to be rightly brought, and con- 
 sidered what is to be done, when the defendant has no merits. We have 
 seen, that in such case he should compromise or compound the action, 
 confess it, or let judgment go by default. But when the defendant has 
 merits, he should prepare for his defence ; and for that purpose may, if 
 circumstances render it necessary, crave oyer and copy of deeds, &c., claim 
 inspection and copies of written instruments, books, court rolls, &c., or call 
 for imrticulars of the plaintiff's demand ; or he may move the court to 
 change the venue, consolidate actions unnecessarily divided, or strike out 
 superfluous counts ; or he may bring money into court. 
 
 Oyer of deeds, &c., is demandable by the defendant, or by the plaintiff. 
 If the plaintiff, in his declaration, necessarily make a profert in curid of 
 any deed, writing, letters of administration, or the like, the defendant may 
 pray oyer of the deed, &c. ;{a) and must have a copy thereof delivered to 
 him, if demanded, paying for the same after the rate of four-pence per 
 sheet :[h) And a defendant, who prays oyer of a deed, is entitled to a copy 
 of the attestation, and names of the witnesses, as well as of every other 
 part of the deed.(c) So likewise, if the defendant in his plea make a 
 necessary profert in curid of any deed, &c., the plaintiff may pray oyer -.{d) 
 and shall have a copy, at the like rate :{e) And the party, of whom oyer 
 is demanded, is bound to carry the deed, &c., to the adverse party-(.f") In 
 an action on a bond, in which ai'ticles are referred to, oyer of the bond 
 may be demanded, but not of the articles ;(</) though time to plead may 
 be obtained, till the plaintiff give a copy of them, on an aflidavit that 
 defendant has no copy.(_9') 
 
 Formerly, all demands of oyer were made in court, where the deed is by 
 intendment of law, when it is pleaded with a profert in curid ;{Ji) And 
 therefore, when oyer is craved, it is supposed to be of the court, 
 and *not of the party; and the words ei legitur in hccc verba, &c., [ *587 ] 
 are the act of the court.(aa) In practice, however, oyer is now usu- 
 
 (m) 2 Carapb. 121. And for a full account of the proceedings under this statute, see 1 
 Wms. Saund. 5 Ed. 58, in notis. 
 (a) Append. Chap. XXIII. g 1. 
 \b) 2 Salk. 407, U. T. 5 &>, Geo. II. (6), K. B. 
 
 \c) Willes, 288. Barnes, 3G3, S. C. («f) Append. Chap. XXIII. J 2. 
 
 («) R. T. 5 & 6 Geo. II. (6), K. B. 6 Mod. 122. 
 (/) 2 Durnf. & East, 40. 
 
 {g) Per Cur. H. 21 Geo. III. K. B. ; and see 1 Wms. Saund. 5 Ed. 9. 
 ih\ 12 Mod. 598. 3 Salk. ll!t. 
 \aa) 12 Mod. 598. 3 Salk. 119. 1 Sid. 308; but sec 2 Lutw. 1644, contra.
 
 ggY OF OYER, AND COPY OF DEEDS, ETC. 
 
 ally demanded, and granted by the attorneys :(6)[a] And where the defend- 
 ant is entitled to have oyer of a deed, it cannot be dispensed with by the court ; 
 
 (/;) G Mod. 28. 
 
 [a] The proper mode of obtaining oyer is by prayer entered on record, to which the 
 opposite party may counterplead, and thereby have decision of the court whether oyer is 
 to be givcu or not ; Pendleton v. Bank of Kentucky, 1 Monr. 171. Oyer must be craved and 
 had, to put a record before the court, but oyer of the officer's return to the process is unne-!- 
 cessary ; Commonwealth v. Roby, 12 Pick. 496. Guild v. Richardson, 6 lb. 364. Slayton v. 
 Chester, 4 Mass. 4T8. So where oyer is craved of the note declared on, and it is spread upon 
 the record, but oyer is not craved of the indorsements, the indorsements make no part of 
 the record, notwithstanding the clerk may have copied the same into another part of the 
 record ; Siiggle v. Adams, 3 A. K. Marsh, 429. WLean v. Oustott, 3 Pike, 478. But a de- 
 fendant who craves oyer of a deed is entitled to a copy of the attestation, and to the names 
 of the witnesses ; Smith v. Alworth, 18 Johns. 445. If he is entitled to oyer, he cannot be 
 compelled to plead without it. But if he elects to answer, it is a waiver of the objection 
 that the names of the witnesses were not given in the oyer, and cannot be a ground of de- 
 murrer to the declaration ; lb. 
 
 In an action on a probate bond, the court will not grant oyer of the original bond, but 
 order a copy to be furnished the defendants ; Thatcher v. Lyman, 5 Mass. 260. Judge of 
 Probate v. 3Ierrill, 6 N. Hamp. 256. Oyer is not demandable of a record, unless it be a 
 deed enrolled, letters of administration, &c. ; the recital of a record must be taken advan- 
 tage of by plea of nul tiel record; but, if a record be correctly set out in a scire facias 
 issued upon it, and does not show the liability of one of a plurality of defendants, perhaps 
 a several demurrer at his instance should be sustained ; Hall v. State, 9 Ala. 827. The 
 profert of letters of administration places them in the hands of the court of whom oyer is 
 craved, and not of the party ; and, being in possession, the court must be assured, by an 
 inspection of the letters, of the right of the party to sue, and of the jurisdiction of the court 
 granting them ; Brown v. Jones, 10 Gill & Johns. 334. Where there is no oyer craved of a 
 writing mentioned in a plea, such writing does not constitute a part of the record ; and it 
 will be taken to be such a writing as it is described in the plea to be ; Wriston v. Lacey, 7 
 J. J. Marsh. 219. Or, where a record is the ground of action, the declaration must refer to 
 it, with a. prout patet per recordum. Aliter, if it be merely inducement ; Jarman v. Windsor, 
 2 Harring. 162. Neither is it necessary to crave oyer of the capias ad respondendum ; it is a 
 part of the record without it; Pendleton v. Bank of Kentucky, 1 Monr. 171. Nor of the writ, 
 it being part of the record, either party may procure a copy ; profert of it, therefore, is not 
 necessary ; and it is no more necessary for the other party to crave oyer, in order to obtain 
 a copy ; Renner v. Reed, 3 Pike, 339. And oyer of the writ (if in any case demandable,) 
 cannot be craved after the day on which the cause is first set for trial ; Layman v. Way- 
 nick, 6 Blackf. 189. Craving and obtaining oyer of a bond makes it a part of the declara- 
 tion ; so that on a demurrer the court will give judgment against a plaintiff in whose 
 bond thus produced there is a defect ; Comrnissioncrs v. Gaines, Const. Rep. 459. It is not 
 necessary to make profert of writings not under seal ; Mason v. Buckmaster, Breese, 9. All 
 sealed instruments in the power of the party pleading must be pleaded with a profert ; 
 Bender v. Sampson, 11 Mass. 42. Powers v. Ware, 2 Pick. 451 ; although a plaintiff is not 
 bound to make profert of a deed to the custody of which he has no legal right ; Birney v. 
 Haim, 2 Litt. 262. In an action of debt upon a bond, where the original is filed with the 
 clerk of the court there to remain and become a public record, as in the case of a trustee's 
 bond given in pursuance of a decree of a court of equity, the plaintiff is not required to 
 make a profert of it, not being, in legal contemplation, in the possession of the original ; 
 Butler V. State, 5 Gill & Johns. 511. Want of profert of the deed declared on is ground for 
 general demurrer; MetcalfY. Standeford, 1 Bibb, 618. But see Anderson v. Barry, 2 J. J, 
 Marsh, 265. Briggs v. Greenlee, Minor, 123. The covenant of which profert is made is not 
 part of the record, without oyer ; Gist v. Steele, 1 Bibb, 571. Writing proffered is not part 
 of the record unless oyer is taken ; Adams v. Lacy, lb. 328. A party is not entitled to oyer 
 where there has been no profert ; but, if it has been asked and given, he may make use of 
 it ; Story v. Kimball, 6 Verm. 541. Oyer of a bond does not include oyer of its condition ; 
 nor e coiwerso. If oyer is wanted, it should be prayed of each ; but the plaintiff may have 
 the whole bond enrolled ; United States v. Sayer, 1 Gallis. 86. In an action on a judgment, 
 profert of the record is unnecessary ; the prout patel per recordum is sufficient, even on 
 special demurrer ; Capp v. Gilman, 2 Blackf. 45. If profert is made of the writing declared 
 on, and oyer is not craved, the writing must be taken as set forth in the declaration ; Pol- 
 l-ard V. Yoder, 2 A. K. Marsh. 264. But oyer cannot regularly be craved of a deed, where pro- 
 fert is not made Of the same in the previous pleading ; Bettle v. Wilson, 14 Ohio, 257. 
 Where profert is necessary, the omission must be taken advantage of before verdict ; 
 Francis v. Uazlerig, 1 A. K. Marsh. 93. If oyer be not taken of a writing declared on, it
 
 OF OYER, AND COPY OF DEEDS, ETC. 587 
 
 nor can he be compelled to plead without it,(e) even though the deed be lost. 
 Oyer cannot be granted of a deed operating under tlie statute of uses :(tZ) 
 And where a tenant in a writ of entry j)leaded such deed, without a jjro- 
 fert^ and oyer was required to be granted by a judge's order on a given 
 day ; the court directed such order to be rescinded ; and the demandant 
 having signed judgment for want of oyer, it was also set aside, the order 
 being nifrely in thu nature of an interlocutory pr<ice<'<liiig.((/) When the 
 deed is in the hands of a third person, the court will oblige him to give 
 oyer and produce it.(c) 
 
 When a deed is shown in court, it remains there, in contemplation of law, 
 all the term in which it is shown ; for all the term is considered in law but 
 as one day : and at the end of the term, if the deed be not denied, the 
 law doth adjudge it to be in custody of the party to whom it belongs ; but 
 if it be denied, then it shall remain in court till the plea is determined : and 
 if it eventually turn out not to be a good deed, it shall be destroyed.!/) 
 But letters testamentary, or of administration, are not supposed to remain 
 
 (c) 2 Lil. P. R. tit. Oi/er, 2m. 1 Keb. 275. G Mod. 28. 2 Str. 1186. 1 Wils. IG. S. C. 
 Tottxf V. Nesbitt, T. 24 Geo. III. K. B., and Mattiaon v. Atkinson, E. 27 Geo. III. K. B., cited ia 
 3 Durnf. k East, 153,(«). R. M. 1G54, I 15. C. P. Pr. Reg. 277. 
 
 (t/) 9 Moore, 503. (c) 2 Str. 1198. Ante, Am. 
 
 If) Co. Litt. 2:^1, b. 5 Co. 74, b. 2 Lutw. 1G44. 
 
 forms no part of the record, though eertitied in the transcript; Palmer v. M-Ginnis, Hardin, 
 505. And oyer of a deed set forth in the first count does not make tiiat deed part of the 
 record, so as to apply it to other counts in the declaration ; Hughes v. Moore, 7 Cranch, 17t). 
 And where profcrt is made in the declaration, tlie actual production of the paper is indis- 
 pensable ; Moore v. Fentfick, Gilman, 214. A iirofcrt is necessary in ))leading a deed which 
 is necessary ez in.itilulione Icyis, and the omission of a profert in such case is fatal on special 
 demurrer ; Brown v. Copp, f) X. llamp. 2'.','i. Profcrt of a si)ccialty is not necessary 
 where it has been pleaded and remains in another court, or in tlie same court in anollicr 
 action, and where such former profcrt has been averred : Moore v. Paul, 2 Bibb, 330. 
 The plaintiff declared upon a constable's bond and made profert of the original ; on oyer 
 craved he produced a copy, and the defendant demurred tor a variance. Held, tiiat the 
 demurrer was sustuimible. The fact that, during the argument of the demurrer the original 
 was brought into court, would make no difference ; Jo7iex v. Sitmnons, 4 Humph. 314. Want 
 of profert cannot be taken advantage of after judgment by default, but only by demurrer ; 
 Tucker V. Real Estate Bunk, 4 Pike, 429. A party who has obtained oyer of specialty 
 may waive the benefit of it if lie please ; l)ut, if he professedly set it out upon tlu- 
 record, he is bound to recite it truly and entire. If he do not, the court will, on motion, 
 reject such pleadings, and give judgment tor w'ant of a plea, unless leave is obtained to 
 proceed more correctly; Kudixill v. Sill, 4 Blackf. 282. If a party partially states a deed, 
 the defendant may crave oyer of the deed and demur; Ilohson v. MArt/iur, 3 M'Lean, 241. 
 Where a party is bound to give oyer of a deed, he must produce cojnes of all indorse- 
 ments and memoranda upon it, and all pai)ers annexed to it ; Van Rensselaer v. Boucher, 24 
 Wend. 31G. But a stranger is not l)oun(l to give oyer; nor tho?ie wiio become privies by 
 the acts of others, or operation of law ; lb. Tlie time to ti\kc advantage of an insuHicient 
 comi)liance with t!ie demand for oyer is at tiic trial, and not by motion to produce the 
 papers tiiat arc wanted; Brooks v. Brooks, 1 llalst. 404. And a j)arty can demand oyer 
 of a bond only once in the same suit ; Taijlor v. Bank of Kentuckt/, 2 J. J. Marsh. .^G4. 
 Oyer need not to be given of an instrument that is lost ; Paddock v. Jliggins, 2 Root, 482. 
 Respiihlira v. Coates, 1 Yeates, 2. But see Metcal/v. Slandeford, 1 Bibb, 018. Nor need it 
 be given on an instrument alleged in the declaration to be lost; I'adduck v. Iliggins, 2 Root, 
 31G. Kelley v. Riggs, lb. 12G. But it is no excuse upon oyer to say tliat the writing is lost, 
 unless the plea contains also a good excuse for not having it; Branch v. Riln/, 1 lb. 541. 
 In Kentucky, tlie defendant lias a right to oyer of any writing declared on; Anderson v. 
 Burr;/, 2 J. J. Marsh. 'It'i^i. I'nder the statute, in Illinois, it is necessary for the party to 
 have oyer of writings not under seal, on which suit 'S brought, as he is bound to deny 
 their execution under oath ; Ma.ton v. Buckmaster, Breese, 9. And although oyer at common 
 law is only demandable of specialties, the statute of this state has extended the rule, and it 
 there applies to any writings, (tiles v. Shaw, Breese, 1G9. It has also been there held, that, 
 in order to make a note a part of the record, so as to enable the court to notice it for any 
 purpose, tlie defendant should crave oyer; Sims v. Ilugsby, Breese, Ap. 27.
 
 ratj OF OYER, AND COPY OF DEEDS, ETC. 
 
 in court all the term ; for the party may have occasion to produce them 
 elsewhere.(//) Hence it is, that oyer of a deed cannot in strictness be de- 
 manded, but during the same term it is pleaded :(/t) And as a general 
 imparlance is always to a subsequent term, it follows that oyer of a deed 
 cannot be demanded after such imparlance. (^) A different doctrine is in- 
 deed laid down in one case, (A:) which must be understood of a special im- 
 parlance,''^to another day in the same term. 
 
 Though oyer is not in strictness demandable of a record,{l) yet if a judg- 
 ment or other matter of record in the same court be pleaded, the party 
 pleading it must give a note in writing of the term and number roll, whereon 
 such judgment or matter of record is entered and filed ; or in default 
 thereof, the plea is not to be received :{m) And probably on this account, 
 the party was not anciently permitted to plead nul tiel record of a judg- 
 ment or matter of record in the same court.(w) But where a judgment 
 
 or matter of record is pleaded in a different court, the party, not 
 [ *588 ] being *entitled to an account of the term and number roll, must 
 
 plead nul tiel record. And it seems, that oyer is not demandable 
 of an act of parliament, (a) 
 
 The defendant was formerly allowed oyer of the original writ, in order 
 to demur or plead in abatement, for any apparent insufficiency or vari- 
 ance. (6 J) But this indulgence having been abused, and made an instru- 
 ment of delay, a rule was made, that a defendant be not allowed oyer of 
 an original writ ; and that if he demand it, the plaintiff may proceed as if 
 no demand had been made.(c) 
 
 The demand of oyer is a kind of plea ',{d) and should regularly be made 
 by a note in writing,(e) before the time for pleading is expired.(/) If it 
 be not made till after that time, the plaintiff may consider the demand as 
 a nullity, and sign judgment. But though oyer be not in strictness demand- 
 able, yet if it be given, the party demanding has a right to make use of 
 \t.{gg) If the defendant would insist upon his demand of oyer, he should 
 move the court to have it entered upon record :{Ji]i) If the plaintiff, on the 
 other hand, would contest the oyer, he may either counterplead it, or strike 
 out the rest of the pleading and demur ;(m) upon which the judgment of the 
 court is, either that the defendant have oyer, or that he answer without 
 
 (g) 2 Salk. 497. 12 Mod. 598, S. C. 
 
 (h) 5 Co. 74, b. 2 Lutw. 1644. 1 Durnf. & East, 149. Steph. PI. 88. 
 
 {i) 1 Keb. 32. 2 Lev. 142. Freem. 400. 3 Keb. 480, 491, S. C. 6 Mod. 28 ; but see 2 
 Ld. Raym. 970. Ante, 462, 3. 
 
 Ik) 12 Mod. 99 ; and see 2 Show. 310. 
 
 {I) 1 Ld. Raym. 252, 347, (4 Ed. note a.) Doug. 476, 7. 1 Durnf. & East, 149, 50 ; but 
 see 1 Ld. Raym. 84. 
 
 (m) Keilw. 96, Garth. 454. 1 Ld. Raym. 347, Garth. 517. 1 Ld. Raym. 550. 2 Str. 823. 
 R. T. 5 & 6 Geo. 11.(6). K. B. 
 
 (n) 5 Hen. VIL 24, jocr ^rwra. 3 Keb. 76. (a) Doug. 476. Godb. 186, contra. 
 
 (bb) Gilb. G. P. 52. 12 Mod. 35, 189. 2 Lutw. 1644. 6 Mod. 27. 2 Salk. 498. 2 Ld. 
 Raym. 970. R. T. 5 & 6 Geo. IL (6), K. B. 1 Wils. 97. 6 Durnf. & East, 363. Co. Eut. 
 320. 5 Taunt. 653, (a). 
 
 (c) R. T. 19 Geo. IIL K. B. Doug. 227, 8. 6 Durnf. & East, 363. Barnes, 340 ; and 
 see Bro. Abr. tit. Oyer, pi. 19. 
 
 (d) 3 Salk. 119. {e) N. M. 1 Geo. IL C. P. 
 
 (/) Fowler ^ Dyer, M. 20 Geo. IIL K. B. 1 Durnf. & East, 150. Barnes, 268, 326, 7. 
 2 Bos. & PuL 379 ; but see Cas. Pr. C. P. 72, 3, 96. Pr. Reg. 278, 299, S. C. Barnes, 329. 
 2 Wils. 413 ; by which it appears, that formerly oyer must have been demanded, in the 
 Common Pleas, before the expiration of the rule to plead : and vide ante, 469. 
 
 (gg) Doug. 476, 7 ; and see 1 Wms. Saund. 5 Ed. 317, (2). {hh) 6 Mod. 28. 
 
 (u'j 2 Lev. 142. 2 Salk. 497 ; and see 2 Ld. Raym. 970. 1 Wms. Saund. 5 Ed. 9, c.
 
 OF OYEE, AND COPY OF DEEDS, ETC. 5g3 
 
 it :{k) On the latter judgment, the defendant may bring a writ of error ; 
 for to deny oyer where it ought to be granted is error, but not <? co7i- 
 t;er«o.(Z)[A] 
 
 There is no settloil time prescribed for tlie phiintiff to give oyer \[ni) but 
 the defendant shall in all cases have the same time to plead, or as many 
 pleading days after oyer given, as he had at the time of demanding it:(7j) 
 The time allowed for the defendant to give oyer of a deed, &c. to the 
 plaiiitilf, is two days exclusive after it is domande<l :{o) and if it be not given 
 in that time, the plaintiffmay sign Judgment, as for want of a plca.f^/) If 
 given, the plaintift' shall have the same time to reply, after oyer given him 
 by the defendant, as he had at the time of demanding it.(^) 
 
 *The defendant having demanded oyer of a deed, ought to in- [ *589 ] 
 sert it at the head of his plea; and if he do not, the plaintiff, in 
 the Common Pleas, may insert it there for him, in making up the issue -.{a) 
 but it is otherwise in the King's Bench, where the defendant may either 
 set forth the oyer in his plea or not, at his election. (6) If a plaintiff state 
 the legal effect of a deed, the defendant has a right to see it on oyer ; and 
 if the meaning vary from that attributed to it in the declaration, he should, 
 in order to take advantage of the variance, plead non est factum, without 
 setting out the deed : If it do not support the breach, he should set it out 
 and demur :(c6') and if he set it out, the court must adjudge upon it, as 
 parcel of the record ; though it was not strictly demandable at the time of 
 granting it.{d) If the defendant, however, set out the deed on oyer, and 
 plead non est factum, the only question at the trial of that issue is, whether 
 the deed whereof the tenor is set out, was executed by the defendant or 
 not.(e) But the defendant, in the King's Bench, is not bound to set forth 
 the oyer in his plea ;(/) and if he do not, the plaintiff, if he would avail 
 himself of the deed, must pray it to be inrollcd at the head of his re])lica- 
 tion.(^g) If the defendant, after craving oyer of a deed, do not set forth 
 the whole of it, the plaintiff, we have 8een,(A) may sign judgment as for 
 want of a plea ; but he cannot demur for that cause :{{) or if the defendant, 
 in his plea, set out the deed untruly, the plaintiff by his replication may 
 pray that it be inrollcd, and so procure it to be truly set forth :{kk) And 
 if there be any variance, however trifling, between the deed and the oyer, 
 it is fatal at the trial, on the plea of won. est factum. [11)1^] 
 
 (k) 2 Lev. 142. 
 
 (Z) 2 Salk. 497. 6 Mod. 28. 2 Ld. Ravm. 970, S. C. 2 Str. 118G. 1 Wils. 10, S. C. 1 
 Wms. Saund. 5 Ed. 9, c. 2 Wms. Saund.'s Ed. 46, b. (7). 
 
 (m) It seems from the rule of Mich. 1654, ^ 15, C. P., that it ought to be given, in the 
 Common Pleas, before the end of the next term after it is demanded. 
 
 (n) 1 Str. 705, R. T. 5 & 6 Geo. II. (6). K. B. 8 Durnf. & East, 356, 7. Cas. P. R. C. P. 
 72, 81, 2 ; 143. Pr. Reg. 28, 300, 301. Barnes, 238, 254, S. C. Ante, 468. 
 
 (o) Garth. 455. 2 Durnf. & East, 40. 
 
 (p) 6 Mod. 122. Cas. Pr. C. P. 95. Pr. Reg. 301. Barnes, 245, S. C. 
 
 (q) R. T. 5 & 6 Geo. II. (b), K. B. And see further as to ot/tr, and such points in parti- 
 cular respecting it as relate to pleading, 1 Chit. PI. 4 Ed. 369, Ac. Steph. Pi. 86, &c. 
 
 (a) Barnes, 327. (b) 2 Str. 1241. 1 Wils. 97 ; and see Steph. J'l. 88, 9. 
 
 (cr) 4 Barn. & Cres. 749, 50. 7 Dowl. & Rvl. 257, R. C. per Bayley, J. 
 
 (d) 3Salk. 119. Carth. 613. 6 Mod. 27. 'Doug. 476. 
 
 ((!) 4 Barn. & Cres. 741 ; and see 11 East, 633. 5 Taunt. 707. 
 
 (/) 2 Str. 1241. 1 Wils. 97; but see Barnes, 327, C. P. contra. 
 
 f. .7) 2 Str. 1241. 1 Wils. 97. {h) Ante, b^\5. (t) 2 Salk. 602. 
 
 {kk) Com. Dig. tit. Pleader, P. 1. (//) 1 Marsh, 214. 
 
 [A] 
 
 See accord. State v. Ilicks, 2 Black. 33 6. 
 See Troub. k Haly's Pract. p. 362, 3d ed.
 
 ^gg OF INSPECTION, AND COPIES 
 
 In the King's Bench, when the plaintiff is entitled to the inspection of a 
 lease, &c., in the possession of the defendant, but of which oyer cannot be 
 domiuuled, the court will grant a rule for the latter to produce it, and give 
 a copy thereof to the plaintiff, in order that he may declare thereon. (m) 
 And where the plaintiff, in an action on a deed, has had the same taken 
 from him under a warrant against him for felony, the court, on an affidavit 
 of demand upon and refusal by the magistrate and constable, will direct 
 them to give the plaintiff a copy to declare on, and to produce the deed on 
 the trial, the plaintiff undertaking to pay the expenses.(w) But the court 
 
 will confine their order for inspection of a deed, to the particular 
 [ *590 ] parts of it which are necessary to support the action. (o) And 
 
 they will *not compel a party to allow the inspection of his title 
 deeds, and give a copy thereof, to a person who supposes that such deeds 
 contain a reservation in his favour of manorial rights, unless it appear that 
 the party holds the deeds as trustee for the applicant, (a) In the Common 
 Pleas, if one part only of an indenture be executed, the court will compel 
 the party having the custody of it to produce it for inspection, upon an 
 action commenced against him by the other party ; unless he can show some 
 sufficient reason to the contrary :(J) And it is not a sufficient reason, that 
 the plaintiff seeks for inspection, for the purpose of discovering some defect 
 in the deed.((7) So, where the plaintiff made an affidavit, that he sued the 
 defendant, to recover damages for breach of an agreement in not entering 
 into partnership, pursuant to a partnership deed drawn up and executed by 
 the plaintiff, but remaining in the custody of the defendant or his attorney, 
 and that the plaintiff possessed neither a copy nor counterpart of the deed, 
 the court granted a rule, enabling the plaintiff to inspect and take a copy 
 of the deed, although the defendant swore that he had not executed the 
 same.(c?c?) But where two parts of an indenture were executed by both 
 parties, each keeping one, and one part was lost, the court of Common 
 Pleas would not compel the other party to produce his part, in order to 
 support an action against him on the instrument \{e) So, upon an affidavit 
 that no copy or counterpart of a lease, on which the plaintiff had sued, 
 was in his possession or power, and that the attorney who drew the lease 
 and counterpart had absconded ; the court refuse to order the defendant, 
 who was in possession of the lease, to permit a copy of it to be taken. (/) 
 And inspection was refused in that court, to the plaintiff in replevin, of a 
 deed to which he was no party, assigning to the avowant the reversion of 
 the demised premises.(^) In the King's Bench, we have seen,(7i) the plain- 
 tiff may have a rule nisi, for the defendant to produce a deed before the 
 commissioners of the stamp office, to be stamped ; or to the plaintiff's attor- 
 ney, in order that he may ascertain the names of the witnesses, so as to 
 subpoena them. And a rule for the production of a deed to be stamped, 
 has been granted by the court of Common Pleas :(i) though, in a former 
 
 (m) Ante, 487. 
 
 (n) 2 Chit. Rep. 229. (o) Id. 231. 
 
 (a) 1 Barn. & Ores. 262. 2 Dowl. & Ryl. 386, S. C. 
 
 (6) 1 Taunt. 386 ; and see 1 Moore, 465. 8 Taunt. 131. 2 Moore, 513, (a), S. 0. 
 (r) 4 Taunt. 636. 
 
 {dd) 1 Bred. & Bing. 318. 3 Moore, 671, S. C. ; and see 7 Barn. & Cres. 204. 
 {f) 6 Taunt. 302. 1 Marsh. 610, S. C. : and see 2 Younge & J. 4, accord, 
 if) 4 Bing. 152. 
 
 (g) 6 Taunt. 283; and see 1 Chit. Rep. 476. 9 Moore, 778. 3 Bing. 148. 1 Moore & P. 
 396. 4 Bing. 537, S. C. Id. 539, (a). Post, 592. 
 
 (h) Ante, 481. (i) 4 Taunt. 157; and see 5 Moore, 71.
 
 OF WRITTEN INSTRUMENTS. 590 
 
 case, that court refused to make a rule on the plaintiff, in an action on a 
 bond, to allow an officer of the stamp duties to inspect the bond, because 
 the defendant suspected it to be fur«:c(l.(^) 
 
 If the action be founded on a written instrument, not under seal, the 
 defendant is not entitled to deniiind oyer ; but the distinction formerly taken 
 was, that where the plaintiff declared upon a writing, the courts, on aflidavit 
 that he had no part, would let him have a copy ; but where the 
 declaration was on an agreement generally, and the writing but [ *51*1 ] 
 *evidcnce, they would not grant it :((/) and accordingly, wiiere an 
 action was brought upon a special agreement contained in a note, and a ndo 
 made to show cause why the plaintiff should not give the defendant a copy ; 
 upon cause shown, the rule was discharged, because the contract upon wliich 
 the action was founded was a parol contract, of which the note was only 
 evidence, and therefore the defendant ought not to have a copy.(/») Jn 
 actions upon policies of assurance, the plaintiff, his attorney or agent, by the 
 statute 1!> Geo. II, c. 87, § G, "shall, witliin/(/Vr'('?i days after being required 
 80 to do in writing by the defendant, his attorney or agent, declare in 
 writing what sums he hath assured, or cause to be assured, in the whole, 
 and what sums he hath borrowed at respondentia or bottomree for the 
 voyage, or any part of it:" And, in actions of this nature, a judge at 
 chambers will make an order for the assured to produce to the underwriters, 
 upon affidavit, all papers in possession of the former, relative to the matters 
 in issue. (<•) But under a judge's order to produce papers, and give copies 
 of letters, &c. it is sufficient to give extracts of those parts of them wliich 
 are relevant to the subject. (t?) By the statute 53 Geo. III. c. 141, § 5, 
 " the grantor of an annuity is entitled to a copy of every deed, &c. whereby 
 it was granted ; and if not delivered within twenty one days after notice, a 
 summons may be taken out from a judge of the King's Bench or Common 
 Pleas, and an order obtained thereon, for the production of such deed, &c. 
 and for suffering the complainant to take copies thereof, and examine the 
 same." In other cases, the general rule is, that a plaintiff shall not be 
 obliged to furnish evidence against himself.(g) And the court of King's 
 Bench would not compel the plaintiff to deliver to the defciulant a cojiy of 
 an agreement, in order to enable the latter to plead in abatement, that the 
 agreement was signed jointly by himself and others. (/) But wliere the 
 action is founded on a written instrument, as a bill of exchange or promis- 
 sory note,(^) special agreement, or undertaking in writing to pay the debt 
 of a third person, (A) &c. if a special ground be laid, as that the demand is 
 of long standing, and the defendant has no copy of the instrument, or that 
 there is reason to suspect its being forged, &c. the court on motion, or a 
 judge on sunmions, will make an order for the delivery of a coj)y of it to 
 the defendant or his attorney, and that all proceedings in the action be in 
 the meantime stayed. In a late case, however, the court of Common Pleas 
 would not compel the defendant to produce bills of exchange on which the 
 action was brought, and permit the plaintiff to take copies of them, upon 
 an affidavit, which was contradicted by the defendant, that the bills had 
 
 (;fc) 1 Bos. & Pul. 2T1. (a)2Keb. 430. 1 Sid. 386. 
 
 (h) 1 Salk. 215. (f) 1 Camp. 5G2. 
 
 \d) 1 Taunt. 167. 
 
 (e) 1 Chit. Rep. 476. 9 Moore, 778. Post, 592. 
 
 (/•) 2 Dowl. & Ryl. 419. [g) 7 Moore, 559. 1 Bing. 161, iS. C. 
 
 (h) Barry v. Alexander, M. 25 Geo. III. K. B. 
 
 Vol. 1.-2,1
 
 591 
 
 OF INSPECTION, AND COPIES 
 
 come into his hands by fraud, and had not been satisfied. (^) And, in an 
 action on a bill of exchange, that court would not compel the 
 [ *592 ] plaintift' to deposit the bill in the hands of the prothonotary, *for 
 the purpose of enabling the defendant to inspect it, in order to see 
 whether or no it was a forgery.(a) When the copy of an agreement is de- 
 livered to the defendant, in pursuance of a judge's order for that purpose, 
 the judge, it is said, will in general make it a part of the order, that the 
 defendant shall consent to make no objection to the stamp. (6) 
 
 Where the defendant has the custody of a written instrument, which he 
 holds as a trustee, the courts will in some instances order him to give an in- 
 spection and copy of it to the plaintiff, at his expense, and to produce it for 
 various purposes : Thus, where the defendant was a stake-holder, the court 
 ordered him to give the plaintiff, at his expense, a copy of the articles for 
 Epsom races, and to produce the same at the trial. (c) So, where an action 
 is brought by a sailor for his wages, on ship's articles, against the captain in 
 whose custody they are, it seems that under the equity of the statute 2 Geo. 
 II. c. 36, § 8, the defendant, if required, must produce and give a copy of 
 the articles. ((Z) And where the dispute was between the plantiff a factor in 
 Smithfield, and the defendant a grazier, the court of King's Bench, upon 
 the defendant's motion, made a rule for the plaintiff to show cause, why he 
 should not produce at the trial, the several books wherein he entered the ac- 
 count of beasts sold, and of moneys received, on the defendant's account ; 
 and no cause being shown, the rule was made absolute. ((^e) So, in an action 
 against a sworn broker of the city of London, for negligence in making a 
 contract, the court will, on motion, compel him to produce his books, in 
 order to enable the plaintiff to inspect and take a copy of the contract ; 7 
 Barn. & Ores. 204, but see 1 Moore & P. 537, 539, (a) semb contra. The 
 rule laid down by Lord Mansfield in cases of this nature was, that when- 
 ever the defendant would be entitled to a discovery, he should have it here, 
 without going into equity. (^■) And on a motion in trover, for inspection 
 of lists of sales, the question being whether the goods were included in those 
 sales, it was said by Buller, J. "the proper way is to move for a rule to 
 show cause, why the defendant should not have time to plead till the next 
 term, unless the plaintiff will give the inspection required ; and the reason 
 for granting such time is, that the party may have the thing granted by ap- 
 plying to a court of equity ; and therefore the court will give time, till he 
 can file his bill for that purpose :" and a rule to show cause was granted ac- 
 cordingly.(^) _ 
 
 The courts in general will not oblige a plaintiff to discover the evidence 
 in support >of his action, previous to the trial ; and therefore, they will not 
 make a rule upon him to produce his books, (A) &c. : Nor can a rule be had 
 for the inspection of books, &c. of a private nature, in the hands of third 
 persons, (n) [a] So, where a commission of bankrupt had been sued out against 
 
 (i) 1 Bing. 161. T Moore, 559, S. C. (a) 1 Bing. 451. 8 Moore, 586, S. C. 
 
 (6) 1 Car. & P. AQQ,per Park, J. (c) Barnes, 439. 
 
 {d) Abbott on Shipping, 389. 1 Taunt. 386. 
 (ee) 2 Str. 1130; and see 5 Moore, 71. 
 (/) Barry v. Alexander, M. 25 Geo. III. K. B. 
 {g) Witter v. Cazalets, M. 29 Geo. III. K. B. 
 
 (A) 6 Mod. 264. 1 Chit. Rep. 4T6. 9 Moore, VtS ; but see 4 Bur. 2489. 
 (n) 1 Ld. Raym. Y05. 2 Ld. Raym. 927. 1 Barnard. K. B. 466. Barnes, 236. Cas. tmp. 
 Eardw. 130. 2 Blac. Rep. 850. 
 
 [a] " The production of private writings, in which another person has an interest, may be
 
 OF WRITTEN INSTRUMENTS. 592 
 
 the plaintiff and supersodcd, as being founded on a cnncortcd act of bank- 
 ruptcy, and a second coniniiswion was issued, and the plaint ift"l)rou;^ht tres- 
 pass against the messenger to try its validity ; the court of Con)nion Pleas 
 would not order the bankrupt's books to be produced to the 
 *assignees under the second commission, on an application by the [ *593 ] 
 defendant ; as such application should have been nuide to the Lord 
 Chancellor in the first instance. (a) So, in an action for goods sold and de- 
 livered, the court of King's Bench would not compel a defendant to allow 
 an inspection of the goods, to enable the plaintiff to give evidence of their 
 identity, kc.{b) And in an action for freight and dennirrage, by ship own- 
 ers against the charterer, the court of Common Pleas would not grant the 
 latter an inspection of the log-book kept during the voyage. 1 Mottre &, P. 
 396. 4 Bing. 537, S. C, but see id. 539,(^)2 Younge .^ J. 4. But it is a 
 general rule, that a party has a right to inspect and take c<ij)ies of such 
 books &c. as are of a public nature, wherein he has an interest ; [a] so as they 
 
 (a) 7 Moore, 400. (i) 6 Dowl. & Hyl. 388. 
 
 hiiJ citlier by a bill of discovery, in proper cases, or, in trials at law, by a writ of nuLpwiia 
 duces It'cuin, directed to the person who has them in his possession. The courts of Conitnon 
 Law may also make an order for the inspection of writings in the possession of one party to 
 a suit, in favour of the other. The extent of this power, and the nature of the order, 
 ■whether it should be peremptory, or in the shape of a rule to enlarj^e the time to plead, 
 unless the writing is produced, does not seem to be very clearly agreed ; and in the United 
 States, the courts have been unwilling to exercise the power, except where it is given by 
 Statute. It seems, however, to be agreed, that where the action is ex contractu, and there 
 is but one instrument between the parties, which is in the possession or i)ower of the de- 
 fendant, to which the plaiutill' is either an actual party, or a party in interest, and of which 
 he has been refused an inspection, upon request, and the production of which is necessary 
 to enable him to declare against the defendant, the court, or a judge at chambers, may 
 grant him a rule on the defendant to produce the document, or give him a copy for that 
 purpose. Such order may also be obtained by the defendant, on a special case, such as, if 
 there is reason to suspect that the document is forged, and the defendant wishes that it 
 may be seen by himself and his witnesses. But in all such cases, the application should be 
 supported by the affidavit of the party, particularly stating the circumstances. 
 
 "When the instrument or writing is in the hands or power of the adverse party, there 
 arc, in general, no means at law of compelling them to produce it; but the pn.ctii-e in such 
 cases is, to give him or his attorney a regular notice to produce the original. Not that, on 
 proof of such notice, he is compellable to give evidence against himself, but to lay a founda- 
 tion for the introiluction of secondary evidence of the contents of the document or writing, 
 by showing that the party has done all in his power to produce the original.'' 1 Grcenl. on 
 Evid., g 559, 560. 
 
 [a] "In regard to the inspection of public documents, it has been admitted, from a very 
 early period, that the inspection and exemplification of the records of the King's ('ourts is 
 the common right of the subject. This right was extended, by an ancient statute, 40 Ed. 
 3, in the i)reface to 3 Coke's Rep. p. iv., to cases where the subject was <-nncerned against 
 the king. The exercise of this right does not ajjpear to have been restraineil, until the reign 
 of Charles M., when in consequence of the freijuency of actions for malicious prosecutions, 
 which couhl not be supported without a copy of the record, the judges made an order for 
 the regulation of the sessions at the Old Bailey, prohibiting the granting of any cnpj of an 
 indictment for felony, without a special order, upon motion in open court, at the general 
 gaol delivery. This order, it is to be observed, relates only to indictments for felony. In 
 cases of misdemeanor the right to a copy has never been questioned. But in the I'nited 
 States no regulation of this kind is known to have been expressly made: and any limitatioa 
 of the right to a copy of a judicial record or paper, when applied for liy any person having 
 an interest in it, would prol)ably be deemed repugnant to the genius of American Institu- 
 tions. 
 
 "Where the writs or other papers in a cause arc officially in the cnstody of an officer of 
 the court, he may be compelled by a rule of court, to allow an inspection of them, even 
 though it be to furnish evidence in a civil action against himself. Thus, a rule was granted 
 against the marshal of the King's Bench prison, in an action against him for an escape of 
 one arrested upon meme prorexi^, to permit the plaintiff's attorney to inspect the writ by 
 which he was committed to his custody.
 
 ggg OF INSPECTION, AND COPIES 
 
 bo niatcri.-il to the suit, and the party in possession be not obliged to furnish 
 evidence against himself in a criminal prosecution ;(6') and if they are not 
 evidence of themselves, the courts will order them to be produced at the 
 trial ;((i) otherwise a copy is sufficient. And they will never make a rule 
 to produce the original, unless it be necessary to inspect it, on account of an 
 erasure or new entry. (e) 
 
 The books of tlie Quarter Sessions have been considered as public books, 
 which every one has a right to inspect. (/) And every man has a right to 
 inspect the proceedings to which he is himself a party ;{g(i) for he has an 
 interest in such proceedings. So, in an action for a malicious prosecution, 
 where it was necessary, in order to support the action, that the plaintiff 
 should be put in possession of the contents of examinations before justices, 
 and of the warrant on which he was apprehended, the court granted a rule 
 that they might be inspected, and copies taken, and the originals produced 
 on the trial. (A) But upon an indictment for felony, it is not usual to grant 
 a copy of the record of acquittal, where there is any the least probable 
 cause for the prosecution. (e) And a mandamus will not lie, to compel a 
 magistrate to produce depositions taken before him on a charge of felony, 
 for the purpose of founding an indictment for perjury against the deponents : 
 the magistrate must be subpoenaed to produce the depositions, which may 
 be read in evidence before the grand jury. (A;) 
 
 Parish books, and the books of the Custom house. Post office. Bank, 
 JSouth Sea house, ^ast India company, &c., are to some purposes consi- 
 dered as public books ; and persons who have an interest therein, have a 
 right to inspect them :(l) And a rule of an inhabitant of a parish 
 [ *594 j to *inspect the parish books, so far as they apply to the question 
 in dispute, may be absolute in the first instance. (a) So, the books 
 of the commissioners of the lotte?-^, and their numerical lists, are of a public 
 
 (c) 1 Blac. Rep. 44 ; and see Peak. Evid. 5 Ed. 89, &c. 1 Phil. Evid. 4 Ed. 422, &c. as 
 to the inspection of public writings in general. 
 
 (rf) 1 Str. 12G. 12 Vin. Abr. 104,^:;;. 68, S. C. Barnes, 468. 2 Durnf. & East, 234. 
 
 (e) 1 Str. 307. Say. Rep. 16. 
 
 If) 1 Wils. 297. Eez v. Berkinff, cited in 1 Wils. 240. 1 Blac. Rep. 39, S. C. 1 Chit. 
 Rep. 477, (a) ; but see id. 479, where the general right of every man to inspect the books of 
 the Quarter Sessions was doubted by Abbott, Ch. J. 
 
 {gg) 1 Str. 126. 12 Vin. Abr. 104, pi. 68, S. C. Cas. temp. Hardw. 128. 2 Str. 1242. 
 Barnes, 236. 1 Chit. Rep. 476, {a) ; but see 1 Ld. Raym. 252. Carth. 421, S. C. Gilb. 
 Cas. K. B. 134. (Dr. West's case,) 2 Str. 1005. 1 Wils. 240. 1 Blac. Rep. 41, S. C, cited 
 Say. Rep. 250. 
 
 (A) Barnes, 463, 9. 
 
 (i) 1 Ld. Raym. 253. Carth. 421, S. C. 3 Blac. Com. 126. 1 Chit. Cr. L. 89. Ry. & 
 Mo. 66. 1 Ga,T. k P. 241, S. C. ; but see 2 Str. 1122. 1 Blac. Rep. 385. Leach's Cr. L. 25. 
 
 {k) 1 Chit. Rep. 627. 
 
 [l) 2 Ld. Raym. 851. 7 Mod. 129, S. C. 1 Str. 304. 1 Barnard. K. B. 455. 2 Str. 954. 
 Barnes, 236. 
 
 (a) 2 Chit. Rep. 290. 
 
 "In regard to the records of inferior tribunals, the right of inspection is more limited. 
 As all persons have not necessarily an interest in them, it is not necessary that they should 
 be open to the inspection of all, without distinction. The party, therefore, who wishes to 
 inspect the proceedings of any of those courts, should first apply to that court, showing 
 that he has some interest in the document, and that he requires it for a proper purpose. If 
 it should be refused, the Court of Chancery, upon affidavit of the fact, may at any time 
 send, by a writ oi certiorari, either for the record itself, or an exemplification. The King's 
 Bench in England, and the Supreme Courts of Common Law in America, have the same 
 power by mandamus ; and this whether an action be pending or not." 1 Greenl. on Evid. 
 I 471, 472, 473.
 
 OF BOOKS, COURT ROLLS, ETC. 594 
 
 nature ; and are kept by the commissioners in trust for the ticket holders, 
 who are entitled to an inspection of them l>y rule of court. (^) But access 
 is not allowed to parish books,(f') &c., for the trial of questions of a private 
 nature, or in collateral actions, brought hy or apainst persons who liave no 
 interest therein. And thoujrli the Kant J/idia company are conipellahle to 
 produce their public books, ((/) yet they arc not <»blii;(.'d to produce their 
 books of letters,((') &c. ; nor their private books, relating to the appoint- 
 ment of their servants. (/) 
 
 The Court rolls and books of a manor are of a public nature ; the ten- 
 ants have an interest therein, and the lord, who has the custody of them, 
 is considered merely as a trustee :(//) Hence it is of course, in the Kind's 
 Bench, to grant leave to inspect the court rolls, &c., of a manor, on the 
 application of a tenant of the manor, wiio has been rcfuse<l that j)i'rmission 
 by the lord, (////) And one who has a primd facia title to a copyliohl, is 
 entitled to inspect the court rolls, and take copies of them, so far as relates 
 to the copyhold claimed, though no cause be depending for it at the time.(a') 
 So, where a copyhold tenant was forbidden by the lord to cut underwood 
 upon the copyhold, without the lord's license, the court granted a manda- 
 nius for the lord to permit the tenant to inspect the court rolls, so far as 
 related to the cutting of underwood, after a])plication to and refusal by the 
 lord ; although there w^as not any suit depending. (^^) But this privilege 
 is confined to the tenants of the manor : for the lord or tenants of a difte- 
 rent manor, having no interest in the court rolls, &c,, cannot claim the in- 
 spection of theni.(/) And even though the party applying be a tenant of the 
 manor, the court will not grant a mandamus to inspect court rolls, for the 
 purpose of supporting an indictment against the lord, for not repairing a 
 road within the manor. (?>i) In the King's Bench, if the rule be moved for on 
 behalf of a copyhold tenant, it is absolute in the first instance ;(??) but other- 
 wise it is only a rule nisi :{o) In the Common Pleas, it is alwaj-s a rule to 
 show cause '■{}'>) and the court expect an affidavit to shoAV that the person, 
 on whose behalf the motion is made, is a tenant of the manor, and has ap- 
 plied to the lord or his steward, for an inspection and copies of 
 the *covu-t rolls, which have been denied. (a) A freehold tenant of [ *595 ] 
 a manor has no right to inspect the court rolls, unless there be 
 some cause depending, in which his right may be involved. (/>ft) But a 
 mandamus was granted to the steward of a manor, to allow inspection of 
 
 (6) Schinolli v. Dumstead and others, H. 36 Geo. III. K. B. 
 
 (r) As to parish hooks, sec 5 Mod. 395. 1 Ld. Riiym. 337, S. C. 12 Vin. Ahr. 147.;>/. 
 11. 1 Barnard. 100. 1 Wil.^. 240. 2 Cliit. Rep. 288." 4 Barn. & Aid. .Sol : t)nt see 1 Blar. 
 Rep. 27. And as to Custom house hooks, &c., see 1 Ld. Kavni. 70.'). 2 Sir. Io05. 1 Wils. 
 240. Say. Rep. 250. 1 Blac. Rep. 40, S. C. ; but sec Barnes, 2.S5. Com. Rep. 555, S. C. 
 
 (d) 7 Slod. 129. 2 Ld. Raym. 851, S. C. (*>) 1 Str. 646. 
 
 (/) 2 Str. 717. (</) 1 Ld. Raym. 253. 2 Sir. 955, 1005. 
 
 (hh) 3 Durnf. k East, 141 ; and see Barnes, 236. 2 Blac. Rep." 1061, aerord. 
 
 (If) 10 East, 2;!5. {kk) 4 Maule k Sel. 162. 
 
 (/) 12 Vin. Ahr. 146. Bunb. 269. 2 Str. 1005. Talbot v. ViUfboys, M. 23 Goo. IIL K. 
 B. 3 Durnf. k East, 142. 
 
 (m) 5 Barn. & Aid. 902. 1 Dowl. & Ryl. 559, S. C. ; and see 3 Durnf. 4 East, 142. 
 
 \n\ 3 Durnf. k East, 141. 
 
 (o) 7 Durnf k East, 746 ; and see 5 Dowl. & Ryl. 484. 
 
 (;)) 2 Blac. Rep. 1061. Anit, 486, (a). 
 
 [a) Barnes, 2.^6 ; and see 3 Wils. 399. 2 Blac. Rep. 1061. 
 
 [bb) 7 Durnf k East, 746; and sec 1 Wils. 104. where a frrehnldrr ^an roftiscd a rule to 
 inspect the rolls of the manor, in a case between himself and the lord, touchinp a cnpi/hold : 
 but see Barnes. 237. 2 Blac. Rep. 1030, semb. con It ; and see 2 Ves. 620. 13 East. 10. 
 PhiL Evid. 4 Ed. 429, 30.
 
 r^Q^ OF INSPECTION AND COPIES, ETC. 
 
 the court rolls to two freehold tenants, litigating a right of common in the 
 manor, although, the cause was not at issue. (c) 
 
 So, the books of a Corporation are in nature of public books •,{d) and 
 every member of the corporation, having an interest therein, has a right 
 t(. inspect and take copies of them, for any matter that concerns himself, 
 though it be in a dispute with others. (e) And, in an action for the breach 
 of a bye law, restraining persons from exercising trades within the limits 
 of a corporate city, unless they become freemen, the court will compel the 
 corporation to allow the defendant to inspect the bye law in the corpora- 
 tion books. (/) But, pending an action by a corporation for tolls, the 
 courts will not grant leave to inspect the corporation books or muniments, 
 on the application of .the defendant, a stranger to the corporation :{g) And 
 the inspection, when granted, is confined to the subject-matter in dis- 
 pute. (A) These rules of inspection, in cases of copyholds, corporations, 
 &c. are never granted, but only where civil rights are depending ;(^) for it 
 is a constant and invariable rule, that in criminal cases, the party shall 
 never be obliged to furnish evidence against himself.(A:) Informations 
 however, in nature of quo warayito, are now considered in the light of civil 
 proceedings ; and therefore, when they are exhibited at the relation of a 
 member of a corporation, the court will grant a rule for the inspection of 
 such of the corporation books as relate to the subject-matter in dispute :(/Z) 
 But in an action against a corporation, upon a right of toll, the coui't re- 
 fused a rule to inspect the public books, records, and writings of the cor- 
 poration ; because no issue was joined, so that it could not appear whether 
 such inspection would be necessary. (m) 
 
 The motion for a rule to inspect and take copies of books, &c. when an 
 
 action is depending, is founded on an affidavit, stating the cir- 
 [ *o96 ] cumstances *under which the inspection is claimed, and that an 
 
 application has been made in the proper quarter, for permission to 
 make the inspection, which has been refused. (a) And when a motion for 
 an information, in nature of a quo tvarranto, is depending, the court will 
 grant a rule absolute in the first instance :{b) but when no action is depend- 
 ing, the proper mode of proceeding is by moving for a rule to show cause, 
 why a mandamus should not issue, commanding the officer who has the 
 custody of the books, to permit the party applying to inspect and take 
 copies of the necessary entries. (<?c) The affidavit, upon which this motion 
 is founded, ought to state clearly the right under which the inspection is 
 claimed, and that the inspection has been refused. (c?fZ) And when the 
 
 (c) 5 Dowl. & Ryl. 484. (d) 2 Str. 954, 5. 
 
 (e) Id. 1223. Barnes, 235. Com. Rep. 555, S. C. (/) 3 Barn. & Cres. 162. 
 
 Iff) 8 Durnf. & East, 590; and see 5 Mod. 395. 1 Ld. Rajm. 337, S. C. 2 Str. 1203. 
 Barnes, 238. 3 Wils. 398. 2 Blac. Rep. 877, S. C. 1 Chit. Rep. 476, (a), accord. 1 Durnf. 
 & East, 689. 3 Durnf. &; East. 303. 1 H. Blac. 211, contra. 
 
 (k) 1 Barnard. 455. 2 Str. 1005, 1223. 1 Wils. 239. 1 Blac. Rep. 40, S. C. 3 Durnf. 
 & East, 303 ; and see 2 Chit. Rep. 231, 290; but see 3 Durnf. & East, 579. 
 
 (i) 1 Wils. 240. 
 
 (k) 1 Ld. Ravm. 705. 2 Ld. Raym. 927. 2 Str. 1210. 1 Wils. 239. 1 Blac. Rep. 37, 
 S. C. Id. 351, S. P. 4 Bur. 2489. 1 Durnf. & East, 689. 3 Durnf. & East, 142. 
 
 (11) 2 Chit. Rep. 366, (a) ■ and see 3 Durnf. & East, 142, 579. 4 Taunt. 162. 
 
 (to) 2 Blac. Rep. 877. 3 Wils. 398, S. C. 1 Ld. Raym. 253. Carth. 421, S. C. 
 
 («) Barnes, 236. Phil. Evid. 4 Ed. 433. 
 
 (6) 2 Chit. Rep. 366; and see 3 Durnf. & East, 141. Phil. Evid. 4 Ed. 433. 
 
 (cc) 4 Maule <fe Sel. 162 ; and see Mr. Nolan's edition of .Strange, p. 1223, in notis. 3 Durnf. 
 & East, 142. 10 East, 235. 2 Chit. Rep. 366, (a). Phil. Evid. 4 Ed. 434. 
 
 {dd) Barnes, 236. Phil. Evid. 4 Ed. 434.
 
 OF PARTICULARS OP PLAINTIFFS DEMAND. 59g 
 
 motion is for a writ of mandamus to inspect, grounded upon affidavits, the 
 rule is only a rule /a'»/.(<;) If a rule be made to show cause, why aTi infor- 
 mation should not be filed, in nature of a yuo warranto, the court of Kin<_f's 
 Bench will make a rule for the prosecutor to inspect and take copies of 
 books and records, as soon as the rule to show cause is granted :(/) but if a 
 rule be made to show cause, why a rnamiamuH siiould not be awardid, tlie 
 court will not make a rule for the prosecutor to inspe<-t an<l take co|)i».'s of 
 books and records, until the rule be made absolute, and a return made to 
 the mandamus. {g) 
 
 When the declaration docs not disclose the particulars of the plaintiffs 
 demand, as in actions of afisumpsit, or debt for goods sold, or work and 
 labour, &c. the defendant's attorney or agent may take out a summons be- 
 fore a judge, for the plaintiffs attorney or agent, to show cause, why he 
 should not deliver to the defendant's attorney or agent, the particulars in 
 writing of the plaintift^s demand, for which the action is brftught, and why 
 all proceedings should not in the mean time be stayed. (7i)[A] This sum- 
 
 (e) Phil. Evid. 4 Ed. 433. 
 
 (/) Gas. temp. Hardw. 245. Say. Rep. 145. 3 Durnf. & East, 141. 2 Chit. Rep. 306; 
 but see 3 Durnf. & East, 581. 
 
 Say. Rep. 145 ; aud see 1 Ld. Raym. 253, accord. 
 
 3 Bur. 1390. Imp. C. P. 7 Ed. 185, 6 ; and see Append. Chap. XXIII. ? 3. 
 
 !fj 
 
 [a] "A bill of particulars is a i.icre creature of the court, and is no part of the record. 
 Blunt V. Cooke, 4 Man. & Gran. 458. Tiie object of it is to give the defendant mora 
 specific and precise information as to the nature and extent of the demand made ujion 
 him by the plaintiff, than is announced by the declaration, in a mode unincumbered by the 
 technical formalities of pleading. 3 Starkie on Ev. 1055. It ought to be as certain, and 
 convey as much information as a sjjccial declaration. Gilpin v. Ilou-ell, 5 Harr, 53. Thus 
 it has been held, that if a bill of particulars state the plaintiff's demand to be for goods 
 sold and delivered to the defendant, no evidence can be received, of goods sold by the de- 
 fendant as plaintiff's agent. Holland v. Hopkins, 2 Bos. & Pul. 243. Hence, Mr. Chitty re- 
 commends the practitioner to describe the claim in the particulars in every possible shajie 
 that could be admissible under the counts in the declaration. 3 Chitty, Gen. I'r. 01 (i. Yet 
 this and other elementary writers seem to consider, that like every other matter in pais, the 
 bill of particulars may be used against the party who has furnished it; and there are re- 
 ported cases which sustain this view. Ibid. 017 ; 3 Starkie on Ev. 1058. Cohon v. Sdhtf, 
 1 Esp. N. P. C. 452. Ihimer v. Cook, Moody & Malkin, 80. In the case of Ilarringlon v. 
 MacMorris, 5 Taunt. 228, however, it was decided tliat the plaintiff cannot use one plea of 
 a defendant as evidence of the fact which the defendant denies in another plea. Nor can 
 he use a notice of set-off for evidence of the debt on the issue of won a-fnumpgit, because tho 
 statute gives the notice of set-off in the nature and place of a plea ; nor can he use a par- 
 ticular of set-off for that purpose, because it is incorporated with the notice of set-off. See 
 also Miller v. Johnson, 2 Esp. N. P. C. 002. Short v. Kdirardi. 1 Esj). N. P. C. 374. So it 
 has been held in other cases, that one count of a declaration cannot be called in as proof 
 by the defendant to contradict or affect the evidence in respect to another. Cowen k Hills' 
 notes to Phillips on Evid. 331, and the cases there cited. Upon these grounds, and con- 
 sidering the hill of particulars as a part of the pleadings, a very respectable court in New 
 York has denied any effect to them as evidence. Brittingham v. Stephmx, 1 Hall, 370; 
 Gowcn k Hills' notes to Phillips on Evid. 301, and cases there referred to. We think this is 
 the sounder, and practically tJie more just and convenient doctrine. In providing that de- 
 fendant shall be furnislu'(l with a previous knowledgi' of tho nature of the claim which he 
 must prepare to meet on the trial, we must take care that the plaintiff be not tranmielled by 
 the mere forms of the proceedings, so that substantial justice may in all cases, so far ng 
 possible, be attained." Hartell v. Sei/l>ert, District Court, Philadelphia Co., March 25th, 
 1848, per Shamwood, P. J. 
 
 Where the particulars of the plaintiff's demand are not disclosed in the declaration, the 
 defendant may call on him to exhibit them. And the plaintiff may call on the defendant 
 for the particulars of his set-off, if they are not specified in the plea or the notice. .Verc-r 
 V. Sat/re, 8 Johns. 24S. And it may be demanded by the defendant before appearance. 
 EooseveU v. Oardinier, 2 Cow. 403, And a defendant may refuse to plead until it is filed.
 
 rqg OF PARTICULARS 
 
 mons may be taken out, and an order obtained thereon, in the King's Bench, 
 before the defendant has appeared. (e) And, in the Common Pleas, though 
 the practice was formerly otherwise, (Ar) it is ordered by a late rule,(?) that 
 
 (i) 1 Chit. Rep. 724, 5, (a). (k) 1 Bos. & Pul. 378. 
 
 (l) n. T. 2 Geo. IV. C. P. 6 Moore, 211. 
 
 Diivi.i V. Hunt, 2 Bailey, 416. In South Carolina, if the plaintiff have only a count for 
 money had and received, he must file a statement of particulars, or otherwise give the de- 
 fendant notice of the nature of his demand, or the court will dismiss the action. Smyth v. 
 Lchie, 1 Rep. Con. Ct. 240. Barton v. JJvnlnp, 2 Jd. 140. An order for the plaintiff to fur- 
 nish a bill of particulars is not granted, in New Yorli, without an affidavit showing the ne- 
 cessity of such an order. Willis v. Bailey, 19 Johns. 208. And the order for such bill 
 should direct the plaintiff to deliver one at a given day, or then show cause why he has 
 not. If no cause is shown, the order becomes absolute, and the defendant may move for a 
 nonpros, unless a bill is delivered. Brewster v. Socket, 1 Cow. 571. Fleurot v. Durand, 14 
 Johns. .329. Or, when the order becomes absolute, the defendant may move for a rule, that 
 the bill be furnished within a ceitain time, and costs of the motion be paid by the plaintiff, 
 or that judgment of nan pros, be entered. May v. Richardson, 4 Cow. 56. 
 
 After regular notice of a motion for a non pros, in such case, if the plaintiff furnish a bill, 
 it is a sutticicnt answer to the application, provided the costs are paid up to that time ; 
 otherwise not. Symonds v. Craw, 5 Cow. 279. A plaintiff may be non pressed as to the 
 general counts, for not furnishing a bill, and be allowed to proceed on his special count. 
 lb. And though an order for a bill, staying proceedings absolutely till it is delivered, is 
 irregular, and may be vacated, Hazard v. Henry, 2 Cow. 587 ; yet it stays proceedings in 
 the mean-time. Roosevelt v. Gardinier, 2 Cow. 463. Yet an order nisi for a bill is not a 
 stay of proceedings unless a stay is directed by it. Vermont Academy v. Landon, 2 Wend. 
 620. It may be made at any time before trial ; but when applied for by the defendant, 
 after issue joined, a good excuse for the delay is required, and he must satisfy the court 
 that his object is not further delay. Andrew v. Cleaveland, 3 Wend. 437. 
 
 Under the Virginia statute, an account filed in an action of indebitatus assumpsit, which 
 gives notice of the character of the claim, is sufficient, though made up of various items of 
 which no notice is given. 3Ioore v. Blauro, 4 Rand. 488. A bill need not be as special as 
 a count on a special contract ; it is sufficiently definite if it apprize the other side of the evi- 
 dence that is to be offered, so that he cannot mistake as to his preparation to resist the 
 claim. Smith v. Hicks, 5 Wend. 51. Chesapeake, cj-c. Canal Co. v. Knapp, 9 Pet. 541. The 
 bill is not a part of the record ; and, where evidence is given which supports the declara- 
 tion, it is not a cause for non-suit that it does not agree with the bill. Davis v. Hunt, 2 
 Bailey, 412. If a bill is unsatisfactory and defective, the party to whom it is delivered may 
 obtain an order for further particulars. Goodrich v. James, 1 Wend. 289. A bill is amend- 
 aljle like a declaration. Babcock v. Thompson, 3 Pick. 449. Tillen v. Hutchinson, 3 Green. 
 178. Fcidler v. Collier, 13 Geo. 496; but not without leave of the court. Wayer v. Cheiv, 
 3 Harris, 323. Even one irregularly filed may be amended. Adle v. Floyd, 3 Pike, 248. 
 
 In Kentucky, whenever a declaration is so general as not to apprize the defendant of the 
 nature and extent of the demand, he is entitled to a bill of particulars, to which the 
 plaintiff' will be restricted in his proof. Broiim v. Calvert, 4 Dana, 219. A bill of particu- 
 lars may be called for at any time ; it is not regarded as an appearance to the declaration, 
 or as confined in its objects to a defence on the merits. Watkins v. Brown, 5 Pike, 197. 
 Where a bill of particulars is delivered with the declaration, and the plaintiff is subsequently 
 served with an order for a bill, he may disregard it and enter the defendant's default for 
 not pleading aliter, where the order is for further particulars. Payne y. Smith, 19 Wend. 
 122. After a peremptory order that a plaintiff furnish a bill of particulars, if an evasive 
 bill be delivered, the defendant may move for judgment of non pros. ; but if the bill appear 
 to have been made in good faith, though not satisfactory, a better bill should be applied 
 for. Furdy V. Warden, 18 Wend. 671. If the character of the claim sufficiently appear 
 from the declaration, a bill of particulars is not necessary. Nevitt v. Rabe, 5 How. Miss. 
 653. And the only effect of a bill of particulars is, to restrict the proofs and limit the re- 
 covery or set-off to the matters set forth in it. Starkweather r. Kiltie, 17 Wend. 20. A 
 copy of a promissory note, attached to a declaration containing the common counts, will 
 not authorize the plaintiif to disregard an order for a bill of particulars. Reynolds v. Woods, 
 22 Wend. 642. Garret v. Teller, 22 Wend. 643. In South Carolina, where, in an action of 
 as.mnpsit, the declaration contained only a count for money had and received, the omission 
 to file with it a bill of particulars was held a cause of special demurrer. Cregier v. Smyth, 
 1 Specrs, 298. In Illinois, where there is a special count on a promissory note, a copy of 
 which is filed with the declaration, a bill of particulars is not necessary in order to give the 
 note in evidence under the common counts. The People v. Pearson, 1 Scam. 458 ; S. C, 1
 
 OF PLAINTIFF'S DEMAND. 596 
 
 "in future, defendants, on being served with process or arrested, will be 
 
 alloAVed to obtiiin orders for the particulars of the phiintiff's demand, with- 
 out waiting till appeaniiicc entered or bail put in, or declaration filed and 
 delivered ; and that in this respect, the practice of this court will be made 
 conforniable to that of the court of King's Bench." The suniiuons for 
 particulars, however, is usually taken out after appearance and 
 *declaration, and before plea ; and unU-ss good cause be shown [ *597 ] 
 to the contrary, the judge will make an order, (r?) agreeably to 
 the summons ; which operates, when drawn u[) and served, as a stay of 
 proceedings, till the particulars are delivered. (i) But a judge's order for 
 the delivery of a bill of particulars, does not stay proceedings, unless it be 
 drawn up, and served upon the plaintiff's attorney. (^') And it is a rule in 
 the Kings Bench, ((/) that "no order be made in any action depending in 
 this court, to compel a delivery of particulars of the jdaintiff 's demand, 
 unless the defendant or defendants, in the event of pleading, do by such 
 order undertake to plead issuably, or unless the plaintiff's attorney or 
 agent shall, by special indorsement on the summons, consent to waive the 
 same." It is also usual in that court, on granting an order for particu- 
 lars, which is considered as a matter of favour, to require from the de- 
 fendant some admission ; as of the signature of a note, &c. 
 
 In as>>umj)sit for non-performance of a contract for tlie sale of a house, 
 with counts to recover back the deposit, the plaintiff' having in his first 
 count alleged that the defendant, who was to make a good title, had deli- 
 vered an abstract which was insufficient, defective and objectionable, the 
 court of Common Pleas obliged the plaintiff to give a particular of all ob- 
 jections to the abstract, arising upon matters of fact ; but said he was not 
 bound to state in his particulars, any objections in point of law.(«) So, if 
 an action be brought on a bond conditioned for the performance of cove- 
 nants, or to indemnify, &c. the defendant may call for a particular of the 
 breaches for which the action is brought: And where a general form of 
 declaring is given by act of parliament, as upon the statute 9 Ann. c. 14, 
 or upon the 25 Geo. II. c. 30, it seems reasonable that the phiintiff, if re- 
 quired, should give an account of the particulars of his demand, in order 
 to enable the defendant to prepare for his defence. But whenever the 
 particulars of the demand are disclosed in the declaration, as in spcrial 
 assumpsits, covenant, or debt on articles of agreement, &c. or in actions 
 on matters of record, an order for such particulars does not seem to be re- 
 quisite. 
 
 In actions for wrongs, the injury complained of is in general stated 
 
 {a) Append. Chap. XXIII. § 4. And for the forms of bills of particulars in different cases 
 see id. ^ ti, &c. 
 
 (6) Ante, 469. (c) I Chit. Rep. G47. 
 
 \d) R. H. 59 Geo. III. K. B. 
 
 (c) 3 Bos. & Pul. 246; and see 1 Campb. 2r>3. 
 
 Scam. 473. And a bill of particulars, recognized by the parties as regular, although not 
 called for bj- the defendant, may be given to the jurv to U»ke out with them. McCreary v. 
 Hood, .5 Bliickf. 316. Stnirits v. Bank of Troi/, 21 Wend. 186. 
 
 In an action under the statute of New York, by the representatives of a person killed by 
 the alleged negligence of the defendant, a bill of particulars of the damage cannot be re- 
 quired. Miirp/ii/ V. Ivipp, 1 Duer, (N. Y.) <>:>'.). It is too late to object, at the trial, to a bill 
 of particulars, which has been served on the attorney of the defendant, that it is not .<worn 
 to according to the statute. If the defendant was not satisfied with it, he should have re- 
 ttirned it, or moved the court for a further or amended bill. Dennuon v. Smith, 1 Cal. 437.
 
 597 
 
 OF PARTICULARS 
 
 in tlic declaration ; and therefore, in such actions, it is not usual to make 
 an order for the particulars : but circumstances may occur which render it 
 necessary. And in an action against the marshal for an escape, he is enti- 
 tled to a particular of the cause of action, for which the plaintiff sues. (/)[!] 
 Under a judge's order for particulars, the plaintiff, or his attorney or agent, 
 should deliver a particular account in writing of the items of the demand, 
 and when and in what manner it arose :[a] And where there has been an 
 
 account current, and payments nave been made for which the 
 [ *598 ] party means to give credit, the particular ought to contain as 
 
 well those *matters for which he means to give credit, as those 
 for which the action is brought. (a) But it is sufficient to refer in a bill of 
 
 (/) 1 Dowl. & Ryl. 774. 
 
 (a) 1 Esp. Rep. 280. 2 Campb. 410. In the latter case, an attorney having delivered a 
 particular, containing only the debtor side of the account, was made to take a verdict for 
 
 [1] In order to obtain particulars in an action of trespass, trover, or on the case, it seems 
 to be necessary to produce an affidavit, denying the defendant's knowledge of what the 
 plaintiff is proceeding for. Snclling v. Chennels, 5 Dowl. Rep. 80. 12 Leg. Obs. 75, S. C. 
 And the court will not compel a plaintiff, suing for the breach of an agreement, and assign- 
 ing by way of special damage, that he has incurred certain expenses, to furnish particulars 
 of such special damage. Retallkk v. Ilawkcs, 1 Meeson & W. 573. So, in an action on the 
 case against an attorney for negligence, in assigning leasehold property belonging to the 
 plaintiff, per quod the plaintiff had to pay damages to the assignee, the court refused to 
 compel the delivery of a particular of the plaintiff's demand. Stannard v. UlUthorne, 3 
 Bing. N. R. 326. 5 Dowl. Rep. 370, S. C. 
 
 At the trial, an erroneous date in a bill of particulars, or a mistake therein, which is not 
 calculated to mislead the defendant, will not preclude the plaintiff from recovering his de- 
 mand. Milhvoodv. Walter, 2 Taunt. 224; and see Harrison y. Wood, 8 Bing. 371. Lam- 
 birth V. jRoff, 1 Moore & S. 597. 8 Bing. 411, S. C. Bagsier v. Robinson, 2 Moore & S. 160. 
 9 Bing. 77, S. C. Spencer v. Bates, 1 Gale, 108. Fisher v. Waimcright, 1 Meeson & W. 480. 
 1 Tyr. & G. 606. 5 Dowl. Rep. 102. 12 Leg. Obs. 99, 100, S. C. And a printer, who had 
 let out men, presses, and type, for the printing of a newspaper, was allowed to recover, in 
 an action for work and labour, although his particular described the demand to be "for 
 composing and printing a certain newspaper," &c. ; the defendants not having, at the trial, 
 availed themselves of the variance between the particular and the evidence. Bagster v. 
 Robinson, 2 Moore & S. 160. 9 Bing. 77, S. C. So, though the particulars of the demand 
 vary from the evidence which the plaintiff adduces, yet, if the defendant appears and de- 
 fends, and is not misled by them, the variance is no ground for nonsuiting the plaintiff. 
 Green v. Clark, 2 Dowl. Rep. 18. 6 Leg. Obs. 362, S. C. Spencer v. Bates, 1 Gale, 108. 
 But where the plaintiff's bill of particulars stated the cause of action to be for the amount 
 of stakes deposited in the defendant's hands, by the plaintiff and R., and won by the plain- 
 tiff of R., the court held that he could not recover the amount of his own stake, on proof 
 that he had re-demanded it fi-om the defendant, before it was paid over. Davenport v. 
 Davies, 1 Meeson & W. 570. 
 
 A copy of the particulars of the plaintiff's demand, and also a copj"^ of the particiilars, if 
 any, of the defendant's set-off. Append, to Tidd, Sup. 1832, p. 113, should by a general rule 
 of all the courts, R. T. 1 W. IV. reg. II ; 2 Barn. & Ad. 788, 9 ; 7 Bing. 783 ; 1 Cromp. & 
 J. 470, 71 ; 4 Car. & P. 603, be annexed by the plaintiff's attorney to every record, at the 
 time it is entered with the judge's marshal. And when the bill of particulars of the plain- 
 tiff's demand is appended to the record, it is not necessary to prove the delivery of it to the 
 defendant. Macarthy v. Smith, 8 Bing. 145. 1 Moore & S. 227. 1 Dowl. Rep. 253, S. C. 
 Particulars of demand having been delivered to the defendant's attorney, under a judge's 
 order, another bill of particulars was afterwards annexed to the record by the plaintiflf'"s 
 attorney, pursuant to the above rule, as and for a copy of the particulars of the demand, 
 but in fact containing items not stated in the particulars delivered to the defendant ; the 
 plaintiff's evidence at the trial was confined to the items exclusively set forth in the par- 
 ticular annexed to the record ; the defendant not being prepared to prove the delivery of 
 the particulars to his attorney, under the judge's order, did not apply for a nonsuit; and 
 the court, under the circumstances, granted a new trial without costs, but refused to enter 
 a nonsuit. Morgan v. Harris, 2 Tyr. Rep. 385. 2 Cromp. & J. 461. 1 Dowl. Rep. 570, 
 S. C. 
 
 [a] Time is material. Quin v. Astor, 2 Wend. R. 577.
 
 OF DEFENDANT'S SET-OFF, ETC. 698 
 
 particulars, to an account already delivered, without restating it :{b) and 
 in general, if the plaintifl"8 particular convey the re(juisite information to 
 the defendant, however inaccurately it be dra\sn up, it is 8u{licient.('') 
 And if a bill of particulars state the transaction upon which tlie plaintift's 
 claim arises, it need not specify the technical descri])tion of the right which 
 results to the plaintiff out of that transaction. (J) After the delivery of a 
 bill of particulars, the defendant, in the King's Bench, has the same time 
 to plead, as he had when the summons f(jr it was returnable. (c) And in 
 the Common Pleas, we have seen,(/) the plaintiff cannot sign ju<lgment 
 for want of a plea till the expiration of twenty-four hours after the delivery 
 of a bill of particulars, though the time for pleading be expired, and a de- 
 mand of plea given, more than twenty-four hours before that time. In the 
 Exche(|uer, the defendant cannot obtain an order for the particulars of the 
 plaintiff's demand, without an affidavit, (y) that he is unac<iuaiiited with 
 them: but he is entitled to receive such particulars from the plaintiff, 
 although he may have had a statement of them before the action was 
 brought.(/i) And where a plaintiff refused to deliver a particular of his 
 demand, in obedience to a judge's order, the court of King's Bench refused 
 to allow the defendant to sign a judgment of 7ion prfls.[i) 
 
 As the defendant is allowed to call for the particulars of the plaintiff's 
 demand, so when the defendant pleads or gives notice of net off, for goods 
 sold, &c. the plaintiff may take out a sunnuons for the particulars ; upon 
 which the judge will make an order, which should be regularly drawn up 
 and servcd,(A:) for the defendant to deliver them in a certain time, or in de- 
 fault thereof, that he be precluded from giving evidence at the trial, in sup- 
 port of his set-off.(/) But the plaintiff cannot make any objection to such 
 particidars, at the trial of the cause, which, if made earlier, the defendant 
 or the court might have rectified. (w) 
 
 If the particulars delivered under a judge's order be not sufficiently ex- 
 plicit, the party to whom they are delivered may take out a summons, and 
 obtain an order, ^ov further particulars ; and if, on the other hand, 
 *they are incorrect, or not sufficiently comprehensive, the party [ *599 
 delivering may have a summons and order to amend them. 
 But it is a rule in the King's Bench, (a) that " no summons for further 
 particulars of the plaintiffs demand, defendant's set off, or other particular, 
 be granted in an action depending in this court, unless the last previous 
 order for particulars be first draw'n up, and such order produced at the time 
 of applying for any such summons." And in the Common IMeas, where 
 the declaration was delivered at the same time as a bill of particulars which 
 was insufficient, and another order was afterwards obtained for better particu- 
 
 the balance due to him, without costs. Sed guerre, as to the necessity of including pny- 
 monts by the di'fendant, in the particulars of the plaintiff's demand ; the practice not being 
 conformable to the cases? 
 
 (A) I'eake's Cas. Ni. IVi. 3 Ed. 229. (r) 1 Canijjb. C9, in fioda. 
 
 (d) 4 Taunt. 189 ; and see Peakcs Cas. Xi. Tri. 3 Ed. 229, {a). 
 
 (e) 13 Bast, 508 ; and see 5 Ham. & Cres. 7G9 ; but see 4 Barn. & Cres. 970. 7 Dowl. it 
 Ryl. 458, S. C. 5 Barn. & Cres. 770, (i), 
 
 (/) Antfi, 409. (ff) Append. Chap. XXllI. ? 5. 
 
 (A) Wifjhtw. 78. {,) 7 Dowl. & Ryl. 125. 7 Barn, i Cres. 485. 
 
 (k) Tl. II. 59 Geo. HI. K. B. AnU, 471. 
 
 (I.) For the form of particulars of set-off, see Append. Chap. XXIII. { 10. And for the 
 effect of such particulars, see 8 Price. 213. See also stnt. 5 Geo. IV'. c. 106, § 8, for prant- 
 intr rules in vacation, in the court.s of Great iSessions in Wales, for a particular of the plain- 
 tiff's demand, and defendant's set-off, &c. AtUc, 486, 7, (m). 
 
 (mj Holt, Ni. Pri. 552. (a) R. H. 59 Geo. III. K. B. Atitc, 471.
 
 599 OF PARTICULARS OF DEFENDANT'S SET-OFF, ETC. 
 
 lars, the court held, that as the defendant's attorney had not returned the 
 dechiration, with the insufficient particulars, he had waived the irregular- 
 ity. (/>) An amendment was allowed, in the latter court, after the plaintiff 
 had been nonsuited for a defect in the bill of particulars, and a new trial 
 granted on payment of costs.(c) And the plaintiff, in the Exchequer, is 
 not entitled to be paid the costs of the first trial, previous to and as the 
 terms of the amendment ; but the court will order them to abide the event 
 of the cause.(f?) But where a particular was delivered under a judge's order, 
 and the plaintiff delivered a second particular, without an order, containing 
 merely an echo of the counts in the declaration, that court would not allow 
 him to give evidence of any claim contained in the second particular, which 
 was not included in the first.(e) 
 
 At the trial, the particulars of the plaintiff's demand, or of the defendant's 
 set-off, if delivered, are considered as incorporated with the declaration, 
 plea, or notice; and on production of the order, and proof of their delivery, 
 the parties are not allowed to give any evidence oitt of them.(/) There- 
 fore, where the particular of the plaintiff's demand was a promissory note 
 only, and on being produced it appeared to be improperly stamped, so that 
 it could not be given in evidence, the plaintiff, though he might otherwise 
 have gone into the consideration of the note, was held to be precluded there- 
 from by his particular. (^) But an erroneous date to a bill of particulars, 
 which is not calculated to mislead the defendant, will not preclude the plain- 
 tiff from recovering his demand.(7i) So, where the plaintiff declared in 
 debt for rent, without showing in what parish the lands Avere situate, and 
 delivered a particular of his demand, describing them in a wrong parish, 
 the court held that the plaintiff might recover ; it not appearing that any 
 mis-representation was intended, or that the defendant held more than one 
 parcel of land of the plaintiff, so as to be misled by it :(z) So, where the 
 plaintiff declared on three bills of exchange, in three several counts, but, 
 according to his particular, only sought to recover on the bill set forth in 
 
 the first count ; and the defence was, that the defendants were not 
 [ *600 ] partners when the latter bill was drawn, and the plaintiff tendered 
 
 in ^evidence the other two bills, for the purpose of establishing the 
 fact of partnership ; which evidence was rejected, on the ground that these 
 bills were not included in the particular; the court of Common Pleas 
 granted a new trial. (a) So, in ejectment to recover premises forfeited for 
 non-payment of rent, a difference between the amount of rent proved to 
 be due, and the amount demanded in the lessor of the plaintiff's particular, 
 is not material. (66) And although the plaintiff, after delivering a particular 
 of his demand, cannot at the trial himself give evidence out of it, yet if the 
 defendant's evidence show that there were other iteyns which he might have 
 included in his demand, he is entitled to recover all that appears to be due 
 to him.(w) An itern^ however, of the plaintiff's demand, appearing on the 
 face of the defendant's set off, given in under a judge's order, is not such 
 
 (b) 2 Moore, 90 ; and see Id. 655. 8 Taunt. 592, S. C. Ante, 514. 
 
 (c) 2 Bos. k Pul. 245. {d) 8 Price, 538. 
 {«) 1 Taunt. 353. 
 
 (/) Peake's Gas. Ni. Pri. 3 Ed. 229. 1 Esp. Rep. 195. 3 Esp. Bep. 168. 2 Bos. & Pul. 
 243, S. C. 1 Sel. Pr. 2 Ed. 329, 30. 
 
 ig) 4 Esp. Rep. 7. (h) 2 Taunt. 224. 
 
 (i) 3 Maule & Sel. 380. 
 
 (a) 5 Moore, 567. 2 Brod. & Ding. 682, S. C. 
 
 (bb) 10 Moore, 252. 3 Bing. 3, S. C. {cc) 1 Campb. 68.
 
 OP CHANGING THE VENUE. 600 
 
 an admission as supersedes the necessity of the plaintiff's proving it.{d) 
 In an action of assumpsit brought by the assignees of a bankrupt, the de- 
 fendant called for the particulars of the plaintiff's demand, which were 
 given him, and then j)leaded in abatement, that the promises were made 
 by himself and another person jointly : issue being joined on this plea, it 
 appeared in evidence at the trial, tiiat the particulars ehielly related to 
 transactions between the bankrupt and the defendant, jointly with the per- 
 son mentioned in the plea ; and though there were Home items which con- 
 cerned the defendant only, yet as these were not distinguished from the 
 rest, the chief justice would not suffer them to be given in evidence, and 
 nonsuited the plaintiff: The Court of King's Bench was afterwards moved, 
 but refused to set aside the nonsuit.((j) 
 
 ♦CHAPTER XXIV. [ *601 ] 
 
 Of CHANGING the Venue, consolidating Actions, and striking out 
 
 Counts. 
 
 The law having settled the distinction between local and transitory 
 actions, it seems that towards the reign of Richard the second, it was 
 greatly abused ;(a) for a litigious plaintiff would frequently lay his action 
 in a foreign county, at a great distance from where the cause of it arose, 
 and by that means oblige the defendant to come with his witnesses into that 
 county. To remedy which, it was ordained by statute, (^) " to the intent 
 that writs of debt and account, and all other such actions, be from hence- 
 forth taken in their counties, and directed to the sheriffs of the counties 
 where the contracts of the same actions did arise ; that if from henceforth, 
 in pleas upon the same writs, it shall be declared that the contract thereof 
 was made in another county than is contained in the original writ, that 
 then the same writ shall be utterly abated." The design of this statute 
 was to compel the suing out of all writs arising upon contract, in the very 
 county where the contract was made,(6') agreeably to the law of Henry the 
 first :{d) Unusqutsque per pares suos judicandus est, et ejnsdem provincice ; 
 pcregrina vero jiulicia modis omnibus submovcmus.{e) But as the statute 
 only prescribes, that the count shall agree with the writ, in the place where 
 the contract was made, it did not effectually prevent the mischief :(/) And 
 therefore a statute of Henry the fourth(/y) directs all attorneys to be sworn, 
 that they will make no suit in a foreign county ; and there is an old rule 
 of court,(A) which makes it highly penal for attorneys to transgress this 
 statute. 
 
 Soon after the statute of Henry the fourth, a practice began of pleading 
 in abatement of the writ, the impropriety of its venue, even before the 
 
 {d) 2 Esp. Rep. 602. 5 Taunt. 228. 1 .Marsh. 33, S. C. 
 
 (f) CoUon ^- othcis, assignees, S;c., v. Selby, E. 36 Geo. III. K. B. 1 E.sp. Rep. 452, S. C. 
 
 ia) Gilb. C. P. 89. U>) 6 U. II. c. 2. 
 
 (c) 2 Blac. Rep. 1032. {d) Lcp. Hen. I. c. 31. 
 
 (e) Gilb. C. P. 89, in notis. (/) 2 Black. Rep. 1032. 
 
 \g) 4 Hen. IV. c. 18. 
 
 (A) R. M. 1654, \ 5, K. B. R. .M. 1G54, I 8, C. P. ; and see R. M. 15 Elic. J 15, C. P.
 
 gOl OF CHANGING THE VENUE. 
 
 plaintiff had declared. At first, in the reign of Henry the fifth, they ex- 
 amined the plaintiff upon oath, as to the truth of his venue : But soon after 
 thej began to allow the defendant to traverse the venue, and try the tra- 
 verse by the country. (e) This practice being subject to much delay, the 
 judges introduced the present method of changing the venue upon motion, 
 
 on the equity of the above statute •,{k) which Lord Holt 8ays,(?) 
 [ *602 ] *began in the time of James the first : And accordingly we find, 
 
 that among the fees of the Court of King's Bench, as found by a 
 jury under the King's commission in 1630, one is, "for every rule to alter 
 a visne.'\aa) The form of the rule and affidavit are also stated by Styles^ihh) 
 as established in 23 Car. l.{cc) 
 
 But whenever the practice began, it is now settled, that in transitory 
 actions, the venue may be changed upon motion, either by the plaintiff or 
 defendant ; And, in an action against several defendants, it may it seems be 
 changed at the instance of some of them only.(^) The plaintiff shall not 
 directly alter his venue, after the essoin day of the next term after appear- 
 ance ; though he would pay costs, or give an imparlance :[e) Yet he may in 
 effect do it, by moving to amend ;(/) and that, after the defendant has 
 changed the venue, (^f) or pleaded, (A) and even after two terms have elapsed 
 from the delivery of the declaration. (zY) An amendment was allowed in the 
 King's Bench, in an action for a penalty under the bribery act, by altering 
 the venue from the county at large to an interior jurisdiction, after the time 
 limited for commencing a new action ; the particularity of the declaration 
 making it appear probable to the court, that the plaintiff was proceeding on 
 the same fact for which the action was originally brought, when laid by 
 mistake in the wrong county, though there was no affidavit that it was the 
 same -.(klc) And in another case, such amendment was allowed though it ap- 
 peared that there were distinct causes of action in the two different counties, 
 upon an affidavit that the plaintiffproceeded on a mistake, in supposing that 
 both causes of action could be proved in the county where the election was 
 holden.(?/) But, in the Common Pleas, where the defendant had put off the 
 trial at the assizes, on the absence of a witness, the court refused to let the 
 plaintiff amend, by changing the venue to Middle sex. [m) And that court 
 will not amend a declaration, by changing the venue, unless the plaintiff 
 show substantial ground for it : Therefore, where the plaintiff moved to 
 amend, by changing the venue from Bedfordshire to Middlesex, on the 
 ground that the action depended on a question of law, as to the construction 
 of an inclosure act, and would therefore be tried better and more expedi- 
 tiously in town ; the court, on the affidavit of the defendant, that the cause 
 
 (i) Rastal, tit. Debt, 184, (h). Fitz. Abr. tit. Brief, 18. 
 
 (k) 1 Wms. Saund. 5 Ed. 73, 4, (2). (/) 2 Salk. 670. 
 
 (aa) Trye's jus. fil. 231. (bb) Sty. Pr. (Ed. 1707,) 631. 
 
 (cc) The case of Lord Gerrardv. Floyd, (East, 16 Car. 2.) 1 Sid. 185, is said to be the 
 first case in the books, on the subject of changing the venue ; but that case mentions the 
 common affidavit, and common rule for changing the venue, which shows that the practice 
 was then well known and established: and see 2 Blac. Rep. 1033. 
 
 {d) Cas. Pr. C. P. 133. Pr. Reg. 430, S. C. 4 Maule & Sel. 233 ; but see 5 Taunt. 87, 
 631. 2 Chit. Rep. 417, 18. 
 
 («) Sty. P. R. 625, R. M. 10 Geo. II. reg. 2, (c), K. B. 
 
 (/) 2 Str. 1162. Iff) 2 Barnard. K. B. 153. 2 Str. 1202. 
 
 (h) 1 Wils. 173 ; and see Barnes, 12, 488. 
 
 (ii) Say. Rep. 150, 294. 1 Ken. 368, S. C. 2 Bur. 1098. 
 
 (kk) 4 East, 433. («) 4 East, 435. 
 
 (m) 2 New Rep. C. P. 58.
 
 OF CHANGINa THE VENUE. 602 
 
 of action arose in Bedfordshire, tli.scharged the rule.(72) So, where 
 an attorney has waived liis privilege to sue in * Middlesex, by hiy- [ *G03] 
 ing the venue in another county, he cannot avail himself of his 
 privilege by amending, so as to change the venue to Middle sex. {(t) 
 
 The defendant is in general allowed to change the venue in all transitory 
 actions, arising in a county different from that where the plaintiff has laid 
 it ;{b) and he may even change it from London to MiddleHex,{c) or vice 
 versd.{dd) But the venue cannot be changed in local actions :{ee) And in 
 transitory actions, where material evidence arises in two counties, the venue 
 may be laid in either :{ff) and if it be laid in a third county, the courts will 
 not change it ; for the defendant in such case cannot make tlie necessary affi- 
 davit, that the cause of action arose in a particular county, and not else- 
 where. (//) Thus, where the venue was laid in London, and it appeared from 
 the affidavit, that the cause of action arose upon a bridge called King's 
 bridge, partly in the county of Kent, and partly in the county of the city of 
 Canterbury, and not elsewhere, the court refused to change the venue. (/t) 
 And for a similar reason, the venue cannot be changed in an action against 
 a carrier,(z) or lighterman, (A:) or for an escape,(^) or false return. (w) !So, in 
 scire facias to repeal a patent,(w) or action for infringing it,(o) the de- 
 fendant cannot change the venue from Middlesex, to any other county ; 
 nor can the venue be changed, in such an action, from one county to an- 
 other, (ji?) 
 
 "When the cause of action arises out of the realm, the courts will not 
 change the venue ; because the action may as well be tried in the county 
 where the venue is laid, as in any other where the cause of action did not 
 arise.(9') So, where the cause of action partly arose in Derbyshire and 
 partly in Ireland, the court of King's Bench refused to change the venue 
 from London to Derbyshire, on an affidavit that the cause of action arose in 
 the county of Derby and in Ireland, and not in London, or elsewhere than 
 in the county of Derby and in Ireland.{r) And as it is necessary, for 
 changing the venue, that the cause of action should be wholly confined 
 to a single county, the courts will not change it in an action of debt on 
 
 (n) 6 Taunt. 408. 2 Marsh. 121, S. C. 
 
 (a) 7 Taunt. 146. 2 Marsh. 426, S. C. 
 
 (6) R. M. 1654, § 5, K. B. R. M. 1054, § 8, C. P. Barnes, 491. 
 
 (c) 2 Str. 857. Barnes, 487. Pr. Reg. 430, S. C. 
 
 (dd) 2 Durnf. & East, 275. Cas. Pr. C. P. 41. Pr. Reg. 429, 30. Barnes, 481. 
 
 (ee) Say. Rep. 146. 
 
 (/) 7 Co. 2, a. 2 Salk. 669, R. M. 10 Geo. II. reg. 2, (o), K. B. 2 Dumf. & East, 275. 
 1 Durnf. & East, 58.3. 7 Moore, 520. 
 
 (ff) 7 Durnf. & P^ast, 205. 3 Bos. & Pul. 579. Rowland v. Knapp, II. 41 Geo. III. C. 
 P. Id. 579, 80. 3 Taunt. 464. 2 Wms. Saund. 5 Ed. 5, (3) ; but .sec 2 Bhic. Rep. 940. 
 1 New Rep. C. P. 110, 310. 1 Taunt. 259. 6 Taunt. 565, 566. 2 Marsh. 278, S. C. 2 
 Moore, 64. 
 
 (h) 1 Wils. 178. 
 
 (i) Edie V. Glover, IT. 27 Geo. III. K. B. ; but see 4 Taunt. 729. 
 
 (k) 2 Salk. 670. 
 
 (/) Id. 1 Keb. 65. 1 Sid. 87. Barnes, 491. 2 Marsh. 152 ; but see Barnes, 493. 2 Chit. 
 Rep. 418. 
 
 (m) 2 Salk. 669. 2 Str. 727. Say. Rep. 54. 1 Wils. 336, S. C. 
 
 (nn) 2 Cox, 235. 
 
 (o) 6 Durnf. & East, 363. 1 East, 115, (a). 2 Chit. Rep. 418. 
 
 (;)) Per Cur. T. 22 Geo. III. K. B. 7 Dowl. k Ryl. 103, 4. 
 
 (q) Say. Rep. 77. Cowp. 176; and see 1 H. Blac. 280. 1 Taunt. 259, 60. 2 Taunt. 197. 
 6 Taunt. 569. 2 Marsh. 280, S. C. 
 
 (r) 4 East, 495; and see 2 New Rep. C. P. 397. 3 Bing. 429.
 
 603 
 
 OF CHANGING THE VENUE. 
 
 [ *604 ] bond *or other speciality, (a) or in covenant on alea8e,(J) or policy 
 of insurance by deed,(6') or in assumpsit or on an award, (c?) or 
 charter party of affreightment, (e) unless some special ground be laid : (/) for 
 debitum et contractus sunt nullius loci, and bonds and other specialities 
 are bo?ia notabilia wherever they happen to he.{gg) And it is now holden 
 in the King's Bench,(AA) agreeably to the practice of the court of Common 
 Pleas,(iY) that the venue cannot be changed, unless upon a special ground, (M) 
 in an action upon a promissory note, or bill of exchange. And if an action 
 be bond fide brought on a promissory note, the plaintijQF may retain the venue, 
 though the action be for other causes also ; and the court will not restrain 
 the plaintiff from proceeding in the county he has elected, for the other 
 causes. (Z^) But the venue may still be changed in an action upon a policy of 
 insurance, not being by deed ;(m) or in any other action, the right of which, 
 is founded upon simple contract, (w) And in covenant upon a lease, for di- 
 verting water from a mill, &c. a view being proper to be had, the venue was 
 changed in one case, to the county where the premises lay ; though most of 
 the plaintiff's witnesses resided in the county where the venue was laid :(o) 
 But, from a subsequent case it seems, that the granting of a view is not 
 alone a sufficient reason for changing the venue, in an action of cove- 
 nant. [p) 
 
 The venue may be changed in an action for criminal conversation, on the 
 usual affidavit, that the whole cause of action, if any, arose in the county to 
 which it is changed ; for the whole cause of action is the trespass committed 
 on the plaintiff's wife.(^) So, the venue may be changed in an action for an 
 assault, (r) And the court of Common Pleas will change it in a penal action, 
 on the usual affidavit as well as in any other. (s) In an action on the case, 
 for overturning the plaintiff in a stage coach, the venue may be changed into 
 the county whez'e the accident happened.(^) And it is no reason against 
 changing the venue, that if changed, the cause is likely to 
 [ *605 ] *be tried by persons interested in the question, if they are likely 
 to have as strong an interest on one side as on the other, (aa) But, 
 in an action ioxscandalum magnatum, the courts will never change the 
 venue ',{bb) because a scandal raised of a peer of the realm is not confined to 
 
 {a) 1 Keb. 65. 1 Sid. 8Y. Sty. P. R. 631. 2 Str. 878. Andr. 66, R. M. 10 Geo. II. 
 (c), KL B. Gilb. K. B. 339. Gilb. C. P. 90. Balein v. Kent, E. 20 Geo. III. K. B. Barnes, 
 491. {b) 2 Chit. Rep. 419, 20. (c) 1 M'Clel. & Y. 212. 
 
 {d) 2 Bos. & Pul. 355. 3 Barn. & Ores. 9. 4 Dowl. & Ryl. 635, S. C. 
 
 (e) 7 Taunt. 306. 1 Moore, 54, S. C. ; but see 4 Bing. 39. 
 
 (/) Pole V. Uorobin, M. 22 Geo. III. K. B., cited in 1 Durnf. & East, 782, (a). 1 Durnf. 
 & East, 781 ; and see 1 Bos. & Pul. 425. 8 East. 268. 
 
 (ffg) 1 Durnf. & East, 571. 
 
 {hh) Andr. 66, joe/- Chappie, J. R. M. 10 Geo. II. (c), K. B. Precious v. Benetf, E. 25 Geo. 
 III. K. B. ; but see the opinion of the other justice, in Andr. 66. 1 Wils. 41. Say. Rep. 7, 
 contra. 
 
 {ii} Gas. Pr. C. P. 119. Pr. Reg. 417, 18. Barnes, 480, 483, 485, 487, 491, 492. 2 Blac. 
 Rep. 993. 1 Bos. & Pul. 20. 2 Bos. & Pul. 355. 
 
 (kk) Per Cur. T. 25 Geo. III. K. B. 2 Chit. Rep. 418, 19. Id. (a). 
 
 (U) 5 Taunt. 576. 2 Dowl. & Ryl. 164; but see 7 Price, 564, semb. contra. 
 
 (m) Andr. 66. 2 Str. 1180. Say. Rep. 7. 2 Durnf. & East, 275. 7 Durnf. & East. 205 ; 
 but see 1 M'Clel. & Y. 212. 
 
 (n) Sav. Rep. 7. (o) 8 East, 268 ; but see 2 Chit. Rep. 419, 20. 
 
 (p) 2 Chit. Rep. 419, 20. 
 
 (q) 10 East, 32 ; and see 2 Chit. Rep. 417 ; 7 Moore, 62. (r) 2 Chit. Rep. 417. 
 
 (s) 5 Taunt. 754. 1 Marsh. 320, S. C. ; but see 1 Sid. 287, semb. contra. 
 
 (t) 4 Taunt. 729. (aa) 5 Taunt. 605. 
 
 (bb) 1 Lev. 56. 2 Salk. 688. Carth. 400, S. C. 2 Str. 807. Barnes, 482. Cas. Pr. C. P. 
 132. Pr. Reg. 417. S. C. Gilb, C. P, 90.
 
 OF CHANGING THE VENUE. 605 
 
 any particular county, but reflects on him through the whole kingdom ; and 
 he is a person of so great notoriety, that there is no necessity for obliging 
 him to try his cause in the neighbourliood. So, in an action fur a libel, pub- 
 lished in a newspaper in oiie county, and circulated in other countie8,(t') or 
 contained in a letter, written by the defendant in one county, and directed 
 into anothcr,((^) the court of King's Jk-ncii will not change the venue ; 
 because the defendant cannot make the common aflidavif, that the cause of 
 action arose in a single county, and not elsewhere: Kut the court will change 
 the venue into a county in which the libel was both written and published :{e) 
 And the distinction seems to be, between a libel which is dispersed through 
 several counties, and a letter which is written in one county and not opened 
 in another ; on the former, the venue cannot be changed, on the latter it 
 may.(/) 
 
 Though the courts in general will not change the venue, when it is laid 
 in the proper county, yet they will change it even then, upon a special 
 ground :{g) Thus, in debt on bond, where the venue was laid in London^ 
 and the plaintiff's and defendant's witnesses lived in Lincolnshire, the court 
 of King's Bench changed it into the latter county. (^) So, where the cause 
 of action arose in another county than that in which the venue is laid by the 
 plaintiff", and the justice of the case requires the trial to be had there, all the 
 witnesses residing at a great distance from the county where the venue is 
 laid, the courts, on the application of the defendant, will change the venue, 
 on his agreeing to admit a particular fact, which in point of form exists in 
 the original co\inty.[i) But in an action by an attorney for an escape, it is 
 not a sufficient ground for deviating from the general rule not to change the 
 venue in such case, that the witnesses on both sides reside in the county to 
 which the venue is wished to be changed. (A;) 
 
 When a fair and impartial trial cannot be had in the county where the 
 venue is laid, the courts, on an affidavit of the circumstances, will change it, 
 in transitory actions \{l) or, in local actions, will give leave to 
 enter a *suggestion on the roll, with a nient dedire, in order to [ *606 ] 
 have the trial in an adjoining county :{a) And the parties by con- 
 sent may change the venue in local actions,(6) or have them tried out of 
 their proper county, such consent being entered by suggestion on the roll.(6r) 
 On the other hand, though the courts will in general change the venue, 
 where it is not laid in the proper county, yet if an impartial or satisfactory 
 trial cannot be had there, they will not change it ; as in an action for words 
 spoken of a justice of the peace, by a candidate upon the hustings, at a 
 
 (c) Iloskins V. Ridgway, H. 23 Geo. III. K. B. 1 Durnf. & East, 571. 
 
 (d) 1 Diirnf. & East, (547. 1 Brod. & Bing. 299. 
 
 (e) 3 Durnf. & East, 306. Aris v. Taylor, T. 35 Geo. III. K. B. ; and see 1 Moore & P. 
 188. 
 
 (/) 3 Durnf. k East, C52. 
 
 {g) 2 Chit. Rep. 418, 19. 
 
 (A) 1 Durnf. k East, 781 ; and see 1 Bos. k Pul. 20, 425. 1 Chit. Rep. 334; but see 1 
 Wils. 162. 1 Durnf & East, 782, in notia. 2 Marsh. 152. 6 Price, 612. 7 Mooro, 82, 520. 
 3 Barn, k Cress. 552. 
 
 (t) 3 East, 329. Edit v. Glover, H. 27 Geo. III. K. B. ; and see 2 Chit. licp. 418, 19. 3 
 Bos. k Pul. 581. 8 Taunt. 635. 
 
 {k) 1 Marsh. 152 ; and sec 2 Chit. Rep. 418, 19. 
 
 (^ 2 Str. 874. 3 Bur. 1564. 1 Blac. Rep. 480, S. C. ; but see 1 Baraard, K. B. 283. 
 Foley V. Lord Peifrborough, H. 25 Geo. III. K. B. 
 
 (a) 10 Mod. 198. 1 Str. 235. 3 Bur. 1334. 1 Durnf. k East, 363. 
 
 {b) 1 Wils. 298. Groves v. Durall, II. 38 Geo. III. K. B. 
 
 \cc) Fonnerau v. Fonnerau, in K. B.^er Cur. 
 
 Vol. I.— 38
 
 gQg OF CHANGING THE VENUE. 
 
 county electIon.(c?) And, in order to avoid delay, the courts will not change 
 the venue, except by consent, or upon an affidavit of merits,(e) into the city 
 of Bristol or Norwich, where there are no Lent assizes, in Michaelmas or 
 Hilary term ;(/) nor into Hull, Canterbury, &c. where the justices of 
 nisi prius seldom come ;{g) nor into the city of Worcester or Crloucester, 
 out of the county at large, because the assizes for the city and county at 
 large are holden at the same place. (A) But the venue may be changed, 
 as a matter of course, into the city of Bristol,{ii) &c. previous to the 
 summer assizes. 
 
 So, when the venue is not laid in the proper county, the privilege of the 
 plaintiff will in some cases prevent the courts from changing it. Thus, in 
 an action brought by a serjeant,(M) barrister, (ZZ) attorney,(m) or other officer 
 of the court, (w) if the venue be laid in Middlesex, the plaintiff, suing as a 
 privileged person, has a right to retain it there, on account of the supposed 
 necessity of his attendance on the court : But if the venue be laid in any 
 other county, as in London ;{o) or the plaintiff, though privileged, sue as a 
 common person, by original or otherwise,(p) or en auter droit, as execu- 
 tor or administrator, or jointly with his wife or other persons, (9') he has no 
 such privilege : and the court will not suffer him to use his privilege, so as 
 to oppress a defendant. (r) When a Serjeant, barrister, attorney, or 
 [ *607 ] other *officer of the court is defendant, he has no privilege what- 
 ever respecting the venue. (a) 
 
 It was formerly doubted, whether the venue could be changed, without 
 consent, into Wales,{b) or the next adjoining English county ;(<?) and the 
 objection in the latter case was, that the defendant could not make the 
 common affidavit, which is never dispensed with, that the cause of action 
 arose in that particular county and not elsewhere. ((ic?) But now, since the 
 latitat is holden to run into Wales, it has become the common practice to 
 change the venue directly from an English to a Welch county -.[ee] and this 
 is 80 much a matter of course, that the rule for changing it is absolute in 
 
 (d) Cowp. 510 ; and see 2 Salk. 670. 4 Burr. 244Y. 
 
 \e) 1 Chit. Rep. 14. 
 
 (/) Cas. Pr. C. P. 129. Barnes, 481, S. C. Pr. Reg. 428. 2 Str. 1180, 1216. 1 Wils. 
 138. Per Cur. M. 37 Geo. III. K. B. ; and see 3 Blac. Com. 294. 5 Price, 613. But see 1 
 Chit. Rep. 334, where, in an action on a bond, the venue was changed from London to 
 Northumberland, in Easter term, on an affidavit stating that all the defendant's witnesses 
 lived there, on the terms of withdrawing the plea of non est factum. 
 
 (g) R. M. 1654, ^ 9. K. B. R. M. 1654, g 12, C. P. Barnes, 489, 90. 
 
 (A) Barnes, 490. 
 
 hi) Stanley v. Preston, T. 24 Geo. III. K. B. Tucker v. Morgan E. 35 Geo. III. K. B. 
 
 {kk) Pr. Reg. 420. 
 
 \ll) 2 Show. 176, 242. 1 Mod. 64. Sty. Rep. 460. 2 Salk. 668, 670, 671. 2 Ld. Raym. 
 1556. 2 Str. 822. 1 Wils. 159. 1 Blac. Rep. 19 S. C. 
 
 (m) 2 Salk. 668. Say. Rep. 153, 180. Barnes, 479. Pr. Reg. 418, S. C. Barnes, 487, 
 493. 2 Blac. Rep. 1065. 2 Marsh. 152. Ante, 80, 320. 
 
 (n) 2 Salk. 670. 2 Ld. Raym. 1253. 
 
 \o) 2 Salk. 668. 7 Taunt. 146. 2 Marsh. 426, S. C. 
 
 \p) Cas. P. R. C. P. 132, 145. Pr. Reg. 419, 20. Barnes, 479, 484, S. C. 
 
 {q) R. M. 10 Geo. II. reg. 2, (c), K. B. 
 
 (r) Tomlinson v. Harrison, M. 16 Geo. III. K. B. 
 
 \a) Carth. 126. 1 Show. 148. 4 Bur. 2027. Sparke v. Stokes, one, ^c. H. 24 Geo. III. 
 K. B. 3 Durnf & East, 573. Barnes, 482. Pr. Reg. 419. Cas. Pr. C. P. 134, S. C. ; but see 
 a Salk. 668. 1 Str. 619. 2 Str. 1049, contra. 
 
 (b) Say. Rep. 48. Doug. 262, 3. Jones v. Thomas, T. 22 Geo. III. K. B. cited in Doug. 
 263, n. 
 
 (c) 2 Str. 1258. 1 Wils. 138, S. C. (dd) 4 Bur. 2452. 
 (ee) 2 Str, 1270. 1 Wils. 222. 4 Bur, 2450. 2 Blac. Rep. 962 6 Bast, 355,
 
 or CHANGING THE VENUE. 607 
 
 the first instance, on the usual affidavit. (/) So, the venue has been fre- 
 quently changed into the counties palatine ; because the courts can send 
 down the record there by ynitthnus :(ff) and, in one instance, it was changed 
 into the next adjoining county. (A) liut where the venue is changed into a 
 county pahitine, the courts will re(iuire an undertaking from the defend- 
 ant, not to assign for error tlie want of an original. (e) And, in tlic Com- 
 mon Pleas, it is considered as a matter of favour to change the venue to a 
 county palatine ; and therefore, where it would be attended with inconve- 
 nience to the plaintiff, that court will not grant the indulgence. (Ar) So, 
 they will not permit one only of several defendants to change the venue 
 to a county palatine ; because they have in that case no authority to bind 
 the other defendants, to the terms of not assigning for error tlie want of 
 an original :(^) And where one of several defendants liad sufl'erefl judg- 
 ment by default in Middlesex, the court would not, on the apj)lication of 
 another defendant, change the venue to a county palatine.(7??) So, where 
 the venue was laid in a county palatine, and after a writ of inquiry exe- 
 cuted, and final judgment signed, a writ of error was brought, and error 
 assigned for want of an original, the com-t would not amend the declaration 
 by changing the venue :(??) And where, in an action by original against 
 four defendants, the venue was changed into a county palatine, on the 
 application of three of them, who appeared separately by one attorney, 
 and undertook not to assign the want of an original for error, 
 the court of King's Bench required *a similar undertaking from [ *608 ] 
 i\ie fcnirth, who had appeared by a different attorney. (^) Where 
 the cause of action arises in Berwick, and the venue is laid elsewhere, it is 
 not settled, whether it can be changed into Northumherland, as being the 
 next adjoining county :{6) But it seems that the courts, upon a proper 
 suggestion, will order the cause to be tried there, (c) 
 
 In the King's Bench, the motion for a rule for the defendant to change 
 the venue is in general a motion of course, requiring only counsel's signa- 
 ture ; and must formerly have boon made within eight days after the de- 
 claration delivered, ((i) which was the time allowed by the rules of the court, 
 for pleading :(c) And accordingly it is said,(^) that if a declaration be de- 
 livered so early in term, that the defendant has eight days in that term, 
 he cannot move to change the venue the next term. But it is now settled, 
 that where the defendant has not obtained an order for time to plead, he 
 may move to change the venue, at any time before plea pleaded :{gg) and 
 he is even allowed to change it, after an order for time to plead, though 
 upon the terms of pleading issuably \{hh) but not after an order for time to 
 
 (/) 6 East, 355. Powell v. Wilking, H. 37 Geo. III. K. B. Anon. H. 37 Geo. III. K. B. 
 contra. 
 
 (ff) 2 Ld. Raym. 1418. 1 Wils. 222. 7 Durnf. & East, 735; but see 2 Str. 807. Cas. 
 Pr. C. P. 91, 129. Pr. Ileg. 428. 9 Barnes, 478, 481, 488, contra. 
 
 (A) 12 Mod. 313 ; and see Pr. Reg. 428. 
 
 (t) 1 Sel. Pr. 2 Ed. 251. Marsden v. Bell, E. 28 Geo. III. C. P. Imp. C. P. 7 Ed. 218, 
 220. 1 Taunt. 120. 13 Price, 52, S. P. Ante, 105. Append. Chap. XXIV. 2 4. 
 
 (k) 1 Taunt. 432. (/) 5 Taunt. 87 ; and see 2 Chit. Hep. 417, 18. Antf, 602. 
 
 (m) 5 Taunt. 631 ; and see 2 Chit. Rep. 417, 18 ; but see 4 Maule & Sel. 233. Cas. P. R. 
 C. P. 133. Pr. Reg. 430, S. C. 
 
 (n) 7 Taunt. 466. 1 Moore, 186, S. C. ; and see 6 Moore, 567. 
 
 (a) 4 .Maule & Sel. 233. (b) 2 Blac. Rep. 1036, 1068; and see 2 Ken. 519. 
 
 (c) 2 Bur. 859. (</) 2 Salk. G68. 
 
 (e) Id. 2 Str. 1192. (/) 1 Str. 211 ; and see R. M. 1654, J 5, K. B. 
 
 (gff) R. M. 1054, ? 5, K. B. Gilb. K. B. 339. 
 
 (hh) Say. Rep. 207. Saxby v. Ly», M. 26 Geo. III. K. B. Hudton v Netdham, T. 27 Geo. 
 III. K. B.
 
 608 
 
 OP CHANGING THE VENUE. 
 
 plead, where the terms are to plead issuablj, and take short notice of trial, 
 at tlie first or other sittings within term, in London or Middlesex ; because 
 a trial would by that means be lost.(^) And, for the same reason, a de- 
 fendant under terms of taking short notice of trial for the sittings in Middle- 
 sex, after a non-issuable term, cannot move to change the venue into the 
 country, upon the common affidavit. 1 Man. & Ryl. 142. And the venue 
 cannot in general be changed, at the instance of the defendant, after plea 
 pleaded ; even though he afterwards have leave to withdraw his plea, and 
 plead it de novo, with a notice of set-off. (A;) In the Common Pleas, the 
 motion is for a rule to show cause ; and may be made, as in the King's 
 Bench, at any time before plea pleaded, (/) notwithstanding the defendant 
 may have previously applied for and obtained further time to plead, (m) 
 unless he be under terms of taking short notice of trial in Londoti or Middle- 
 sex ;{n) or for the adjourned sittings after term in London.io) But the 
 motion cannot in general be made after the defendant has pleaded in abate- 
 ment,(j9) or in bar •,[q) though if he plead pending a rule wm for changing 
 
 the venue, this will not prevent the court from making it abso- 
 [ *609 ] lute :(r) and being for a rule *to show cause, the motion cannot 
 
 regularly be made on the last day of term, unless the declaration 
 was delivered so late in the term, that the defendant had not an opportu- 
 nity of making it sooner, (a) In the Exchequer, the court will not change 
 the venue in any case where a trial has been had :(6) And in that court, 
 the defendant cannot change the venue, after having obtained an order for 
 time to plead, " on all the usual terms ;" it being considered as one of these 
 terms, that the defendant shall not afterwards move to change the venue :(<?) 
 Therefore, when the order is intended to be without prejudice to a change 
 of venue, it should be so expressed in the summons. (c) And the court 
 will not order the venue to be changed, after an order for time to plead, 
 although the defendant proposes to give judgment of the term.(c) 
 
 In order to change the venue, when not laid in the proper county, the 
 defendant, in all the courts, must make a positive affidavit, that " the plain- 
 tiff's cause of action, {if any,) arose in the county of A. and not in the 
 county of B. (where the venue is laid,) or elsewhere out of the county of 
 A.'\d) An affidavit was necessary, because the motion to change the venue 
 succeeded and was equivalent to a plea in abatement ;(g) and the form of the 
 affidavit, which was settled so long ago as the reign of King Charles the 
 
 (i) Cowp. 511. T Durnf. & East, 698 ; but see 1 Wils. 245, contra. 
 
 {k) Palmer ^ Turner, H. 26 Geo. III. K. B. 3 Bos. & Pul. 13, {b). 
 
 {I) R. M. 1654, I 8, C. P. 
 
 (to) Willes, 318. Barnes, 489. R. M. 16 Geo. II. C. P. Before the making of this rule, 
 the defendant, in the Common Pleas, could not have moved to change the venue, after 
 taking out a summons, or obtaining an order, for further time to plead. Gas. Pr. C. P. 126. 
 Barnes, 478, 481, 483, 485, 6 Pr. Reg. 424, 5, 6. S. C. ; and see Gas. Pr. G. P. 159. Pr. 
 Reg. 425. Barnes, 487, S. C. 2 Bos. & Pul. 320. 
 
 (n) Barnes, 478. 2 Bos. & Pul. 320. 3 Bos. & Pul. 12. 
 
 (o) Barnes, 493. 1 Bing. 186. 7 Moore, 598, S. G. {p) 4 Bing. 18. 
 
 [q) Gas. Pr. G. P. 33, 112. Pr. Reg. 423, S. G. Pallister v. Willan, T. 33 Geo. III. C. P. 
 Imp. C. P. 7 Ed. 222, 3. 2 Moore, 64. 8 Taunt. 169, S. G. 
 
 {r) Gas. Pr. G. P. 136. Pr. Reg. 423, S. G. Barnes, 492. 3 Bos. & Pul. 12. 1 Taunt. 58. 
 
 (a) Barnes, 480, 486, 489. Pr. Reg. 426, 7. Ante, 498, 9. (6) 1 Price, 146. 
 
 (c) 3 Price, 3. 2 M'Glel. & Y. 106. 
 
 {d) Sty. P. R. 631. R. M. 10 Geo. II. reg. 2, (c), K. B. Fleetwood v. Cross, H. 26 Geo. 
 III. K. B. 3 Durnf. & East, 495 , and see Append. Chap. XXIV. § 1 ; and for the rule 
 thereon, see id. § 2. 
 
 (e) 2 Blac. Rep. 1033.
 
 OF CIIANGIXO THE VENUE. 609 
 
 Beconfl,(/) has been ever most rcH^riously fidhered to.(q) Upon this affida- 
 vit, the clerk of the ruh'S will draw ujj a rule for chaii;,'infi; the veiiu(? in the 
 King's Bench, which is absolute in the first instance. (/i) But inconvenience 
 having arisen from the venue having been improperly changed, without 
 adverting to the cause of action, a rule was made in that court, that in 
 future, all rules for changing the venue in any action, should be drawn up 
 " upon reading the declaration,"(0 &c. : and accordingly, the court will not 
 change the venue, unless the affidavit state what the cause of action is, or it 
 appear by producing the declaration, that it is of such a nature as to enable 
 the defendant to change it. (A:) In the Common ]Meas, the rule for chang- 
 ing the venue is a rule to show cause ;(/) which is drawn up by the seconda- 
 ries, on the usual affidavit, that " the cause of action arose in the county to 
 which it is sought to be changed, and not elsewhere, "(?«) and on 
 inspecting the declaration. (?i) If the defendant, in either *court, [ *G10 ] 
 have occasion to change the venue in varaficm, he may obtain 
 a judge's order for that purpose, on producing a motion paper, signed by a 
 counsel or Serjeant, with the usual alRdavit, and a copy of the declaration. 
 
 Yet, as it would be hard to conclude the plaintiff, by the single affidavit 
 of the defendant, he is at liberty to aver, that the cause of action arose in the 
 county where the venue is laid, and go to trial thereon at the same time that 
 the merits are tried, by umlertaking to give material evidence, arising in 
 that county. This practice is equivalent to joining issue, that the cause of 
 action arose in the first county : and if the plaintiff fail in jiroving it, he 
 must be nonsuited at the trial ; which has in this case the same effect, as 
 quashing the writ by a judgment on a plea in abatement, viz. quod dcfendens 
 eat sine die, and the plaintiff must begin again. (a) 
 
 In the King's Bench, when the rule to change the venue is absolute in 
 the first instance, the only wa}'- by Avhich the plaintiff can bring it back, is 
 by a separate motion : And Avhen the venue has been irregularly changeil, 
 as where the affidavit is defective, (6) &c. the motion is for a rule nisi, which 
 the court will make absolute, on an affidavit of service, unless good cause be 
 shown to the contrary. But when the venue has been regularly changed, 
 the motion is a motion of course, requiring only counsel's signature ; and 
 the court will require an undertaking to give material evidence in the county 
 in which the venue was originally laid.((?) It was formerly holden, in the 
 King's Bench, that the plaintiff must inove to discharge the rule for changing 
 the venue, before replication ;(c^) and therefore that he came too late after 
 issue was joined, and delivered to the defendant's agent. (e) But now as 
 the plaintiff may alter his venue, by moving to amend, (^^') so, for avoiding 
 
 (/) 1 Sid. 185, 442. 
 
 Iff) Say. Rep. 77. 4 Bur. 2452. 3 Durnf. k East, 495. Biirne.9, 477, 8, 9. Pr. Reg. 
 421, 2, S. C. 
 
 (A) 1 Chit. Rep. 691, (a). Append. Clmp. XXIV. ^ 2. 
 
 (i) R. T. 49 Geo. III. K. H. 11 East, 27H. 1 Marsh. 243. 1 Chit. Rep. 67, (a). 
 
 h) 1 Chit. Rep. 57. :!:!4. 
 
 h) Append. Chap. XXIV. ^ 5 ; and for the rule absolute thereon, sec id. \ G. 
 
 (m) 2 Marsh. 278, 9. Taunt. 5f,7, H. C. 1 Chit. Rep. 378. 
 
 \n) Append. Chap. XXIV. ^ 5. 1 rhit. Rep. 57, (n). 
 
 (a) 2 Hlac. Rep. 10.13; andsee Gilh. C. P. Chap. VII. 1 Wms. Saund. 5 Ed. 74, (2). 
 
 h) Fleetwood v. Crnnn, H. 26 CJeo. III. K. 13. 3 Durnf. k East, 495. 
 
 (c) 2 Salk. G69. 6 Taunt. 5G7. 2 Marsh. 273, S. C. 1 Chit. Rep. 378. Append. Chap. 
 XXIV. ? 4. 
 
 (rf) 2 Str. 858. 
 
 (c) V. Boddington ^- others, M. 20 Geo. III. K. B. (/) Ante, 692.
 
 gjQ OF CHANGING THE VENUE. 
 
 circuity, he may move to discharge the rule for changing the venue, on 
 undertaking to give material evidence in the county where it is laid, at any 
 time before the cause is tried : and it was accordingly discharged in one 
 case, after the cause had been twice taken down for trial. (^) If the venue 
 be changed from A. to B., on the usual affidavit, that the cause of action 
 arose wholly in B. when in fact a part of it arose in another county, it was 
 holdon in one case,(7i) that the venue might be brought back to A. as a mat- 
 ter of course. But in a subsequent case(t) it was determined, that though 
 the venue be changed by the defendant upon a false affidavit, yet the plain- 
 tiff cannot bring it back to the county where it was first laid, without the 
 usual undertaking to give material evidence in that county : and of course, 
 if the venue be laid in a county where no part of the cause of action arose, 
 
 it cannot be brought back into that county ; nor will the court, 
 [ *611 ] in such case, change it into the *county where the cause of action 
 
 arose.(aa) So, where the venue had been changed by the defen- 
 dant from London to Staffordshire, on the usual affidavit, that the cause of 
 action arose in the latter county, and not elsewhere, the court of King's 
 Bench would not bring it back to Londo7i, on an affidavit that the cause of 
 action arose partly in Staffordshire and partly in Worcestershire^ and that 
 a material witness resided in London, and on the plaintiff's undertaking to 
 give material evidence in one or other of those counties ; particularly as no 
 special facts were stated, to show that the defendant's affidavit was not cor- 
 rect. (W) And mere hardship and delay in being obliged to try a cause at 
 Lancaster, when all the plaintiff's witnesses reside in London, is no ground 
 for bringing back the venue to the latter place, unless the defendant was 
 under terms to take short notice of trial in London, and had undertaken not 
 to assign for error the want of an original writ.((7c) 
 
 In the Common Pleas, the rule for changing the venue being only a rule 
 nisi, the court, on showing cause, will either make it absolute or discharge 
 it, according to circumstances. (ci) On a motion to change the venue from 
 London to Worcester on the usual affidavit, an affidavit stating that the 
 action was brought for the seduction of the plaintiff's daughter, and that 
 she was so ill it was not expected she would live till the assizes, was holden, 
 in that court, to be an answer to the application. (e) And it was determined 
 in one case,(/) that an application to change the venue from A. to B. in an 
 action for goods sold and delivered, upon an affidavit that the cause of action 
 arose at B. and not elsewhere, might be successfully answered, by an affida- 
 vit that the goods were sold at C, without an undertaking by the plaintiff, 
 to give material evidence in A. So, where it appeared that the action was 
 brought on a charter-party of affreightment, (^^^f) or that the cause of action 
 principally arose in Ir eland, {hh) or partly in a foreign country,(zV) the court 
 discharged a rule for changing the venue. But the circumstances of an 
 
 (g) Cowp. 409. (A) 1 Durnf. & East, 205. 
 
 (i) 6 East, 433. 2 Smith R. 447, S. C. ; and see 1 Wils. 162. 10 East, 32. 
 
 {aa) Massey v. Anderton, H. 43 Geo. III. 8. B. 1 Chit. Rep. 691, (a). 
 
 {bb) 2 Bara. & Aid. 618. 1 Chit. Rep. 377, S. C. (cc) 1 Chit. Rep. 691. 
 
 (rf) 2 Marsh. 278, 9. 6 Taunt. 567, S. C. 1 Chit. Rep. 378. Append. Chap. XXIV. 
 I 5, 6, 7. 
 
 (e) 7 Moore, 62. 
 
 (/) 3 Bos. & Pul. 579 ; and see 3 Taunt. 464 ; but it should be observed, that these deci- 
 sions seem to have been since overruled. 
 
 {gg) 7 Taunt. 306. 1 Moore, 54, S. C. Ante, 604. \ 
 
 {hh) 2 New Rep. C. P. 397 ; and see 4 East, 495. 
 
 (m) 2 Taunt. 197. Ante, 603 ; and see 3 Bing. 429.
 
 OP CHANGING THE VENUE. 611 
 
 action's being brought on a writing, is not a ground for rejecting an applica- 
 tion to change the venue, unless the declaration disclose the existence of 
 the writing.(A;) And in general, where there has been no irregularity, the 
 court will not try the matter u[»on atiidavits ; but if there be a positive aflB- 
 davit that the cause of action arose in a difTi-rcnt countv from that where the 
 venue is laid, they will re((uire an undertaking from the i)laintiff 
 to give material evidence in the latter county, if the * whole cause [ *612 ] 
 of action is supposed to have arisen there ;{a) but if it arose in 
 several counties, the court will retain the venue, on theplaintiflf's undertak- 
 ing, in the alternative, to give material evidence in some of them :{l>} And 
 when the whole cause of action arises abroad, the court will discharge the 
 rule for changing the venue, without any undertaking by tiie j)laintiff to 
 give material evidence in this country. (c) In the Exchecjuer, as in the 
 Common Pleas, the rule to change the venue is a rule to show cause :{dd) 
 And it is the practice in the former court, as in the King's Bench, not to 
 discharge the rule for changing the venue, without an undertaking to give 
 material evidence in the county in which it was originally laid •,{ee) it not 
 being sufficient, as in the Common Pleas, Avlien the cause of action is sup- 
 posed to have arisen in several counties, to undertake to give material 
 evidence in some of them.(ge) 
 
 Originally it was required, that the plaintiff should give no evidence at 
 the trial, but what arose in the county wherein the venue was retained :(ff) 
 and if he gave no such evidence, he must have been nonsuited of course. 
 But when it was laid down (more liberally,) in Sivaines case,(_9/y) tliat the 
 plaintiff might lay his venue in any county, wherein part of the cause of 
 action arose, he was then bound only to give some evidence, {dare aliquam 
 evidentiam^) and not the whole, in the county where the venue was 
 laid,(AA) or, in the Common Pleas, when it arose in several counties, in some 
 of them \{i) which continues to be the rule at this day. The evidence how- 
 ever must be material : and therefore it is not sufficient merely to prove, 
 that the witnesses to the contract reside in the county where the venue is 
 laid :{kk) And the undertaking to give material evidence, does not apply to 
 collateral issues, but must be confined to matters stated in the declaration. (/) 
 In the King's Bench, when the venue has been changed, in an action brought 
 by the assignee of a bankrupt, the plaintiff's undertaking, upon bringing it 
 back to Middlesex^ is satisfied by the production of the commission of 
 bankruptcy tested at Westminster.{m) And in an action for an escape, 
 the issuing of the writ, under which the party was taken, is deemed mate- 
 rial evidence ;(«) or the patent, in an action for infringing it.(;i) So, where 
 
 (k) 4 Binp. 39. 
 
 (a) 1 H. Blac. 216; and see I New Rep. C. V. 110, 310. 
 
 \b) 1 Taunt. 259. 6 Taunt. 565, 6. 2 Marsh. 278, S. C. 7 Taunt. 178. 2 Mar.sh. 494, 
 S. C, but differently reported. 2 Moore, 64. 8 Taunt. 169, S. C. 3 Bing. 429 ; and see I 
 Chit. Rep. 377, (a). 
 
 (c) 6 Taunt. 569. 2 Mar.sh. 280, S. C. : and see 1 H. Blac. 280. 1 Taunt. 259, 60. 4 
 East, 495. 2 New Rep. C. P. 397. 2 Taunt. 197. Ante, 603. 
 
 (dd) 5 Price. 359, 612. 
 
 \ee) 6 Price, 336 ; but see 5 Price, 359, semb. contra. (f) 1 Keb. 859. 1 Sid. 442. 
 
 (ffff) 1 Sid. 405. (hh) 2 Salk. 669. 12 Mod. 515. 
 
 (tj 1 Taunt. 259. 6 Taunt. 565, 6. 2 Marsh. 278, S. C. 2 .Moore, 04. 8 Taunt. 169, 
 S. C. 
 
 (**) 2 Blac. Rep. 1031. (/) 1 Taunt. 618. 
 
 (m) 2 Maulc & Sel. 36 ; but see 2 Salk. 669. 1 New Rep. C. P. 310. 
 
 (n) 2 Chit. Rep. 418.
 
 Q-^2 OF CHANGING THE VENUE. 
 
 a rule to change the venue from Middlesex to London was discharged, on 
 the phiintiff 's undertaking to give material evidence in Middlesex, the court 
 
 held that the undertaking was complied with, by proving a rule 
 r *613 ] of court, obtained by the defendant in Middlesex, *for paying 
 
 money into court ; although that rule was obtained after the rule 
 for changing the venue was discharged. (a) So, where a rule to change the 
 venue from A. to B. had been discharged, on the plaintiff's undertaking to 
 give material evidence in C, proof of the delivery of the goods for which 
 the action was brought, to a carrier in C, to be delivered to the defendant 
 in B., was holden, in the Common Pleas, to be a sufficient compliance with 
 the undertaking :(6) And, in that court, if the plaintiff retain the venue, 
 on the usual undertaking to give material evidence Avithin the county, yet 
 if the plea and issue joined be such as to render that evidence irrelevant, 
 the performance of the undertaking is it seems dispensed with : Thus, if 
 the local evidence be the trading of a bankrupt, or a petitioning creditor's 
 debt within a county, yet, if the defendant do not give notice of his inten- 
 tion to dispute the commission, under 6 Geo. IV. c. 16, § 90, so that the 
 mere production of the commission and proceedings under it proves the 
 trading and petitioning creditor's debt, the undertaking it seems need not 
 be further complied with.((?) But it is no answer to an application, in the 
 latter court, to change the venue from London to Essex, on the usual affi- 
 davit, in an action commenced by the assignees of a bankrupt, that the 
 commission was issued, and bankruptcy declared in Middlesex, and the 
 assignees chosen in London :{d) For though it was admitted, that if the 
 cause of action arise in two different counties, the defendant has no right 
 to change the venue, yet it was said, that the cmise of action, and the 
 right to bring the action, are two different things : A cause of action may 
 arise in the life-time of a testator ; but the right to bring the action by the 
 executors must accrue after his death. (g) 
 
 When the venue is laid in the proper county, but there is a special 
 ground for changing it into another, as where, in an action on a specialty, 
 the witnesses reside in a distant county, (/) or a fair and impartial trial 
 cannot be had in that where the venue is laid,(/) the defendant should 
 move the court, on an affidavit of the circumstances, for a rule to show 
 cause, why the action should not be laid in the county where the witnesses 
 reside, or in the adjoining county to that in which the cause of action 
 arose. The affidavit for this purpose should state the nature of the cause 
 of action, and of the defence thereto ',{g) and that all the witnesses reside 
 in a distant county, or the grounds upon which the fair and impartial trial 
 cannot be had in that where the venue is laid : And the court will not 
 entertain a motion to change the venue, in an action on a specialty, before 
 issue joined ; for till then, they cannot know whether the defendant in- 
 tends to set up any defence to the action, or what is the question in- 
 
 (a) 2 Durnf. & Ecast, 275 ; and see 1 H. Blac. 280. 6 Durnf. & East, 363. 6 Taunt. 566. 
 2 Marsh. 494. 
 
 (b) 2 Marsh. 494. 1 Taunt. 178, S. C, but differently reported. 
 
 (c) 3 Taunt. 86. 
 
 (d) 1 New Rep. C. P. 310. Lapworth, assignee v. Wilkes, M. 46 Geo. III. K. B. S. P. ; and 
 see 10 East, 32, accord. 
 
 (e) Per Heath, J., 1 New Rep. C. P. 310 ; and see 2 Salk. 669. 3 Bing. 429. 
 (/) Ante, 605, 6. 
 
 {g) 7 Moore, 82.
 
 OF CHANGING THE VENUE. 613 
 
 tended *to be tried, or the witnesses it will be necessary to ex- [ *G14 ] 
 amine on the trial of the cause. (a)[A] 
 
 (a) 3 Barn. 4 Cres. 552. 5 Dowl. k Ryl. 441, S. C. 
 
 [a] modk op cha.n'Oino thi venue. 
 
 Reasonable notice must he piven to the adverse party of a motion for a chanpe of venue. 
 What is reasonahle notiie, will depeutl )ij)on the ciri-uniHtances of each ]>iirli<'u!ar case, and 
 must necessarily he left to the lej^al riiscretion of tlie judj^e or court to which the applica- 
 tion is made. Brrryy. Wilkinson, 1 Scam. 1G4. And this notice must state the time when, 
 and the place where, the aplication will l)e made, and the action in relation to wi»i<h it is 
 made. Rybum v. I'ri/er, 5 Knp. 417. The application is made in the form of a petition, 
 with accompanying aflidavits ; ami where the application for a change of venue shows a 
 proper cause, it is the duty of the court to change it to the nearest county not made ohjeu- 
 tiouahle hy the petition and allidavit.^, without other evidence. C(/m v. Thr State, 1 Greene, 
 (Iowa,) S."");}. Powers v. Browder, 1,3 Mis. 154. In all cases, special cause should ho shown 
 tor changing a venue. State Bank v. Iledenherg, 1 Ilarr. .352. A motion to change the 
 venue will not always he granted on account of the mere jireponderance in the number of 
 witnesses. Wallacew Bond, A Hill, 536. Porter \. Mann, ■i Hill, 540. But where a njotion 
 is made for a change of venue, it will not be refused on an nllidavit stating the number of 
 witnesses to exceed the number on the opposite side, provided a motion to change is based 
 on a special aflidavit. Benedict v. Hihbard, 5 Hill, 501*. Where, however, upon a showing 
 made by a defendant for a change of venue, it ap])eiircd that the showing of the |)laintitf 
 was as strong as that of the defendant against the county to which the change was desired ; 
 and the court, after the first trial term, granted such change of venue, the appellate court 
 granted process to restrain the last court from exercising jurisdiction, and returned the case 
 to its original court. Innerarity v. Hitchcock, 3 Stew. <fc I'ort. 9. It is no answer to a mo- 
 tion to change the venue, that thereh}- the plaintitt' will lose a trial or term, where the de- 
 fendant is not chargeable with laches. Oarlock v. Dunkle, 22 Wend. 615. F^tarr v. Fran- 
 cis, 22 lb. 633. Or that the cause is at issue upon demurrer only. Thurberv. Brown, 2 Hill, 
 382. In New Jersey, it has been held, the venue of transitory actions may be changed after 
 plea pleaded, if it appears that the defendant would otherwise be expired to unnecessary 
 difficulty, or the fair administration of justice would be interrupted. Bell v. Morris Canal 
 and Banking Co., 3 Green, 63. In transitory actions, a venue is laid to show where the 
 trial is to take place. It is a legal fiction devised for the furtherance of justice, and cannot 
 be traversed. McKenna v. Fisk, 1 How. U. S. 241, S. C. 17 Pet. 245. Hut trespass quore 
 clausum being a local action, the venue must be laid in the county in which the hois in quo 
 is situated at the time the trespass is alleged to have been committed. And if that p.irtof the 
 county is set-off to a different county, after the trespass and before the suit is instituted, tlie 
 venue must be laid in the old county. Champion v. Doughty. 3 Ilarr. 3. Where a venue is 
 laid in the margin, or in the commencement of the declaration, that is to be held as the 
 venue for all other matters where no venue is laid. Benton v. Brown, 1 .Mis. .393. So. too, 
 a venue laid in the body of the declaration is suflicicnt, although none is found in the mar- 
 gin. Dwight V. Wing, 2 McLean, 580. Rucker v. MrXrehj. 4 Hlackf 170. It has been held 
 ill Arkansas, that it is sufficient to state the venue in the margin of the declaration, without 
 stating it in the body. Pollen v. Cha.te. 4 Pike, 210. 
 
 Where there is a motion for change of venue, it is a safe and judicious practice to require 
 the plea to be entered before the motion is awarded, (iarduer v. The People, 3 Scam. 83. 
 Ami after the defendant pleads, he cannot object to the order made. Burnham v. Ilatjield, 
 5 Hlackf. 21. In Mississippi, a change of venue must l)e by order of a court entered of re- 
 cord, and a mere statement on the record, by the clerk, that the venue has been changed, 
 is not sufficient. Saunders v. Morse, 3 How. Miss. lOl. And the order, it seems, must be 
 unconditional ; thus it has been held, tiiat where a party jjrayed a change of venue, the 
 court granted it, on condition tiiat the party should pay the costs attending the .same, and 
 cause a transcript of the record, and the papers in the cause, to be filed in the court of the 
 county to which the change of venue was ordered, within fifteen days before the first day of 
 the next term ; upon his neglecting to comply with the terms, the opposite |»arty made affi- 
 davit of the fact, and the cause was ordered to be reinstated upon the docket, and the cause 
 then proceeded to trial and judgment: Held, that the court had no authority to impose on 
 the party the performance of those acts, as conditions precedent, and that the change was 
 consummated by the order of the court, and that the party could fully disregard the condi- 
 tions. Bellingall v. Duncan, 2 Gil. 591. 
 
 WHKN THE VENDE WILL BE CHANOED. 
 
 The court will order the venue changed, even when laid in the proper county, if it appears 
 that a fair trial cannot be had there. Murray v. Nexp Jersey Railroad Co., 3 Zab. 63. The
 
 Q-^^ OF CONSOLIDATING ACTIONS. 
 
 If two actions are depending at one time, by the same plaintiff against 
 the same defendant, for causes which may be joined, and particularly if the 
 
 necessity of chanjjino; the venue, in any case, in order to secure an impartial trial, is not to 
 depend on the suggestion, or even the belief, of the defendant, but upon facts shown to the 
 court, or admitted, sufficient to satisfy the court that the change is necessary to procure an 
 impartial trial. The State v. Burris, 4 Harring. 582. Murray v. Railroad, supra. And it is 
 held, iu Ohio, that the venue should not be changed on the affidavit of the party alone, but 
 only upon clear and satisfactory proof that fair and impartial justice probably cannot be 
 obtained in the county where the suit was commenced. Bank of Cleveland v. Ward, 11 
 Ohio, 128. So, in Virginia, an application by a defendant for a change of venue, on the 
 ground of general prejudices existing against hira in the town where the cause is to be 
 tried, should be supported by the affidavits of disinterested individuals. Bosicell v. Flock- 
 heart, 8 Leigh, 364. Where the defendant procured a change of venue, on the ground that 
 the judge was interested, and the case, on the plaintiff's motion, was stricken from the 
 docket by the court to which the change of venue had been ordered ; the Supreme Court, 
 on error by the defendant, remanded the case to the original court, at the costs of the plain- 
 tiff in error. Rogers v. Watrous, 8 Texas, 62. Where a party filed his petition, verified by 
 affidavit, in which he swore that he entertained serious and well grounded fears, that he 
 would not receive a fair and impartial trial in the court, on account of the prejudices which 
 he believed existed in the mind of the judge against him ; it was held, that the defendant 
 had brought himself within the provisions of the statute, and that he was entitled to a 
 change of venue. McGoon v. Little, 2 Gil. 42. Venue may in all cases be changed by 
 consent of parties, where the court has jurisdiction of the subject-matter of the suit. Da- 
 vidso7i V. Wheeler, 1 Morris, 238. The People v. Scales, 3 Scam. 354. Thus an order for a 
 change of venue, reciting that, by consent of parties, it is agreed that the cause shall go to 
 either of two counties at the election of the plaintiff, is incomplete, until the plaintiff has 
 made his election, and the court has acted upon it, by ordering the papers sent to the clerk 
 of the court of the county chosen. Ex parte Remson, 23 Ala. 23. 
 
 It does not lie in the mouth of the party who has obtained a change of venue, to object to 
 a trial in the court to which he has caused the case to be removed, if enough appears to 
 give that court jurisdiction. McBain v. Enloe, 13 111. YS. And all objections to the juris- 
 diction arising out of a defective certificate of proceedings, in cases of change of venue, will 
 be considered as waived, if the parties proceed to trial without having taken exception. 
 Hitt V. Allen, 13 111. 592. The statute requisition that all parties shall join in an applica- 
 tion for change of venue, extends only to such of them as have a trial pending ; defendants 
 in default, need not join in the application ; the whole cause will be removed and final judg- 
 ment will be rendered for or against all, in the court to which the cause is taken. Ih. A 
 change of venue removes the whole cause ; and the court to which the same is transferred, 
 after a default by one of the parties, and a plea by another, may, when the issue is found 
 against the plea, or a decision is made against it, properly render a judgment against both 
 of the defendants. Wight v. Meridith, 4 Scam. 360. The court to which the venue is 
 changed, in order to proceed and determine the cause, must have before it the pleadings of 
 the parties, and all other papers filed during the progress of the cause in the court from 
 which it is removed, as well as the action of that court prior to the change of the venue. 
 Wight V. Kirkpatrick, 4 Scam. 339. An order for changing the venue of a cause, and di- 
 recting the clerk to transmit a transcript of the record to the Circuit Court of the county to 
 which the venue is changed, impliedly prohibits him from sending the original papers, and 
 is void, as the court cannot take jurisdiction unless the original papers are filed with its 
 clerk. Walker v. Snowden, 1 Swan, (Tenn.) 193. And where the venue of an action is or- 
 dered to be changed, the original petition and order should not be transmitted to the court 
 to which the change is made, but a transcript only. Ri/hurn v. Pryor, 5 Eng. 417. Where 
 a change of venue takes place, the clerk should certify and transmit a transcript of the pro- 
 ceedings previously had in the cause, as the same appear from the record, together with all 
 the original papers which have been filed in and belong to the case. White v. Kirkpatrick, 
 4 Scam. 339. If the papers are transmitted without the requisite certificate of their being 
 the original papers in the cause, the court, upon motion, will grant the party leave to with- 
 draw them, together with the transcript. Wight v. Kirkpatrick, lb. Where the papers 
 in a cause have not been transmitted by the clerk to the court to which the venue is 
 taken, it is the duty of the court, at the instance of either party, to grant a rule on the clerk, 
 to certify and transmit the papers, and continue the cause until the order has been complied 
 with. lb. If a motion is made to dismiss a cause, wherein a venue has been changed, 
 because the original papers have not been transmitted with the record of the proceedings, 
 the cause will be dismissed, unless a cross motion be interposed, for a rule upon the clerk 
 to certify and transmit the papers ; in which case the court will continue the cause until 
 the order is complied with. lb. Where a party gives notice for a change of venue, and 
 files his petition, sworn to, in which he sets forth that the facts therein stated came to his
 
 OP CONSOLIDATING ACTIONS. 61-t 
 
 defendant be holden to bail in both, the courts will compel the plaintiff to 
 consolidate the actions ; and, on account of the vexation, to pay the 
 costs of the application. (6) But the court refused to consolidate two ac- 
 tions brought on two bonds, although they were precisely similar to each 
 other. (f) And where three actions were successively brought by the same 
 plaintiff against the same defendant, upon three notes of hami, which be- 
 came due at different times, the court of Kinjr's Bench refuseil to consoli- 
 date them.(ci) So, wlierc three actions were brought for bribery, at an 
 election for members of parliament, and in each action there were counts 
 for forty different penalties, for distinct acts of bribery, that court would 
 not consolidate, on account of the difficulty of doing justice between the 
 parties, if so many distinct acts of bribery were to be discussed in one 
 action. (e) And the courts will not consolidate actions against different 
 
 (A) 2 Durnf. & East, 639. Anon. E. 55 Geo. III. K. B. 1 Chit. Rep. 709, (a) ; but see 2 
 Str. WIS, xemb. contra. 9 Price, 303. 
 
 (c) Rn,/al Exchange Company v. , H. 55 Geo. III. K. B. 1 Chit. Rep. 709, (a). 
 
 id) Mussenden ^ O' Uara^ M. 25 Geo. III. K. B. ; and see Forrest, 30 accord. 9 Price, 393. 
 («) 1 Smith R. 423. 
 
 knowledge for the first time, on thiit day, and brinfrs himself within the provisions of the 
 statute, a change of venue mu.st be granted. Barrows v. Tht Peo/tle, 11 111. 121. And a 
 party who has obtained a change of venue, taken several steps in the cause, consented to a 
 continuance, and at a subsequent term submitted the cause for trial without objection, can- 
 not obtain an order of dismissal, for the reason that the original papers in the cause had not 
 been transmitted by the clerk from the county where the suit was commenced ; application 
 for a rule upon the clerk of the court, to send the original papers, should be made at the 
 first term after obtaining a change of venue. Granger v. Warrington, 3 Gil. 299. Wight v. 
 Kirkpatrick, 4 Scam. 340. Upon a change of venue, the witnesses, unless re-summoned, 
 are not required to attend the court of the county to which the venue has been changed ; 
 and if this be not done, their failure to appear at the final trial is no reason why the costs 
 of their attendance at the court from which the cause was removed should not be allowed 
 them. Hodges v. Nance, 1 Swan. (Tenn.) 57. 
 
 WHEN IT WILL BE REFUSED. 
 
 A change of venue will be refused, unless the party applying for it has complied with the 
 statute. Lewin v. Dille, 17 Mis. (2 Bennett.) 64. And in some States but one application 
 can be made. Thus, in Tennessee, Act of 1819, c. 43, ^ 1, gives to the plaintiff and defen- 
 dant each a right to change the venue once only. Ga.^awag v. Stnith, 3 Humph. l.")4. And 
 the general rule is, that a party cannot repeat an application for change of venue without 
 very special cause. MilUi^on v. Holmes, 1 Smith, 55. 
 
 By statute, in Te.xas, the cases of executors, administrators, guardians, and trustees, are 
 made exceptions to the general rule in reference to the venue of actions. They must be 
 sued in the county where the estate is administered, no matter what may be the subject- 
 matter in controversy. Neill v. Owen, 3 Texas, 145. When a defendant, immediately after 
 a, decision made against him, on his objection to proceeding with the trial, moves for a 
 change of venue, on the ground of prejudice in the judge, without giving previous notice of 
 such application, and when the jury is about to be sworn, the change will proj)erly be re- 
 fused. I'errg w Roberts, 17 .Mis. (2 Bennett,) 36. Entertainment of a prejudice, and the 
 use of harsh and violent terms, derogatory to the character of a party to a suit, on the part 
 of the judge before whom the suit is to be tried, is not cause for change of venue under 
 Rev. Stat, of Indiana, 1843, [>. 950, § 9. MiUison v. Holmes, 1 Carter, (Ind.) 45. In Indiana, 
 prejudice in the president judge is not one of the statutory causes for a change of venue. 
 Morris v. Graves, 2 Carter, (Ind.) 354. Where a petition for a ihange of venue alleged for 
 a cause that the judge entertained towards the plaintiff a violent prejudice, incapacitating 
 him to do the plaintiff justice, and that the judge repeatedly, as the plaintiff had been in- 
 formed and believed, spoke of the plaintiff in harsh and violent terms, derogatory to the 
 plaintiff's character for fairness and honesty, it was held, that the petition did not show 
 suflicient groimd for the change of venue. Ih. MiUi.ion v. Holmes, 1 Smith, 55. The 
 application of a person, who is not a p:irty to the suit, for a change of venue, need not be 
 sustained. Sherry v. Denn, 8 Blackf 542. Vermilga v. Beat}/, 6 Barb. Sup. Ct. 429. And 
 none but the party to the record in the suit can make an application for a change of venue ; 
 and then his petition must be verified by affidavit. Crowtll v. Maughs, 2 Gil. 419.
 
 614 OF CONSOLIDATING ACTIONS. 
 
 defendants ; Tims, where it was raoved-tliat four several declarations in 
 trespass, against four diflFerent defendants, might be put into one, on an 
 affidavit that the trespass, if any, was committed by all jointly ; the court 
 of King's Bench said, they never went so far as the case of different de- 
 fendants, but only where the declarations are between the same parties : 
 The plaintiff may have the benefit of the other's evidence, in his action 
 against cither ; but this would be to deprive him of that benefit.(/) So, 
 the court of King's Bench will not consolidate several informations in na- 
 ture of quo warranto, against several persons, for distinct offices ; for there 
 must be an information against each, to enable each to disclaim. (^^) 
 
 In actions upon a policy of assurance, against several underwriters, the 
 court of King's Bench, by consent of the plaintiff, will make a rule, on the 
 application of the defendants, which is called the Consolidation rule,(A) 
 for staying the proceedings in all the actions except one, upon the de- 
 fendant's undertaking to be bound by the verdict in that action, and to 
 pay the amount of their several subscriptions and costs, in case a verdict 
 shall be given therein for the plaintiff. This nde, though attempted before 
 without success, («') was introduced by Lord Mansfield into general use, 
 in the court of King's Bench, to avoid the expense and delay 
 I] *615 ] arising from *the trial of a multiplicity of actions upon the same 
 question ;(a) and if the plaintiff will not give his consent, the 
 courts have the power of granting imparlances in all the actions but one, 
 till the plaintiff has an opportunity of proceeding to trial in that action. (6) 
 On the other hand, if the plaintiff consent to the rule, the courts will make 
 the defendants submit to reasonable terms ; such as admitting the policy, 
 producing and giving copies of books and papers, and undertaking not to 
 file a bill in equity, or bring a writ of error. (c) In the Common Pleas, 
 there is no rule of court, but a judge's order is obtained, for consolidating 
 actions. ((^) 
 
 The court will not allow a consolidation rule to be opened, on the ground 
 that fresh evidence has been discovered, since it was entered into :[e) But 
 it has been set aside, for the absence of a material witness, on bringing 
 money into court.(j^) And though the defendants undertake to be bound 
 by^a'yerdict in one action, yet this must be understood to mean such a 
 verdict as the courts think ought to stand, as a final determination of the 
 matter ; and therefore where the defendant, after a verdict for the plain- 
 tiff in one action, obtained a new trial, the court of King's Bench would 
 not make a rule, previous to the new trial, for the other defendants to pay 
 the money to the plaintiff, pursuant to their undertaking. (^) So, if the 
 court think it reasonable to open a consolidation rule, and try a second 
 cause, they will extend to the second trial, all such terms imposed on the 
 successful party in the first, as are requisite for attaining the justice of the 
 case.(7«7i) And the consolidation rule relates solely to the verdict : There- 
 
 (/) 1 Str. 420; and see Cas. temp. Hardw. 137. 2 Wils. 227. 
 
 (ffg) 2 Maule & Sel. 7.5. 2 Chit. Rep. 366, (6). (h) Append. Chap. XXIV. § 8. 
 
 (i) 2 Barnard. K. B. 103. 
 
 (a) Park's Insur. Introd. ; and see Marshall on Insurance, 1 Ed. p. 602, &c. 8 Price, 575, 
 6, per Wood, Baron. 
 
 (6) Id. Ibid. Brou'n v. Ncwham ^' others, E. 25 Geo. III. K. B. 
 
 (c) Park's Insur. Introd. Ante, 591. (d) Append. Chap. XXIV. § 9. 
 
 (e) ruUm V. Parry, H. 52 Geo. III. K. B. 1 Chit. Rep. 709, 10, («) ; and see 6 Moore, 437. 
 
 iff) Ilolman v. , H. 55 Geo. III. K. B. 1 Chit. Rep. 710, in notis. 
 
 (ff) 3 Bur. 1477. (hh) 5 Taunt. 165.
 
 OF STRIKING OUT COUNTS, ETC. 615 
 
 fore, A\}icre several causes are consolidated, if a writ of error be issued in 
 the cause tried, and execution taken out f<tr want of i)ail in error being 
 duly put in, and writ.s of error be issued in the other caut^es, and bail duly 
 put in thereon, execution in those causes is there)»y stayed. (tV) iSo, 
 where the defendant having entered into a consolidation rule, the plaintiff 
 obtained a verdict in the cause tried, which waa afterwards turned into a 
 special verdict, to enable ihe defendant to reuiove it byw rit of error to 
 the King's IJench, which was done, and bail put in acc(»rdiiigly ; the court 
 of Coniinon IMeas stayed execution in tiie action a^'ainst tiie defendant, 
 till the determination of the writ of error was known, on his giving secu- 
 rity to be bound by the judgnicit of the King's Bench. (/;) But where 
 several underwriters to a policy had entered into a consolidation rule, by 
 which they undertook to abide the event of a verdict, and the cause was 
 referred by consent before trial, and the arbitrator awarded the aggregate 
 sum due to the assured from the underwriters at large ; the court of Com.- 
 mon Pleas would not order it to be referred back to tlic arbitra- 
 tor, to *insert the amount of the sum due and payable from each [ *G10 ] 
 underwriter individually, without the consent of such underwri- 
 ters. (a) And, in that court, if a verdict be given in favour of the plaintiff, to 
 the satisfaction of the judge who tried the cause, the plaintiff may proceed to 
 tax his costs on the verdict, and get the defendant's attorney to attend 
 the prothonotaries, who will tax the costs in the other actions : and if the 
 debt and costs are not paid, the court should be moved, on an affidavit of 
 the facts, for leave to enter up judgment, and take out execution, kc.{b) 
 In actions upon a policy of assurance, against several underwriters, where 
 the parties had not entered into a consolidation rule, the attorney for the 
 plaintiff made out a full brief in one cause, but only a short statement in 
 the rest: and the master, on taxation, having allowed for full briefs in all 
 the causes, the com-t of King's Bench made a rule for him to review hia 
 taxation. (c)[a] 
 
 As the courts, for the sake of avoiding expense, will consolidate unne- 
 cessary actions, so when it appears, on the face of the declaration, that 
 some of the counts are superfluous, they will order them to be expunged : 
 and if there be any vexation, will make the plaintiff pay the costs of the 
 application. (cf) Thus, where several counts in a declaration are precisely 
 the same, or, which more frequently happens, there is only a formal differ- 
 ence between them, and the same evidence will su))port each,((') as if the 
 plaintiff declare specially and generally, for a matter that may be given 
 in evidence upon a general count, the courts will expunge the superfluous 
 
 n 
 
 2 New Rep. C. P. 430. (*) 1 Moore, 79. 
 
 8 Moore, 223. (b) Imp. C. P. 7 Ed. 711. 
 
 (rj Martintau v. Borneo and othrrx, H. 23 (rco. III. K. B. 
 \d) Per Cur. T. 5G Geo. III. K. U. 1 Chit. Kep. 44y, (a). And for the use of several 
 count.s, and when proper to insert them, see Stej)!). PI. 279, Ac. 
 
 (e) Cas. temp. Hanhv. 129. Barnes, 3G0. 2 Hur. 1188. 1 Blue. Rep. 270. 1 New 
 Rep. C. P. 289. 1 Chit. PI. 4 Ed. 351. l_Chit. Ucp. 449, (a). 
 
 [\] Con.sult Brown v. Scott, 1 Dallas, 145. Rnrnfty v. Wi/tiroop, 1 Yeate.s, 5. Prior v. 
 Kdli/, 4 Yeates, 128. Groff\. Massen, 3 S. A R. 2()2.' Toudnda Bank v. JJuUard, 7 Watts 
 A Serg. 434. Wolverton v. Lacey, 8 Month. Law Ucp. 672.
 
 gjg OF STRIKING OUT COUNTS, ETC. 
 
 counts. So, If the declaration contain special counts for work and labour, 
 besides the general counts, the special counts may be struck out on mo- 
 tion, if they appear to be unnecessary :(/) and, in the King's Bench, 
 where the plaintiff was an attorney, the rule was made absolute with 
 costs. (/) And, if there be any doubt, the court will refer it to the mas- 
 ter, to determine whether superfluous counts are introduced vexatiously.(^) 
 But where there is a material difference between the counts, the courts 
 "will not determine upon affidavits, whether they are well founded in point 
 of fact ; for if not, the plaintiff will be sufficiently punished by being de- 
 prived of costs, on such of the counts as are found for the defendant :{h) 
 Therefore, where the declaration, which was in debt for penalties, on the 
 
 statute 9 Ann. c. 14, consisted of 480 counts, for money won at 
 [ *617 ] play of different *persons, at different times, and a rule nisi was 
 
 granted for limiting the declaration to ten counts, the court of 
 King's Bench, on showing case, discharged the rule with costs.(aa) So, 
 where the declaration consisted of 286 counts, upon as many banker's 
 notes for a guinea each, payable to bearer, with the common counts for 
 money lent, and money had and received, the court refused to strike out 
 the counts upon the notes ; as it might have put the plaintiff to unneces- 
 sary difficulty in proof at the trial, or made it necessary for him to have 
 a writ of inquiry on a judgment by default.(5) But in a similar case, the 
 court made a rule by consent, to strike out all the counts but one, the de- 
 fendant undertaking to permit all the other notes to be given in evidence, 
 either before the master or a jury, under the count upon an account 
 stated. (c) And where the counts do not appear on the face of them to 
 be superfluous, the court of King's Bench will not order them to be struck 
 out, merely on the ground that the causes of action are not included in 
 the particulars of the plaintiff's demand. (cZ) In an action on a bill of ex- 
 change, the court of Common Pleas refused to strike out, as unnecessary, 
 a count for interest ; though, besides counts on the bill, the declaration 
 contained the usual money counts. (e) So, where there were counts in a 
 declaration for work and labour as an attorney, and for work and labour 
 generally, that court refused to strike out the former counts as unneces- 
 sary.(/) 
 
 If a declaration contain slanderous or impertinent matter, the court will 
 order it to be expunged '.{gg) And where a declaration unnecessarily con- 
 tains indecent language, the court it seems will order it to be referred for 
 scandal and impertinence ; and direct the master or prothonotary to tax 
 exemplary costs. (AA) So, if a declaration be unnecessarily long, the court 
 will expunge the superfluous matter: as where in an action of covenant 
 upon an indenture, the plaintiff recites the whole of it, and not merely 
 such parts as are necessary ;(z) or where, in an action of trover, he sets 
 
 (/) 1 Chit. Rep. 449, (a). 2 Chit. Rep. 299. 1 Dowl. & Ryl. 171, S. C. 7 Dowl. & 
 Ryl. 383. 
 
 (g) 1 Dowl. & Ryl. 508. 
 
 (A) Turner and others^ assignees, v. Kingston, H. 23 Geo. III. K. B. Hurd v. Cock, M. 36 
 Geo. III. K. B. Imp. K. B. 6 Ed. 754. 
 
 (aa) Cowan v. Berry, E. 38 Geo. III. K. B. 
 
 (b) Lane v. Smith, M. 46 Geo. III. K. B. 3 Smith R. 113, S. C. 
 
 (c) 3 Barn. & Aid. 272. 1 Chit. Rep. 709, S. C. 
 
 {d) 1 Chit. Rep. 448, 9, 50. (e) 1 Bing. 281. 8 Moore, 243, S. 0. 
 
 \ff) 9 Moore, 358. 2 Bing. 184, S. C. ; and see 9 Moore, 785. 2 Bing. 412, S. 0. 
 {gg) 1 Chit. Rep. 676, and n. (a). (AA) 2 Wils. 20. 
 
 (i) Cowp. 665, 727 ; and see 2 H. Blac. 123. 1 Campb. 196, in notia.
 
 OF BRINGING MONEY INTO COURT. 617 
 
 out a long inventory of goods, with frequent and unnecessary repetitions 
 and descriptions. So, in an action against forty-six defendants, the court 
 of Common Pleas ordered the word '■'■(UfviKlanta" to he substituted for the 
 names of the defendants, in all the places where they occurred, except the 
 first. (^) In these cases, when the ohjoction is clear, the courts will order 
 the superfluous counts or mutter to he expunged on motion, in the first in- 
 stance ; but otherwise they will refer it to tiie master,{/) or prothon(ttary,(7/j) 
 and decide upon his report. In general, however, the court of King's 
 Bench will not refer a declaration to the master, to strike out 
 superfluous *counts ; but will, on motion, order them to he struck [ *G18 ] 
 out, if they appear vexatious. (a) An<l, in the Common Pleas, 
 the motion may be made, after the defendant has taken the declaration 
 out of the office, and pleaded to the action. (/y//) Jiut an application to strike 
 out unnecessary counts should regularly be made before they are engrossed 
 on record. (c'tr) 
 
 ♦CHAPTER XXV. [ *G19 ] 
 
 Of BRINGING Money itito Court. 
 
 The practice of bringing money into court is said to have been first in- 
 troduced in the reign of Car. II. at the time when Kelyng was chief jus- 
 tice, to avoid the hazard and difficulty of pleading a tender. (aa) And it is 
 allowed in cases where an action is brought upon contract, for the recovery 
 of a debt, (6) which is either certain, or capable of being ascertained by 
 mere computation, without leaving any sort of discretion to be exercised 
 by the jury.[c) In these cases, when the dispute is not whether anything, 
 but how much is due to the plaintiff, the defendant may have leave to 
 bring into court any sum of money he thinks fit ; and the courts will make 
 a rule, that unless the plaintiff accept of it, with costs, in discharge of the 
 action, it shall be struck out of the declaration, and paid out of court, to 
 the plaintiff or his attorney , [a] and the plaintiff, upon the trial, shall not 
 be permitted to give evidence for the sum brought in :{d) which rule should 
 
 (k) 1 New Rep. C. P. 289. (/) Cowp. 727. 1 Dowl. & Ryl. 508. 
 
 \m) 2 Blac. Rep. 906. 1 Chit. Rep. 450. {a). [a) 1 Chit. Rep. 450. 
 \bb) Law V. Williamson, H. 31 Geo. HI. C. P. Imp. C. P. 7 Ed. 179. 
 \cc) 2 Bing. 453. 10 Moore, 152, S. C. 
 
 \aa) 1 Ld. Raym. 255. 2 Salk. 597. 2 Str. 787. Cas. temp. Hardw. 207. 1 Wms. Saand. 
 Sd. 33, a, (2) ; but see R. H. 5 Jac. I. K. B. 
 lb) Com. Dig. tit. Pleader, C. 10. (f) 2 Bur. 1120. 
 
 \d) Say. Rep. 196, 7. 2 Bur. 1121. 3 Bur. 1773. Imp. K. B. 10 Ed. 251. R. M. 6 Geo. 
 III. in Scac. Man. Ex. Append. 217, 18 ; and see Append. Chap. XXV. J 1, 2, 3. 
 
 [a] After a defendant has brought into court, on the common rule, as much money as he 
 thinks proper, and the plaintiff has refused to receive it in satisfaction, the defendant is en- 
 titled to have the same considered as a payment made on the day on which it was bronplit 
 in ; he is answerable for further damages only ; for he then stands on tlie same ground as 
 if, on tendering money before the action, the jjlaintiff had refused to receive it, but had 
 commenced his action, in which the tender was pleaded. Boyden v. Moore, 5 Mass. 365. 
 And if the defendant pays money into court, the plaintiff goes on to trial, and a verdict is 
 rendered against him, he neither pays nor receives coats for the time previous to the pay- 
 ment into court. Williamt v. Ingenoll^ 12 Pick. 345.
 
 g29 OF BRINGING MONEY INTO COURT. 
 
 be accompanied with the general issue, or other plea, to the residue of the 
 demand. (<■) 
 
 Thus, in assumpsit,{f) or covenant ^{g) for the payment of money, the 
 defendant may bring money into court ; and in covenant to find diet and 
 lodging, or pay ten pounds, the court allowed him to bring in the ten 
 pounds. (A) In debt for rent, the defendant may bring money into court 
 in the King's Bench, (^') as well as in the Common Pleas, (A;) and Exche- 
 quer \{l) although, in the former court, it was refused, in the time of Lord 
 Jlardwicke ;{m) and in a case previous to that time,(n) the court said they 
 never did it in debt. But there is a distinction between those actions of 
 debt, wherein the plaintiif cannot recover less than the sum demanded, as 
 on a record, specialty, or statute giving a sum certain by way of pen- 
 alty ;(o) and those actions wherein the plaintiff may recover less, 
 [ *620 ] as in debt for rent,(|)) *or on simple contract :{aa) In the for- 
 mer, the defendant cannot bring money into court ;{bb) though 
 he may move to stay the proceedings, on payment of the whole penalty 
 and costs :{cc) but in the latter, the defendant has been allowed to bring 
 money into court •,{dd) because the plaintiff does not recover according to 
 his demand, but according to the verdict of the jury. When an action, 
 however, is brought for several penalties on the game laws, the defendant, 
 we have seen,{ee) may have leave to pay one penalty into court, leaving 
 the plaintiff at liberty to proceed for the rest. And the defendant, by act 
 of parliament, may bring money into court in debt, covenant, or other 
 action on a policy of assurance, (_^) or in an action for non-residence. (^^) 
 In an action for general damages, upon a contract, (AA) or for a tort,(w) 
 or trespass, (M) as a tender cannot be pleaded, so the defendant is not allow- 
 ed to bring money into court : And it cannot be brought into court, in an 
 action for dilapidations. (?Z) But in an action of assumpsit against a car- 
 rier, for not delivering goods, the defendant having advertised that he 
 would not be answerable for any goods beyond the value of twenty pounds, 
 unless they were entered and paid for accordingly, the court of King's 
 Bench allowed him to bring the twenty pounds into court '.{turn) So, money 
 may be brought into court, in an action on the case for navigation ca\h.{nn) 
 And where, in an action for general damages, the bringing of money into 
 court is irregular, if the plaintiff take it out, he thereby waives the irregu- 
 
 (e) Barnes, 339, 350. (/) 1 Vent. 356. 2 Salk. 596, 7. 
 
 (g) 2 Salk. 596. 1 Wils. 15. 2 Bur. 1120. Barnes, 284. 2 Blac. Rep. 837. 
 
 (h) 8 Mod. 305. (t) 2 Salk. 596, 7. 
 
 (k) Barnes, 280, 282. Pr. Reg. 257. (l) Bunb. 124. 
 
 (m) Cas. temp. Hardw. 173. («) 2 Str. 890. 
 
 (o) Cro. Jac. 128, 498, 629. 3 Mod. 41. (p) 5 Mod. 212. 
 
 (aa) 1 H. Blac. 249. 
 
 (bb) 2 Str. 890. 1 Barnard. K. B. 420, S. C. Barnes, 285. 
 
 (tr) Ante, 541. 
 
 (dd) 1 Vent. 356. 2 Salk. 596, 7. 2 Ken. 292. (ee) Ante, 541. 
 
 (/) Stat. 19 Geo. II. c. 37, § 7. 3 Bur. 1773. 2 Taunt. 317. 
 
 (ffff) 57 Geo. III. c. 99, § 43. 
 
 (hh) 1 Vent. 356. 2 Blac. Rep. 837. 2 Bos. & Pul. 234. 3 Bos. & Pul. 14. 
 
 (lY) 2 Str. 787, 906. 2 Barnard. K. B. 4, S. C. 7 Durnf. & East, 335. 
 
 (kk) 2 Wils. 115. (11) 8 Durnf. & East, 47. 
 
 (mm) Ihittonv. Bolton, E. 22 Geo. III. K. B. 1 H. Blac. 299, in notis ; Beardmore v. Boul- 
 ton, H. 30 Geo. III. Excheq. ; but see 2 Bos. & Pul. 234. And as to the liability of carriers, 
 in consequence of such advertisements, see 1 H. Blac. 298. 2 East, 128. 4 Esp. Rep. 177. 
 4 East, 371. 5 East, 507. 5 Barn. & Cres. 322. 10 Moore, 247 ; and for the mode of de- 
 daring thereon, see 2 East, 128. 4 Esp. Rep. 177. 6 East, 564. 
 
 {nn) 7 Durnf. & East, 36.
 
 OF BRINGING MONEY INTO COURT. 620 
 
 larity, and cannot afterwards have a verdict, unless lie recover more than 
 the sum brought in.(o) In an action for frei^rht by a foreigner, there 
 being a cross action against him for unlicjuidated damages, the court of 
 C(thimon Pleas refused to permit the freight to be paid into court, as a 
 fun<l lial)le to payment of the damages when ascertained. (y>) But where 
 a separate commission had been sued out against A., and a joint cdinmis- 
 sion against him and J5., and the assignees under the first commission had 
 recovered a verdict in truvcr against 0., the court of King's Bench allow- 
 ed the amount of the verdict to be brought into court, to abide the event 
 of a petition to the Chancellor, to supersede the first commission. (<y) 
 
 In an action by an executor or administrator, the plaintilTiiot being liable 
 to costs, the defendant was not formerly allowed to bring money 
 into *court ;(<?) but now it is otherwise :(/') and the effect of the [ *G21 ] 
 rule will be, not to make the plaintiff pay, but only to lose his 
 8ubse(iuent costs. And, in actions against justices of the peace,(c) officers 
 of the excise,(c^ or customs,(t') commissioners of bankrupt,(^) or officers 
 of the army, navy or marines, (/y//) for anything done in the execution of 
 their offices, " in case the defendants shall have neglected to tender any, or 
 shall have tendered insufficient amends, before the action brought, they niay, 
 by leave of the court, at anytime before issue joined, pay into court such 
 sum of money as they shall sec fit ; whereupon such proceedings, orders and 
 judgment shall be had, made and given, in and by such court, as in other 
 actions where the defendant is allowed to pay money into court. "(/<//) 
 
 There is said to be no precedent, where there are several defendants, for 
 one to pay money into court. (/) AVhere there are several counts or breaches 
 in the declaration, and as to some of them the defendant may bring money 
 into court, but not as to the others, he may obtain a rule for bringing it in 
 specially, upon some of the counts or breaches only. Thus, where an action 
 of covenant{h) was brought upon a lease, for non-payment of rent, and not 
 repairing, &c., the court of King's Bench made a rule, that ujion payment of 
 "what should appear to be due for rent, the proceedings as to that should be 
 stayed ; and as to the other breaches, that the plaintiff might proceed as he 
 should think fit. So, in covenant upon a charter-party,(/) the defendant 
 ■was allowed to bring money into court, upon two of the breaches only ; viz. 
 for freight and demurrage. But in debt for the penalty of a charter-party, 
 the court of Common Pleas discharged the rule for bringing money into 
 court :{pi) and in another case, they refused to permit the defendant to pay 
 
 i; 
 
 (o) 1 Purnf. & East, 710, and sec 1 Campb. 559, n. (;>) 3 Taunt. 525. 
 
 \q) 1 Barn. & Cres. 257. 2 Dowl. & Ryl. 409, S. C. 
 
 [a) 2 Salk. 596. (i) 2 Str. 79G. 
 
 (c) Stat. 24 Geo. II. c. 44, § 4. And note, this seem.? to have been the first statute, which 
 allows money to be brought into court, in an action for general damages. 
 
 {d) Stat. 23 Geo. III. c. 70, § 33. 
 
 (<•) Stat. 24 Geo. III. sess. 2, c. 47, § 35, (repealed by C Geo. IV. c. 105.) 28 Geo. III. c. 
 37, § 28. G Geo. IV. c. 108, § 96. 
 
 \ff) Stat. 6 Geo. IV. c. 16, § 43. (gg) Stat. 6 Goo. IV. c. 108, g 96. 
 
 (hh) See also the statutes 13 Geo. III. c. 78. § 79. 13 Geo. III. c. 84. ? 81, * 3 Geo. IV. 
 c. 126, ^ 144, as to bringing money into court, by persons acting under tiie general hightraj/ 
 and turnpike acts. And as to bringing it in, by jiersons acting in pursuance of the laws 
 relative to larceny, &c., or malicious injuries to property, see the statutes 7 & 8 Geo. IV. c. 
 29, I 75, and c. 30, § 41. 
 
 (i) 2 Blac. Rep. 1030. 
 
 {k) 2 Salk. 669. 1 Wils. 75. Barnes, 284, but see 1 Vent. 356, contra; and see Pr. Reg 
 C. P. 256. 2 Blac. Rep. 837. 
 
 (/) 2 Bur. 1120. (m) Barnes, 285. 
 
 Vol. I.— 39
 
 g21 OF BRINGING MONEY INTO COURT. 
 
 money into court on all the counts in the declaration except the last, and to 
 demur to that count.(w) If a defendant bring money into court upon some 
 of the counts, and the plaintiff take it out, the latter is only entitled to the 
 costs of those counts, (o) 
 
 The motion for leave to bring money into court is a motion of course, and 
 should regularly be made before plea pleaded ;{p) but it is fre- 
 [ *C22 ] quently *made,(a) and in some cases expressly authorised,(J) 
 after plea, on obtaining a judge's order for that purpose : and if 
 there has been no delay, (c) the courts will give the defendant leave to with- 
 draw the general issue, in order to bring money into court, and replead it, 
 on payment of costs :[a] And he has even been allowed to bring it in, after the 
 granting of a new trial. (tZ) In the King's Bench, the motion paper being 
 signed by counsel, the money should be paid to the signer of the writs, who 
 acts in this instance as deputy to the master ;(e) and will give a receipt for 
 the money, on being paid 20s. for every 1001. and so in proportion for 
 every greater or lesser sum, exceeding 101. and 2s. for every sum under 10?. 
 beside 2s. 4:d. for the receipt. (/) The rule for bringing in the money is 
 drawn up, in this coui't, by the clerk of the rules in term time, or within a 
 week after, on the motion paper and receipt being left with him as instruc- 
 tions ; but after a week from the end of the term, there must be a judge's 
 order for drawing up the rule, which is granted of course, without a sum- 
 mons. In the Common Pleas, if the sum be under ^re pounds it may be 
 paid in on a side-bar or treasury rule, which is granted of course by the 
 secondaries ; but if it amount to that sum or upwards, a Serjeant's hand is 
 necessary for obtaining the rule : and after a week from the end of the term, 
 there must also be a judge's order for drawing it up. The rule in this court 
 being taken to the prothonotaries' oflEice, the clerk there will receive the 
 money, and write a receipt in the margin, on being paid Id. in the pound, 
 and Is. 4:d. for the receipt. On a plea of tender, with a profert in curid, 
 the sum tendered must be paid to the signer of the writs in the King's 
 Bench, or prothonotaries in the Common Pleas, who will give a receipt for 
 it in the margin of the plea ; and if not paid, the plaintiff may consider the 
 plea as a nullity, and sign judgment. (^) K the defendant bring money into 
 
 (n) Pr. Reg. 256. (o) 4 Durnf. & East, 579. 2 Taunt. 266, 
 
 (p) 1 Ld. Raym. 398. 1 Wils. 157. Barnes, 279. (a) 1 Durnf. & East, 711. 
 
 (b) Stat. 24 Geo. II. c. 44, | 4, and see 7 Taunt. 33. 2 Marsh. 356, S. C, where, in an 
 action against a magistrate, the defendant, after issue joined, was allowed to withdraw the 
 general issue, pay money into court, and plead de novo. 3 Barn. & Cres. 159. 4 Dowl. & 
 Ryl. 776, S. C. accord. 
 
 (c) 2 Str. 1271. Barnes, 289, 362. (d) Per Cur. M. 29 Geo. III. K. B. 
 (e) 1 Cromp. 3 Ed. 142. (/) R. H. 5 Jac. 1 K. B. 
 
 (g) 1 Str. 638. Barnes, 252. Ante, 565. 
 
 [a] Money paid into court is payment joro ianto. The plantiflf can take it out, but the 
 defendant cannot ; where a defendant dies after the payment, the revival of the action against 
 his executor, or even the commencement of a new suit, will not change the effect of the pay- 
 ment. Murray v. Bethune, 1 Wend. 191. If the defendant pays money into court, either 
 upon the whole or any single count in the declaration, he must pay costs up to the time 
 when the money is paid in, even although the plaintiff should proceed and recover no more 
 than the amount paid in. State Bank v. Halcomb, 2 Halst. 193. If, in an action on a policy 
 of insurance, the defendant pays the amount of the premium into court, which the plaintiflf's 
 attorney takes out, after informing the defendant of the intention to go for a total loss, he 
 will not be concluded from proceeding for a total loss. Sleght v. Ehinelander, 1 Johns, 192. 
 In an action, on a policy of insurance, the defendant may, after plea pleaded, bring what 
 sum he pleases into court, with costs to the time, but not specifically as the premium on the 
 policy. Dunlap v. Commercial Ins. Co., lb. 149.
 
 OF BRINGING MONEY INTO COURT. 622 
 
 court on a plea of tender, the plaintiff may take it out, tliough he reply that 
 the teiuler was not made before aetion hroii^dit :(/<) Or he may reply a sub- 
 sequent demaml and refut^al ; and on a verdict f»jr the plaintiff, on issue taken 
 thereon, Lord Mannjicld said : '' The money havin;,'boen taken out of court, 
 the plaintiff shall recover only nominal damages, but otherwise the verdict 
 would have been for the sum tendered. 'Y?) 
 
 The rule to bring money into court is commonly drawn up with costSj 
 to be taxed by the master in the King's Bench, or one (jf the ])rothono- 
 taries in the (Jonnnon Pleas : And, in the King's ]>ench, the court will not 
 in general permit the defendant to l)ring into court the debt and costs up to 
 a certain day after the action brought, (thereby excluding the costs 
 *of the declaration delivered,) upon the ground of an offer to pay [ *623 ] 
 the debt and costs up to that })eriod, without having made a tender 
 before action, or obtaining the common rulefor staging j)roceedings on pay- 
 ment of debt and costs, up to the time of the application. ((/) liut where the 
 plaintiffs conduct appeared to have been oppressive, the court of King's 
 Bench, on motion, discharged so much of the rule, for bringing money into 
 court, as related to the payment of costs. (i) So, where an action was 
 brought for two separate sums of money, one of which the defendant offered 
 to pay, with all costs to that time, and, the plaintiff's attorney having re- 
 fused to stay proceedings on those terms, the defendant })ai<l that sum into 
 court ; but the plaintiff afterwards, finding that he could not support the 
 action for the other part of his demand, took the money out of court, and 
 discontinued the action ; the court allowed the defendant his costs, from the 
 date of his offer to pay the sum paid into court, and directed that the same 
 should be set off against the plaintiff's costs previously incurred. (f) 
 
 So, in tlie Common Pleas, according to several recent decisions, where 
 the defendant, after action brought, and before declaration, offers to pay the 
 debt and costs, and the plaintiff refuses to receive it, the court will permit 
 the defendant to pay the debt into court, with the costs of the action up to 
 the time of his offer only ; and if the plaintiff take the money out of court, 
 he will be compelled to pay the costs of the application, and all costs in the 
 action subsequent to the offer :{d) And in like manner, upon setting aside a 
 writ of in(|uiry, the court of Common Pleas permitted the defendant to pay 
 money to the plaintiff, under a rule of court, with the costs of the action up 
 to that time, and ordered that the plaintiff's further proceedings should be 
 at the peril of paying the subsequent costs.((^) So, in the Exchequer, the 
 court, in a proper case, would it seems adopt a similar mode of proceeding.(/) 
 But where, in an action for work and labour, the defendants, having offered 
 by letter to pay a certain sum for the debt with the costs up to that time, 
 which was refused by the plaintiff, obtained a rule to show cause why the 
 sum offered, and the costs should not be paid into court, and further proceced- 
 ings stayed, and why the plaintiff should not pay the costs incurred since 
 the offer, and why, if the plaintiff refused to accept it, that sum should not 
 be paid into court, and struck out of the declaration ; the court of Common 
 
 (h) 1 Bos. & Pul. 3.32. 
 
 (t) V. Ashbij, Mid. Sit. after T. 22 Geo. III. K. B. 
 
 (a) 13 East, 551. (fj) 1 Bur. 578. 
 
 (c) 2 Barn. & Aid. 776. 1 Chit. Rep. 471, S. r. 
 
 (d) 2 Taunt. 203, 283. 4 Taunt. 255. Holt. Ni. Bri. 7 n.; but sec Cas. Pr. C. P. 120. Pr. 
 Reg. 258, y. C. semb. contra. 
 
 (e) 1 Taunt. 491, but sec Cas. Pr. C. P. 85. Barnes, 281, 285. 
 (/) 11 Price, 545, but see id. 533.
 
 g23 OF BRINGING MONEY INTO COURT. 
 
 Pleas (liscliargccl the rule, it appearing that there was nothing oppressive in 
 the phiintifF's conduct :{g) And in general, where money is paid into court 
 upon tlic common rule, the latter court will not discharge that part of it 
 which directs the payment of costs, unless the defendant have been prevented 
 from making a legal tender, by the fraud or vexatious conduct of 
 [ *62-4 ] the plaintiff: * Therefore, they refused the application, where the 
 defendant had merely pulled out his pocket book, for the purpose 
 of making a tender, six weeks before action brought, and was prevented by 
 the plaintiff's walking away ; the defendant never having repeated the 
 offer, (a) A copy of the rule is usually annexed to the plea, or otherwise 
 served on the plaintiff's attorney : And bringing money into court can only 
 be proved, by the rule for bringing it m.(h) 
 
 Bringing money into court is in general considered as an acknowledgment 
 of the right of action, to the amount of the sum brought in ;(c)[a] which the 
 plaintiff therefore, on producing an office copy of the rule, is entitled to re- 
 ceive at all events whether he proceed in the action or not, and even though 
 he be nonsuited, or have a verdict against him:((Z) And where goods have 
 been sold to the defendant by sample, at a stipulated price, he cannot, 
 after payment of money into court, in an action of indebitatus assumpsit, 
 insist upon any defect in the goods ; since, by paying money into court, he 
 admits the original contract: (e) If a purchaser mean to insist on such an 
 objection, he ought to return the goods.(e) Bringing money into court 
 bemo- an acknowledgment on record, the party can never recover it back 
 again though it afterwards appear that he paid it wrongfully :{/) And 
 the court of Common Pleas will not order money brought in by the 
 defendant through a mistake to be restored, unless it appear that some 
 fraud or deceit has been practised upon him.(gg) But bringing money 
 into court is said to be an admission of a legal demand only :{h) And 
 
 (ff) 5 Taunt. 840. 1 Marsh. 392, S. C. ; and see 6 Moore, 430. 3 Brod. & Bing. 1G8, S. C. 
 6 Moore, 431, 436, in noiis. 11 Price, 533. 
 
 (a) 2 Marsh. 478, (6) 3 Campb. 41. 1 Car. & P. 21, n. 
 
 (c) 5 Bur. 2640. 2 Durnf, & East, 275. 
 
 (d) 2 Salk. 597. 2 Str, 1037. Cas. temp. Hardw. 206, S.C. Pr. Reg. 250. Cas. Pr. C. P. 
 36, S. C. 
 
 (e) 2 Stark. Ni. Pri. 103, (f) 2 Durnf. & East, 645. 
 (r/g) 2 Bos. & Pul. 392. (A) 1 Bos. & Pul. 264. 
 
 [a] Payment of money into court admits the cause of action stated in the declaration to the 
 amount j^aid in ; and, beyond that amount, the party may make his defence. Spalding v. 
 Vandercook, 2 Wend. 431. Johnson v. Columbian Ins. Co., 7 Johns, 315. Where money is 
 paid into court, the sum paid in is considered as stricken out of the declaration ; and unless 
 the plaintiff proves a larger sum, the defendant must have a verdict. And where, in such 
 case, a verdict is taken for the plaintiff, subject to the question of practice to be settled by 
 the Supreme Court, that question must be determined, on a case made, not as a non-enume- 
 rated motion. Bank of Columbia y. SoutJierlatid, 3 Cow. 336. Upon payment of money into 
 court, the clerk takes it as the private agent of the party paying, except in two cases, upon 
 tender pleaded, and where the party has obtained leave of the court so to do. 3Iazych r. 
 irEwen, 2 Bailey, 28, A payment made to the plaintiff after action brought is held, in Vir- 
 ginia, equivalent to bringing the money into court, in reference to the costs of the plaintiff. 
 Hudson V. Johnson, 1 Wash. 10. And if the defendant, in an action of assumpsit, contain- 
 ing the common money counts, and also a count for the use and occupation of certain pre- 
 mises described, pays a part of the sum demanded into court, without specifying to which 
 of the counts the payment is to be applied, such payment is an admission only that the de- 
 fendant owes the plaintiff on some one or several of the counts, the sum so paid, but it is 
 not an admission of any particular contract or debt under any one of the counts, nor a lia- 
 bility on all of them. Hubbard v. Knous, 7 Cush. 556. As to forms and practice on paying 
 money into court, see J3ank of Columbia v. Soiitherland, 3 Cowen, 336.
 
 OF BRINGING MONEY INTO COURT. 624 
 
 beyond the amount of the sum liroujrlit in, it i.s no acknowledgment of the 
 right of action :{i) therefore if the j)hiintifl' proceed further, it is at his peril. 
 So, in actions of trespass against justices of the peace, ic. for acts done 
 by tliem ex officio, bringing money into court seems to be no admission of the 
 right of action. (^) And wlu're money has btt-n paid into court, sliort of 
 the |)laintiirs di-mand, and it is taken out of court, evidence is admissible 
 to sh(»w (juo ((ni)ito it was done; and it is not to be taken conclusively as 
 an admission tiiat the rest of the demand was unf(juniled.(/) 
 
 It has been doubted, whether the plaintiff can be nonsuiteiJ, after bring- 
 ing money into court ; but there seems to be little reason for such a 
 doubt. [a] When money is brought into court, unless the plaintifl' will 
 accept it with costs, in discharge of the suit, it is considered as ])aid before 
 action brought, and struck out of tlie declaration: and the action jiroceeds 
 for the residue of the demand, in like manner as if it had been originally 
 commenced for that only.(;/i) And, accordingly, the practice of nonsuiting 
 the plaintiff, after money paid into court, appears to be supported 
 by many *authorities.(r/) It seems, therefore, that after payment [ *G25 ] 
 of money into court, there may be a nonsuit, a judgment as in 
 case of a nonsuit, a demurrer to evidence, or a ])lea^/iH/» darrein cant in nance : 
 in short, that the cause goes on substantially in the same manner, as if 
 the money had not been paid in at all. (6) 
 
 When the declaration contains a count on a special contract, bringing 
 money into court gen eralli/ is an admission of the contract, so as to super- 
 sede the necessity of proving it at the trial :(t')[i'] therefore in such case, 
 if the defendant mean to deny the existence of the contract, he should pay 
 money into court specialli/, on the other counts of the declaration. So, 
 where the defendant paid money into court generally, upon a declaration 
 containing a count on a policy of assurance, together with the money 
 counts, the court of Kings Bench held, that this was an admission of the 
 contract stated in the special count ; and that it was not competent to the 
 
 (t) 1 Durnf. & East, 464, and see 3 Durnf. & East, G57. 4 Durnf. & East, 570. 
 h) U East, 202, 3. (/) 5 Esp. Rep. GO. 
 
 (m) 3 Durnf. & East, 6, 1. 
 
 (a) 2 Salk. 507. Pr. Reg. 250. Cas. Pr. C. P. 3G, S. C. Cas. temp. Hardw. 200. 2 Str. 
 1027, S. C. 4 Durnf. & East, 10. 7 Durnf. & East, 372. 2 Esp. Rep. 481, G07. 2 U. Blac. 
 374 ; and see 1 Canipb. 327, 8, m7iotis. 3 Ring. 290. 2 Car. k P. b5, S. C. 
 
 (b) 2 H. Blac. 375,;;pr Eijre, Ch. J. 
 
 (r) 2 Durnf. & East, 275. 4 Durnf & East, 579. Penke's Cas. XL Pri. 3 Ed. 20, Id. (a.) 
 1 Esp. Rep. 347. 2 East, 128. 2 H. Blac. 374. Jin/an v. Williamson, M. 38 Geo. 111. C. P. 2 
 Bos. & Pul. 550. 2 Campb. 357. 1 Car. & P. 20. \b.) 
 
 [a] It is settled, that a plaintiff may be nonsuited after plea of tender and payment into 
 court. Jenkins v. Cutchens, 2 Miles, G5, Peri'e/^jV, P. J. Arconl. MCrcedyy. Fay, 1 Watts. 
 400. 
 
 [b] Whore money is paid into court generally, it is an admission of the contract set forth 
 in each of the counts ; but if the payment was not intended to be made on all the counts, 
 the court will allow an amendnunt of the rule, so as to ni)])ly it to particular c«)unt.s. Jonct 
 V. Hour, 5 Pick. 285. Hiinliiii/lon v. American Bunk. G Pick. 34u. Thus, where liy the vote 
 of the directors of a bank, the plaintiff was appointed special director, to receive such com- 
 pensation as "should, in the opinion of the board, be reasonable and fair," and he declared 
 for a reasonable compensation in a quantum mrruit count, and the defemlant,'? pai<l into court 
 the amount voted by the directors to be a " reasonable ( onipcnsation," — it wa."* held, that, 
 by paying the money into court, the defendants waived this limitation of the contract. Hun- 
 tington V. American Bank, G Pick. 340. The holder of a jiromissory note commenced actions 
 thereon against the maker, and against the indorser, and the maker brought into court the 
 full amount of the note with interest. It was held, that the holder was not bound to accept 
 it, unless the costs of both actions should be paid. Whipple v. Netcton, 17 Pick. 168.
 
 (325 OF BRINGING MONEY INTO COURT. 
 
 defendant to sIioav that the policy, by which the risk was originally made 
 to cease after the ship had moored twenty-four hours in safety, was after- 
 wards altered by the broker, without the defendant's knowledge. (t^) So, 
 where two breaches were assigned in one count of a declaration upon a 
 contract, and the defendant paid money into court upon one of them, the 
 court held that he thereby admitted the whole contract, as set out in that 
 count. (e) And after payment of money into court by a defendant, in an 
 action brought against him on the 2 & 3 Edw. VI. c. 13, by a farmer of 
 tithes, he cannot object to the plaintiff's title to the tithes ; because he has 
 admitted the plaintiff's right generally, and has reduced the cause to a 
 mere question of the amount of the damages. (/) A tender also, upon which 
 money is paid into court, admits the contract and facts stated in the declara- 
 tion : Therefore, where a count averred, that in consideration that the 
 plaintiff would let to the defendant certain tithes, the defendant agreed to 
 pay 41?., and that plaintiff did let the said tithes, and permit the defendant 
 to take them ; a tender pleaded to all the counts generally, was held to 
 preclude the defendant from showing a legal interruption to his taking 
 the tithes, if any such interruption had subsisted. ((/) But payment of money 
 into court generally, upon a declaration containing a count on a policy of 
 assurance, and the money counts, is only an admission of the contract ; but 
 does not preclude the defendant from disputing his liability beyond such 
 payment, for goods which were not loaded according to the terms of the 
 
 policy. (7i) And where, in an action on a policy of * assurance, 
 [ *626] it appeared that the plaintiff, by his conduct previous to the trial, 
 
 had induced the defendant to believe that the only point to be tried 
 was a question of fraud, and suffered him to prepare his evidence accordingly ; 
 the court of Common Pleas would not allow the plaintiff to object to the 
 receipt of that evidence at the trial upon the ground of the contract having 
 been admitted by the payment of money into court. (a) So, in an action 
 on a valued policy, the payment of money into court, upon a count which 
 states a total loss by capture, is no admission of a total loss ; but the plaintiff 
 is bound to prove that he has suffered damage from the capture, beyond 
 the amount of the sum paid into court. (5) So, the payment of money into 
 court, on several common counts, one of which alone is applicable to the 
 plaintiff's demand, admits a cause of action on that count only :(c) And 
 accordingly, where the plaintiff alleges in his declaration, multifarious 
 and inconsistent demands, arising out of the same transaction, payment 
 into court of a sum insufficient to meet all the demands, cannot be ap- 
 plied by the plaintiff to prove such one of them as he may elect at the 
 trial. ((^fZ) Where the declaration stated that the plaintiff had sold to the 
 defendant a quantity of oak bark, at the average price of the season, to be 
 ascertained before a given day, and then averred that before that day the 
 average price was ascertained to be a given sum ; it was liolden that the 
 payment of money into court did not admit the average price to be as stated 
 in the declaration. (^e) And in assumpsit for goods sold and delivered, and 
 on the money counts, where the defendant had pleaded the general issue, 
 
 {d) 9 East, 325. 
 
 (e) 1 Barn. & Cres. 3. 2 Dowl. & Rvl. 19 S. C. (/) 4 Price, 58. 
 
 [g) 3 Taunt. 95. " {h) 2 Maule & Sel. 106. 
 
 {a) 3 Bos. & Pul. 556. {h) 1 Campb. 557. 1 Taunt. 419, S. C. 
 
 (c) 9 Moore, 724. 2 Bing. 377. 1 Car. & P. 403, S. C. 
 
 [dd) 1 Taunt. 450. 1 Moore, 158, S. C. (ee) 2 Barn. & Aid. 116.
 
 OF BRINGING MONEY INTO COURT. 62G 
 
 with the statute of limitations, and paid money into court generally ; the 
 court licld, tliat such payment did not take tlic case out of the Btatute,{/) 
 
 When money i.s hnnight into court, the plaintiff either accepts it, -with 
 costs, in discharge of the suit, or proceeds in the action : In the former case, 
 he should take an office copy of the rule, and procure an app(nntment there- 
 on from the master, or one of the prothonotarics, to tax the costs, and serve 
 the same on the defendant's attorney ; or, in default thereof, it will he con- 
 sidered that the j)laintill'intends to])roceed in the action, to recover a larger 
 sum than that paid into court. (//) The costs being taxed, should he lorth- 
 with paid to the plaintiff or his attorney ; and if they arc not paid, the plain- 
 tiff may proceed in the action ; and proof of the rule to pay money into 
 court will of itself entitle him to a verdict, with nominal damages :(//) Or, 
 in the Common Pleas and Exchequer, the plaintiff, ai'ter demanding the 
 costs, may have an attachment for the non-payment of them ; and 
 in these courts, he may proceed in the action, ^without a previous [ *G2T ] 
 demand of the costs. (</a) But, in the King's Bench, the plaintiff 
 must proceed in the action, if they are not paid, and cannot have an attach- 
 ment ;(/>6) for the rule in this court is conditional, and not, as in the Connnon 
 Pleas, (c'c) obligatory upon the defendant to pay the costs. 
 
 If the plaintiff proceed in the action, the sum brought into court is, by the 
 terms of the rule, to be struck out of the declaration, and paid out of eoiirt, 
 to the plaintiff or his attorney ; and upon the trial of the issue, the plaintiff 
 shall not be permitted to give evidence for the same : In such case, if the 
 plaintiff proceed to trial, (t^) otherwise tlian for the non-payment of costs, 
 and do not prove more to be due to him than the sum brought in, the plain- 
 tiff, on the rule being produced, (f) shall be nonsuite<l,(//") or have a verdict 
 against \\'nn,{</f/) and pay costs to the defendant :(/<//) and even though the 
 rule bo not produced, the plaintiff it seems cannot take a verdict for the sum 
 brought into court.(/) But if more appear to be due to him, he shall have 
 a verdict for the overplus, and costs. (/r) When the plaintiff proceeds fur- 
 ther, Avithout going on to trial, he shall have his costs, to the time of Ijring- 
 ing money into court ; and the defendant be allowed his subseciuent costs :(/) 
 And the plaintiff is entitled to costs, up to the time of bringing money into 
 court,[A] though he afterwards give notice of trial, which he neglects to coun- 
 
 i^ 
 
 (/) 3 Barn. & Crcs. 10. 4 Dowl. & Ryl. 032, S. C. 
 
 iff) R. M. 31 Geo. III. K. B. 4 Durnf!^ k East, 12. 
 
 (h) 1 Campb. 558, n. So if, after action hrougrlit, the money souplit to bo rerovered is 
 paid, without a rule of court, the plaintiff must have a verdict. /(/. 5.")!i, n. Holt Ni. I'ri. G, 
 and see 5 Barn. & Aid. 886. Ante. 338. 
 
 (aa) 2 New Rep. C. P. 473. 6 Price, 12G. 7 Price, 074. 
 
 (hb) 2 Str. 1220. 7 Durnf. & East, 6. 
 
 (cr) Barnes, 283. Pr. Rofr. 250, S. C. 11 East, 310. 
 
 (d) 2 Salk. .^)97. 2 Str. 1027. ('as. lernp. Hardw. 200, S. C. Say. Rep. 100, 7. 2 Bur. 1121. 
 
 (p) Com. Dip. 20, and see Willes, 485. 
 
 (ff) Qu. Wiietlicr a plaintiff, having taken money out of court after being nonsuited, and 
 never having moved to set the nonsuit aside, is barred from bringing a. new action? 3 Esp. 
 Rep. 100. {gg) ('as. temp. Hardw. 200. 
 
 {hh) 4 Dnrnf. k East. 10. 1 Saund. 33, (2.) 2 Taunt. 301. 4. Taunt. 100. but see 1 Durnf. 
 & East, 710. 2 Bos. & Pul. 50, contra. (i) llnviland v. C„h^ .M. 24 Geo. HI. K. B. 
 
 [k) Cas. temp. Hardw. 200. As to the effect of taking the single rent out of court upon a 
 plea of tender, in an action for double value, with a count for use and occupation, sec 10 
 East, 48. 
 
 (I) 1 Durnf. k East, 029. Willes, 101. Barnes, 280, 282. Pr. Reg. 254, 5, S. C. 1 Younge 
 & J. 213, but see Say. Rep. 100, contra. 
 
 [a] Costs paid into court are irrevocable. Clement v. Biiler, 3 Watts, 248. Where money
 
 gOJ OF BRINGING MONEY INTO COURT, 
 
 tcrinand, whereby the defendant is entitled to judgment as iu ease of a non- 
 suit [(/n) or thougli theplaintifi" afterwards enter the record for trial, and 
 ■withdraw it.{>t) But the plaintiff is not entitled to costs, up to the time of 
 brin"ing money into court, after the defendant has obtained judgment as in 
 case of a nonsuit,(o) or judgment of non pros for not entering the issue,(/;) 
 or after a juror has been withdrawn by consent.(^) In the Exchequer, the 
 plaintiff is entitled to costs, up to the time of bringing money into court, 
 although he has made default in trying the cause, after a peremptory un- 
 dertaking ;(r) And he may take the money out of court, without an ap- 
 plication for that purpose ; and by so doing, all further proceedings are 
 
 stayed, (r) 
 [ *628 ] *In the King's Bench, where the defendants, in several actions 
 
 on a policy of assurance, paid money into court, which the plaintiff 
 took out, without taxing costs, at that time and afterwards the defendants 
 entered into the common consolidation rule, and the plaintiff was nonsuited 
 in the action that was tried ; the court held, that the latter was not entitled 
 to the costs in any of the actions, up to the time of paying money into 
 court. (rt) But in actions on policies, in the Common Pleas, Avhere there is 
 a consolidation rule, and money paid into court, although the cause tried 
 follows the general practice, and the defendant, if he succeed, is entitled to 
 the whole costs of that cause, yet the plaintiff is entitled to the costs of the 
 short causes, up to the time of paying the money into court. (5) So, in the 
 King's Bench, where the defendants in several actions on a policy of insu- 
 rance, paid money into com-t, and (the plaintiffs refusing to consent to a 
 consolidation rule) obtained a rule for staying proceedings in the others, 
 until after the trial of one, upon the terms of their admitting their subscrip- 
 tion to the policy, the interest of the plaintiffs, &c. and afterwards judgment 
 passed for the defendant in the cause tried ; the court held, that the plain- 
 tiffs were entitled, in the other actions to costs, to the time of paying 
 money into com't.(e) Where the defendant, having paid money into court 
 generally, upon a declaration containing a count on a policy of assurance, 
 together with the money counts, obtained a rule after verdict, to amend 
 the rule for paying money into court, by confining it to the money counts, 
 and for a new trial, on payment of costs ; the court of King's Bench held, 
 that the plaintiff on taking the money out of coui't, was entitled to all the 
 costs of the action, and not merely to the usual costs on a rule for a new 
 trial.((i) And, in the Common Pleas, where in an action on a policy, with 
 
 {vi) 8 Duriif. & East, 408. 
 
 («) Id. 486. (o) 2 Maule & Sel. 335. 
 
 (p) 6 Taunt. 158. 1 Marsh. 510, S. C. (?) 3 Dunif. & East, 657. 
 
 (r) 1 Younge & J. 213. [a) 7 Durnf. & East, 372. 
 
 \b) 2 Taunt. 361 ; and see 2 Bos. & Pul. 56, 3 Bos. & Pul. 558, accord. 
 {c) 6 Maule & Sel. 107. {d) 9 East, 325. 
 
 is paid into court after issue joined, and tlie plaintiff proceeds in the suit, but recovers no 
 more than the amount paid in, the defendant is entitled to the costs of the defence subse- 
 quent to the payment of the money, but not to the costs previously accrued. Aikins v. 
 Colton, 3 Wend. 326. Money paid into court, not in pursuance of a tender made before 
 the suit is brought, must, to be available, include the costs iu the suit up to that time. 
 GosUii V. Ilodson, 24 Term. 140. The acceptance of money paid into court, operates as a 
 payment, pro tanto, and also as a conclusive admission of the conditions upon which it was 
 paid into court. lb. A party cannot make the payment of money into court available, 
 unless it be done under an order of court, and upon the payment of all costs up to the time 
 of bringing the money into court. Keith v. Smith, I Swan, (Tenn.) 92. Harvey v. Eackley, 
 6 Watts, 264.
 
 OF BRINGING MONEY INTO COURT. G28 
 
 the usual money counts, the defendant ])aid the preyniums into court, on 
 the count for money had and received, and the jdaintifl' took it out, there 
 being no consolidation rule, the latter was holden to be entitled to his full 
 costs on all the counts, althou^^h he had failed on the special counts, in 
 another action on the same policy. (f) 
 
 In the Common Pleas, if tlu' plaintiff die,(/) or be nonsuited,(r/) after 
 money is brought into court, the court will not order it to be paid back to 
 the defendant. So, if the defendant die after bringing money into court, it 
 shall not be paid back to his executors. (7<) But where the bail, upon putting 
 off a trial, had paid a sum of money into court, to a])ide the event of the suit, 
 and the suit having afterwards abated by the death of the (k-fcndant, they 
 were permitted to take the money out of court, although it was opposed 
 both by the ])laintifl", and by the administrator of the defendant. (/) And if 
 the plaintiff have a verdict against him, after money is brought 
 into *court, the court will order it to be paid out to the defendant, [ *G29 ] 
 towards satisfaction of his costs. (rt)[A] It had been a question 
 often agitated in that court, whether in cases Avhere there was a rule to pay 
 money into court, the production of it by the defendant was to be considered 
 as evidence on his part, which gave the plaintiff's counsel a riglit to re])ly: 
 If the plaintiff took a verdict for the whole of his demand, without giving 
 credit for the sum paid into court, the court would set it aside, without re- 
 quiring evidence of the existence of such a rule : and therefore a rule was 
 made, that in future this should not be considered as evidence on the part 
 of the defendant, so as to give the plaintiff a right to reply.(i)[l] 
 
 (e) 5 Taunt. GOY. (/) Cas. Pr. C. P. 129. Pr. Reg. 255, Barnes, 231, S. C. 
 
 (ff) Cas. Pr. C. P. 36. Pr. Reg. 250, S. C, and see id. 252. 
 
 (h) Barnes, 279. Pr; Reg. 252, S. C. 
 
 (?■) Ward V. Lowrinj, M. 45, Geo. III. K. B. 2 Smith R. 49, S. C. 
 
 (a) Cas. Pr. C. P. 54. Pr. Reg. 251, S. C. Barnes, 280. 
 
 (b) 2 Taunt. 267, 1 Car. & P. 21, n. 
 
 [1] The practice on the subject of paying money into court has been materially improved 
 in England by a recent statute. By the provisions of the law amendment act, ^ & 4 \V. IV. 
 c. 42, § 21 ; and sec 2 Rep. C. L. Com. 52, 97 ; " it shall be lawful for the defendant in all 
 personal actions, (except actions for assault and battery, false imprisonment, libel, slander, 
 malicious arrest orprosecution, criminal conversation, or debauching of the plaintiff's daughter 
 or servant,) by leave of any of the sujicrior courts of law at WtstiuitDster, where such action 
 is pending, or a judge of any of the said superior courts, to pay into court a sum of money, 
 by way of compensation or amends, in such manner, and under such regulations, as to the 
 payment of costs, and the form of the j)leadiug, as the said Judges, or any cii//it or more of 
 them, of whom the chief of each of the said courts shall be three, shall, by any rules or orders 
 b}- them to be from time to time made, order and direct." By the above act, the defendant 
 may pay money into court, in many cases where he was not formerly allowed to do so, as in 
 actions for general damages, not being for assault and battery, or false imprisonment, kc. 
 But in an action by landlord against tenant, for not repairing, the court refused to allow the 
 defendant to pay a sum of money into court, by way of compensation and amends, un<ier 
 the above statute ; and that the same sum might be received into court, under a plea in the 
 form given by the rule made thereon, and under a jjlea of tender before action lirought ; 
 Searle v. JJarrctt, 4 Nev. & il. 200. Dearie v. Barrett, 2 Ad. & E. «2. JJarretr. Ucarle, 3 Dowl. 
 Rep. 13. 9 Leg. Obs. 108, 20G, B. C. 
 
 In pursuance of the power given by the above act, a statutory rale was made by the judges 
 
 [a] Where money has l)een paid into court by the defendant, and the plaintiff dies and his 
 administrator is substituted, who does not appear and is nonsuited, the money will bo 
 impounded to answer the defendant's costs. Jeukinn v. Cutehrnx, 2 Miles, G5. And after 
 payment of money into court, the defendant can never take it out ; yet if the plaintiff fails 
 in his action, as by nonsuit on motion, and the money has not a Iready been taken out of 
 court by him, the court will impound it to answer the defendant's costs. Jenkins v. Cute/tins, 
 2 Miles, 65. Payment into court, under a plea of tender, by one of several joint defendants, 
 is a payment for all, and the money may be impounded iu such case, for cost of all. Ibid.
 
 ♦ggQ OF PLEAS TO THE JURISDICTION. 
 
 *CHAPTER XXVI. 
 
 Of Pleas to the Jurisdiction ; Claiming Conusance ; and Pleas in 
 
 Abatement. 
 
 The general order of Pleading is, 
 
 I. To the Jurisdiction of the Court. 
 II. To the Person, 
 
 1. Onhe Plaintiff: 
 
 2. Of the Defendant. 
 
 III. To the Count. 
 
 IV. To the Writ; and herein, 
 
 1. To the Form : 
 
 2. To the Action of the Writ. 
 
 V. To the Action itself, in bar thereof. (rt) 
 
 (a) Co. Lit. 303, Latch, 178. Gilb. C. P. 49,and see Steph. PI. 429,30. And for an account 
 of the various kinds of pleas in Equity, and their essential difference, see Beam. PI. Eq. 
 Chap. II. 
 
 of all the courts ; R. PI. Gen. H. 4 W. IV. reg. 17, 18. 5 Barn. & Ad. Append, vi. 10 Bing. 
 468. 2 Cromp. & M. 18, by which it was ordered, that " when money is paid into court, such 
 payment shall be pleaded in all cases, and as near as may be in the form prescribed by the 
 rule." Besides that it was thought much more convenient, as well as more consistent with 
 the real state of facts, that payment of money into court should be put into the shape of a 
 plea, other advantages are gained by putting it into that shape, namely, that the exjiense of 
 a rule of court, and of proving such rule at the trial, is avoided ; that a specific issue will 
 arise as to the sufficiency of the sum ; and that the admission of the plaintiff's right of action, 
 and the extent of that admission, will appear on the record ; a circumstance which will be 
 found peculiarly beneficial in actions of trespass to land ; 2 Rep. C. L. Com. 54, 5. 
 
 If it be intended to defend part of the action, and to pay money into court as to other 
 part, the plea or pleas to the part defended should be pleaded first, and the payment into 
 court should be pleaded as to the residue; Sha7-7Han v. Stevenson, 1 Gale, 74. 5 Tyr. Rep. 564. 
 
 3 Dowl. Rep. 709. 2 Cromp. M. & R. 75. 10 Leg. Obs. 315, S. C. And where, to a declara- 
 tion for 311. on a bill of exchange, and lOOZ. for money paid, money lent, goods sold, interest, 
 and on an account stated, the defendant pleaded as to the 31/., and as to 12/. parcel of the 
 100/. for goods sold, and as to the 100/. on the account stated, payment into court of 51/. and 
 alleged that the plaintiff had not sustained damages to a greater aniount, in respect of so 
 much of those causes of action as in the plea mentioned, it was doubted whether such plea 
 was good, on special demurrer: and it seems that the defendant oiight to have shown dis- 
 tinctlv, what portion of the money paid into court was to be applied to the bill of exchange ; 
 Jourdain v. Johnson, 2 Cromp., M. & R.564. 5 Tyr. Rep. 524. 1 Gale, 312. 4 Dowl. Rep. 534, 
 S. C. ; and see Marshall v. Whiteside, I Meeson & W. 191, 2. 1 Tyr. & G. 485. 4 Dowl. Rep. 
 770, S. C. And it has been holden, that a plea of pajinent of money into court, beginning 
 " as to so much, parcel" &c., and concluding without any prayer of judgment, is bad, on 
 special demurrer ; Sharman v. Stevenson, 1 Gale, 74 ; and see Porter v. Izat, 1 Tyr. & G. 639. 
 Where there are several counts for several causes of action, or several breaches are assigned 
 in covenant, tlie defendant may plead payment into court of one entire sum, in satisfaction 
 of all the counts or breaches : Marshall v. Whiteside, 1 Meeson & W. 188. 1 Tvr. & G. 485. 
 
 4 Dowl. Rep. 766, S. C; and see Mee v. Tomlinson, 5 Nev. & M. 624. 1 Har. & W. 614, S. 
 C. Lorymer v. Vizeu, 3 Bing. N. R. 222. But where, upon a declaration consisting of two 
 counts, the defendant paid into court enough to cover the demand in the first, and obtained 
 a verdict on the second, but had omitted to plead the payment, as required by the new rules, 
 the court held that he was not entitled to costs; Adlardy. Booth, 1 Bing. N. R. 693. 1 Scott, 
 644, S. C. 
 
 The practice of paying money into court, however, is now governed by the law amend- 
 ment act, and the statutory rules made thereon ; by one of which rules, R. PI. Gen. H. 4 "W". 
 IV. reg. 18 ; 5 Barn. & Ad. Append, vi., 10 Bing. 468 ; it is ordered, that "no rule or judge's 
 order to pay money into court shall be necessary, except under the 3 & 4 W. IV. c. 42, | 
 21 ; but the money shall be paid to the proper officer of each court, who shall give a receipt 
 or the amount in the margin of the plea, and the said sum shall be paid out to the plaintiff
 
 OF PLEAS TO THE JURISDICTION. 630 
 
 By this order of pleadinff, each suhsequent plea admits the former : as, 
 when the defendant pleads to the person, he admits the jurisdiction of the 
 court ; -when he j)leads to the count, he admits the competency of the plain- 
 tiff, and his own responsihility ; when he jileads to the form of the writ, ho 
 admits the form of the count ;(/>) and in like manner of the rest. 
 
 (r>) Giib. c. p. 50. 
 
 on (leninnd." I?y this rule it is untipccssary to liiivo any rule or onler for puyinp money 
 into court, in cases where it was aUowed l)cfore the law amendment act. In such cases it 
 is to he i)aid to tiie ])roi)er oflicer, as a matter of course, without any rule or order for that 
 purpose, in like nuinner ns ui)on a jilea of tender. Tidd, Sup. IH.tO, p. IH. Hut incases 
 where tiie payment of money into court was first allowed liy the law amendment act, as in 
 actions for general damages, Ac, a rule of court or judjje's order must he obtained for leave 
 to pay it in : And the jiayment of money into court must in all cases be pleaded, even though 
 it be paid in under a rule of court or judge's order. 
 
 By a rule of nil the courts, R. PI. II. 4 \V. IV. rep. 19 ; r> Harn. k Ad. Append, vi. vii . ; 
 10 Hinp. 4(;S, CO; 2 Cromp. & M. l!t; made in puisuance of the law amendment act, "the 
 plaintitr. after the delivery of a i)leii of j):iyment of money into court, shall be at lilierly to 
 reply to the same, by accepting the sum so paid into court, in full satisfaction and discharge 
 of the cause of action, in respect of which it has been jjaiil in ; and he shall be at liberty, in 
 that case, to ta.\ his costs of suit, and in ease of non-payment thereof, within /(jr^y-'''y/'' hour.'?, 
 to sign judgment for his costs of suit so ta.xed: or the plaintiff may reply that he has sust^iined 
 damages, (or that the defendant is indebted to him, as the case maybe,) to a greater amount 
 than the said sum ; (for the form of a replication to a plea of payment of money into court, 
 see 6 Car. & P. 712, (a) ; 1 Chit. PI. 371, 72 ; and see Proclor v. AichoUon, 7 Car. k P. 07 ; 
 Jourddin v. John.ton. 2 Cromp. M. k R. 5G4 ; 5 Tyr. Rep. 524; 1 Gale, .312; 4 Dowl. Rep. 
 534, S. C. ; Mitr.'ihall \. W/iitrxide, 1 Meeson & W. 191, 92;) and in the event of an issue 
 thereon being found for the defendant, the defendant shall be entitled to judgment, and his 
 costs of suit." 
 
 If the defendant pay money into court, as to part of the plaintiff's demand, and plead non 
 assumj^)si/, or nnnquam indehilatus, or a set-off, or other plea, as to the residue, the plainfifT 
 may take the money out of court, in satisfaction of the cause of action in respect of which 
 it was paid in, and take issue, and proceed to trial, on the other ])lea : But where, to a de- 
 claration in assumpsit, brought to recover the sum of 30/., the defendant pleaded, first, to 
 the whole declaration, payment of the sum of 27/. 4,?. 4d. into court, and that the plainlifT 
 had not sustained damages to a greater amount ; secondly, except as to 27/. 4.?. 4d. nan ns- 
 sumpsit ; thirdly, payment of tiie sum of 10/. before action; and fourthly, as to all except 
 27/. 4.?. Ad., a set-otf ; to which the ])laintin" replied that he acccjited the sum paid into court, 
 and was satisfied, the court held that the defendant was not justified in signing judgment of 
 non pros, for want of a rejilication to the second, third, and fourth pleas. Coatcs v. Stevens, 
 2 Cromp. M. k R. 118. 5 Tyr. Rep. 7C4. 3 Dowl. Rep. 784. 1 Gale, 75, S. G. In an action 
 on the case for an injurj' to the plaintiff's reversionary interest in a wharf, by breaking a 
 wall, the defendant having pleaded not guilty to the whole declaration, and a special jdea 
 of justification, and the plaintiff having new assigned, the defendant jiaid money into court, 
 which was accepted in satisfaction of the cause of action, the coiirt hebl that the plaintiff 
 was entitled to the costs of the writ, and the defendant to all other costs prior to the new 
 assignment. Griffiths v. Juries, 5 Dowl. Rep. 1G7. 1 Meeson & W. 731, S. C. In an action 
 for dilapidations, the defendant having paid money into court, the plaintiff replied further 
 damage; and having subsequently given a peremptory undertaking, pnrsimnt to which, 
 however, he did not go to trial, the court permitted a rule for judgment as in case of a non- 
 suit to be discharged, on his amending his replication, by accejiting the money in ."satisfac- 
 tion of the cause of action, and paying the defendant's costs, incurred since the payment of 
 the money into court. Kclh/ v. Fliut, 13 Leg. Obs. 04. In an action against a earrier, for 
 not delivering goods at a specified time, the defendant pleaded payment of money into court, 
 and the plaintiff rejdied that he had sustained more damages; the amount paid in was the 
 cost price of the goods, the defendant having offered them in spreir to the jdainliff two day.s 
 only after they ought to have been delivered; but the ]tlaintiff provpil that lie had sustained 
 inconvenience and loss, by not having the goods delivered at a proper time ; the jury, 
 however, found for the defendant, and the court refused to set aside the verdict. Ex'ant v. 
 Leiiis, 3 Dowl. Rep. 819. 10 Leg. Obs. 332, S. V. If the defendant, to a declaration in the 
 ordinary form, in indehitatiis assumpsit, with particulars containing various causes of action, 
 plead ])ayinent into court, he is not precluded by his i>lea, from contesting his liability in 
 respect of any items beyond the amount paid into court : the particulars nf>t being con- 
 sidered as jiart of the declaration. Booth v. Ilouard, 5 Dowl. Rep. 438. 1 Willmore, W. 
 & D. 54, S. C.
 
 g3Q OF CLAIMING CONUSANCE. 
 
 Picas to the jurisdiction of the court are either in local or transitory ac- 
 tions. In local actions, it is a good plea to say that the lands are ancient 
 demesne, holden of the king's manor ;(c) or that the cause of action arose in 
 Wales,{d) or beyond the sea,(e) or in a county palatine,(/) cinc^ue port,(^) 
 or otlier exempt jurisdiction. (/i) In ejectment, the tenants in possession 
 cannot plead to the jurisdiction, without leave of the court :(/) And Avhere 
 ancient demesne is pleaded, there must be an affidavit, stating that the lands 
 arc holden of a manor, which is ancient demesne ; that there is a court of 
 ancient demesne, regularly holden ; and that the lessor of the 
 [ *631 ] ^plaintiff has a freehold interest.(«) This plea may be filed de 
 bene esse, in the King's Bench, within the time allowed for plead- 
 ing in abatement. (&) 
 
 In transitory actions, it is said,(c(?) the defendant cannot plead to the 
 jurisdiction of the court, unless the plaintifi" by his declaration show, that 
 the cause of action accrued within a county palatine : and even then, it must 
 be averred in the plea, either that the defendant dwells in the county pala- 
 tine, or that he had sufficient goods and chattels there, by which he may be 
 attached ; otherwise the plea cannot be allowed, lest a failure of justice 
 should ensue •,{dd) and the defendant cannot in such case demui- to thedecla- 
 ration,(et') or move in arrest of judgment.(^) 
 
 Of a nature very similar to pleading to the jm'isdiction of the court, is 
 claiming conusance ;{f/g) or praying that the cause may be determined be- 
 fore an inferior jurisdiction : concerning which, it will be proper to con- 
 sider, the several sorts of inferior jurisdictions ; in what cases conusance 
 may be claimed ; and the time and manner of claiming it. 
 
 There are three sorts of inferior jurisdictions.(7i7i) The first is to hold 
 j)leas, which is merely a concurrent jurisdiction ; and can neither be claimed 
 nor pleaded. The second is a general conusance of pleas ; which being 
 intended for the benefit of the lord, may be claimed by him, though it can- 
 not be pleaded by the defendant. The third is a conusance of pleas, with 
 exclusive words ; as where the king grants to a city, that the inhabitants 
 shall be sued within the city, aiid not elseivhere : This being an exempt 
 jurisdiction, may be either claimed or pleaded.(z7) Hence it is a general 
 
 (c) Heme, T, 351. Rastal, 101. Hans. 103. Thomp. 2. 3 Inst. CI. 8, 9. 1 Salk. 56. 
 2 Ld. Raym. 1418. This plea must be pleaded within the first four days of the term. 8 
 Durnf. & East, 474. 
 
 {d) 1 Wils. 193. (e) 1 Salk. 80. 1 Show. 191, S. C. 
 
 (/) Rastal, 419. Heme, 7. 3 Inst. CI. 14. 
 
 (g) 4 Inst. 224. Jenk. 190. Keilw. 88, &c., S. C. 3 Inst. CI. 7; but see Yelv. 12, 13. 
 Carth. 109. 
 
 (A) Bro. Abr. tit. Conusance, 52. 1 Blac. Rep. 197. And as to pleas to the jurisdiction, 
 in courts of equity, see Beam. PI. Eq. 57, &c., 252, 53, 54. 
 
 (i) 1 Barnard. K. B. 7, 352, 365. Andr. 368. 2 Str. 1120. 1 Blac. Rep. 197. 3 Wils. 51. 
 
 (a) 2 Bur. 1046; and see 3 Wils. 51. [b) 10 East, 523. 
 
 (cc) 4 Inst. 212, 13. 1 Sid. 103. Carth. 109. Gilb. C. P. 191. 1 Bac. Abr. 560; and 
 see 3 East, 128. {dd) Carth. 355. 
 
 {ee) Id. 354. 5 Mod. 144, S. C. ; and see further, as to pleas to i^i^ jurisdiction, 1 Chit. PI. 
 4 Ed. 380, &c. 
 
 (ff) Carth. 11. Comb. 30, 48, S. C. ; and see Comb. 115. As to conusance in general, see 
 Gilb. C. P. 192, &c. Vin. Abr. tit. Conusance. Com. Dig. tit. Courts, P. 1 Chit. PI. 4 Ed. 
 361, &c. 1 Sel. Pr. Chap. VII. § 1. 
 
 {gg) Gilb. C. P. 191. 1 Bac. Abr. 560. 1 Rol. Abr. 489. 
 
 {hh) Palm. 456. Hardr. 509. 2 Ld. Raym. 836. 1 Salk. 148. 3 Salk. 79. 12 Mod. 643, 
 S. C. Id. 666. 10 Mod. 126. Vin Abr. tit. Conusance, 589. 
 {ii) Bro. Abr. tit. Conusance, 52. 1 Blac. Rep. 197.
 
 OF CLAIMING CONUSANCE. 631 
 
 rule, that whenever the defendant can plead to the jurisdiction of the court, 
 there the lord of tlie franchise may claim conusance, but not vicever»d.(k) 
 
 The privilege of claiming conusance is confined to courts of record, (/) and 
 local actions ;(m) except where the defendant is a member of the university 
 of Oxford ov Oamhrihji' :[n) And it is also confined to such actions as were 
 in esse at the time of the grant ;(<>) and does not exten<l to those created 
 since, by act of parliament, except where a common law action 
 is *givcn against a person by another name, as dibt against an ad- [ *G32 ] 
 ministrator.(a) Neither shall this privilege be allowed, where 
 the franchise cannot give a remedy,(/') and there would consequently be a 
 failure of justice ;((•) as in replevin, (t?) quarc i)np<-iUt,(e) waste, kc. or where 
 tlic lord is a party, and the plea is to be holden before him.self,(^/') or the 
 defendant is a stranger, who hatli notliing within the franchise ;(//) or 
 lastly, where the plaintift' is a privileged person, as an attorney or officer 
 of the court.(//) But conusance may be claimed by a defendant in custody 
 of the marshal. (i) And, in a modern case, it was allowed in the King's 
 Bench, on a claim made by the Vice (JhanceUor of the University of Oxford^ 
 during tlic vacancy of the office of Chancellor by deatli, on behalf of the 
 university. (M) In the Exchequer of Pleas, amemljer of either university 
 cannot set up his privilege, against that of an officer or accountant, or 
 against any person suing as a debtor ; this court not being mentioned in their 
 charter of exemption. (/^) 
 
 Conusance of Pleas must be claimed after appearance,(?nm) and before 
 imparlance,(7i?«) in the first instance, or on the very first day the party hath 
 in court ; even upon the return day of the writ, if the cause of action appear 
 therein : if not, then upon the first day given upon the declaration. (oo) As 
 for instance, in trespass by original, Avhcre place is named, or pwcipe 
 quod reddat, where land is demanded, conusance must be claimed on the 
 return day of the writ ; because, in these cases, the writ states where the 
 cause of action arises. (jo) But in debt or detinue it is otherwise; for it 
 does not appear, till the plaintiff lias counted, wlierc the contract or obli- 
 gation was made ; and therefore till then, the lord need not make his 
 claim. (r/) So in replevin., the place where the cattle were taken does not 
 appear, till the plaintiff has counted, if it be between strangers : but if a 
 replevin be sued against the lord of the franchise himself, there the lord's 
 claim would come too late after the count; because tlie law intends that he 
 knew the place of taking, being himself a party, and so, l)y not demanding 
 his privilege on the writ, he gives the court seisin of the cause : for the lord 
 must use no delay. (r) 
 
 (k) Gilb. C. P. 193. [I) 2 Inst. 140. 
 
 hn) 4 Inst. 213. 1 Sid. 103. In) Gilh. C. P. 193. 1 Bnc. Abr. 500. 
 
 (o) 14 Hen. IV. 20, b. {a) 14 Hen. IV. b. 22. Ed. IV. 22. 
 
 {b) 2 Vent. 3G3. (c) Hardr. 507. 
 
 (d) 2 Inst. 140. (e) Dalis, 12. 
 
 (/•) 8 Hen. VI. 18, 10, 20, 21. Ilob. P7. (g) 22 Ass. 83. 1 Rol. Abr. 493. 
 
 (X) 3 Leon. 149. Lit. Rep. 304. Willcs, 233. Bnrnes,,346. Prac. Reg. 96. Vin. Abr. tit. 
 Conusance, 590, S. C. Id. M2. Rcndl. 233, contra. 
 
 (i) Uro. Abr. tit. Conusance, 50. 1 Snlk. 2 Gilb. C. P. 195. 
 
 (H-) 11 East, 543, and see 12 East, 12. (//) Ilardr. 188. AnU, 81, 2. 
 
 (mm) Comb. 319. 
 
 (nn) 1 Sid. 103. 1 Show. 352. 10 Mod. 125. Willes, 233. Barnes, 340. Prac. Reg. 96. 
 Vin. Abr. tit. Conusance, 590, S. C. Id. 592. 1 Barnard, K. B. 60. 2 Wils. 411. Gilb. C. 
 P. 196. Antr, 4G3. 
 
 (oo) 2 Wils. 413. {p) 5 Bur. 2823. 
 
 (q) 10 Mod. 127. (r) 5 Bur. 2823.
 
 (532 OF CLAIMING CONUSANCE. 
 
 In a modcru case,(s) conusance of a plea of trespass, sued against a resi- 
 dent member of the university of Cambridge, for a cause of action verified 
 
 by affidavit to have arisen within the town and suburbs of * Cam- 
 [ *633 ] bridge, over which the university court has jurisdiction, was 
 
 allowed in the King's Bench ; upon the claim of the vice-chan- 
 cellor, on behalf of the chancellor, master and fellows of the university, 
 entered on the roll in due form, setting out their jurisdiction under charters 
 confirmed by act of parliament, and averring the cause of action to have 
 arisen within such jurisdiction : although it was objected that the claim 
 was preferred too early, on the mere issuing of a writ of latitat against the 
 privileged member, to answer in a plea of trespass, before declaration ; by 
 which it could not appear where the cause of action arose, nor consequently 
 that it arose w^ithin the town and suburbs of Cambridge, to which the juris- 
 diction of the university court in personal actions is confined ; and that it 
 was not sufiicient to supply that fact by afiidavit : But the court held, that 
 it was the usual course to support claims of conusance by affidavits verifying 
 the necessary facts, which it was competent to the plaintifi" to deny in the 
 same mode ; and that the difficulty was not greater before, than after decla- 
 ration ; and the sooner the claim, if well founded, was preferred, the better 
 for the plaintiff. In the same case it was objected, that if the claim might 
 be preferred upon the latitat before declaration, then it ought to be pre- 
 ferred in the first itistance, after the return of the latitat, namely, upon 
 the day of appearance given by the rule of court, that is, in eigJit days : but 
 the court held, that the first instance after the return day of the writ, which 
 is the first step of the plaintifi" entered on the record, continued till the de- 
 claration filed, which is the next step taken by the plaintiff on the record ; 
 within which time the claim was made. Another objection was, that it 
 appeared by the roll, on which the power of attorney to claim conusance 
 and the claim itself were made, that the claim was made on the return 
 day of the writ, that is, on the fifteenth of November, before the power of 
 attorney to claim it was executed, which bore date on the 27th : But the 
 court took notice that the claim was in fact made on the 28th, in the letter 
 missive and significatory of the vice-chancellor to them ; although, in making 
 up the roll, it was entered by their officer as on the return day of the writ 
 by relation, no subsequent day in court being then given on the record. 
 
 As to the manner of making the claim, it is holden, that conusance may 
 be claimed by the lord of the franchise in person, or by his bailiff or attor- 
 ney :(a) If it be claimed by attorney, the warrant of attorney must be 
 produced in court, and filed. (6) The grant of conusance must also be pro- 
 duced,(c?) or an exemplification of it under the great seal lid) and if the grant 
 was before time of memory, an allowance must be shown in the King's 
 Bench, or before justices in Eyre.[e) Upon a claim made by the university 
 
 of Oxford, or Cambridge,^/) there must be likewise, in addition 
 [ *634 ] *to the grant, an exemplification of the statute confirming it,(aa) 
 
 together with an affidavit of the defendant's residence ;{bb) and, 
 
 («) 12 East, 12, (a) Bro. Abr. tit. Conusance, 50. 12 Mod. 644, 666. 
 
 (b) Palm. 456. 1 Sid. 103. 1 Lev. 89, and see 12 East, 12. 
 
 (c) 12 Mod. 644. 1 Blac. Rep. 454. (d) 5 Bur. 2820. 
 (e) Keilw. 189, 90. 1 Sid. 103. 1 Salk. 183. 1 Ld. Raym. 427, 8; 4T5, S. C. Gilb. C. 
 
 . 195, but see Bro. Abr. tit. Conusance, 51. 
 
 m 10 Mod. 126. 1 Blac. Rep. 454. 12 East, 12. (aa) 13 Eliz. c. 29. 
 
 (bb) I Barnard. K. B. 49, 65. 2 Str. 810. 2 Wils. 311. 1 Blac. Rep. 454. 5 Bur. 2820. 12
 
 OF PLEAS IN ABATEMENT. 634 
 
 ■where the claim is made by the university of Cambridge^ that the cause of 
 action, if any, arose -witliin the lil)erty of the university, viz. "within the 
 town and suburbs of the town of Ciunbrid(jc.{c) The chiim itself must bo 
 entered upon a roll ;((/) and, after stating the several proceedings that have 
 been had in the cause, must set forth the grounds upon ■\vliicli it is made, 
 with great precision. (<') It may be demurred to, or the facts therein aHeged 
 may be controverted by pleading.{/) If allowed, a day is given upon the 
 roll, for the lord of the franchise to hold his court ; and the parties are com- 
 manded to be there on that day.((/) But the record still remains in the court 
 above ; and a transcript only is sent down to the court below :(//) so that if 
 justice be not done there, as if the defendant be a stranger, and has nothing 
 within the franchise by wliieh he can be summoned, or if tiie judge misbe- 
 have himself, tfcc. the plaintiff shall have a re-summons, (/) upon the record 
 in the court above ; and if a re-summons issue, upon faihire of riglit in a 
 franchise, the lord of the franchise shall never afterwards have conusance of 
 that plea.(A;) 
 
 Picas in abatement to the person of the jtlaintiff, are either that he is not 
 in existence,( being only a fictitious person,(Z) or dead,)(7«) or else that being 
 in existence, he is an alien enemy,(n) attainted of treason or felon3',(o) out- 
 lawed upon mesne or final process, (j;) under a p7'ci'munirc,{(ji) excomniuni- 
 cated,(>') or convicted of popish recusancy. (s) When the cause of action is 
 forfeited, as by the plaintift"s being an alien cncmy,(^) attainted,(u) or out- 
 lawed for fclony,(3;) there his disability may be pleaded in abatement, or in 
 bar, but otherwise it can only be pleaded in abatement. 
 
 *Pleas in abatement to the person of the defendant are, that he 
 is privileged, as an attorney or officer of the court ;(a) under the [ *G'jO ] 
 king's protection :(5) or an infant,(6'(') when sued as heir on the 
 obligation of his ancestor, &c. ; in Avhich hitter case, the parol shall demur, 
 or proceedings be stayed, till he come of age. There are two ways of 
 pleading an attorney's privilege, first, with a profert of a writ of privilege, 
 or of an exemplification of the record of his admission; upon which the 
 plaintiff' must reply mil tiel record, and cannot otherwise deny the defen- 
 dant's being an attorney ; secondly, as a mere matter of fact, without a pro- 
 fert ;{dd) and then a certiorari shall be awarded, to certify whether he be 
 
 East, 12 ; but see 15 East, 634, where an afiiJavit of the residence of a common servant, 
 called Marshal of the University, for the execution of local duties therein, was dispensed with. 
 12 East, 12. (</) Comb. 319. 1 JJarnard. K. H. 05. 2 Str. 810. 
 
 For the form of a claim of conusance by the university of Oxford, see Willcs, 233. (a.) 
 T'ils. 40G, and for a similar claim by the university of Cambridge, see 12 East, 12. 
 
 (/) 2 Wils. 40a, 10. Comb. 319. 
 
 \g) 2 Ld. Raym. 83G, 7. 12 Mod. C44. 3 Salk. 79, S. C. {h) Id. Jcnk. 31. 
 
 (i) Id. Ilardr. 407, but sec Yin. Abr. tit. Conmance, 589. 10 Mod. 127. 
 
 \k) Jenk. 34. (/) Ast. Ent. 10. 3 Inst. CI. 89. 
 
 (»i) Ast. Ent. 8. 3 Inst. CI. 75, &c. \n) 1 Lutw. 34. 3 Inst. CI. IG. 
 
 (o) Carth. 137, 8. 
 
 (/)) 1 Lutw. G, 1529. 3 Inst. CI. 23, &c. 1 East, G34. And as to the plea oi outlawry, in 
 courts of Equity, see Beam. PI. Eq. 100, &c. ; and as to the plea of fzcommuniration, Id, 106, 
 &c. ; oi attainder. Id. 109, &c. ; of alien enemij, Id. 112, <fec. ; of in/anri/ of phiintifl". /(/. 115, 
 IG ; of coverture of plaintiff, /(/. IIG, 17; and of lankrujitcy, or insolvency of plaintiff, Id. 
 118, &c. 
 
 (q) Co. Lit. 129, b. (r) 1 Lutw. 17. 3 Inst. CI. 18. (») 3 Inst. CI. 20. 1 Str. 520. 
 
 h) Co. Lit. 129, b. 6 Durnf. & East, 23, 35. (u) Bro. V. M. 252. 
 
 ^x) Co. Lit. 128, b. Gilb. C. P. 200. (a) 1 Lutw. G39. (b) 2 Bro. Ent. 106. 
 
 (cc) Rastal, 360, 3G2, 379, Bro. Red. 195. And as to pleas to the per.«on of the defendant, 
 in courts of Equity, see Beam. PI. Eq. 129, &c. {dd) Lil. Ent. 3.
 
 Q35 OF PLEAS IN ABATEMENT. 
 
 an attorney or not.((') And where an attorney of the King's Bench, in 
 pleading his privilege to an action by original, stated the custom of the 
 court to be, that no attorney ought to be compelled to answer anoriginal 
 writ, unless first forejudged from his office, &c. (which is not the custom of 
 this court, but of the Common Pleas,) the court nevertheless held the plea 
 to be sufficient ; as they will take notice of the custom, that an attorney of 
 this court can only be sued by 5^7/, and what is stated as to forejudging may 
 be rejected as surplusage. (/) 
 
 Under the head of pleas to the person, may also be included coverture^ 
 in the plaintiff, ((/) or defendant ;(/i) or that the plaintiffs or defendants, 
 suing or being sued as husband and Avife, are not married :{i) or any other 
 plea for want of proper parties, as that there is an executor,(A;) administra- 
 tor,(^) or other person, (m) not named, who ought to be made a co-plaintiff 
 or co-defendant. We have already seen, that if an action be brought for a 
 tort, by one of several joint tenants or tenants in common,(w) or against 
 one of several partners upon a joint contract,{o) the defendant must plead 
 in abatement, and cannot otherwise take advantage of the objection. (p) And 
 he may plead a secret partnership in abatement, though the plaintiff had no 
 means of knowing of the partnership, and could not have proved it, had he 
 joined the secret partner in the action. ((^) It should also be observed, that if 
 an action be brought against a carrier, in case on the custom of the 
 [ *G36 ] realm, for not safely carrying goods, the defendant may plead *in 
 abatement, that his partners ought also to have been sued :(a) Or, 
 if an action of debt be brought on the statute 9 Ann. c. 14, to recover back 
 money won at play, he may plead in abatement, that the money was due 
 from others not named, as well as from himself. (6) In these cases, the de- 
 fendant, if required, must deliver to the plaintiff the places of abode and 
 additions of the parties jointly liable ; or in default thereof, the court of 
 King's Bench, we have seen,(c) will set aside the plea. And on a plea in 
 abatement of the nonjoinder of A. B. as a defendant, his declarations made 
 before action brought, are evidence in support of the plea. 1 Moody & M. 
 45. But in an action on the case against a common carrier, for not safely 
 carrying a passenger, the defendant cannot plead in abatement, the non- 
 joinder of a co-proprietor. (f?(^) In a plea in abatement, that another person 
 ought to have been sued with the defendant, it is not necessary to lay a 
 
 (e) 1 Ld. Raym. 336. T Mod. 106. 2 Salk. 545. 6 Mod. 305. 2 Ld. Raym. 1172. 1 Str. 
 •76," 532. 
 
 (/) 9 East, 424. 
 
 {g) Ast. Ent. 9. 3 Inst. CI. 70. If the plaintiff take husband, after suing out the writ and 
 before declaration, the defendant cannot give the coverture in evidence under the general 
 issue, but must plead it in abatement. 6 Durnf k East, 265. And as to the plea of 
 coverture of the plaintiff, in courts of Equitv, see Beam. PI. Eq. 116, 17. 
 
 (A) 1 Lutw. 23. 3 Inst. CI. 71. ' {i) 3 Inst. CI. 69. 
 
 (^-) Id. 51. Rastal, 325, a. {I) 3 Inst. CI. 53. Rastal, 324. 
 
 (m) 3 Inst. CI. 53, 119. 1 Lutw. 696, and see 1 East, 634. 
 
 (n) Ante, 9, and see 1 Salk. 32, 290. 2 Str, 820. 
 
 (o) Ante, 6, but see 2 Mod. 279. 3 Mod. 321. 2 Salk. 440. Show. 29, 101. 3 Lev. 258. 
 Carth. 58, S. C. Gilb. Evid. 189. 
 
 {p) 1 Wms. Saund. 5 Ed. 291, b. (4.) 
 
 [q) 5 Taunt. 609. 1 Marsh. 246, S. C, but see Abbott on Shipping, 5 Ed. 76. 1 Stark. 
 Ni. Pri. 338. 3 Stark. Ni. Pri. 8. 1 Moody & M. 88, contra. 
 
 («) 6 Durnf. & East, 369. 2 New Rep. C. P. 365, but see 5 Durnf. & East. 649. 2 Chit. 
 Rep. 1. 6 Moore, 141. 3 Brod. & Bing. 54, S. C. Ante, 9. 
 
 {b) 7 Durnf. & East, 257. (c) A7ite, 534. 
 
 (dd) 2 Chit. Rep. 1, and see 5 Durnf. & East, 649. 6 Moore, 141. 3 Brod. & Bing. 54. 
 9 Price, 408, S. C.
 
 OF PLEAS IN ABATEMENT. 036 
 
 venue : And if it be pleaded tliat sueli other person is alive, to wit, in Spain, 
 it will be considered as jtleaded witliout any venue. (c) And, by the statute 
 9 Geo. IV. c. 14, § 2, " if any defendant or defendants, in any action on 
 any simple contract, shall plead any matter in aliatement, to the efi'ect that 
 any other person or persons ou^ht to be jointly sued, and issue be joined on 
 such plea, and it .shall appear at the trial, that the action could not, by rea- 
 son of the therein recited acts or that act, or of either of them, be maintained 
 against the other person or persons named in such ]»lea, or any of them, the 
 issue joined on such plea shall be found against the party pleading the 
 same." 
 
 Pleas in abatement to the count can only be jdeaded in actions ])y origi- 
 nal writ ; and are for some uncertainty, repugnancy, or want of form,{/) 
 not appearing on the face of the writ, or else for some variance there- 
 from.!^) To the writ, they are either for matter apparent on the fact of it, 
 or for matter (Ji'hors,{h) existing at the time of suing out the writ, or arising 
 afterwards.(/) To tho form of the writ, they are for some apparent uncer- 
 tainty, repugnancy, or want of form :{k) varianre{l) from the record, spq- 
 cialty, &c. ; misnomerirn) of the plaintiff or defendant,(7i) or of one of 
 several plaintiffs ;(o) or, in actions by original writ, the omission or mistake 
 of the defendant's add it ion, {p) that is, of his estate, degree, mystery, or 
 place of abode. But the plaintiff may sue the defendant, cither by the addi- 
 tion of his degree or mystery ;(ry) and may name him of the place where he 
 lately dwelt :(r) And as a plea of the statute of additions is bad, without 
 oyer of the original writ, which by the practice of the court is not grantable, 
 it seems that such a plea cannot now be pleaded ; and accordingly, in seve- 
 ral recent instances, the courts have ordered it to be set aside. («) And, in 
 general, it may be remarked, that since the courts have refused to allow 
 oyer of the original Avrit, pleas in abatement thereto, for objections 
 apparent on the face of it, or variance between the writ and *the [ *637 ] 
 count, have fallen into disuse ; and it is now usual to plead in 
 abatement for matters extrinsic only, such as privilege, coverture in the 
 plaintiff or defendant at the time of bringing the action, non-joinder of a 
 necessary party to suit, misnomer of the plaintiff or defendant, or another 
 action depending for the same cause. 
 
 Pleas in abatement to the action of the writ are, that the action is mis- 
 conceived; (a) or was prematurely brought, before the cause of it arose ;{b) 
 or that there is another action depending for the same cause. (c) It is said, 
 
 (e) 1 Durnf. & East, 243. 1 Wms. Saund. 5 Ed. a. (1). Ante, 428, (A). 
 
 (/) 3 Inst. CI. G2. (ff) Reg. PI. 277, 78. 
 
 h) Gilb. C. P. 51. («) Com. Dig. tit. Abatement, (H.) 
 
 (k) 1 Lutw. 25. 3 Inst. 01. 49, 54, GG, &c. 
 
 (7) 3 Inst. CI. 43, &c. 
 
 (m) 1 Lutw. 10. Ast. Ent. 1. 3 Inst. CL 79, &c. ; and see 1 Chit. Rep. 512, 13, (a). 705, 
 in notis. Ante, 447, &c. 
 
 {n) Append. Chap. XXVI. § 1, &c. For a replication that the defendant wa.q called as 
 well by one name as the other, see Id. ^ G; and for the evidence on this issue, see 3 Maule 
 & Sel. 453. 
 
 (o) 6 Maule & Sel. 45. 
 
 \p) Stat. 1 Hen. V. c. 5. 3 Inst. CI. 92. 
 
 \q) 8 Mod. 51, 52. 1 Str. 556. 2 Str. 81G. 2 Ld. Raym. 1541, S. C. 
 
 (r) 2 Ktr. 924. 
 
 (s) 3 Bos. & Pul. 395. 7 East, 383. Ante, 564. (a) 3 Inst. CI. 120, &c. 
 
 (b) 1 Lutw. 8, 13. 3 Inst. CI. 56. Fort. 334. 
 
 (c) 1 Lutw. 33. 3 Inst. CI. III. And as to the plea of another suit depending, in courts 
 of equity, see Beam. PI. Eq. 134, &c., 140, &c. 
 
 Vol. I.— 40
 
 (J3Y OF PLEAS IN ABATEMENT. 
 
 in one case,((7) that the pendency of a prior action for the same cause may 
 be pleaded in bar to a second action ; but it cannot be pleaded in abatement. 
 This, however, must be understood with reference to the particular case of a 
 popular action, and not as a general rule applicable to all cases. 
 
 The general requisites of a plea in abatement are, that it should be cer- 
 tain, (f) give the plaintiff a better \vrit,(/) and have an apt and proper 
 beginning and conclusion : For it is the 1)eginning and conclusion that make 
 the plea.(//) Pleas to the jurisdiction of the court, or in abatement, cannot 
 be pleaded and after making a full defence ;(Ji) the former must be pleaded 
 inpo'son, but the latter may be pleaded by attorney.{i) And they are both 
 usually begun, by defending the ivrong (or force) and injury, ivJien, ^e. 
 which is considered only as making //a//" defence : (A;) for the ^c. implies 
 only half defence, in cases where such defence is to be made, but will be 
 understood as VifuU defence, if that be necessary.(Z) When the defendant 
 pleads to the wi-it, for matter apparent, he should begin his plea by praying 
 judgment of the writ, and conclude it in the same manner ;(m) but when 
 the plea is for matter dehors, as joint-tenancy, non-tenure, or the like, there 
 he should conclude it only in this manner. (««) A plea of misnomer of the 
 defendant is bad, which begins thus: "And the said Richard, sued by the 
 name oi Robert, kc.''{n) or thus: "And he against whom the plaintiff hath 
 exhibited his bill, by the name of J. S. &c. ;"(o) and it must also 
 £ *638 ] set out the defendant's surnamc.{p) In pleading *to the juris- 
 diction, the defendant should conclude his plea by praying judg- 
 ment if the court will take further cognizance of the suit.[a) But the 
 plea of an attorney, to an action brought against him by bill in the King's 
 Bench, as a common person, stating his privilege not to be compelled to 
 answer any bill exhibited against him in custody of the marshal, &c. and 
 concluding that the court would not take further cognizance of the action 
 aforesaid against him, instead of praying judgment of the bill, and that 
 the same might be quashed, will not be taken as a plea to the jurisdiction, 
 but only as objecting to the court's taking cognizance of the action against 
 one of its attorneys, in that form ; and therefore the court will adjudge the 
 bill to be quashed.(5) In pleading to the person, the conclusion is, whether 
 the defendant ought to ansiver, or the plaintiff to he ansivered ;{c) or if 
 excommunication, or other temporary disability, be pleaded, that the plaijit 
 
 (d) Say. Eep. 216. (e) Co. Lit. 303, a. Cro. Jac. 82. 3 Lev. 67. 
 
 (/) Brownl. 139. Turtle r. Lady Worsley, M. 29 Geo. III. K. B. 6 Maule & Sel. 88 ; and 
 see Steph. PI. 435, 36. 
 
 (ff) 1 Sid. 189. 1 Vent. 136. Comb. 106, 1. 1 Show. 4, S. C. 1 Ld. Raym. 593. 1 
 Salk. 210. S. C. 12 Mod. 525. 10 Mod. 112, 192, 210. Willes, 479. 2 Wms. Saund. 5 
 Ed. 209, 6, c, d. Steph. PI. 392, &c. 6 Taunt. 587. 2 Marsh. 299, S. C. 
 
 {h) Steph. PI. 436. 
 
 {i) Gilb. C. P. 187 ; and see 2 Blac. Rep. 1094. 2 Wms. Saund. 5 Ed. 209, h. 1 Chit. 
 PL 4 Ed. 368, &c. 
 
 (/f) Lit. I 195. Co. Lit. 127, b. Hardr. 365. 1 Lutw. 7. Willes, 40. Gilb. C. P. 188. 
 Whealley v. Cudmerson, M. 15 Geo. IL C. P. Thotmon v. Sfockdale, H. 23 Geo. IIL K. B. 
 cited in Willes, 41, (c). 8 Durnf. & East, 631. 3 Bos. & Pul. 9, (a). 
 
 (Z) 8 Durnf. & East, 633. 3 Bos. & Pul. 9, (a). 2 Wms. Saund. 5 Ed. 209, b. Steph. 
 PL 430, &c. 
 
 (m) Moor, 30. Dalis. 33, S. C. Reg. PL 273. 2 Wms. Saund. 5 Ed. 209, (1). 1 Lutw. 
 11. 12 Mod. 525. 
 
 (n) 5 Durnf. & East, 487. 
 
 (o) 8 Durnf. & East, 515. 5 Taunt. 652, 653, (a) ; and see 2 Wms. Saund. 5 Ed. 209, a. 
 
 (p) 5 Taunt. 652. 
 
 (a) Latch, 178. 2 Wms. Saund. 5 Ed. 209, e. (b) 12 East, 544. 
 
 (c) Latch, 178. Lit. § 195, &c.
 
 OF PLEAS IX ABATEMENT. G38 
 
 may remain without day^ until^ >S'C-{'l) In pleading to the writ or 
 count, if the action be by ori>/iuaI, the plea .should conclude, by praying 
 judgment of the ivrit or count, and that the i<ame may be (juaniied :{ee) 
 But if tlie action be by ^>///, the i)lea should conclude by praying judgment 
 of the hill onl}', and not of the declaratiou,{f) or of the writ and declara- 
 tion founded thereon ;{(/) nor even, as it seems, of the bill and dcclara- 
 tion.{h) A mis-.statement, in the traverse at the conclusion of a plea of 
 mis-noraer, of the name by which the defendant is called in the declara- 
 tion, (j) or a prayer of judgment if the bill, and that the same may be 
 quashed, (/c) is ill on special denun-rer. And where, to a joint action of 
 trenpass against four defendants, one of them ])]eaded a misnomer in abate- 
 ment, and concluded by praying judgment of the writ, and that the same 
 may be ([uashed, t&c, the Court of Common Pleas held the plea to be bad 
 on general dcmui-rer, as the misnomer only operated to abate the writ as 
 to the party misnamed. 1 Moore & P. 20. It seems to be a rule, tluit 
 pleas in abatement arc not amendable; because they are dilatory, and do 
 not go to the merits of the action ;(/) which rule has been extended to 
 criminal cases :(???) and the plaintiff therefore need never demur specially 
 to such pleas, (w) But the plaintiff has been allowed to withdraw a demurrer 
 thereto, and reply. (o) 
 
 Pleas to the jurisdiction of the court,(p) and in abatement,(^) ought to be 
 pleaded before a general imparlance ; and they must be pleaded 
 within *four days inelusive[a) after the delivery, or filing and [ *G80 ] 
 notice, of the declaration ;{b) unless the declaration be delivered 
 or filed after term, or so late in the term, that the defendant is not bound 
 to plead to it that term ; in both which cases, the defendant in the King's 
 Bench may, within the ^rst four days inclusive of the next term, plead to 
 the jurisdiction of the court, or in abatement, as of the preceding term :(c) 
 But, in the Common Pleas, the defendant cannot plead in abatement, within 
 
 (d) 3 Lev. 240. 1 Lutw. 19. 3 Inst. CI. 18. 1 Str. 521. 2 Wms. Saund. 5 Ed. 209, e. 
 
 he) 5 Mod. 132. 
 
 (/) 2 Bos. & Pul. 124, (c.) 2<^lut. Rep. 539, S. C, and see 5 Mod. 132, 144. 12 Mod. 
 133, S. C. 10 .Mod. 192, 210. 2 Wms. Saund. 5 Ed. 209, d. Per Cur. E. 25 Geo. III. E.xcheii. 
 
 (ff) 1 Barn. & Aid. 172. 
 
 (h) 2 Maule & Sol. 484, and see 2 Chit. Rep. 539, (a.) 
 
 (j) 1 Chit. Rep. 705, in nods. 
 
 (k) 3 Diirnf. & East, 185. For the manner of concluding a plea in abatement of mis- 
 nomer, to an indictment for a misdemeanor, see 10 East, 83. 
 
 (I) Cas. Pr. C. P. 29. Per Buller, J. E. 22, Geo. III. K. B. 
 
 (m) 2 Barn. & Cres. 871. 4 Dowl. & Ryl. 592, S. C. 
 
 (n) I'er Bai/lei/, J. 2 Maulc & Scl. 485. (o) 2 Chit. Rep. 5. 
 
 Ip) Dyer, 210, b. in marg. T. Raym. 34. 1 Keb. 137, S. C. Gilb. K. B. 317, 344. Gilb. 
 C. P. 183, 4 ; 187. 4 Bac. Abr. 28, 9. 8 Durnf. & East, 474. Steph. PI. 430 ; but see Dyer, 
 210, b. i« marg. Doc. I'lac. 234. Latch, 83. Cro. Car. 9. Sty. Rep. 90. Willes, 239. Vin. 
 Abr. tit. Conusance, p. 591, as to the plea of ancient demesne. 
 
 (q) 2 Keb. 143. 1 Mod. 14. 1 Vent. 184. 1 Lutw. 23. Stv. P. R. 465. Gilb. K. B. 
 344. R. E. 5 Ann. (a.) R. T. 5 & G Geo. II. (b.) K. B. 1 Str. 523. 2 Chit. Rep. 5, (a.) 4 
 Dumf. 4; East, 520. C Duraf. & East, 3C9. 7 Durnf. & East, 447, (d.) Barnes, 224, 334. 
 Ante, 463. 
 
 (n) 1 Durnf. & East, 277. 5 Durnf. k East, 210. 
 
 (/>) 11 Mod. 2. 2 Str. 1192. 1 Wils. 23, S. C. 2 Str. 1268. Smith v. Wh;/maU, M. 26 
 Geo. III. K. B. 1 Durnf. & East, 277, 689. 7 Durnf. & East, 298. 11 Ea.9t, 411 ; and see 
 Gilb. C. P. 52. Pr. Reg. 3. Cas. Pr. C. P. 23, S. C. Pr. Reg. 286. Cas. Pr. C. P. 63, S. 
 C. Forrest. 149. 13 Price, 178. M'Clel. 65, S. C ; but see Sty. P. R. 458, 468. R. E. 5 
 Ann. (a.) K. B. 1 Durnf. k East, 278, 9; from wiiencc it should seem, that formerly they 
 were allowed to be pleaded, at any time before the rule for pleading had expired. 
 
 (r) 1 Salic. 367. Gilb. K. B. 344, 5. Per niilhr, J. E. 22 Geo. IH. K. B. and see 3 Barn. 
 ^ Aid. 259. 1 Chit. Rep. 704, S. C. Steph. Pi. Append, xxvii. Ante, 463.
 
 g39 OF PLEAS IN ABATEMENT. 
 
 the first four days of the next term, -without a special imparlance, which 
 may be granted by the prothonotaries.((i) If such a plea be pleaded after 
 a general imparlance, the plaintiff, we have seen,(e) may either sign judg- 
 ment, or apply to the court by motion to set it aside ; or he may demur 
 thereto, or allege the imparlance in his replication, by way of estoppel : 
 and if it be not delivered, or left in the office, in due time, it is not to be 
 received, whether a rule to plead be given or not.(/) And Sunday, or 
 any other day on which the court does not sit, is to be accounted as one of 
 the four days,(^) unless it happen to be the last. (A) It is a rule in the 
 King's Bench, that pleas in abatement cannot be filed, before the plaintiff 
 has declared,(i) and the defendant has appeared '.{k) And if the defendant 
 plead in bar before the bail are perfected, his plea may be considered as a 
 nullity, although the bail afterwards justify. (^) So where the plaintiff 
 declared de bene esse, and the defendant pleaded in abatement before he 
 had put in special bail, and the plaintiff, treating his plea as a nullity, 
 signed interlocutory judgment, the court held it to be regular.(»?) But in 
 a country cause, if the defendant put in special bail in time, he may plead 
 in abatement, though the bail be not perfected till after the four days, if 
 they be ultimately perfected within the time allowed by the practice of the 
 court :(w) And a similar practice has since obtained in town causes. (o) 
 
 *Before the statute for the amendment of the law, when the 
 [ *640 ] defendant pleaded s, foreign plea, he was obliged to verify it by 
 affidavit.(a) And now, by that statute,(6) "no dilatory plea 
 shall be received in any court of record, unless the party offering such plea 
 do, by affidavit, prove the truth thereof ; or show some probable matter to 
 the court, to induce them to believe that the fact of such dilatory plea is 
 true." The affidavit required by this statute maybe made by the defend- 
 ant himself, or by a third person :(c) and as the statute only requires pro- 
 bable cause, there does not seem to be any necessity for an affidavit, when 
 the plea is for matter apparent on the face of the proceedings, as want of 
 addition, (cZcZ) &c. ; nor when the truth of the plea will appear to the court, 
 upon an inspection of their own records, as where an attorney of the King's 
 Bench pleaded that he was an attorney of that court, and ought to be sued 
 by bill.(ee) Yet, where the defendant pleaded, after oyer of the original, 
 that it was not returned, the Court of King's Bench set aside the plea, for 
 want of an affidavit of the truth of '\i\ff) Aid prayer, {gg) in the Com- 
 mon Pleas, or a plea to a scire facias against heir and tertenants, that 
 
 {d) Pr. Reg. 1. Cas. Pr. C. P. 78. Barnes, 224, S. C. Id. 334, S. P. Ante, 462, 3. 
 
 (e) Ante, 463, 4. But after a special imparlance, the defendant may plead in abatement, 
 though not to the jurisdiction of the court. Ante, 463. 
 
 (/) 1 Lil. P. R. 3, R. E. 5 Ann. (a.) K. B. 1 Durnf. & East, 278, 9. 7 Durnf. & East, 
 298. Cas. Pr. C. P. 23, 64, 79. 
 
 {g) R. E. 5 Ann. [a.) K. B. 5 Durnf. & East, 210. 
 
 (A) 3 Durnf. & East, 642. ({) 2 Chit. Rep. 7. 
 
 {k) Id. 8. 2 Dowl. & Ryl. 252. [1) 4 Durnf. & East, 578. Ante, 465, 6, 
 
 [m) 2 Dowl. & Ryl. 252. Ante, 465, 6. (n) 2 East, 406 ; and see 11 East, 411. 
 
 (o) Holland v. Sladen, M. 47 Geo. III. K. B. 11 East, 411. 13 East, 170 ; and see Forrest, 
 149. 
 
 («) 2 Lil. P. R. 299, Sty. Rep. 435. 1 Wms. Saund. 5 Ed. 98. Carth. 402. 5 Mod. 335, 
 S. C. 1 Wms. Saund. 5 Ed. 98. (1.) 
 
 {b) 4 & 5 Ann. c. 16, | 11. (c) Pr. Reg. 6 Barnes, 344, S. C. 
 
 {dd) Pr. Reg. 5. 3 Bos. & Pul. 397, accord; and see 2 Wms. Saund. 5 Ed. 210, d. 
 
 [ee) M'Dougall v. Claridge, M. 48 Geo. III., and see 6 Mod. 114. 2 Blac. Rep. 1088. 
 
 iff) 1 Str. 639. 2 Ld. Raym. 1409, S. C. 
 
 lag) 2 Bos. & Pul. 384.
 
 OP PLEAS IN ABATEMENT. G40 
 
 there are other tertenants not returnod.f/J/) is holdon to be a dilatory plea 
 within tlie statute, and must be VL-rificcl l»y allidavit. 
 
 In the Kin_!^'s Bench, a plea in abatement should be si^rned by counsel; 
 and filed in the office of the clerk of the papers: and if it be not signed, 
 it is irregular, and the plaintiff may sign judgment as for want of a plea.(n) 
 In the Common Pleas, it is signed by a serjeant ; and either delivered to 
 the plaintiff's attorney, or filed in the prothonotaries' office: and, in both 
 courts, an affidavit should be annexed to the pica, stating that it is true, 
 in substance and matter of fact ;(/c) And if the plea be not filed in due 
 time,(/) or there be no affidavit annexed to the truthof it,(?«) or a defective 
 affidavit,(7?) the plaintiff may consider it as a nullity, and sign judgment; 
 or he may move the court to set it aside.(o) But the court will not, u[)on 
 motion, quash a bad plea in abatement.(p) And the plaintiff cannot sign 
 judgment after a plea in abatement, because the affidavit to verify the plea 
 was sworn before the defendant's attorney. (ry) A defendant putting in a 
 plea in abatement in time, with an afiidavitin the usual form, tliat the ]>ro- 
 mises contained in the declaration were made, if at all, by others 
 as *well as himself, Avhich affidavit was sworn at Liverpool on the [ *G41 ] 
 day of filing the declaration in town, before the defendant could 
 have seen it, was holden, in the King's Bench, not to be a nullity, so as 
 to entitle the plaintiff to sign interlocutory judgment as for want of a 
 plea :{a) And the Court of Common Pleas refused to grant a rule, to quash 
 an insensible plea in abatement ; saying, that they would not try the good- 
 ness of a demurrer on motion: but the plaintiff might, at his own peril, 
 have signed judgment. (/») In the Exchequer, if a plea in abatement be 
 not supported by a proper affidavit of the truth of it, the plaintiff may sign 
 judgment immediately :{<') and a mistake in omitting the name of one of 
 the plaintiffs, in the title to the affidavit, renders it insufficient to support the 
 plea, although it refer expressly to the next plea, in which the title of the 
 cause is right :(c) And, in that court, if the plaintiff has regularly signed 
 judgment for want of an affidavit, the court Avill not afterwards permit the 
 defendant to make one.((Z) 
 
 When a plea in abatement is regularly put in, the plaintiff must reply 
 to it, or demur. If he reply, and an issue in fact be thereupon joined, 
 and found for him, the judgment is jjerempto)-^/, quod rcciqx'rct ;(c) but if 
 there be judgment for the plaintiff, on demurrer to a plea in abatement, 
 or replication to such plea, the judgment is only intcrlorutor)/, quod respon- 
 deat ouster.{f) In the latter case, the defendant has in general four days 
 
 (///() Forrest, 144. (») 1 Chit. Rep. 209. 
 
 (k) 2 Htr. 705 ; and see Append. Chap. XXVI. ^ 5. 
 
 h) 1 Durnf. & East, 277, 689. 5 Durnf. & East, 210. 7 Durnf. & East, 298. Ante, 566. 
 
 (m) Pr. Reg. 4. Forrest, 139. Ante, 505; but see 1 Str. G38. 
 
 («) 2 .Moore, 213. 
 
 (o) 1 Str. 638, 39. 2 Str. 705, 738. Say. Rep. 19, 293. 1 Ken. 3G4, S. C. 3 Bur. 1G17 ; 
 but see 2 Moore, 213. 
 
 (p) 2 Barn. & Cres. 618. 4 Dowl. & Ryl. 114, S. C. 
 
 <q) 3 Maule & Sel. 154. Ante, 565. 
 
 (a) 4 East, 348. And see 4 .Maule & Sel. 332, where it was said by Bnyley, J., that an 
 affidavit to support a pica in abatement, may be made before dcehiration. 
 
 (h) 4 Taunt. 668. (c) 3 Price, 197. Ante, 565. 
 
 (rf) Forrest, 144. 
 
 (e) Gilb. C. P. 53. 1 Ld. Raym. 594. 2 Ld. Raym. 1022. 1 Str. 532. 2 Wils. 367. 1 
 East, 542. 2 Bos. & Pul. 380, (a) ; but i^ee 1 East,'G36. 2 Wms. Saund. 5 Ed. 211, (3). 
 
 (/) Id. Ibid. 2 Wms. Saund. 5 Ed. 211, (3). Append, ("hap. XXVI. ? 9, 10. But see 3 
 Barn. & Cres. 502. 5 Dowl. & Ryl. 422, S. C, by which it api)ear? that the judgment against
 
 641 
 
 OF PLEAS IN BAR. 
 
 time to plead; but tins is in the discretion of the courts :(^) and they will 
 sometimes order him to plead instanter, or on the morrow. In assumpsit, 
 the defendant pleaded that the promises were made by him jointly with 
 another ; and issue being taken upon that fact, the jury by their verdict 
 found that the defendant promised, without stating whether he promised 
 alone or jointly with another; and the court held that this verdict was bad, 
 because it did not distinctly pronounce upon the issue. (A) After a judg- 
 ment of respondeat ouster, it is said, there can be no plea in abatement ; 
 for if it were allowed, there would be no end of such pleas :{{) But this 
 must be understood of pleas in abatement in the same degree, as popish 
 recusancy and outlawry,(7c) being both to the person ; for the defendant 
 may plead to the ])erson of the plaintiff, and if that be overruled, he may 
 
 afterwards plead to the/orm of the writ.(Z) 
 [ *642 ] *The judgment for the defendant, on a plea in abatement, 
 
 whether it be on an issue in fact or in laiv, is that the writ or 
 hill he quashed ;{a) or if a temporary disability or privilege be pleaded, as 
 excommunication, or the king's protection, infancy, &c., that the ptlaint 
 remain toithout day, until, cfc. A writ in deht may be abated in part, and 
 stand good for the remainder :(6) And if a plea in abatement contain 
 matter which goes in part abatement of the 'WTit only, but conclude with a 
 prayer that the whole writ may be abated, the court may abate so much 
 of the writ as the matter pleaded applies to:(<?) On an issue mfact, the 
 defendant is entitled to costs ; but not on an issue in laiv.[d) 
 
 [*643] *CHAPTER XXVII. 
 
 Of Pleas in Bar : and herein, of the General Issue, and ivhat may he 
 given in Evidence under it ; of Special Pleas, and ivhen necessary 
 to he pleaded; 0/ pleading several Matters, and the Costs thereon; 
 and of the Plea, and Notice of Set-off, l^-c. 
 
 Pleas in bar are calculated to show, either that the plaintiff never had 
 any cause of action, or if he had, that it is discharged by some subsequent 
 matter : And they are in denial, or confession and avoidance, of the cause 
 of action ; or they conclude the plaintiff by matter of estoppel. (aa) Pleas 
 in denial are of the whole, or a part of the declaration : and in avoidance,- 
 they are by matter precedent, which shows the plaintiff never had a cause 
 
 the defendant, on demurrer to a plea of autrefois acquit, to an indictment for a misdemea- 
 nor, is final. 
 
 {g) Comb. 19. (/() 3 Barn. & Aid. 605. 
 
 {i) 4 Bac. Abr. 51. Gilb. C. P. 186. 2 TVms. Sauud. 5 Ed. 40, 41. 12 Mod. 230. 
 
 (k) Hetl. 126. 
 
 {l) Com. Dig. tit. Abatement, I. 4, cites Theol. Dig. lib. X. c. 1. 
 
 (a) Gilb. C. P. 52. Append. Chap. XXVI. I 7, &c. ; and see 3 Maule & Sel. 453, 54. 
 
 {h) 1 Wms. Saund. 5 Ed. 285, a, (7). 2 Wms. Saund. 5 Ed. 210, &c. 
 
 (c) 2 Bos. & Pul. 420. 
 
 {d) 2 Ld. Raym. 992. 1 Salk. 194, S. C. And see further, as to pleas in abatement, their 
 effect, qualities and form, the affidavit of the truth of them, the replications, &c., thereto, 
 and judgments thereon, 1 Chit. PI. 4 Ed. 386, &:c. And as to pleas in abatement, in courts 
 of equity, see Beam. PL Eq. 53, 54, 57, 280, &c. 
 
 (aa) 5 Hen. Vll. 14. 1 Leon. 77. Sav. 86.
 
 OF PLEAS IN BAR. 643 
 
 of action, and is called an avoidance in laii\ or by matter subsequent, 
 which discharf.'cs the cause of action, and is called an avoidance \nfact.{hh) 
 In actions upon CONTUACTS, the defendant may either plead the general 
 issue Avhich denies that there Avas any contract between the parties, in jjoint 
 of fact ; as in assumjmty non-aissiuiipHit^[cc) in dcht on simple contract, ml 
 debet ;{dd) in covenant or debt on specialty, iioii est factum ;{e) and in debt 
 on record, or scire facias, nul tiel record ;{f) or if there was a contract in 
 point of fact, he may plead some special matter, which shows that it was 
 void in i)oint of law, as by coverture, or the statutes of (jainimj or unury, 
 &c., or voidable, by iiifanri/, or duress of imprisonment, &c. : or if there 
 was a good and valid contract, that has been performed ; or if not, that 
 there was some legal excuse for its non-performance, arising from the act 
 of God, or the law, or of the king's enemies, or from the act or default of 
 the plaintiff, either by releasituj the defendant from the performance of the 
 contract, refusing a tender, or hindering \nm from performing it, or by the 
 non-performance of a condition precedent, &c. These pleas tend to show 
 that the ])laintiff never had any cause of action : or, admitting that he had, 
 the defendant may plead that it was discharged hj some subsequent or 
 collateral matter ; as, at common law, by an accord and *satis- 
 faction,{a) arbitrament, {b) release, former recovery, acquittal or [ *0-i-i ] 
 conviction, foreign attachment,{c) or set-off ; or that the cause 
 of action was /o?/(7'^t'o?, by the plaintiff's being an alien encmy,{d) attaint- 
 ed,[ee) or outlaived ; or, by act of parliament, that it was assigned to other 
 persons, under the statutes relating to bankrupts,{ff) or insolvent debtors ; 
 or he may plead his own bankruptcy, or discharge under an insolvent 
 debtors' act ; or that the debt ought to be sued for in a court of conscience ; 
 or lastly, that the remedy is barred by the statute of limit ations.{g) 
 
 (bb) 5 Hen. VII. 14. 
 
 {cc) Append. Chap. XXVII. g 1, 2. (dd) Id. § .3, 4. 
 
 (f) Id. <i 5. 
 
 (/) Id. Chap. XXXII. § 1. And for the forms of general issues in different actions, see 
 Steph. PI. 172, <kc. 
 
 (a) 4 Barn. & Cres. 506. 6 Dowl. & Ryl. 567, S. C. 
 
 (b) Arbitrament, without performance, is a good plea, where the parties have mutual re- 
 medies. 1 Younge & J. 19. 
 
 (f) 2 Chit. Rep. 4:J8. 
 
 {(!) 6 Durnf. <fe East, 23, 35. But the court of King's Bench, would not stay judgment 
 and execution, on a summary application, because the plaintiffs, after verdict, had become 
 alien enemies. U East, 321. 
 
 (ee) By attainder, all the personal property, and rights of action in resjicrt of property, 
 accruing to the party attainted, either before or after attainder, are vested in the crown, 
 without oftice found ; and therefore, attainder may be well pleaded in bar to an action on a 
 bill of exchange, indorsed to the jdaintiff after his attainder. 2 Barn. & Aid. 258. 
 
 (/) 8 Durnf k East, 140. 1 Bos. & Pul. 448. 7 East, 53. 
 
 (f/) For a full account of the pleas, kc, in assump-vl, in denial, see Lawes, on Pleading, 
 Chap. XVI., in avoidance; Id. Chap. XVII., in performance, and excuxe thereof; Id. Chap. 
 XVIIl., and in di.teharge, at common law or by statute ; Id. Chap. XIX. XX. And see the 
 Elements of Pleas in Equity, by Mr. ifeames, in which there is a dear and learned account 
 of the correspondence, as far as it goes, between rleas at law and in equity ; which 
 latter pleas are treated of as applicable to the relief and discovery sought by original bills, 
 and also to bills not original, as bills of revivor, kc, a d to information filed liy the attor- 
 nej'-general. From these elements it apjiears. that i.i equity, as well as at law, there are 
 pleas to tiie jurisdiction, in at)atement, and in bar: and the chief difference between tlie two 
 courts arises, from pleas in denial of the facts which constitute the cause of action, or ground 
 of complaint, and which at law are referred to the jury by the general issue, which denies 
 the whole, or by jjleas in denial of some particular facts necessary to maintain the action ; 
 but which, in equity, are the subjec of answers. Pleas in equity are treated of by Mr. 
 Beanies, under the fourfold division, of pleas to the jurisdiction, to the person of the plaiutilf
 
 Q^^ OF PLEAS IN BAR. 
 
 In an action affaiust an executor or administrator, the defendant may 
 plead any nuitter wliicli the testator or intestate mi^^ht have pleaded : and 
 in addition thereto, he may deny the character in which he is sued, by plead- 
 ing ne unqucs executor or administrator ; or, admitting it, he may plead 
 that ?20 rtssffs have come to his hands, or that he has fully administered 
 them, and tliat either generally, or specially, with the exception of assets 
 to a certain amount, Avhich are not sufficient to satisfy the plaintiff j or 
 he may plead a retainer to pay his own debt, of equal or superior degree 
 or debts of a superior degree due to third persons, on bonds or 
 [ *645 ] judgments, &c.(A) So, in an action against an heir or a devisee, 
 the ^defendant, in addition to any matter which might have been 
 pleaded by the ancestor or devisor, may either deny the character in which 
 he is sued ; or, admitting it, may plead that he has nothing hy descent or 
 devise, either generally or specially, viz. that he has nothing but a reversion 
 after an estate for life ; or that he has paid debts of an equal or superior 
 degree, to the amount of the assets descended or devised, or that he retains 
 the assets to satisfy his own debt, of equal or superior degree, or debts of 
 a superior degree due to third persons. The heir, if an infant, may also 
 pray that the parol may demur, till he is of full age. 
 
 In actions for wrongs, the defendant may either deny the charge con- 
 tained in the declaration, by pleading the general issue ; as in case, 7iot 
 guilty of the premises ;(a) in detinue, 71001 detinet : in replevin, 7ion cepit :(b) 
 and in trespass vi et armis, not guilty of the trespasses ;(a) or he may plead 
 specially, in justification or excuse of the injury complained of, as in case 
 for a lihcl or tvords, by showing the truth of them, &c. 
 
 In replevin, the defendant may plead property, in himself or a third 
 person ; and where he goes for the return of the cattle or goods, he either 
 avows, if the distress was made in his own right, or in right of his wife, or 
 makes cognizance, if it was made by him as bailiff to another ; but if he 
 do not go for a return, he may merely justify the taking. Avowries and 
 cognizances are founded on distresses at common km, for rents,{c) services 
 or customs ; or for damage feasant, and that either by the party in pos- 
 session, claiming as freeholder, ((^) or under a demise, or by commoners ; or 
 for fines or amerciaments, or on hye laivs, or judgments of the county 
 court, or court baron: or they arise out of distresses by act of parliament ; 
 as for double rent, on the statute 11 Geo. II. c. 19, § 18, or, after n. fraudu- 
 lent removal of goods, on the same statute, &c. Pleas m bar to avow- 
 ries and cognizances for rent, &c., either deny the tenancy, (<?) or that 
 there was any rent in arrear,(e) &c., or, if the distress was for damage 
 feasant, they are under title,{f) or rights of common, or for defect of 
 fences, &c. 
 
 In trespass to the person, the defendant may plead son assault demesne, 
 
 or defendant, to the bill, and in ba- : but what he considers as pleas to the bill, as that there 
 is another suit depending for the same cause, &c., would at law be considered as pleas in 
 abatement ; and pleas in bar, in equity, are either statutory bars, such as the statute of limi- 
 tations, or of frauds, &c., or founded on some matter precedent or subsequent, showing that 
 the complainant never had any title to the relief or discovery he seeks, or if he had, that it 
 is discharged by a release, &c. 
 
 [h) For pleas, &c., in actions by and against executors and administrators, see Lawes, ou 
 Pleading, Chap. XXI. 
 
 (a) Append. Chap. XXVII. ? 6. {b) Id. Chap. XLV. I 64. 
 
 (c) Id. I 68. {d) Id. I 66. 
 
 ('■) Id. I 69. (/) Id. i 67.
 
 OF PLEAS IN BAR. 645 
 
 either generally, in defence of himself or of third persons, or specially, 
 with an ird moUis ; molUtcr manus imposuit, in defence of real or per- 
 sonal property, or to preserve the peace, and prevent damage ; moderate 
 correction, or amicable contest, &c. In trespass to personal property, in 
 takiii-^ cattle or goods, he may plead that they are his own property, giving 
 colour, or tenancy in comtuan witli the plaintiiT; or, as in replevin, that 
 they were taken under distresses, at cotnniun law or ]\y art of parliament ; 
 or, in trespass for killing doys, he may justify as park-kee])er, kc, or for 
 cutting ro2}es, that it -was necessary, to prevent damage. In trespass to 
 real property, the defendant may plead that the locus in quo is his free- 
 hold, {lihcruni tencnientum,) or that of a third person, under whom he 
 acted ; or that he has title less than freehold, giving colour, or is tenant 
 in common with tlie jdaintiff; or he may justify under rights of 
 common of ^pasture, estovers, or turbary, c^c, or of several or free [ *G46 ] 
 fishery, free ivarren, &c. ; rights of way, which are public or pri- 
 vate, and may be claimed, if private, by grant or prescription, or of neces- 
 sity ; or rights of entry, which are of various kinds, and may be classed as 
 follows : first, to enter places of public resort, as fairs and markets, inns, 
 taverns, &c. ; secondly, to enter private houses, for the purpose of speaking 
 with the phiintift", or his lodgers, or of demanding a debt, or to remove 
 goods belonging to the defendant ; thirdly, by the lord of a manor, to take 
 wreck ; fourthly, by a rector or vicar, to fetch away tithes ; fifthly, by an 
 occupier of adjoining land, to repair fences ; sixthly, as between landlord 
 and tenant, to view waste, cut down timber, or foUoAV and distrain goods 
 fraudulently removed, or to take estovers, emblements, fixtures, or way- 
 going crops ; or, seventhly, to abate nuisances, or remove obstructions, kc. ; 
 Lastly, the defendant may allege, by way of excuse, that his cattle escaped 
 for d(fect of fences, which the plaintiff was bound to repair. The defen- 
 dant may also justify in any species of action of trespass, under a license 
 from the plaintiff, or legal process, criminal or civil ; which latter may 
 issue out of superior or inferior courts, and is original, mesne or final ; or 
 he may justify hy authority of law, without process, as an individual, on 
 suspicion of felony, kc, or as an officer, or in his aid ; or on the ground 
 of inevitable necessity. 
 
 The pleas which have been mentioned, in actions for wrongs, go to prove 
 that the plaintiff never had any cause of action: or, admitting that he had, 
 the defendant may plead, as in actions upon contracts, that it was dis- 
 charged, by some subsequent or collateral matter, as by an accord a!id 
 satisfaction, arbitrament, release, former recovery or distress for the same 
 cause, tender of suflScient amends for an involuntary trespass,(a) or the 
 statute of limitations. 
 
 It will next be right to consider when the general i8Sue\^A] may be pro- 
 
 ((t) Stat. 21 Jac. I. c. IG, g 5. Ante, 3G. And a tender of amends may l)e pleaded, in 
 actions against justices of tlic peace, by stat 24 Geo. II. c. 44, ^ 2 ; agains* oflicers of the 
 excUe or cuxloms, hy stat. 23 Geo. III. c. 70, g 31 ; 2"4 Gc". III. scss. 2, c. 47, § 35, (repealed 
 by 6 Geo. IV. c. 1(».5 ;) 28 Geo. III. c. 37, | 2G, and G Geo. IV. c. 108, g 05; against any 
 person or jjcrsons, fur anything done in jnirsnance of the statnte 43 Geo. HI. c. 91t, g 70, for 
 consolidating the provisions of the acts relating to tlie duties under tlie management of the 
 commissioners for the affairs of taxes, or any act for granting duties to be assessed under 
 the regulations of t'lat act; against commissioners of bankrujit, by stat 6 Geo. IV. c. IG, g 
 44; against officers of the ar^y, navy, or marines, by stat 6 Geo. IV. c. 108, § 95; and 
 
 [.\] The general issue is a denial of all the material facts alleged in the declaration.
 
 Q_^Q OF PLEAS IN BAR. 
 
 pcrly pleaded ; and what may be given in evidence under it, or must be 
 pleaded specially, in the diiferent actions. 
 
 In assumpsit, the general issue is proper, where there was either no con- 
 tract between the parties, or not such a contract as the plaintiff has declared 
 on : And the defendant may give in evidence under it, that the contract was 
 void in law, by coverture, (?)) gaming,(e) usury, (cf) &c. or voidable 
 [ *647 ] *by infancy,(aa) duress, &c. ; or, if good in point of law, that it was 
 performed,{bh) or that there was some legal excuse for the non- 
 performance of it, as a release or discharge before breach, or non-perform- 
 ance by the plaintiff of a condition precedent, &c. This sort of evidence 
 will show that the plaintiff had no cause of action. But if he had, the 
 defendant may give in evidence, under the general issue, that it was dis- 
 charged, by an accord and satisfaction,(cc) arbitrament, release,((:Z(?) foreign 
 attachment,(e) or former recovery for the same cause,(/) &c. In short, the 
 J question in assurnpsit, upon the general issue, is whether there was a sub- 
 sisting debt, or cause of action, at the time of commencing the suit.(^) But 
 matter of defence arising after action brought, cannot be pleaded in bar of 
 the action generally ; and therefore cannot be given in evidence under the 
 general issue. (A) And matters of law,(2) in avoidance of the contract, or 
 discharge of the action, are usual pleaded : It is also necesary to plead a 
 tender, or the statute of limitations, (A") &c. and to plead or give a notice of 
 set-off. Formerly, matters in discharge of the action must have been 
 pleaded specially :(Z) Afterwards, a distinction was made between express 
 and implied assumpsits : In the former, these matters were still required 
 to be pleaded, but not in the latter. (?/i) At length, about the time of Lord 
 
 against any person, for anything done in pursuance of the statutes 7 & 8 Geo. IV. c. 29, and 
 c. 30, § 41, for consolidating the laws relative to larceny, &c., or malicious injuries to pro- 
 perty. 
 
 (b) 12 Mod. 101. 
 
 (c) 1 Ld. Ra>Tn. 87. 1 Salk. 344. Carth. 3.o6. 5 Mod. 170. 12 Mod. 97, S. C. 
 
 (d) 1 Str. 498. (aa) 1 Salk. 279. 1 Bos. & Pul. 481, («). 
 (bb) 1 Ld. Raym. 217, 566. 12 Mod. 376, S. C. 1 Salk. 394. 
 
 (cc) 1 Ld. Raym. 566. 12 Mod. 376, S. C. 4 Esp. Rep. 181. But a plea of an account 
 stated, and balance paid to the plaintiff, or balance in favour of the defendant, "which the 
 plaintiff promised to pay, is not a good plea. 1 Ken. 250, 391. 1 Bur. 9, S. C. 
 
 (dd) Gilb. C. P. 64. Doug. 106, 7. 3 Esp. Rep. 234. And as to the plea of relecc^e, in 
 courts of Equity, see Beam. PI. Eq. 218, &c., 275, 76. 
 
 (e) 1 Salk. 280. 
 
 (/) 2 Str. 733. 9 Moore, 724. 2 Bing. 377. 1 Car. & P. 403, S. C. And as to the plea 
 of former judgment or decree, in courts of Equity, see Beam. PL Eq. 197, &c., 205, &c. 
 
 (ff) Doug. 106, 7. Gilb. C. P. 64, 5. 
 
 (h) 4 Barn. & Cres. 390. 6 Dowl. & Ryl. 475, S. C. 
 
 (i) Hob. 127. 2 Vent. 295. 
 
 (k) 1 Ld. Raym. 153. Gilb. C. P. 66. And as to the plea of the statute of limitations, 
 in courts of Equity, see Beam. PL Eq. 161, &c., 167, &c., 274, 75. 
 
 (l) 1 Ld. Raym. 566. 12 Mod. 376, S. C. 
 
 (m) Vin. Abr. tit. Evidence, Z. a. 1 Salk. 280. Gilb. C. P. 65. 
 
 Dudley v. Sumner, 5 Mass. 438. And any matter going to show that a deed, or contract, or 
 other instrument, is void, may be shown under it. Phelps v. Decker, 10 Mass. 267, 274. 
 Anthony v. Wilson, 14 Pick. 303, 305. Under it, too, in actions arising ex contractu, the de- 
 fendant may give in evidence any matter which goes to show that the plaintiff never had 
 any cause of action ; as that it was void for want of consideration, or founded on illegal 
 consideration, and therefore void ; or that the supposed consideration had entirely failed, 
 and such like cases. But where the defence in any way admits that the plaintifi"'s cause of 
 action did exist, and seeks to avoid it, either in part or in the whole, liy matter aliunde, he 
 must either plead it, or, in cases of set-ofiF, give notice of it to the plaintiff. Maverick v. 
 Gibbs, 3 McCord, 315.
 
 OF PLEAS IN BAR. 647 
 
 Holt^ tlicy were universally allowed to be given in evidence, under the 
 general issue. (ri) 
 
 The bankruptcy of the pIaintiff,(o) or his discharge under an insolvent 
 act,(p) may be given in eviilence, under the general issue, in aasunijisit ; 
 thougli they are sometimes jdeaded specially. But, in an action by the pro- 
 visional assignee of a bankrupt, the fact of the bankruj)t's estate having 
 been assigned by the plaintifi" to new assignees, between the time of issuing 
 the latitat and delivery of the declaration, was holden to be no ground of 
 nonsuit, upon a plea of non assumpsit ; but, if it were an answer to the 
 action, should have been pleaded spccially.(7) The defendant CAwwoigwe 
 his bankruptcy in evidence, under the general issue :(?*) But his 
 certificate, ^allowed after tlie filing of tlie plaintiff's bill, and before [ *048 ] 
 plea pleaded, was holden to be evidence to support the general plea 
 of bankruptcy, given by the statute 5 Geo. II. c. 30, § 7, viz., that before 
 the exhibiting of the plaintiff's bill, the llefendant became a bankrupt, and 
 that the cause of action accrued before he became a bankrupt. (a) And 
 a plea, in the general form, was deemed sufficient to entitle a bankrupt to 
 the benefit of the statute 40 Geo. III. c. 121, § 8, which discharges him, 
 after having obtained his certificate, of all demands at the suit of a surety or 
 person liable for his debt, who has paid the same after the issuing of the 
 commission, in like manner, to all intents and purposes, as if such person 
 had been a creditor before the bankruptcy. (/») But Avhere the certificate is 
 allowed after jilea pleaded, it seems that the bankruptcy must be pleaded 
 specially, and not in the general form prescribed by the above statute. (c) 
 And a certificate obtained at Netofoundland, under the 49 Geo. III. c. 27, 
 § 8, does not, we have seen,(tf) entitle the defendant to be discharged, on 
 entering a common appearance, but must be pleaded in bar.(c) To a general 
 plea of bankruptcy, a replication that the defendant had before been dis- 
 charged as a bankrupt, by virtue of the statute 5 Geo. II. c. 30,(/) and 
 that he had not paid 15s. in the pound under the second commission is bad 
 on special demurrer. (/y) 
 
 In covenant, there is properly speaking no general issue ; for though the 
 defendant may plead non est factum, as in debt on specialty, yet that only 
 puts the deed in issue, and not the breach of covenant : and non infregit 
 conventionem is a bad plea. (A) In this action therefore, the defendant must 
 specially contravert the deed, or show that he hns performed the cox vnnnt, 
 or is legally excused from the performance of it ; or, admitting the breach, 
 that he is discharged by matter ex post facto, as a release, &c. ; And a ten- 
 der may be pleaded, in covenant for the payment of money. (z) 
 
 In debt on simple contract, nil debet is a good plea, or, in actions by 
 
 {n) 1 L(l. Tlavra. 217, 5GG. 12 Mod. 37G, S. C. ; and sec Lawcs, on Pleading, 522, 23. 
 
 {o) 3 Chit. PI. 918, (a). 
 
 (/)) 3 Camp. 236. And as to tiie plea of bankruptcy, or iu.solvcncy, of the plaintiff, in 
 courts of I<>[uitv, .see Beam. PI. Eq. US, &c. 
 
 (a) 4 Barn. & Aid. 345. (r) 1 Campb. 363. 
 
 (a) 9 Ea.st, 82. 
 
 (6) 5 Barn. & Aid. 12 ; l)ut .sec 12 East, 6G4, semh. contra, and see stat. G Geo. IV. c. IG, 
 ?52. 
 
 (c) 6 East, 413. 2 Smith R. 659. 1 M'Clel. & Y. 350, S. P. ; but see 2 II. Blac. 553. 
 
 {d) Ante, 211. (r) 3 Moore, 244, 623, 1 Brod. & Biug. 13, 294, S. C. 
 
 (/) § 7 ; and see id. ? 9. G Geo. IV. c. 16, \ 127. 
 
 {g) 2 Maule & Sel. 549. 3 Camp. 499, {a), S. C. 
 
 (Ji) 1 Lev. 183. 3 Lev. 19. 1 Sid. 289. 8 Durnf. & East, 278. 1 Car. & & P. 2G5. Id. {a). 
 
 (i) 7 Taunt. 486. 1 Moore, 200, S. C.
 
 648 
 
 OF PLEAS IN BAR. 
 
 executors and administrators, non detinet, in all cases where nothing was 
 duo to the plaintiff, at the time of commencing the action :(k) And under 
 this plea, the defendant may not only put the plaintiff upon showing the 
 existence of a legal contract, but he may give in evidence the performance 
 of it. He may also give in evidence, under this plea, a release, or other 
 matter in discharge of the action :(/) And it has even been holden, that as 
 the plea is in the present tense, the statute of limitations may be 
 [ *G40 ] given in *evidence under it. (a) But in debt for rent, on an inden- 
 ture of lease, if the defendant plead nil debet, he cannot give in 
 evidence that the plaintiff had nothing in the tenements ; because, if he had 
 pleaded that specially, the plaintiff might have replied the indenture, and 
 estopped him :{b) And in debt qui tarn, the defendant was not allowed to 
 give in evidence, on nil debet, a former recovery against him by another 
 person, for the same cause. (c6') In this action also, as in assumpsit, a tender 
 and set-off must be specially pleaded. 
 
 The plea nil debet, in debt on simple contract, concludes either by the 
 defendant's putting himself upon the country, or, by waging his law, and 
 professing himself ready to defend against the plaintiff and his suit, in such 
 manner as the court shall consider,((?(^) &c. The former is called, in the old 
 books of entries, nil debet per patriam ; the latter, nil debet per legem. 
 The right of the defendant to wage his law, in an action of debt on simple 
 contract, has fallen into complete disuse, though it still exists in point of 
 law.(ee) And where the defendant, having waged his law, in the King's 
 Bench, and the master having assigned a day for him to come in and perfect 
 it, applied by his counsel to the court, to assign the number of compurga- 
 tors, with whom he should come to perfect it, on the ground that the num- 
 ber being uncertain, it was the duty of the court to say how many were 
 necessary ; the court, being disinclined to assist the revival of this obsolete 
 mode of trial, refused the application, and left the defendant to bring such 
 number as he should be advised were sufficient ; and observed that if the 
 plaintiff were not satisfied with the number brought, the objection would be 
 open to him, and then the court would hear both sides :(/) The defendant 
 afterwards prepared to bring eleven compurgators, but the plaintiff aban- 
 doned the action. ((/)[!] 
 
 When a specialty is but inducement to the action, and matter of fact the 
 foundation of it, there 7iil debet is a good plea ; as in debt for rent by inden- 
 ture, for the plaintiff need not set out the indenture. (7i) So, in debt for an 
 escape, (/) or on a devastavit against an executor,(^) the judgment is but 
 inducement, and the escape and devastavit are the foundation of the action. 
 But, by the statute 8 & 9 W. III. c. 27. § 6, " no retaking on fresh pursuit 
 
 (/f) Com. Dig. tit. Pleader, 2 W. 17. 
 
 \l) 5 Mod. 18. 1 Ld. Raym. 5G6. 12 Mod, 376, S. C; but see Gilb. C. P. 63. Gilb. Debt, 
 434, 443, semb. contra. 
 
 (a) 1 Ld. Raym. 153. 2 East, 336, joer iaM'm?ce, J. (5) 1 Sails:. 277. 
 
 [cc) 1 Str. 701, 2. idd) 3 Chit. PI. 4 Ed. 954. Stepli. PI. 250. 
 
 (ee) 1 New Rep. C. P. 207. (/) 2 Bam. & Cres. 538. 4 Dowl. & Ryl. 3, S. C. 
 
 {g) 3 Chit. Blac. Com. 341, (9.) And see further, as to wager of law, Bac. Abr. under 
 that title, 3 Chit. Bl. Com. 341, &c. Steph. PL 124, 5 ; and for entries thereon, see Co. Ent. 
 119, a. 2 Mod. Ent. 242. Lil. Ent. 467. 
 
 {h) Gilb. C. P. 61, 2. Hardr. 332. 2 Ld. Raym. 1501, 2, 3. 1 New Rep. C. P. 105, 109. 
 1 Wms. Saund. 5 Ed. 38, «, (3.) 2 Wms. Saund. 5 Ed. 297, (1.) (i) 2 Salk. 565. 
 
 {kk) 1 Wms. Saund. 5 Ed. 219. Carth. 2. 
 
 [1] The Supreme Court of the United States have decided, that wager of law has no ex- 
 istence in the jurisprudence of the Union. 9 Wheaton, 642.
 
 OF PLEAS IN BAH. 649 
 
 shall be given in evidence, on the trial of any issue, in any action of escape 
 against the marshal, &c., unless the same shall be specially jileailed ; nor shall 
 any special plea be received or allowed, uidcss oath be iirst made in writing 
 by the defendant, and filed in the pro])er oflice, that tiie jtrisoner, 
 for whose escape such action is brou'^ht, *did esca))e without his [ *G50 ] 
 consent, privity or knowledge. "(a) And when the deed is the 
 foundation, and the fact but inducement, there nil debet is no plea ; as in 
 debt for a penalty on articles of agreement, (i) or on a bail-l)ond,(f) &c. In 
 the latter action however, if the defendant \)\(;m\ nil debet, xwA the plaintiff 
 do not demur, but take issue thereon, it lets the defendant into any defence 
 he may have on the merits.(t^) 
 
 It sometimes happens, that instead of ])leadingthe general issue of nil 
 debet to the whole declaration, the defendant, for greater certainty, will 
 select and deny some particular fact, necessary to maintain the action ; as 
 the demise, in debt for rent on a parol lease, to which he may plead non 
 dimisit ;(«) but he cannot plead this plea, in debt for rent on an inden- 
 ture :{ff) and it is said, that 7-iens en arrere is not a good plea, without con- 
 cluding et issint nil debet.{(/g) 
 
 In debt on bond, or other specialty, the general issue of non est factum 
 is good, in all cases where the deed was not executed, or varies from the 
 declaration :{hh) And the defendant may give in evidence under it, that the 
 deed was delivered as an cscrow,(<) to a thi)-d person ; or that it was void 
 at common hnv ab initio,[k) being obtained by fraud, or made by a married 
 woman, (/) lunatic,(yy^) &c. or that it became void after it was made, and 
 before the commencement of the action,(n) by erasure, alteration, cancel- 
 ling, &c. or that a bail bond was taken after the return day of the writ, 
 conditioned for the defendant's appearance 07i the retui-n day.(o) But he 
 cannot give in evidence, under the general issue, that the deed was void 
 or voidable by infancy,(p) durcss,(^) |>t;r minas,{q) &c., or that it was 
 
 (a) As to the form of the affidavit, see 2 Blac. Rep. 1059. 
 
 h) 2 Ld. Raym. 1500. 2 Str. US. 1 Barnard K. B. 15. 8 Mod. lOG, 323, 382, S. C. 
 
 (c) Id. Fort. 3G3, 3G7. 5 Bur. 2586. And the pleaof «(7 debet, in delit on bond, is bad on 
 a general demurrer, though perhaps it might be aided after verdict, 2 Wils. 10. And see 
 further, as to the cases in which nil debet is or is not a good plea, Com. Dig. tit. Pleader, 2 
 W. 17. 1 Wms. Saund. 5 Ed. 38, (3.) 2 Wms. Saund. 5 Ed. 187, (2.) 1 Chit. Pi. 4 Ed. 
 424, to 428. Steph. PI. 177, 8. 
 
 (d) 5 Esp. Rep. 38. (e) Gilb. Debt, 438. (/) Id. 436. 
 (gff) Id. 440 ; cites Bro. Dette, 113. Keilw. 153. 
 
 (hh) Com. Dig. tit. Pleader, 2 W. 18 ; and see 6 Taunt. 394. 2 Marsh. 96, S. C. 4 Maule 
 &Sel.470. 
 
 (i) 2 Rol. Abr. 683, 4, 5. T. Raym. 197. 6 Mod. 217. 4 Esp. Rep. 255. 
 
 (k) 5 Co. 119 ; and see 2 Wils. 341, 347 ; but see 2 Stark. Ni. Pri. 35. 2 Chit. Rep. 334, 
 S. C, where it was ruled, that the defendant cannot, under the plea of wow est factum to a 
 declaration upon a bond, go into evidence to show that the consideration was illegal at common 
 law: and see 2 Stark. Ni. Pri. 30, in notis. (/) 2 Campb. 272. 
 
 im) 2 Str. 1104 ; but see 2 Salk. G75. (n) 5 Co. 119, b. Sav. 71, scinb. contra, 
 
 o) 4 Maule & Sel. 338 ; and see 2 Dumf. & East, 569. 
 p) The contract of an infant seems in general to be void; though, in the ca.ee of a bond, 
 &c., his infancy must be pleaded to avoid it. 5 Co. 119, a. Gilb. iJebt, 437. 2 Salk. 675. 1 
 Ld. Raym. 315, S. C. ; but see 1 Salk. 279, where Trebi/, Ch. J., said, that the promise of an 
 infant is absolutely void ; but a bond takes effect by sealing and delivery, and consequently 
 is a more deliberate act, and therefore is only voidable : and see 3 Bur. 1794, 1805. I.,awe3, 
 on Pleading, 569. 3 Taunt. 307. 3 Maule & Sel. 477. 2 Stark. Ni. Pri. 36. 6. Moore, 488. 
 See also stat 9 Geo. IV. c. 14, § 5, by which '' no action shall be maintained, whereby to 
 charge any person, upon any promise made after full age, to pay any debt contracted during 
 infancy, or upon any ratification after full age of any promise or simple contract made during 
 infancy, unless sucli promise or ratification shall be made b}- some writing, signed by the 
 party to be charged therewith. (y) 2 Inst. 482, 3.
 
 650 
 
 OF PLEAS IN BAR. 
 
 [ *G51 ] void by *act of parliament,(a) as by the statutes of usury,(5) or 
 gaming, &c. In these cases therefore, the defendant must plead 
 specially. So he must plead ijayment^ at or after the day, performance, 
 or any matter in excuse of performance, as non damnificatus to a bond of 
 indcuniity, no aioard to an arbitration bond, or, to a bail bond, no process 
 to arrest the defendant, (c) &c. lie must also plead specially, in discharge 
 of the action, a tender, or set-off. 
 
 In debt on record, the general issue of nul tiel record is proper, where 
 there is either no record at all, or one different from that which the plain- 
 tiff has declared on.(tZ) But as this plea only goes to the existence of the 
 record, the defendant must plead payment, or any matter in discharge of 
 the action : And if an action of debt be brought here, on a judgment in 
 Ireland, the plea of nul tiel record must conclude to the country.(e) 
 
 In actions upon the case, the defendant, upon the general issue of not 
 guilty, may not only put the plaintiff upon proof of the whole charge con- 
 tained in the declaration, but may offer any matter in excuse or justification 
 of it ;(/) or he may set up a former recovery, release, or satisfaction -.{g) 
 For an action upon the case is founded upon the mere justice and conscience 
 of the plaintiff's case, and is in the nature of a bill in equity, and in effect 
 is so ; and therefore such a former recovery, release, or satisfaction need not 
 be pleaded, but may be given in evidence : since, whatever will, in equity 
 and conscience, according to the circumstances of the case, bar the plaintiff's 
 recovery, may in this action be given in evidence by the defendant ; be- 
 cause the plaintiff must recover upon the justice and conscience of his case, 
 and upon that only. In trover, it is commonly said, there is no special 
 plea, except a release ; but this is a mistake : for the defendant may plead 
 specially any thing else, which, admitting the plaintiff had once a cause of 
 action, goes to discharge it, as the statute of limitations, (A) or a former 
 recovery, (z) &c. The hankruptey of the plaintiff, before the cause of action 
 accrued, may be given in evidence, in this action, under the general issue 
 of not guilty :(h) but where the bankruptcy happens after the cause of action 
 accrued, it should it seems be pleaded specially. 
 
 In an action for words, the truth of them cannot be given in evidence, 
 under the general issue of not guilty. (Z) And it is not competent for the 
 defendant, under the general issue, to offer in mitigation of damages, evidence 
 that the specific facts in which the slander consists and for which 
 [ *652 ] the action is brought, were communicated to him by a third *per- 
 son :(««) But, in an action on the case for slander of title, the truth 
 of the words may be given in evidence under the general issue, to disprove 
 malice, 1 Moody & M. 1. But it seems that the defendant may, on the 
 general issue, go into evidence to show that he spoke the words ho7id fide, 
 
 {a) 5 Co. 119, a. {b) 1 Str. 498. 
 
 (c) Sav. Rep. 116. 
 
 {d) Gilb. Debt, 444. 3 Mod. 41. 
 
 (e) 5 East, 473. 2 Smith R. 25, S. C. ; and see 1 Barn. & Aid. 153. 9 Price, 3. 3 
 Barn. & Cres. 449. 5 Dowl. & Ryl. 295, S. C. 4 Barn. & Cres. 411. 6 Dowl. & Rvl. 471, S.C. 
 
 (/) 2 Mod. 27G, 7. 3 Mod. 166. Com. Rep. 273. 1 Wils. 44, 175. 
 
 (V) 3 Bur. 1353. 1 Blac. Rep. 388, S. C. (A) 1 Lutw. 99. 
 
 [i) 1 Show. 146. 
 
 {k) 7 Durnf. & East, 391. And the defendant in this case, having pleaded bankruptcy in 
 the plaintiff specially. Lord Kenyan was of opinion, that the plea would have been bad on 
 special demurres. Id. 396. Ante, 647, 8. 
 
 (0 Vvllles, 20. 2 Str. 1200. 1 Bos. & Pul. 525. 2 Bos. & Pul. 225. (a.) 
 
 {aa) Holt Ni. Pri. 533 ; and see Sel. Ni. Pri. 6 Ed. 1232. 4 Bing. 167.
 
 OF PLEAS IN BAR. 652 
 
 and without malice ;{b) or he may prove, on the general issue, in mitigation 
 of damages, such facts and circumstances as show a ground of suspicion, not 
 amounting to actual proof of the guilt of the plaintiff.(c') And when words 
 are given in evidence, in order to prove malice, which are not stated in the 
 declaration, the defendant may ])rove the truth of such AV()rds.((/) So, in 
 an action for libe/, the defendant may give in evidence, on the general 
 issue, in mitigation of damages, not only that there were rumours and 
 reports, of the same tenor as in the supposed libel, previously current, but 
 that the substance of the libellous matters had been published in a newspa- 
 per; and he is not required to lay a basis for this evidence, by producing the 
 newspaper at the trial. ((') But the plaintiff' is not permitted, in an action 
 for a libel, to go into evidence, on the general issue, to show that the allega- 
 tions in the libel are false :(/) Neither can he give in evidence subsequent 
 declarations by the defendant, where the intention of publication is not 
 equivocal ;(/) nor can the defendant give in evidence other libels, published 
 of him by the plaintiff", not distinctly relating to the same subject. (^) In 
 an action for a libel, purporting to be a report of a coroner's inquest 
 evidence of the correctness of the report is admissible under the general 
 issue, in mitigation of damages ; but no evidence of the truth or falsehood 
 of the facts stated at the inquest, is admissible on either side. 1 Moody 
 & M. 46. 
 
 In detinue, the defendant may give in evidence, under the general issue 
 of non detinct, a gift from the plaintiff"; for that proves he detaineth not 
 the plaintiff"'s goods :{h]i) But he cannot give in evidence, that the goods 
 were pawned to him for money, Avhich is not paid ; but he must plead it. 
 
 In trespass to the person, the general issue of not guilty may be pro- 
 perly pleaded, if the defendant committed no assault, battery, or imprison- 
 ment, (fee; in trespass to jwcrso^^aZ property, if the plaintiff* had no property 
 in the goods ; and in trespass to real property, if he Avas not in possession 
 of the land, &;c. : And liherum tenementum, or other evidence of title or 
 right to the possession, may be given in evidence under the general issue.(/} 
 But the defendant cannot justify, under the general issue, cutting the posts 
 and rails of the plaintiff", though erected upon the defendant's own land ; 
 there being no question raised as to the property remaining in the plain- 
 tiff".(/c) And regularly, by the common law, matter of justification or excuse 
 must be speciall// pleaded ;(?) as, in tresj^ass to the person, son assault 
 demesne, or, in trespass to real property, a license ;(wi) that the beasts came 
 through the plaintiff"'s hedge, which he ought to have repaired; or 
 in respect of a rent charge, common, or the like ;(??) And the *de- [ *G53 ] 
 fendant must plead specially a release, or other matter in discharge 
 of the action. (r/) But in actions against justices, &c. and in various other 
 
 (b) 1 Car. & P. 475, G73. 
 
 (c) Pcakc's Eviil. 5 Ed. 308; and sec 2 Campb. 251. 1 .Miuilc & Scl. 284. Uolt Ni. Pri. 
 306,7. 1 Car. & P. 279. 11 Price, 235. 
 
 (d) 2 Stiirk. Ni. Pri. 457 ; and see 2 Str. 3 Ed. 1200. (1.) 
 \e) Holt. Ni. Pri. 299. 
 
 ( /■) 2 Stark. Ni. Pri. 93; and see 8 Moore, 4rt7. 1 Bing. 403, S. C. 
 (y) 3 Barn. & Cres. 113. 4 Dowl. & Kyi. G70, S. C. Ky. & Mo. 422. 
 (hh) Co. Litt. 283. 
 
 (i) Andr. 108. Willes, 222. 7 Durnf. & East, 354. 8 Durnf. & East, 403. 
 (A) 8 East, 404. (/) Co. Lit. 282, 3. 2 Pol. Abr. G82. 12 Mod. 120. 
 
 \m) Hob. 274, 5. 2 Durnf. & East, 168. 7 Taunt. 156 ; but sec 21 Hen. VII. 28, &,pcr 
 Rede, contra. 
 
 (n) Co. Litt. 283. (a) 3 Bur. 1353.
 
 653 
 
 OF PLEAS IN BAR. 
 
 cases, the defendant, by act of parliament,(J) is allowed to plead the general 
 issue, and give the special matter in evidence. (c) In an action of trespass 
 and false imprisonment, a constable may justify under the general issue, 
 though he acted without a warrant, provided there was a reasonable charge 
 of fch)ny made ; although ho afterwards discharge the prisoner, without 
 taking liim before a magistrate, and although it should turn out in fact, 
 that no felony was committed. (c^) But a private individual, who makes the 
 charge, and puts the constable in motion, cannot justify under the general 
 issue: he must plead the special circumstances by way of justification, in 
 order that it may be seen whether his suspicions were reasonable. (e) 
 
 When the defence consists of matter of fact, and the general issue may, 
 it ought to be pleaded ; it being in such case a good cause of demurrer, that 
 the plea amounts to the general issue. (/) But it is observable, that in many 
 cases, where the defence consists of matter of law, the defendant may either 
 plead it specially, or give it in evidence under the general issue ; as in 
 assumjysit, infancy, accord and satisfaction, or a release, &c. may be either 
 pleaded, or given in evidence upon no7i assumpsit ; and in deht on bond, 
 made by a married woman, the defendant may either plead coverture, or 
 give it in evidence upon non est factum. So, in assumpsit, the court of 
 Common Pleas held, that the defendant's undertaking was for the default 
 of another, without writing, and without consideration, or that the person 
 for whom the defendant's undertaking was given, was afejne covert, might 
 be pleaded, although the facts might have been given in evidence under the 
 general issue. 1 Moore & P. 294. 4 Bing. 470, S. C. In these cases, from 
 the nature of the defence, the plaintiff has an implied colour of action ; bad 
 indeed in point of law, if the facts pleaded be true, but which is properly 
 referred to the decision of the court. And Avhere, from the nature of the 
 defence, the plaintiff would have no implied colour of action, the defendant 
 in some cases is allowed to give him an express colour. {g) Thus, in the 
 common and almost only case where express colour is now given, if in an 
 action of trespass quare claiisum friget, the defendant plead a possessory 
 title under a demise from a third person, (for if he claim under the plaintiff, 
 there is an implied colour,) this, without more, would amount to the general 
 issue ;(/j) for it goes to deny that the trespass was committed in the plain- 
 tiff's close : but if the defendant, after stating his own title, sup- 
 [ *654 ] poses (as is usual,) that the plaintiff entered upon him, *under 
 colour of a former deed of feoffment without livery, and that he 
 re-entered, this creates a question of law, for the decision of the court ; and 
 
 (J) See particularly the statutes 43 Eliz. c. 2, § 19. 1 Jac. I. c. 15, § 16. Y Jac. I, c. 5. 
 21 Jac. I. c. 12, ^ 5. ' 11 Geo. II. c. 19, § 21. 23 Geo. III. c. 70, § 34. 28 Geo. III. c. 37, ^ 
 23. 42 Geo. III. c. 85, | 6. 43 Geo. III. c. 99, § 70. 6 Geo. IV. c. 16, § 44, & c. 108, § 97. 
 7 & 8 Geo. IV. c. 4, ^ 155, c. 29, | 75, & c. 30, | 41. 9 Geo. c. 4, § 155. And see further, 
 as to what must be pleaded specially, or may be given in evidence under the general issue, 
 in different actions, 1 Chit. PL 4 Ed. 416, &c. ; and in the action of assumpsit in particular, 
 Lawes, on Pleading, Chap. XVI. p. 520, &c. 
 
 (c) Co. Lit. 283. 
 
 {d) Doug. 359. 5 Durnf. & East, 315. 3 Campb. 420. Holt Ni. Pri. 478. 6 Barn. & 
 Cres. 635. 
 
 (e) Holt Ni. Pri. 478 ; and see 4 Taunt. 34. 
 
 (/) Co. Lit. 303, b. Doc. pi. 203, 4. Gilb. C. P. 60, 61. 2 Chit. Rep. 642. And see 
 further, as to the cases in which the general issue may, and ought to be pleaded, Steph. PL 
 176, &c. 
 
 {g) For the difference between express and implied colour, see an argument of Jlolt, in Reg. 
 Plac. 303. Steph. PL 225. 
 
 (h) 8 Durnf. & East, 406. 1 East, 215.
 
 OF PLEADING SEVERAL MATTERS. G54 
 
 by that means prevents the plea from amounting to the general issue : and 
 being matter of supposal, it is not traversable. 
 
 In trespass for taking goods, if the defendant plead that A. was possessed 
 of tliem, as of his proper goods, and sold them in market overt, or that B. 
 stole the goods from A. and waived them within his manor, wherefore he 
 took them, the defendant nmst give eoloin- ; for his plea [jroves that no 
 property was in the plaintiff, so he had no colour of action : And the colour 
 usually given in such cases is, that the defendant bailed the goods to a 
 stranger, who delivered them to the plaintiff, from whom the defendant 
 took them. But, in the same cases, if the defendant plead that A. sold the 
 goods in market overt, without saying that they were his own, or that B. 
 took them de quodam ignoto, and waived them, the ])lea is good without 
 colour ; for it does not deny but that the property was in the plaintiff, and 
 the defendant is not bound to show expressly in whom it was.(a) 
 
 Pleas in bar are single or double ;[a] or, in other words, the defendant 
 ma3' rely upon a single ground, or plead several matters in his defence. At 
 common law, the defendant could only have pleaded a single matter to the 
 whole declaration ; which rigour often abridged the justice of his defence, 
 and was doubtless one cause of perplexed inartificial pleading ; the party 
 endeavouring to crowd as much reasoning as he could into his plea, however 
 intricate, repugnant and contradictory he made it by so doing. (/>) But even 
 at common law, the defendant might have pleaded several matters, to dif- 
 ferent parts of the declaration ; as not guilty to part, and to other part a 
 justification, or release, &c. And where there were several defendants, each 
 of them might have pleaded a single matter to the whole, or several matters 
 
 (a) Dr. Leyfidds cme, 10 Co. 00, b. And for more of the doctrine concerning colour, see 
 the same case, ;>er Mum; Doct. & Stud. lib. 2, c. 53. 3 Salk. 273. 3 Bhic. Com. 309. 3 
 Reeve's Hist. 24, 438. 1 Chit. PI. 4 Ed. 443, &c. Steph. PI. 220, &c. JJ. Append. Iviii. 
 
 (6) 2 Eunom. 141 ; and see 1 Chit. PI. 4 Ed. 208. Steph. PI. 289, 00. 
 
 [a] a plea is not double, unless it contain more than one ground of defence to the action, 
 although it may contain many distinct matters, all going to make one entire defence. Torrey 
 V. Fidd, 10 Verm. 3.J3. Under the peculiar practice of South Carolina, leave to plead double, 
 or to withdraw a jdea and plead de novo, cannot be granted by a judge at chambers, but 
 must be applied for in open court. Frazer v. 3fLeod, 1 Brevard, 108. And the constitu- 
 tional court will not grant leave to plead double, or make any other original order, which 
 has not first been applied for in the District Court. II). But, on motion to plead double, 
 leave is always granted, on condition of pleading instantly, if the cause be at issue ; there- 
 fore, no notice or rule to reply is necessary. J'ickins v. S/iarkhford, 2 Brevard, 96. Under 
 the Mississippi statute, relating to double pleading, a plea of the general issue, and a special 
 plea which amounts to the general issue, cannot be allowed. Moore v.Jfickdl, Walker, 231. 
 A defendant, generally, may not plead doul)le, without leave of the court. iV/7/<'r v. Fisk, 1 
 M'Cord, 50. The filing of consistent double pleas is, however, a motion of course, and is 
 always allowed, liirhordson v. W/iiljidd, 2 IIj. 148. The courts will not allow a motion for 
 leave to plead double, if it will be a surprise to the other siile. \'iin Ilollon v. Lrwiji, 1 lb. 
 12. A motion for leave to plead double, was refused in a court having no original jurisdic- 
 tion, only an appellate one. Frazer v. M'Lcod, 2 Bay, 407. Double pleading is allowed in 
 real as well as in personal actions. Gordon v. Pierce, 2 Fairf. 213. It seems they must be 
 signed by counsel. Salterlee v. Salterlee, 8 Johns. 327. On a motion for leave to reply double, 
 it must be shown that the matters sought to be replied are true. MXnir v. Bronson, G Wend. 
 534. Under leave of double pleading to ^ writ of entry sxtr disseizin, the tenant pleaded, first, 
 nul disseizin; second, in bar, that the demand.ant was never seized modo et forma, &c. Upon 
 demurrer, the second plea was adjudged bad, as putting in issue a fact which must be 
 proved under the first issue. Martin v. Woods, 6 Mass. C. 
 
 Vol. I.— 41
 
 g54 OF PLEADING SEVERAL MATTERS, 
 
 to different parts of the declaration. (i^) And now, by the statute for the 
 amendment of the law,(cZ) "the defendant or tenant in any action or suit, or 
 any phiintiff in replevin, in any court of record, may, -with the leave of the 
 same court, plead as many several matters thereto, as he shall think neces- 
 sary for his defence : Provided nevertheless, that if any such matter shall, 
 upon a demurrer joined, be judged insufficient, costs shall be given at the 
 discretion of the court ; or if a verdict shall be found, upon any issue in 
 the said cause, for the plaintiff or demandant, costs shall be also given in 
 like manner ; unless the judge who tried the said issue, shall certify that 
 
 the said defendant or tenant, or plaintiff in replevin, had a pro- 
 [ *655 ] bable cause to plead such matter, *which upon the said issue shall 
 
 be found against him. Provided also, that nothing in this act 
 shall extend to any Avrit, declaration, or suit of appeal of felony, &c., or to 
 any writ, bill, action or information, upon any penal statute. "(a) 
 
 Upon this statute it has been holden, that the defendant shall not be al- 
 lowed to plead any pleas that are manifestly inconsistent, such as non as- 
 sitmpsit,{b) or no7i est factum, (cc) to the whole declaration, and & tender as 
 to part ; for one of these pleas goes to deny that the plaintiff ever had any 
 cause of action, and the other partially admits it. So, the defendant is not 
 allowed to plead non assumpsit, and the stock-jobbing act ',{dd) or a plea of 
 alien enemy, with non assumpsit,{e) a tender, (/) or other inconsistent 
 matter. (^) And he shall not plead several matters which require different 
 trials, as in dower, ne ungues ac€oup>le en loyal matrimonie and a mort- 
 gage, or ne ungues seisie gue doiver ;{h) for the first matter is triable by the 
 bishop, and the others by a jury, and if the former be found against the de- 
 fendant, the judge cannot certify that he had a probable cause of pleading it. 
 The statute for pleading double does not extend to any action for informa- 
 tion upon a penal statute :(i) And as the king is not bound by this statute, (A;) 
 the defendant cannot plead double in an information of intrusion ;(Z) in guare 
 impedit, where the king is a party ;(?w) or in scire facias, for a bond debt 
 to the king :(?i) nor could he plead double, till the statute 32 Geo. III. c. 
 58, in an information in nature of guo ivarranto.{o) 
 
 In the Common Pleas, the defenctant was not formerly allowed to plead, 
 in assumpsit, non assumpsit and infancy,(jo) or a release,(9') or set-off ;(r) 
 in debt on bond, 71011 est factum and solvit ad or post diem ;{s) in debt for 
 
 (c) Co. Lit. 303, a. {d) 4 Ann. c. 16, § 4, 5. 
 
 {a) 4 Anne, c. 16, g 7. 
 
 {b) Kaye y. Patch, T. 27 Geo. III. K. B. 4 Durnf. & East, 104. 2 Blac. Rep. 723. 3 Wils. 
 145, S. C. 
 
 {cc) 5 Durnf. & East, 97. 4 Taunt. 459. {dd) 1 Bos. & Pul. 222. 
 
 (e) 2 Blac. Rep. 1326. Palmer t. Henderson, E. 21 Geo. III. C. P. 1 Bos. & Pul. 222, (a). 
 2 Bos. & Pul. 72. 10 East, 327. 
 
 (/) 10 East, 326. (^r) 12 East, 206. 
 
 {h) Com. Rep. 148. 2 Blac. Rep. 1157, 1207, but see 2 Wils. 118, semb. contra. 
 
 (i) I 7, Supra; and see 1 Barnard, K. B. 17 Cas. temp. Hardw. 262. 2 Str. 1044, S. C. 
 4 Durnf. & East, 701, K. B. Pr. Reg. 318. Barnes, 15, 353, 365. 2 Wils. 21. 1 Bos. & 
 Pul. 222, C. P. 
 
 {k) 1 P. Wms. 220. Forrest, 57. 
 
 (/) Attorney General v. Allgood, Parker, 1. Rex v. Sir C. W. Phillips, H. 20. Geo. II. 
 Parker, 16. 
 
 (m) Rex V. Archbishop of York, Willes, 533. Barnes, 353, S. C. 
 
 (n) Forrest, 57 ; but see Bunb. 96. Com. Rep. 422, semb. contra; which cases, however, 
 were in effect over-ruled by the case of the Attorney General v. Allgood, Parker, 1. 
 
 (o) 1 P. Wms. 220. Parker 10. (p) Barnes, 363. 
 
 (?) Cas. Pr. C. P. 154. Barnes, 328, S. G. (r) Barnes, 333. 
 
 (s) Id. 363. 2 Blac. Rep. 905, 993.
 
 OF PLEADING SEVERAL MATTERS. 655 
 
 rent, nil debet and nil hdniit in tcncmentis ;{t) in trover^ not guilty and 
 the bankruptcy of tlic plaintiff ;(m) or in trcsjmss, not guilty and a justifica- 
 tion, (x-) or release of a particular trespass :{//) But of late years, the court has 
 been less strict than formerly, in the construction of the act of parliament 
 for pleading double, Avhich is general, and a remedial law :(3) and 
 *accordingly it is now settled, that, with the exceptions mentioned [ *G56 ] 
 in the preceding paragraph, the defendant may in general plead as 
 many different matters as lie shall think necessary for his defence, though 
 they may appear at first view to be contradictory or inconsistent ; as 7ion 
 assumpsit and the statute of limitations,(«) or 7ion est factum and the sta- 
 tute of gaming, or usury ;[b) or in trespass, not guilty and a justification, (c) 
 accord and satisfaction, or tender of araends,(d!) &c. So, he may plead non 
 assumpsit and infancy, or a release,(6') or not guilty and libcrum tcnemcn- 
 turn ;(/) though as infancy may be given in evidence upon non assumpsit, 
 and liberum tenementum upon not guilty, the pleading of these matters 
 specially seems to be unnecessary. And the plaintiff in replevin may plead 
 in bar to the defendant's avowry or cognizance, that he did not hold as 
 tenant, and no rent in arrear, "with a plea of infancy.((/) But, in an action on 
 a deed made beyond seas, the court of Common Pleas would not permit the 
 defendant to plead non est factum, where he'relied in some of his pleas, on 
 matters of defence which necessarily imported the execution of the deed.(/i) 
 So, in scire facias on a judgment, the defendant having moved to plead 
 several matters, viz. first, payment ; secondly, that the judgment Avas fraudu- 
 lent ; and thirdly, that it was on a warrant of attorney fraudulently ob- 
 tained ; the court refused to allow the three pleas to be pleaded, and put the 
 defendant to his election. («') And, in a late case,(/c) the court of Common 
 Pleas gave out, that for the future, inconsistent pleas should not be allowed 
 unless accompanied with an affidavit, to show" that they were necessary to 
 the justice of the cause. And where the plaintiff in quareimpedit, having 
 traced his title through a period of two centuries, and the defendant having, 
 in forty-tliree pleas, taken issue on every allegation in the declaration, 
 though the plaintiff's claim rested solely on the validity of an ancient deed, 
 and the defendant could have no writ to the bishop, unless he succeeded in 
 setting it aside ; the court of Common Pleas, after the declaration had been 
 twice amended, and after a trial had, rescinded the rule to plead several 
 matters. 4 Bing. 525. 
 
 By the statute 32 Geo. III. c. 58, it is enacted, that " it shall be lawful 
 for the defendant, to any information in the nature of a quo warranto, fur 
 the exercise of any office or franchise in any city, borough, or town corpo- 
 rate, to plead that he had first actually taken upon himself, or held or exc- 
 
 {i) Cas. Pr. C. P. 154. Barues,333, S. C. 
 
 («) names, 360. (x) Cas. Pr. C. P. 154. Banic.% 33!). 
 
 {ij) 15arnc3, 351. (z) Id. 347, 8. 
 
 (a) Barnes, 3G1. \b) 2 Bos. & PuL 12; niul sec fd. 54D. 
 
 (c) Barnes, 355, 6; 3G5. (</) Id. 360. 2 Blac. Hep. 1093. 
 
 (c) Wrhjht V. Oregory, T. 32 Geo. IIL C. P. Imp. C. P. 7 Ed. 251. 
 
 (/) Gas. Pr. C. P. 153. Barne.s, 336, S. C. Id. 356. 
 
 \g) 5 Taunt. 340. 1 Marsh. 74, S. C. 
 
 (A) 3 Taunt. 316. (() 2 Bing. 325. 9 Moore, 694, S. C. 
 
 \k) 3 Bing. 635 ; and see 1 Moore & P. 345, where it was said b}- Mr. Justice Park, that 
 in future the Court would recjuire the substance of the pleas to be stated to thcni, la order 
 to ascertain wlietiier they were fit pleas to be put on the record or not ; and that if a party 
 were under terms to plead issuably, the court always exercised a control over the pleas in- 
 tended to be filed, and imposed terms accordingly.
 
 ggg OF PLEADING SEVERAL MATTERS. 
 
 cutcd the office or franchise which is the subject of such information, six 
 years or more before the exhibiting of such information, &c. : which plea 
 shall and may be pleaded either singly, or together with and besides such 
 plea as he might have lawfully pleaded before the passing of the act ; or such 
 several pleas as the court on motion shall allow." In the construction of 
 which statute it has been holden, that the legislature intended to give a de- 
 fendant in such a proceeding, the liberty of pleading several pleas, whether 
 with or without the plea of the statute of limitations ; the concluding words 
 of the act being, " or such several pleas, &c."(Z) But this statute, as well 
 as the 9 Ann. c.20. § 4, &c. is confined to corporate offices :{m) and it 
 [ *657 ] does not *apply where there is a continuing incompatibility ; as 
 where a burgess has accepted the office of town clerk, which he 
 still exercises. («) And for preventing the vexation and expense occasioned 
 to defendants, in informations in the nature of quo ivarranto, by the prac- 
 tice of raising issues upon various matters distinct from the ground on 
 which the information was granted by the court ; it is a rule, (5) " that the 
 objections intended to be made to the title of the defendant, shall be speci- 
 fied in the rule to show cause ; and that no objection, not so specified, shall 
 be raised by the prosecutor on the pleadings, without the special leave of 
 the court, or of some judge thereof." 
 
 In order to plead two or more matters, in the King's Bench, it is not ne- 
 cessary that an affidavit should be made of the facts ; but the court formerly 
 expected to be informed what the matters were, that were desired to be 
 pleaded, in order to judge whether they were proper ;(c) though now, the 
 motion for leave to plead several matters is, in that court, become a mere 
 motion of course, which only requires counsel's signature : And the motion 
 paper being delivered to the clerk of the rules, he will draw up a rule abso- 
 lute ih.ereon,[d) a copy of which should be delivered with the pleas, if it be 
 then ready ; or otherwise the plaintiff's attorney should have notice, that 
 instructions have been given for the rule, and that a copy will be delivered 
 as soon as it is drawn up. In the Common Pleas, the rule to plead several 
 matters is drawn up by the secondaries ;(e) and they will draw it up as a 
 matter of course, on a brief or motion paper signed by a serjeant, without a 
 rule to show cause, for leave to plead the following pleas, viz. in assumpsit, 
 non assumpsit, and non assumpsit infra sex annos, or a release, or set- 
 off; non assumpsit as to part, with a tender and set-off; non assumpsit 
 and a discharge under an insolvent act, or plene administravit, generally 
 or specially ; j^^&ne administravit and a set-off, or 7ie unques executor and 
 ■plene administravit : in debt on bond, non est factum and infancy or du- 
 ress, or solvit ad diem and a set-off; and in trespass, not guilty and lihe- 
 rum te7iementum, son assault demesne, molliter manus imposuit, or a 
 tender of amends. (/) But in other cases, there must be a rule to show 
 ca.use, why the defendant should not have leave to plead the several matters 
 intended to be pleaded ;(/) which rule is drawn up by the secondaries, on 
 a brief or motion paper signed by a serjeant : And formerly, where the pleas 
 
 {I) 8 Diirnf. & East, 467. 
 
 (to) 9 East, 469 ; but see 5 Barn. & Aid. 771. 1 DoTvl. & Rjl. 438, S. C. And see further, 
 as to pleading several pleas, 1 Chit. PL 4 Ed. 477, &c. Steph. PI. 288, &c. 
 {a\ 2 Chit. Rep. 371. 
 (6) R. H. 7 & 8 Geo. IV. K. B. 6 Barn. & Cres. 267. 
 
 R. T. 5 & 6 Geo. II. (h) K. B. {d) Append. Chap. XXVII. § 11. 
 
 Id. I 12. (/) Imp. C. P. 7 Ed. 251. 
 
 |:J
 
 OF PLEADING SEVERAL MATTERS. G57 
 
 were contradictory, as not guilty and a license or general release in tres- 
 pass, the defendant was obliged to make it appear by affidavit, that it was 
 necessary for his deft-nce to insist upon both.Q/) So, an affidavit Avas re- 
 quired to be made by an executor or administrator, that he had fully ad- 
 ministered, and by an heir, that he had nothing by descent, before he 
 could move to ytlo-dd plow administravit, or lu'cns jn-r discc7it :{h) 
 *but now, an affidavit is dispensed with in these cases ',{aa) and [ *G58 ] 
 the court Avill not decide on the necessity of pleas, or refer them 
 to the prothonotary, where the question on wliich they depend, appears, on 
 the face of them, to be one of doubt and nicety .{bb) 
 
 The motion for leave to plead several matters cannot be made, in the 
 Common Pleas, till the defendant has appeared ;((•) but afterwards, it may 
 be made at any time before judgment :((/) and if the time for pleading be 
 nearly expired, the court, on the same motion, will allow the defendant 
 further time, on putting the plaintiff in as good a situation. (c) The rule 
 nisi being drawn up, a copy of it should be made, and served on the plain- 
 tiff's attorney, showing him the original rule ; and on the <lay of showing 
 cause, the court, on an affidavit of service, will make the rule absolute :(/) 
 which latter rule being drawn up by the secondaries, a copy thereof should 
 be made, and annexed to the pleas, before they are filed or delivered ;(c) 
 or, if filed or delivered before the rule is made absolute, it is deemed suffi- 
 cient in this court, to annex a copy of the rule nisi to the pleas, and to in- 
 dorse a notice thereon, that the rule absolute will be served, as soon as it is 
 drawn up. (_</</) In vacation, a judge on summons will make an order for 
 the clerk of the rules in the King's Bench, or secondaries in the Common 
 Pleas, to draw up the rule, on producing a brief or motion paper, signed by 
 a counsel or serjeant, for that purpose. (///t) In the King's Bench, if several 
 pleas be filed, to the whole or part of a declaration, Avithout a rule to plead 
 several matters being drawn up, or instructions given for it to the clerk of 
 the rules, they arc considered as a nullity, and the plaintiff may sign judg- 
 ment ;(i) or, in the Common Pleas, he may apply to the court, to strike out 
 one of them :[Jc) But if a rule be obtained, and the pleas put in, without 
 saying bi/ leave of the court, it is only an irregularity, or at most cause of 
 special demurrer for duplicity.(Z) And where the plaintiff signed judgment 
 as for want of a plea, because the rule to plead several matters was erro- 
 neously entitled, the court of Common Pleas set aside the judgment, with- 
 out costs ; affidavit being made that the pleas Avere true, and that the 
 defendant had a good defence. (??2) 
 
 Respecting costs, upon the statute of Anne, the intention of the legisla- 
 ture appears to have been, that if there be several matters pleaded, some 
 of which are found for the plaintiff, he shall be entitled to the costs of 
 
 (g) Barnes, 351. (/<) Cas. Pr. C. P. 154. Barnes, 332, S. C. 
 
 (aa) Barnes, 347, 8; 364. 
 
 (bb) 1 Bing. 66. 7 Moore, 351, S. C ; but see 3 Bing. 635. Ante, 656. 
 
 (f) Barnes, 331. (rf) Cas. Pr. C. P. 154. Barnes, 329, S. C. 
 
 (e) Imp. C. P. 7 Efl. 252. (/) Append. Chap. XXVII. § 13. 
 
 (f/f/) Imp. C. P. 7 Ed. 252. 3 Brod. & Bing. 256. 7 Moore, 66, S. C. 
 
 (M) Imp. C. P. 7 Ed. 255. 
 
 (i) Per Buller, J. in Bedford^- Galfield, II. 26 Geo. III. K. B. Ante, 566, 7. 
 
 (k) I Bos. & Pul. 415. Ante, 567. 
 
 (i) 1 Wils. 219; and see Cowp. 500, 501, where the court held, that thougii an informa- 
 tion against several defendants, for usurping several offices, cau only be filed ty leave of the 
 court, yet that leave need not appear on the record. 
 
 (m) 1 Bing. 187. 7 Moore, 599, S. C.
 
 658 
 
 OF PLEADING SEVERAL MATTERS. 
 
 r *QdO ] tliose,('») notwithstanding other matters are found for the *defend- 
 ant,(<') Avhich entitle him to judgment upon the whole record ; 
 unless the judge, before whom the cause was tried, shall certify that the 
 defendant had a probable cause to plead the matters which are found 
 a<Tainst him. That this is the true construction of the statute will appear 
 from the following cases. 
 
 In tresjyciss, the defendant pleaded not guilty and several justifications ; 
 upon the trial, the plaintifl" not proving his possession of the locus in quo^ 
 the defendant had a verdict ; and, by direction of De7nson, J., the verdict 
 was entered upon the general issue only ; upon which there was a motion 
 for a venire de novo : but the court refused the motion, saying, the verdict 
 was complete, and determined the cause : that the plaintiff was not entitled 
 to damages, though they said he might have insisted to have a verdict 
 entered on the other issues, for the sake of costs, which he would be 
 entitled to, unless the judge certified that the defendant had probable 
 cause to plead such plea.(/>) 
 
 When the defendant pleads not guilty, and a justification to which the 
 plaintiff demurs, and the plaintiff has judgment on the demurrer, but is 
 nonsuited on the plea of not guilty, he shall nevertheless be allowed the 
 costs of the demurrer, which shall be deducted out of the costs allowed to 
 the defendant. (e) And if one of several pleas, pleaded by the defendant, 
 be adjudged bad, on a demurrer to the plaintiff's replication, the plaintiff 
 is entitled to have the costs of those pleadings deducted from the costs 
 taxed for the defendant upon the postea, if afterwards, upon the trial of 
 the issues joined on the other pleas, the defendant should have a verdict ; 
 even though it should appear, on the Avhole of the record, that the plaintiff 
 had no cause of action. (c?) But if the plaintiff take issue on several pleas, 
 one of which is insufficient in law, and has a verdict on all the issues, 
 except that joined on the insufficient plea, which is found for the defendant, 
 and afterwards judgment is entered for the plaintiff, still he shall not be 
 allowed any costs upon the issue found for the defendant. (e) And it has 
 been resolved, at a meeting of all the judges, that if there be a certificate 
 upon the 43 IJliz., the plaintiff shall not have the costs of any plea pleaded 
 with leaA^e of the court ; although the issue thereupon joined be found for 
 liim, and the judge have not certified, that the defendant had a probable 
 cause for pleading the matter therein pleaded. (/) 
 
 In an action for criminal conversation, the defendant pleaded two pleas, 
 
 vis. not guilty, and not guilty within six years ; on the former the plaintiff 
 
 joined issue, and obtained a verdict, but to the latter there was a demurrer, 
 
 and judgment against him ; and it was liolden, that the defendant 
 
 [ *660 ] ^should have the costs of the demurrer ; but upon the trial, there 
 
 should be no costs on either side.(rta) 
 
 (n) In Sai/er's Law of Costs, p. 223, it is said, he sliall hare the costs, not only of those 
 matters, but also of the others, notwithstanding they are found for the defendant. But this 
 seems to be a mistake ; for the defendant being entitled to judgment upon the matters found 
 for him, is consequently entitled to the cost of them. 11 East, 263. 
 
 (a) 1 East, 583. 
 
 (6) Bui. Ni. Pri. 335 ; and see 1 Wils. 44. Barnes, 4G1, 2. 2 H. Blac. 393, 304, (a). 2 
 Barn. & Aid. 546. 
 
 (c) Barnes, 136. (d) 2 Durnf & East, 391. 
 
 (e) 1 Durnf. & East, 266. 2 Bos. & Pul. 3l6, accord.; but see Barnes, 133, 266. 
 
 (/) Say. Rep. 260. I Ken. 245, S. C. 7 East, 583 ; and see 3 Brod. & Biug. 117. 1 Barn. 
 & Ores. 278. 
 
 (aa) 2 Bur. 753. 2 Wils. 85. Say. Costs, 221, S. C. The authority of this case seems to
 
 OF PLEAS IN GENERAL. 660 
 
 The avoioant or defendant In replevin, tliou<^h not within the words, is 
 phiinly within the ineauin<^ of the statute 4 Ann. c. 10.(^6) And accord- 
 ingly, where there are several avowries or ])leas in bar in rejAevin, and 
 some of the issues joined thereon are found fur the plaintiff, and some for 
 the defendant, the party for whom the issues are found, which entitle him 
 to judgment on the whole record, shall have the general costs of the cause; 
 but the other party shall be allowed to deduct therefrom, the costs of the 
 issues found for him, uidess the judge who tried the cause certify, that the 
 party entitled to judgment had a probable cause to make the avowries, or 
 plead the pleas, upon which such issues were joined •.{ec) And in that case, 
 the officer of the court, in taxing the costs, will allow the party for whom 
 the issues are found, not only the costs of the pleadings, but also of such 
 parts of the briefs and expenses of witnesses, as relate to the trial of those 
 issues ;(fZ) and he will not allow the other party the costs of such parts of 
 the pleadings, and of the briefs and witnesses, as arc not apjdicalde to the 
 points on Avhich the verdict proceeds. (c) On the other hand, if the judge 
 who tried the cause certify, that the party entitled to judgment had a 
 probable cause for making the avowries, or pleading the pleas, the issues 
 on which are found against him, the officer is not to deduct the costs of 
 those issues :(/) And, in the Common Pleas, if a defendant in rejAcvin, 
 after trial and verdict for the plaintiff, obtain judgment non obstante vere- 
 dicto, in consequence of the plaintiff's pleas in bar being bad, he is not 
 entitled to any costs upon the pleadings subsequent to the pleas in bar, 
 because he should have demurred to them.((/) The certificate of probable 
 cause is not required to be made in court, at the trial of the cause :{Ji) 
 and where the judge refuses to grant it, the court have not a discretionary 
 poAver, whether they will allow the plaintiff any costs at all ; but are bound 
 by the statute to allow him some costs, though the quantum is left to their 
 discretion, (e) 
 
 The general qualities and conditions of a plea are, first, that it be con- 
 formable to the count ;(/c) and, taken collectively, answer the whole decla- 
 ration :[a] For if any part of the declaration be left unanswered, it operates 
 
 be questionable, as to the costs of the trial, from a similar one that -was dilfcrcntly deter- 
 mined, in the court of Common Picas, (Barnes, 141,) as well as from the reasoning that pre- 
 vailed in several of the foregoing cases : and see 2 Durnf. & East, 235. 
 
 [bb) Doug. 708, 9, in notis ; and see Barnes, 144, 146. 
 
 (cc) Stone v. Forsyth, T. 22 Geo. III. K. B. 2 Durnf. & East, 235 ; and sec 5 Taunt. 594. 
 
 1 Marsh. 234, S. C. 
 
 {d) 2 H. Blac. 4.'!5. 2 Bos. & Vu\. G8. 5 Taunt. 504. 1 Marsh. 234, S. C. 8 Moore, 
 239. 1 Bing. 275, S. C. 
 
 (e) 2 Bos. & I'ul. 335. (/) 2 Durnf. & East, 237. 
 
 (g) 2 Bos. & Pul. 376. (A) Barnes, 141. 
 
 (i) Id. 140. 2 Durnf. & East, 394, 5. (k) Co. Lit. 303, a. 
 
 [a] Every plea must contain in itself an answer to the whole declaration, or to one count 
 in the declaration, whichever it professes to answer. The defendant may deny part, and 
 justify the residue, if he chooses, but the whole gravamen must be answered in some way. 
 Undtrwood v. Campbell, 13 Wend. 78. A plea which, at its commencement, purports to be 
 an answer to the whole declaration, but answers only a part of it, is bad. Kevins v. Keeler, 
 G Johns. C5. Gillespie v. Thomas, 15 Wend. 404. JIallet v. Holmes, 18 Johns. 28. Loder 
 V. rhelps, 13 Wend. 40. Van Ne.ts v. Hamilton, 19 Joiins. 349. Taylor v. Hank of Kentucky, 
 
 2 J. J. Marsh. 504. Slocum v. Dexpard, 8 Wend. 015. llikok v. Coales, 2 Wend. 419. Posl- 
 masler v. Reeder, 4 Wash. C. C. 078. Farquhar v. Collins, 3 A. K. Marsh. 31. And is sub- 
 ject to a demurrer. Frink v. King, 3 Scam. 144. Snyder v. Gaither, 3 Scam. 91. Warner
 
 QQQ OF PLEAS IN GENERAL. 
 
 as a discontinuance. If a plea begin as an answer to the wliole, 
 [ *661 ] but in *truth the matter pleaded be only an answer to part, or 
 
 vice ve)'sd,[a) the whole plea is naught, and the plaintiff may 
 demur :{h) but if a plea begin only as an answer to part, and be in truth 
 but an answer to part, it is a discontinuance, and the plaintiff must not 
 demur, but take his judgment for the part unanswered, as by nil dicit : 
 for if he demur, or plead over, the whole action is discontinued. (c) Se- 
 condly, the plea at common law should be sioigle, consisting only of one 
 fact, or of several facts making together one point ; for if a plea contain 
 duplicity, or allege several distinct matters, which require several answers 
 to the same thing, it is ha.d.(dd) Thirdly, it should be certain,{ee) in point 
 of form as well as substance : but certainty to a common intent is sufl5- 
 cient ;{ff) and that which is apparent to the court, by necessary collection 
 out of the record, or is necessarily implied, need not be expressed ;{gg) as 
 in setting forth the feoffment of a manor, it is unnecessary to state livery 
 and attornment. (7i/i) So, that which is alleged by way of conveyance, or 
 inducement to the substance of the matter, need not be so certainly alleged 
 as that which is the substance itself. (/) Fourthly, every plea, for the sake 
 of certainty, must be direct and positive, and not by way of argument or 
 rehearsal. (Z:;) Fifthly, it should be so pleaded, as to be capable of trial, 
 by the court upon demurrer or mil tiel record, or by the jury upon an 
 issue in fact.(^) Sixthly, it should be tr^ie, and capable of proof; for 
 truth is said to be the goodness and virtue of pleading, as certainty is the 
 grace and beauty of it.(ni) Seventhly, the plea shall be taken most 
 strongly against him that pleadeth it ; for every man is presumed to make 
 the best of his own case.(w) But lastly, surplusage shall never make the 
 plea vicious, except where it is repugnant, or contrary to matter prece- 
 dent, (o) 
 
 In many cases, the law doth allow general pleading, for avoiding prolixity 
 and tediousness ; and the particulars shall come on the other side. (^2^) Thus, 
 when a man is bound to perform all the covenants in an indenture, if they 
 
 (a) 2 Bos. & Pul. 427 ; and see 2 Chit. Rep. 303. 2 Barn. & Cres. 477. 3 Dowl. & Ryl. 
 647, S. C. 
 
 (b) 2 Chit. Rep. 303. 2 Barn. & Cres. 477. 3 Dowl. & Rvl. 647, S. C. 
 
 (c) 1 Salk. 179. 80. Gilb. C. P. 155, 157. Willes, 480. 1 H. Blac. 645. 1 Bos. & Pul. 
 411; and see 1 Wms. Saund. 5 Ed. 28, (3). 1 Chit. Rep. 132, (a). 1 Barn. & Cres. 465, 6, 
 7. 2 Dowl. & Ryl. 471, 2, 3, S. C. 1 Moore & P. 102. 4 Bing. 428, S. C. 
 
 (dd) Co. Lit. 304, a. Staph. PI. 264, &c. ; but see 1 Moore & P. 102. 4 Bing. 428, S. C. 
 
 (ee) Co. Lit. 303, a. Steph. PI. 342, &c. And as to certainty o{ place, see Steph. PI. 
 297, &c. ; certainty of time. Id. 311, &c. ; quantity, quality, and value. Id. 314, &c. ; and the 
 names of persons. Id. 319, &c. 
 
 (f) Co. Lit. 303, b. Steph. PI. 380, 81. (ffff) Co. Lit. 303, b. Steph. PI. 357, &c. 
 
 (hh) For the cases on this subject, see 2 Wms. Saund. 5 Ed. 305, a. (13). 
 
 (i) Co. Lit. 303, a. Steph. PI. 374, &c. 
 
 (k) Co. Lit. 303, a, 304, a. Hob. 295. Steph. PI. 384, &c. 
 
 (/) Co. Lit. 303, b. 9 Co. 24, 5. 1 Marsh. 207. 
 
 (m) Plob. 295 ; and see Steph. PL 444, &c. (n) Co. Lit. 303, b. 
 
 (0) Id. Ibid. Steph. PI. 417, &c. And for the several cases that iUustrate the above rules, 
 see Com. Dig. tit. Pleader, (E.) &c. 1 Chit. PI. 4 Ed. 451, &c., 463, &c. 
 
 (p) Co. Lit. 303, b. 
 
 V. Shelton, 7 Mis. 237. Adams v. itMillan, 7 Port. 73. Smalley v. Anderson, 2 Monr. 56. 
 Tappan \. Prescott, 9 N. Hamp. 531. Latin v. Vail, 17 Wend. 188. Betile v. Wilso7i, 14 
 Ohio, 257. Grifith v. Fishchill, 4 Blackf. 427. Foley v. Cou-gill, 5 Blackf. 18. White v. Conover, 
 5 Blackf. 462. Hawk v. Pollard, 6 Blackf. 108. Ilickleri v. Crossjean, 6 Blackf. 351. Desh- 
 ler V. Hodges, 5 Ala. 509. Plant V. Wormager, 5 Blackf. 236. Rust v. Smith, 5 Blackf. 352.
 
 OF THE PLEA, AND NOTICE OF SET-OFF. 661 
 
 are all in the affirmative, he may plead performance generally : but if any 
 are in the negative, to so many he must plead specially, (for a negative 
 cannot be performed,) and generally to the rest. So, if any arc 
 *in the disjunctive, he must show which of them he hath per- [ *662 ] 
 formed :[a) And if any are to be done of record, he must show the 
 performance of those specially, and cannot involve them in general pleading. 
 In setting forth a title, general estates in fee simple may be generally 
 alleged ; but the commencement of estates tail, and other particular estates, 
 must regularly be shoAvn, unless in some cases where they are alleged by 
 way of inducement :(^>) and the life of tenant in tail, or for life, ought to 
 be averred. (c) 
 
 Every plea ought to have its proper conclusion :(d) When the general 
 issue is pleaded, or the defendant simply denies some material fact alleged 
 in the declaration, he should conclude his plea by putting himself upon the 
 countr}'' :[r) but where the plea advances new matter in the affirmative, the 
 defendant should conclude it with an averment, or verification and prayer 
 of judgment si actio : or, in other words, by professing himself ready to 
 verify the plea, and praying judgment, if the plaintift" ought to have or 
 maintain his action against him. An avowry however, wherein the de- 
 fendant is an actor, and which is the nature of a count, need not be 
 averred ;(/) nor pleas which are merely in the negative, because a nega- 
 tive cannot be proved. When a judgment, or other matter of record, is 
 pleaded, the plea should conclude with a verification hy the record: And 
 where in deht^ the matter of the plea shows that there never was a good 
 cause of action, as in debt on bond against an heir, who pleads riens per 
 discent, the defendant, instead of concluding that the plaintiff ought not to 
 have his action, may conclude that he (the defendant,) ought not to be 
 charged with the debt, by virtue of the writing obligatory.(^) In an action 
 of debt, the defendant, in pleading a tender, ought to conclude his plea, by 
 praying judgment if the plaintiff ought to have or maintain his action, to 
 recover any damages against him ; for in this action, the debt is the prin- 
 cipal, and the damages are only accessary : but in assumpsit, the damages 
 are the principal ; and therefore, in pleading a tender, the defendant ought 
 to conclude his plea, with a prayer of judgment, if the plaintift' ought to 
 have or maintain his action, to recover any more or greater damages than 
 the sum tendered, or any damages by reason of the non-payment thercof.(/i) 
 In pleading matter of estoppel, the defendant in his conclusion ought to 
 rely upon it.{i) 
 
 As the defence, in actions upon contracts, frequently consist in setting 
 off mutual debt8,[A] it may here be proper to consider the doctrine of set- 
 fa) Co. Lit. 30.^, b. 
 h) Id. Ibid. Stcpb. PI. 327, kc. Ante, 442. 
 
 (c) Co. Lit. 303, b ; but see 1 Wms. Saund. 5 Ed. 235, (8,) as to the difference between 
 tenant for life and tenant in taiL 
 
 (d) Co. Lit. 303, b ; and see 1 Chit. PL 474, Ac. Stcph. PL 392, &c., 436, &c. And as 
 to the mode of entitling? pleadings, see Id. 442, &c. 
 
 (e) 2 Wni.=i. Saund. .^i Ed. 337, (1). (f) Co. Lit. 303, a. (ff) 2 Salk. 516. 
 (h) Id. 622, 3. 1 Ld. Raym. 254, S. C. Willes, 13. {i) Co. Lit. 303, b. 
 
 [a] Demands, to be set off, must be mutual and connected, and due in the same right. 
 Paine v. Whitbridge^ 1 M'Cord, 7. Uurlbui v. Ins. Co., 2 Sumner, 471. Shepard\. Turner,
 
 QQ2 OF THE PLEA, AND 
 
 off: and in what cases it must be pleaded, or may be given in evidence 
 under the general issue : and in the latter case, the notice of set-off. 
 
 *At common law, if the plaintiff was indebted to the defendant 
 [ *663 ] in as much, or even more than the defendant owed to him, yet he 
 had no method of striking a balance : the only way of obtaining 
 relief was by going into a court of equity, (a) To remedy this inconve- 
 nience, it was enacted by the statute 2 Geo. II. c. 22, § 13, that " where 
 there are mutual debts between the plaintiff and defendant, or, if either 
 party sue or be sued as executor or administrator, where there are mutual 
 debts between the testator or intestate and either party, one debt may be 
 set against the other ; and such matter may be given in evidence upon the 
 general issue, or pleaded in bar, as the nature of the case shall require ; 
 so as at the time of pleading the general issue, where any such debt of the 
 plaintiff, his testator or intestate, is intended to be insisted on in evidence, 
 notice shall be given of the particular sum or debt so intended to be in- 
 sisted on, and upon what account it became due ; or otherwise such matter 
 shall not be allowed in evidence upon the general issue." This clause was 
 made perpetual by the 8 Geo. II. c. 24, § 4 : and it having been doubted, 
 whether mutual debts of a differerit nature could be set against each other, 
 it was by the last-mentioned statutefi) further enacted and declared, that 
 "by virtue of the said clause, mutual debts maybe set against each other, 
 either by being pleaded in bar, or given in evidence on the general issue, 
 in the manner therein mentioned, notwithstanding that such debts are 
 deemed in law to be of a different nature ; unless in cases where either of 
 the said debts shall accrue by reason of a penalty, contained in any bond 
 or specialty ; and in all cases, where either the debt for which the action 
 hath been or shall be brought, or the debt intended to be set against the 
 same, hath accrued, or shall accrue, by reason of any such penalty, the debt 
 intended to be set off shall be pleaded in bar ; in which plea shall be shown, 
 how much is truly and justly due on either side : and in case the plaintiff 
 shall recover in any such action or suit, judgment shall be entered for no 
 more than shall appear to be truly and justly due to him, after one debt 
 being set against the other as aforesaid. "(c?) If an account has been settled, 
 and balance struck between the parties, it may be given in evidence on the 
 general issue ; but a defendant cannot reduce a plaintiff's demand for 
 goods sold, by producing a debtor and creditor account, in the hand- 
 writing of the plaintiff's clerk, showing goods to have been sold by de- 
 fendant to plaintiff, unless he has pleaded or given a notice of set-off.(c?) 
 
 (a) 2 Bur. 820. 2 Ken. 530, S.C. 4 Bur. 2220. (*) I 5. 
 
 (c) The day after the last act passed, Lord HardwicTce, Ch. J., delivered the opinion of the 
 court of King's Bench, that a debt by simple contract might, by the former act, have been 
 set off against a specialty debt. Brown ^ Holyoak, 8 Geo. II. Bui. Ni. Pri. 179. Willes, 
 262, 3. 2 Blac. Rep. 871. {d) 1 Car. & P. 133. 
 
 3 M'Cord, 249. Gregg v. James^ Breese, 107. ArKinney v. Bellows, 3 Blackf 31. Scott v. 
 Rivers, 1 Stew. & Port. 19. Darrock v. Hay, 2 Yeates, 208. 3forrison v. Furnham, 1 A. K. 
 Marsh. 41. And between the same parties. Wain v. Wilkins, 4 Yeates, 461. Warner v. 
 Barker, 3 Wend. 400. And the debts must be due to and from the same persons in the same 
 capacity. Pitkin v. Pitkin, 8 Conn. 325. Thus a joint debt cannot be set off against a sepa- 
 rate delDt, nor a separate debt against a joint debt. Bibb v. Saunders, 2 Bibb, 86. Blanks v. 
 Smith, Peck, 186. McDowell v. Tyson, 14 S. & R. 300. Porter v. Neckervis, 4 Rand, 359. 
 Howe V. Shcppard, 2 Sumner, 409. Walker v. Leighton, 11 Mass. 140. Woods v. Carlisle, 6 N. 
 Hamp. 27. Stewart v. Coulter, 12 S. &. R. 252. Neither can a debt due from an individual 
 partner be set off against a partnership demand. Scott v. Trent, 1 Wash. 77. White v. Union 
 Ins. Co. 1 N. & M. 556. Brown v. Thompson, Coxe, 2. Richie v. Moore, 5 Munf. 388.
 
 NOTICE OF SET-OFF. 063 
 
 The actions in whicli a s5ct-ofr is allowable upon tliesc statutes arc dehty 
 covenant, and assumpsit for the non-payment of money ; and the demand 
 intended to bo set off must be liquidated, (^')[a] and such as might 
 have been *made the subject of one or other of these actions. A [ *664 ] 
 set-oiT therefore is never allowed in actions of trespass, or upon 
 the case : nor in debt on bond conditioned for the performance of the cove- 
 nants,(a) &c. ; nor in covenant, or assumpsit, for general damages :{b) 
 And a penalty,(6') or uncertain damages, (fW) cannot be made the subject of 
 a set-oft* But where a ])ond is conditioned for the payment of an an- 
 nuit3',(('6') or of liquidated damages,(/) a set-oft" may be allowed : And a 
 judgment may be pleaded by way of set-oft", though a Avrit of error be 
 pending thereon. ((/) The statutes of set-oft" do not extend to an action of 
 replevin.{]i) But to an avowry or cognizance for rent, the plaintift" in re- 
 plevin may plead in bar the payment of ground rent,(/') or of an annuity 
 charged on the premises ',[k) or of land tax, &c. paid for the same, after 
 the rent distrained for had become due, or whilst it was accruing; though 
 any previous payment of land tax, &c. cannot be pleaded in bar of an 
 avowry or cognizance for rent subsequently due.(?) In assumpsit for goods 
 
 (e) Pcakc's Cas. Ni. Pri. 3 Ed 56 ; and see fd. 57, («), and the cases there cited. 
 
 (a) Bui. Ni. Pri. 179. Willes, 261. M'Clel. 198. 13 Price, 434, S. C. 
 
 (b) 1 Esp. Rep. 378. 3 Campb. 329. 5 Maule & Sel. 439. 2 Chit. Rep. 161. 5 Barn. & 
 Aid. 93. Aubcr v. Lewis, E. 58 Geo. III. K. B. Man. Dig. tit. Set-Of, A. (b) ; but see 
 
 1 East, 375. 
 
 (c) 2 Bur. 1024. 
 
 (del) I Blac. Rep. 394. 2 Blac. Rep. 910. Cowi). 56. 6 Durnf. k East, 488. 4 Esp. Rep. 
 207. 1 Taunt. 137. M'Clel. 198. 13 Price, 434, S. C. 
 
 (ee) 2 Bur. 820. 2 Ken. 530, S. C. (/) 2 Durnf. & East, 32. 
 
 (ff) Reynolds v. Beerlinff, M. 25 Geo. III. K. B. 3 Durnf. & East, 188, in nods: but see 
 
 2 II. Blac. 372. 
 
 (A) Barnes, 450. Bui. Ni. Pri. 181, S. C. Graham v. Fraine, H. 24 Geo. II. Laycock v. 
 TuffncU, H. 27 Geo. III. K. B. 2 Chit. Rep. 531 ; and see 4 Durnf. & East, 512, (a), S. C. 
 cited. 
 
 {i) 4 Durnf. & East, 511. {k) 6 Taunt. 524. 2 Marsh. 220, S. 0. 
 
 {I) 1 Barn. & Aid. 123. 3 Moore, 278. 1 Bred'. & Bing. 37, S. C. 3 Barn. & Aid. 516 ; 
 and see 4 Moore, 431. 2 Brod. & Bing. 59, S. C. 2 Chit. Rep. 531, (a). M-Clel. 622. 4 
 Bing. 11. 
 
 [a] An unliquidated demand cannot be pleaded in set-ofif. Farquhar v. Collins, 3 A. K. 
 Marsh. 31. Morrison y. JIart, llard'in, 150. M'Kinnn/ v. Bellous, 3 Blackf. 31. Slate V. 
 Welsled, 6 Ilalst. 397. Be Tastett v. Crousillatt, 1 Wasli. C. C. 132. U. States V. Wells, 2 ]b. 
 161. Williams v. Gilchrist, 3 Bibb, 49. Brown v. Cuming, 2 Caines, 33. Tot/lor v. Stout, 
 Coxe, 53. Edwards v. Davis, 1 Halst. 394. Ilorjr; v. Ashe, 1 Hayes, 471. Hepburn v. Ifoag, 
 6 Conn. 613. JfCordv. Williams, 2 Ala.. 11. Woodruff v. Lajlin, 4 Vikc, 521. But unliqui- 
 dated damages may be set off", under the plea of payment, in an action of debt arising from 
 the same transaction. Ilubler v. Tamney, 5 Watts, 51. Neither can an account, barred 
 by the statute of limitations, be sn.-^taincd as a set-off. Gilehrisl v. Williams, 3 A. K. 
 Marsh. 235. Williams v. Gilchrist, 3 Bibb, 49. Turnbull v. Struhccker, 4 M-Cord, 210. Crist 
 V. Garner, 2 Pcnn.syl. 251. Madden v. Madden, 2 Rep. Con. Ct. 350. Jacks v. Moore, 1 
 Ycates, 391. Nor a claim in autre droit, Doylet/ v. Doyley, 2 M'Cord, 185. Neither 
 can a debt due by the plaintiff to one of several obligors, in a liond, be set-off in a suit 
 against all the obligors. Henderson v. Lewui, 9 S. & R. 379. Pitcher v. Patrick, Minor, 321. 
 And, generally siieaking, demand.? can only be set off between parties in the character in 
 which they are sued; therefore, a demand against its clerk cannot be set ofiF against a de- 
 mand due to a corporation. Columbia v. Harrison, 2 Rep. Con. Ct. 213. Neither can a 
 claim against the plaintiff in a representative capacity be set off in a suit brought in an in- 
 dividual capacity. Grew v. Burdilt, 9 Pick. 265. Snow v. Conant, 8 Verm. 30S. Crimmings 
 V. Williams, 5 J. J. Marsh. 384. Barton v. Hoomcs, 1 A. K. Marsh. 19. So it has been held 
 that in an action to recover money received by an officer in his official capacity, a debt due 
 from the plaintiff to the oflicer, in his private capacity, is not a subject of set-off. Prewett 
 y. Marsh, I Stew. & Port. 17. Orclaimsagainstanagent, against a debt due the principal. Wil- 
 son V. Codman, 3 Cranch, 193. Atkinson v. Teasdale, 1 Bay, 299. Godfrey v. Forrest, lb. 300.
 
 QQ^ OF THE PLEA, AND 
 
 sold and delivered, the defendant may set off money due upon the plaintiff's 
 acceptance, of which defendant has become holder since the sale, and before 
 the delivery of the goods, though he has agreed to pay the plaintiff ready 
 money for them.(/?i) But a debt barred by the statute of limitations cannot 
 be set off : and if it be pleaded in bar to the action, the plaintiff may reply 
 the statute of limitations ;(») or if given in evidence on a notice of set-off, 
 it may be objected to at the trial. (o) 
 
 In order to set off a debt, it is necessary that it should have existed at 
 the time of the commencement of the action ;[a] it having been determined, 
 
 (m) 2 Maule. & Sel. 510 ; and see 2 Esp. Rep. 626. 1 East, 375. 8 Moore, 275. 1 Bing. 
 311, S. C. 9 Dowl. & Ryl. 35. (w) 2 Str. 1271. (o) Bui. Ni. Pri. 180. 
 
 [a] a set-ofF can be made only of a demand existing and owned by the defendants at the 
 time of the commencement of the suit. Huling v. Hugg^ 1 Watts & Serg. 418. Cox v. Cooper^ 
 3 Ala. 256. Carfren v. Canavan^ 4 How. Miss. 370. Kelly v. Garrett, 1 Gilman, 649. And 
 the debts must be mutual. Hogg v. Ashe, C. & N. 3. WoffordY. Greenlee, C. & N. 79. Haugh- 
 ton V. Lcary, 3 Dev. & Batt. 21. Cash v. Cash, Geo. Decis. Part I. 97. Buchannan v. Gavi- 
 lle, Ih. 156. See Ante, p. 6G2, [a]. A debt remains mutual as much after verdict as before, 
 and the verdict does not annihilate or extinguish the debt; it only amounts to conclusive 
 evidence of the debt, and the same right exists to set it off after the verdict as before. Bell 
 V. Cogswell, 1 Ashmead, 7. 
 
 Set-off may be pleaded in an action of covenant ; and the plea must contain the requisites 
 of a count in debt. Roebuck v. Tennis, 5 Monr. 82. It is a general rule that, where indebi- 
 tatus assumpsit will lie on a simple contract, the debt due tliereon may be pleaded in set-off. 
 Austin V. Zeland, Mis. 309. 
 
 In Pennsylvania, the doctrine of set-ofFhas been liberally extended by statute, and an un- 
 liquidated cross demand, arising from a distinct and independent contract, may there be set 
 off. Ellmaher v. Franklin Fire Ins. Co., 6 Watts & Serg. 439. So in Illinois, under the 17th 
 section of the Practice Act of Illinois, of 1827, unliquidated damages, arising ex contractu, 
 may be set off in an action of assumpsit. Edwards v. Todd, 1 Scam. 4G2. Kaskaskia Bridge 
 Co. V. Shannon, 1 Gilman, 15. And it has been held in Pennsylvania, that the defendant in 
 an action may set off the excess of interest talcen of him by the plaintiff in a transaction 
 different from that on which the action is brought. Thomas v. Shoemaker, 6 Watts & Serg. 
 179. And damages arising from a breach of warranty of goods sold may be set off in an 
 action on a note given in a different transaction. Phillips v. Lawrence, 6 Watts & Serg. 150. 
 Carman v. Franklin Fire Ins. Co., 6 Watts & Serg. 155. 
 
 " We have gradually enlarged the effect of our act for deflilcation by discarding notions 
 derived from the English statute of set-off, till we have brought it to the line of the enact- 
 ment. There is not a word in the English statute about mutual dealing ; or about being 
 indebted by bonds, bills, bargains, promises, or accounts ; or about the defendant's being 
 unable to gainsay the deed, bargain, or assumption — expressions in ours which indicate an 
 unsettled course of dealing — nor is there any thing in it to show that tjie words, ' mutual 
 debts,' the only descriptive ones contained in it, were not to have their technical effect. In 
 our statute, too, the words ' debt or sum demanded,' seem to have been introduced inten- 
 tionally to enlarge the purview. True it is, that both statutes are susceptible of the same 
 construction without much violence to the words, and that we have been in the habit of 
 receiving English precedents in questions of set-off; but it has seemed that neither justice 
 nor convenience called on us to depart from the obvious and natural meaniug of our own. 
 If an unliquidated cross demand may be set up when it has sprung from the same trans- 
 action — and we have constantly ruled that it ipay — why may it not be set up when it has 
 sprung from a distinct and independent contract ? The confusion inciden* to the trial of dis- 
 tinct issues in the same action is no greater where the demands are independent of each 
 other than where they are connecfed, nor more embarrassing where they are indefinite than 
 where they are liquidated ; nor more complicated where they are set against each other 
 than where they are joined in the same declarations or in consolidated actions. The prac- 
 tical difference between a debt, properly so called, and an indefinite demand of money rest- 
 ing in contract, is more seeming than real. A bond for the payment of a sura certain is strictly 
 a debt, and a subject of set-off; yet to ascertain the amount due on it when reduced, as it 
 sometimes is by failure of consideration, or a variety of causes, is often one of the most diffi- 
 cult duties that can be committed to a jury. When its definite character is so often decep- 
 tive, what better claim has it to be made matter of set-off than a policy of insurance ? The 
 trial of cross demands in the same action saves expense and the vexation of paying out 
 money to get it back at the risk of loosing it by insolvency in the circuit." Per Gibson, C. J., 
 in Ellmaker v. Franklin Ins. Co., 6 Watts & Serg. 444.
 
 NOTICE OF SET-OFF. 664 
 
 that a plea of set-off, stating tliat tlie plaintiff was indebted to the defendant 
 at the time of plea pleaded, is bad.( p) And the debts sued for, and intended 
 to be set off, must be mutual, and due in the same right :{q) therefore, a 
 joint debt cannot be set off against a separate demand, nor a separate debt 
 against a joint one,(r) unless it be so agreed by the parties ;(«) 
 but *debt due to a dcti'iidant as surviving partner, may be set off [ *G65 ] 
 against a <leinand on liiin in his own Yi<^\it,{(i) and vice vcr8('i.{b)\_A'] 
 A policy broker, who makes an insurance in his own name, for the benefit 
 of his principal, and has a del credere commission, may it seems set off the 
 amount of losses and returns of premium, in an action brought against him 
 by an underwriter for premiums. But where the insurance is nuide by the 
 broker in the name of his principal, (c) or he has not a commission del cre- 
 dere,{d) the losses and returns of premium, not being a mutual debt, cannot 
 be made the subject of a set-off. So, if an action b6 brought against a 
 policy broker, by the assignees or executors of an underwriter, for pre- 
 miums, wdicre the insurance was made by the broker in his own name on 
 a del credere commission, the defendant may set off the amount of losses 
 happening and adjusted, or returns of premium becoming due, before the 
 bankruptcy, or in the life-time of the testator.((') But a loss liappening 
 before the bankruptcy cannot be set off, in an action brought by the 
 assignees of an underwriter against a broker, for premiums due to the bank- 
 rupt, where the insurance was made in the name of the assured, and the 
 broker was not intrusted with the policy, though he had a del credere com- 
 mission, and had paid the loss to the assured before the bankruptcy ;(/) 
 nor where the insurance was made by the broker as agent, without a del 
 credere commission, and there had been no adjustment, though the loss took 
 
 (p) 3 Durnf. & East, 186 ; and see 1 Bing. 93. (g) 1 Younge & J. 180. 
 
 (r) 5 Maulc & Sel. 439; and see 7 Barn. & Cres. 217; but see Peake's Cas. Ni. Pri. 3 
 Ed. 260. 2 Esp. Rep. 469, 594. 
 
 (s) 2 Taunt. 170. (a) 5 Durnf. & East. 493. 1 Esp. Rep. 47. 
 
 (b) 6 Durnf. & East, 582; and see 2 Durnf. & East, 476. 
 
 (c) 1 Maulc & Sel. 494. 2 Maule & Sel. 112 ; and see 4 Taunt. 242. 4 Maule & Sel. 56C. 
 7 Taunt. 478. 
 
 (d) WilKon and others, as.tiffnee.i, v. Creighton and others, M. 23 Geo. III. K. B. Marsh. 
 Insur. 1 Ed. p. 204. 16 East, 382. 
 
 (e) 1 Durnf. & East, 115, 285. 2 Campb. 586; and see 12 East, 507. 4 Taunt. 584. 6 
 Taunt. 448. 2 Marsh. 138, S. C. 
 
 (/) 7 Taunt. 478. 1 Moore, 178, S. C. 
 
 [a] a claim to be set off at law, niu.st be a claim at law and not in e(iuity. Gilchrist v. 
 Leonard, 2 Bailey, 135; and of like character, thus, a note cannot be set off against a judg- 
 ment. Jiaffff V. Jefferson, Com. Pleas, 10 Wend. 615. Or a note given after notice of an 
 assignment, though for a preexisting liability, cannot be the subject of set-off. Weeks v. 
 Hunt, 6 Verm. 15. A judgment recovered by A. against B. and C, may be set off by a judg- 
 ment recovered by B. against A. Jfiilchins v. Kiddle, 12 N. Ilamp. 464. And the court ma^-, 
 in its discretion, stay the entry of judgment in the action in favor of B. against A., to enable 
 the latter to obtain judgment on his demand against B. and C, for the purpose of making a 
 set-off. lb. To enable one to set off one judgment against another on motion, he must bu 
 the absolute owner of the judgment in iiis own right. Mason v. Knoul.ion, I Hill, 218. 
 
 In general, set-offs are not admissible in the admiralty. Ship Mentor, 4 .Mason, 84. Courts 
 of admiralty do not take notice of set-offs, except so far as they grow out of a maritime con- 
 tract submitted to their cognizance, and these principles, byway of diminishing compensa- 
 tion, and not as an independent right. Willard v. Dorr, 3 Mason, 161. Nor is set-off allow- 
 able on a libel for seamens' wages, except a payment on account thereof. Baines v. Schooner 
 James, 1 Bald. 544. Neither is it allowable in replevin ; but the tenant may prove that the 
 landlord did not comply with his contract. Fairman v. Utick, 5 Watts, 516. Or against any 
 one other than the plaintiff on the record. Johnson v. Bridge, 6 Cow. 693. Grigg v. James, 
 Breese, 107.
 
 QQ^ OF THE PLEA, AND 
 
 place before the bankruptcy, and though the policy had always remained 
 in the hands of the broker, and he had actually paid the amount of the loss 
 to his principal. ((/) And a broker who is indebted to the assignees of a 
 bankrupt, for premiums due to them upon policies subscribed by the bank- 
 rupt before his bankruptcy, is not entitled to set off returns of premium 
 due upon the arrival of ships after the bankruptcy. (7i) So, in an action 
 by the executors of an underwriter against a broker for premiums due on 
 policies subscribed by the testator, the defendant cannot set off returns of 
 premium which became due after the testator's death :(^) and it makes no 
 difference in this respect, that the policies were effected under a del credere 
 commission. (A;) A broker having adjusted a loss with an underwriter, and 
 struck his name out of the policy and adjustment, after which he became 
 bankrupt within the usual time of credit, it was holden that the underwriter 
 could not set off against the assured, the balance due to him from the broker, 
 
 at the time of adjusting the loss on the policy. (Z) *And where 
 [ *QQQ ] the defendant purchased as broker for B., the goods of A., for 
 
 whom he sold them under a del credere commission, and did not 
 disclose at the time the name of A., but disclosed it soon after, and paid 
 A. the price of the goods, without any directions from B., the court held, 
 that in an action by the assignees of B., to recover the balance due upon 
 a resale of the goods, made by the defendant on account of B., the de- 
 fendant was not entitled to set off the money paid to A., either under the 
 statute 2 Geo. II., c. 22, § 13, or 5 Geo. II. c. 30, § 28.(a) ^ 
 
 In an action of debt against a man on his own bond, he is not allowed 
 to set off a debt due to him in right of his wife :{b) And a debt owing by 
 the wife duni sola cannot be set off in an action brought by the husband 
 alone, unless he has promised to pay the debt after marriage, and thereby 
 made it his own.(c) Neither, for the same reason, can a defendant, sued as 
 executor or administrator, set off a debt due to himself personally ; nor, if 
 sued for his own debt, can he set off what is due to him as executor or 
 administrator : And where an executor sues for a cause of action arising 
 after the testator's death, the defendant cannot set off a debt due to him 
 from the testator. (c?) The defendant cannot plead by way of set-off, a 
 bond debt of the plaintiff, assigned to the defendant by another, to whom 
 and for whose use it was originally given. (c) And one partner cannot set 
 off a debt due to him from another, on the partnership account, unless a 
 final balance has been struck, and agreed to between the parties.(/) But 
 where an action is brought by or against a trustee, a set-off may be made 
 of money due to or from the cestui que trusft.[gg) And where goods be- 
 longing partly to A. and partly to B. were put up to auction at A.'s house, 
 having been entered at the excise in A.'s name, and the catalogue stated 
 them to be all the property of A., and C, being a creditor of A., pur- 
 
 {g) 4 Campb. 396. 6 Taunt. 519. 2 Marsh. 215, S. C. [h) 4 Taunt. 534 
 
 (?) 6 Taunt. 448. 2 Marsh. 138. Holt Ni. Pri. 88, S. C. 
 
 (/c) 6 Taunt. 451. 2 Marsh. 141, S. C. Holt Ni. Pri. 89, n. 
 
 (l) 3 Stak. Ni. Pri. 16. («) 4 Manle & Sel. 566. 
 
 [b) Bui. Ni. Pri. 179. (c) 2 Esp. Rep. 594. 
 
 {d) Willes, 103. Cas. Pr. C. P. 151. Pr. Reg. 268, S. C. ; and see Willes, 106, (1) 
 264, (a). Bui. Ni. Pri. 180. 
 
 (e) IG East, 36. (/) 2 Bing. ITO. 9 Moore, 319, S. C. 
 
 (OC/) 1 Durnf. & East, 622 ; and see Willes, 400. 2 Esp. Rep. 557. 7 Durnf. & East, 359, 
 S. G. 2 Chit. Rep. 387. 7 Taunt. 243. 2 Marsh. 501, S. C. 4 Barn. & Cres. 547. 7 Dowl. 
 & Ryl. 42, S. C.
 
 NOTICE OF SET-OFF. 666 
 
 chased several of the articles, without hcing informed that part of them 
 were the property of B., it was holden that, under these circumstances, 
 the purchaser was entitled to set off, in an action brought by the auctioneer, 
 the debt due to him from A.(7t) It was formerly holden, that a set-off 
 could not be allowed, as against the assignees of a bankrupt ;(/) but it has 
 since been determined that, in an action at their suit, the defendant may 
 set off a debt due to him at the time of the bankruptcy :{/c) And where an 
 insured, being indebted to the underwriter on a balance of accounts, be- 
 comes bankrupt, if a loss afterwards happen, the underwi-iter, in an action 
 by the assignees, may deduct the balance due to him, from the 
 amount of his *subscription.(a«) So, a sale of the property of a [ *G67 ] 
 bankrupt after an act of bankruptcy, but more than two months 
 before the commission issued, is since the 46 Geo. III. c. 135, § 1, a sale 
 by the bankrupt, and not by the assignee ; and a creditor of the bankrupt 
 having become a purchaser, was holden, in an action brought by the 
 assignee for the value of the goods, to be entitled to set off against such 
 claim, the debt due to him from the bankrupt ; this constituting a mutual 
 credit between the bankrupt and such creditor, within the meaning of the 
 above statute.(^i) But a note indorsed to the defendant, after the bank- 
 ruptcy, cannot be set off;(<?) nor cash notes issued by the bankrupt before 
 his bankruptcy, and payable to bearer, unless the defendant show further, 
 that such notes came to his hands before the bankruptcy.(t^ To enable 
 the holder of a bankrupt's acceptances to avail himself of them, in an 
 action by the assignees against himself on his own acceptance, he must 
 clearly prove, either that the obligation to pay the bankrupt's acceptances 
 subsisted before the bankruptcy, to bring the case within the ordinary law 
 of set-off, or that there was some connection in the origin of the transac- 
 tion, to bring it within the cases of mutual credit.(c) 
 
 When either of the debts accrues by reason of a penalty, the debt 
 intended to be set off must be pleaded in bar ; and the defendant in his 
 plea, must aver what is really due :(/) Avliich averment has been holden 
 to be traversable,(^) though laid under a videlicct.{Jih) But in all other 
 cases, the defendant may either plead or give notice of set-off, at his elec- 
 tion. (li) And where, to debt on bond, the defendant pleaded a set-off, and 
 that 1100?. was due and no more, and the plaintiff replied generally, that 
 a larger sum was due, to wit, the sum of 1750?., it was ruled, that the 
 plaintiff was bound to prove that more than 1100?. Avas due. (Ztj^) If, at the 
 time of the action brought, a larger sum was due from the plaintiff to the 
 defendant, than from him to the plaintiff, the action being barred, it seems 
 more proper to plead the set-off; and it is usually pleaded in country 
 causes, to save the trouble and expense of proving the service of a notice. 
 But where the sum intended to be set off is less than that for which the 
 
 (A) 7 Taunt. 243. 2 Marsh. 501, S. C. (i) 1 Wils. 155. 
 
 \k) Cowp. 133 ; and sec the statutes 5 Geo. II. c. 30, \ 28. 4G Geo. III. c. 135, ? 3. 6 
 Geo. IV. c. 16, § 50. Holt Ni. Pri. 408. 6 Dowl. & Ryl. 312. 5 Barn. & Crcs. 141. 7 Dowl. 
 & Rvl. 539, S. C. 
 
 {aa) 2 Marsh. 5G1. 5 Maule k Sel. 498. 3 Price, 227, S. C. ; but see 4 Taunt. 775, contra. 
 
 \bb) ^ 3. 1 Barn. & Aid. 471 ; and see 2 Chit. Rep. 387. Stat. 6 Geo. IV. c. IG, \ 50. 
 
 (c) 2 Str. 1234. [d) 6 Durnf. & East, 57. 
 
 (<•) 4 Taunt. 888 ; and see G Taunt. 517. 2 Marsh. 209, S. C. 6 Ham. & Cres. 42. 
 
 (/) Stat. 8 Geo. II. c. 24, § 5. (g) 3 Durnf. & East, 65. 
 
 (hh) 6 Durnf. & East, 4C0. («i) 2 Bur. 1231. Bui. Ni. Pri. 179. 
 
 {kk) Holt Ni. Pri. 293.
 
 QQ>j OF NOTICE TO ASSIGNEES, ETC. 
 
 action is brought, a notice of set-off should be given. (?) A notice of set- 
 off can only be given when the general issue is pleaded, without any other 
 plea.(m) And the plea of non est factum, in covenant for non-payment 
 of rent, is not considered as a general issue, under which the defendant 
 can give a notice of set-off: for in covenant there is, properly speaking, 
 no general issue ;(7«.) and if a verdict Avere found thereon for the 
 [ *668 ] plaintiff, there *Avould be no means, in entering up the judgment, 
 of setting off the debt due to the defendant, (a) 
 
 The notice of set-off should regularly be given with, or at the time of 
 pleading the general issue :{b) Though if it be not then given, the court, 
 on motion, will give the defendant leave to withdraw the general issue, and 
 plead it again with a notice of set-off :(cc) and such notice may be given 
 with the general issue, after the defendant has been ruled to abide by his 
 plea.(c?t^) In point of form, a notice of set-off should be almost as certain 
 as a declaration : therefore, where the notice of set-off was in these words, 
 " Take notice that you are indebted to me, for the use and occupation of 
 an house, for a long time held and enjoyed, and now lately elapsed;" it 
 was deemed insufficient :{ee) and it afterwards appearing, that the debt 
 intended to have been set off was rent reserved on a lease by indenture, 
 which was not mentioned in the notice, the chief justice said it was bad on 
 that account also ; for if this had been shown, the plaintiff might probably 
 have proved an eviction, or some other matter to avoid the demand. (/) 
 The notice of set-off is usually written under the plea, and delivered there- 
 with to the plaintiff's attorney ; and a copy of the notice should be kept 
 by the defendant's attorney, it being necessary to prove the delivery of it 
 at the trial of the cause. (^) 
 
 When the defendant has a set-off against the plaintiff, of which he gives 
 notice, but does not appear at the trial to offer evidence in support of it, the 
 plaintiff may either take a verdict for the whole sum he proves to be due 
 to him, subject to be reduced to the sum really due on a balance of accounts, 
 if the defendant will afterwards enter into a rule not to sue for the debt 
 intended to be set off; or, it is said he may take a verdict for the 
 smaller sum, with a special indorsement on the jwstea, as a foundation for 
 the court to order a stay of proceedings, if another action should be brought 
 for the amount of the set-off. (A) 
 
 It is sometimes necessary, in actions brought by or against the assignees 
 of a bankrupt, for the other party to give a notice in writing, of his inten- 
 tion to dispute the petitioning creditor's debt, trading, or act of bankruptcy ; 
 it being enacted, by the statute 6 Geo. IV. c. 16, § 90, that " in any action 
 
 (l) Bui. Ni. Pri. 179 ; but see Lawes, on Pleading, 538. 
 
 («i) Ry. & Mo. A13, per Abbott, Ch. J. ; but see 6 Esp. Rep. 50. 3 Chit. PL 4 Ed. 932, (b), 
 933, (a), contra, 
 (n) Ante, 648. 
 
 (a) 1 Stark. Ni. Pri. 311. 5 Maule & Sel. 164. 2 Chit. Rep. 388, S. C. Sel. Ni. Pri. 6 
 Ed. 535 ; but see Bui. Ni. Pri. 181, se7nb. contra. 
 
 (b) Append. Chap. XXVII. § 7. (cc) 2 Str. 1267. 
 (dd) 1 Durnf. & East, 693, 4, in iiotis. 
 
 \ee) Bui. Ni. Pri. 179. But note, this was before the stat. 11 Geo. II. c. 19, which gives 
 the action for use and occupation. 
 
 (f) And see 2 Esp. Rep. 560, 569. 
 
 \g) 1 Cromp. 3 Ed. 156. And see further as to the notice of set off, Lawes, on Pleading 
 Chap. XVI. p. 535, &c., and as to ihe plea of set-off, and the replications thereto. Id. Chap. 
 XX. p. 769, &c. 
 
 {h) 1 Campb. 252 ; and see 1 Chit. Rep. 178.
 
 OF NOTICE TO ASSIGNEES, ETC. 668 
 
 by or against any assignee, or in any action against any commissioner, or 
 person acting under tlie warrant of the commissioners, for any thing done 
 as such commissioner, or under such Avarrant, no proof shall be re<[uired, 
 at the trial, of the petitioning creditor's debt or debts, or of the trading, 
 act or acts of bankruptcy respectively, unless the other party in 
 such action shall, if defendant, at *or before plcadaig, and, if [ *GG9 ] 
 plaintiff, before issue joined, give notice in writing to such 
 assignee, commissioner or other person, that he intends to dispute some 
 and which of such matters ;(a) and in case such notice shall have been 
 given, if such assignee, commissioner or other person, shall prove the matter 
 so disputed, or the other party admit the same, the judge before whom the 
 cause shall be tried may (if he think fit,) grant a certificate of such proof 
 or admission ; and such assignee, commissioner or other person, shall be 
 entitled to the costs, to be taxed by the proper officer, occasioned by such 
 notice ; and such costs shall, if such assignee, commissioner or other person, 
 shall obtain a verdict, be added to the costs ; and if the other party shall 
 obtain a verdict, shall be deducted from the costs, which such other party 
 would otherwise be entitled to receive from such assignee, commissioner or 
 other person. "(5) And by § 92, of the same statute, " if the bankrupt shall 
 not (if he was within the united kingdom at the issuing of the commission,) 
 within two calendar months after the adjudication, or, if he was out of the 
 united kingdom,) within twelve calendar months after the adjudication, have 
 given notice of his intention to dispute the commission, and have proceeded 
 therein with due diligence, the depositions taken before the commissioners, 
 at the time of or previous to the adjudication, of the petitioning creditor's 
 debt or debts, and of the trading, and act or acts of bankruptcy, shall be 
 conclusive evidence of the matters therein respectively contained, in all 
 actions at law or suits in equity, brought by the assignees, for any debt or 
 demand for which the bankrupt might have sustained any action or suit." 
 Where the defendant, in an action brought by the assignee of a bank- 
 rupt, intends to dispute the trading, petitioning creditor's debt, or act of 
 bankruptcy, the notice should specify which of these matters it is intended 
 to dispute ; it not being sufficient to give a general notice, that he intends 
 to dispute the ban'kruptcrj.[e) In a previous case, arising upon the statute 
 49 Geo. III. c. 121, § 10, where the general issue had been pleaded before 
 the passing of that act, it was deemed unnecessary for the plaintiff to prove 
 the petitioning creditor's debt, trading, or act of bankruptcy ; but a judge, 
 under these circumstances, would have given the defendant leave to with- 
 draw his plea, and plead it de novo, with the notice required by the act. ((f) 
 So, in a case which occurred after the passing of that act, where a defend- 
 ant, in an action by the assignees of a bankrupt, pleaded the general issue, 
 without giving notice of his intention to dispute the bankruptcy, but before 
 the time for pleading had expired, delivered the general issue again, with 
 notice of his intention, such notice was deemed insufficient :[e) The de- 
 fendant in such case ought to have moved for leave to withdraw his plea, 
 kc.{e) And a notice by the plaintifi', of his intention to dispute 
 the act of bankruptcy, served at the *same time the issue is de- [ *GTO ] 
 livered, with notice of trial on the back of it, is not sufficient : 
 
 {a\ For the forms of notices on this statute, see Append. Chap. XXVII. ^ 8, 9, 10. 
 \b) And see stat. 49 Geo. III. c. 121, g 10. (c) 6 Barn. & Cres. 537. 
 
 (d) 2 Campb. 184 ; and see id. 325. Wightw. 80. 6 Moore, 489. 
 \e) 1 Stark. Ni. Pri. 328. 
 
 Vol. I.
 
 Q*JQ OF NOTICE TO ASSIGNEES, ETC. 
 
 It must be given before issue joined. (a) The notice may be served on the 
 assi<2;nce, by delivery to his attorney :(i) but service of the notice, by leaving 
 it M'ith a maid servant at the dwelling house of the assignee, is not suffi- 
 cient. (^>) And the notice given by a defendant is not to be considered as 
 part of his regular evidence in the cause ; but may be proved at the begin- 
 ning of the trial, and immediately puts the plaintiff upon strict proof of the 
 trading, petitioning creditor's debt, or act of bankruptcy. (cc) 
 
 In an action of tresjjass, brought by a bankrupt against his assignees, 
 to try the validity of the commission, (tZt^) or in trover by a third person 
 against the assignees, (ee;) although they are not named as assignees on the 
 record, if the plaintiff do not give any notice of his intention to dispute the 
 petitioning creditor's debt, &c., the commission and proceedings under it are 
 primd facie evidence for the defendant, to prove the trading, petitioning 
 creditor's debt, and act of bankruptcy ; though the plaintiff may notwith- 
 standing call witnesses to contradict the depositions respecting them.(/) 
 So, in an action of ty-espass, against the assignees of a bankrupt and their 
 servants, the proceedings may be read in evidence, where no notice has 
 been given under the statute, of the plaintiff's intention to dispute the bank- 
 ruptcy, although there are other defendants on the record, besides the 
 assignees -.{g) And where the defendant, in an action at the suit of the 
 assignee of a bankrupt, for the balance of an account, had attended a 
 meeting of the commissioners, and exhibited the account between him and 
 the bankrupt, and afterwards made a part payment to the plaintiff on that 
 account; the court held, that this was j9/'ma/acze evidence, as against the 
 defendant, that the plaintiff was assignee, and that it was not necessary to 
 produce the proceedings under the commission, the defendant not having 
 given notice of his intention to dispute the bankruptcy. (7i) But where the 
 assignees are no parties to the record, and their title only incidentally 
 comes in question in the course of the defence, it must be proved in the 
 same manner as before the statute ; although no notice of contesting the 
 bankruptcy has been given by the opposite party -.{i) And the defendant, 
 though he has not given notice that he intends to dispute the proceedings 
 under the commission, may nevertheless give evidence to disprove the act 
 of bankruptcy. (y<;) 
 
 If no notice be given by the opposite party, that the validity of the 
 commission is meant to be disputed, the petitioning creditor's debt is held 
 to be sufficiently proved, by the deposition of the petitioning creditor him- 
 self before the commissioners.(?) So, in an action fot goods sold and 
 delivered, brought by the assignees of A., against whom a com- 
 [ *671 ] mission *of bankruptcy issued, on the petition of certain persons 
 who alleged that a debt was due to them as assignees of B., a 
 bankrupt ; the court held that the petitioning creditor's debt was suffi- 
 ciently proved by the production of the proceedings under the commission, 
 no notice of an intention to dispute it having been given ; and that it was 
 not incumbent on the plaintiffs to give any other evidence, that the peti- 
 tioning creditors were the assignees of B.(aa) And where, upon the trial 
 
 (a) 4 Campb. 207, 
 
 (6) 3 Taunt. 526. {cc) 2 Campb. 324. 
 
 {dd) 3 Campb. 251. 4 Campb. 207. {ce) Gow, 24. 
 
 (/) 3 Campb. 424. {g) 2 Stark. Ni. Pri. 182. 
 
 {h) 1 Barn. & Aid. 677. (0 4 Taunt. 741. 
 
 {k) 2 Maule & Sel. 556. Holt. Ni. Pri, 190. \l) 2 Campb. 493. 
 
 {aa) 2 Barn. & Cres. 560. 4 Dowl. & Ryl. 37, S. C.
 
 OF DELWERIXG THE GENERAL ISSUE, ETC. C71 
 
 of an action o^ trcsjjass, in -vvliicli tlic defendant justified under a commission 
 of bankrupt issued against the plaintiil', no notice having lieen given to dis- 
 pute the connnission, "which was put in, with the proceedings under it, 
 and a perfect petitioning creditor's debt did not apjiear upon the jiroceed- 
 ings ; the court of Common Pleas nevertheless held, that the validity of 
 the commission could not be disputed :{b) But in order to make the 
 depositions evidence of the petitioning creditor's debt, where no notice 
 has been given, it ought to appear therefrom that the debt was due at the 
 time of the act of bankruptcy. (t*) And a deposition, stating that the bank- 
 rupt absented himself, and admitted that he did so for the purpose of 
 avoiding his creditors, but not specifying the time of such admission, is 
 not jJfimd facie evidence to prove the act of bankruptcy.(tZ) In an action 
 by a bankrupt against his assignees, to try the validity of the commission, 
 where notice is given only to dispute the act of bankruptcy, and the de- 
 fendants read the two depositions on the file of the proceedings, which 
 prove the trading and petitioning creditor's debt, the residue of the pro- 
 ceedings are not to be considered in evidence, and the plaintiff's counsel 
 has no right to inspect them.(c') AVhcn the assignees of a bankrupt are 
 nonsuited, they are not entitled, under the above acts, to the costs of 
 proving, after notice, the petitioning creditor's debt, trading, and act of 
 bankruptcy. (/) 
 
 The general issue is delivered, in the King's Bench, to the plaintiff's 
 attorney, or entered in the general issue book, kept by the clerk of the 
 judgments ;{fj) and need not be signed by counsel. There arc also certain 
 common pleas in that court, which need not be so signed ; such as j^lcne 
 achninistravit, bankruptcy in the defendant, (/i) a special nan est factum, 
 solvit ad diem,{i) comiyeruit ad diem to a bail bond,(^) or nul tiel record 
 to an action on a judgment or recognizance; in covenant, when the plea 
 concludes to the country ; and in trespass, son assault demesne, lihcriim. 
 tenementum, or not guilty to a new assignment. These pleas must be 
 delivered to the plaintiff's attorney ; and not entered in the general issue 
 book, or filed in the office of the clerk of the papers : and if they be so 
 entered or filed, the plaintiff is not bound to notice them, but 
 may sign *judgment as for want of a plea.(a) So, a general [ *672 ] 
 demurrer to part of a declaration, and the general issue to the 
 rest,(66) or a general demurrer to a plea of nil debet in an action of debt on 
 bond,(c(?) must be delivered to the opposite attorney, and not filed with the 
 clerk of the papers. All pleas and demurrers upon writs of error, scire 
 facias, and audita querela, ought also to be delivered, in the King's 
 Bench -.{dd) and, by a late rule of that court, {ee) pleas cannot be delivered 
 after ten o'clock at night. But, except in the foregoing cases, it is a rule, 
 
 (h) 4 Binp;. 31. (r) 1 Stark. Ni. Tri. 45C. 
 
 \d) Id. 353 ; and see 8 Moore, 53G. 1 r.injr. 420, S. C. 
 
 \e) 4 Camp. 191. (/") 3 .Moore, 601. 1 Bred. & Bing. 2T5, S. C. 
 
 Ig) R. T. 5 & 6 Geo. II. {b), K. B. 1 Chit. Rep. 715. 
 
 {h) G Diirnf. k East, 49G. 1 Chit. Rep. 225. («) 5 Duraf. & East, 661. 
 
 {k) 2 Barn. & Aid. 392. 1 Chit. Rep. 211, S. C. 
 
 (a) 5 Durnf. & East, 661. 2 Barn. & Aid. 392. 1 Chit. Rqi. 211, S. C. Id. 225, R. P. 
 2 Chit. Rep. 295. 
 (bb) 3 Dowl. & Rvl. 243. {cc) 5 Barn. & Cres. 7G6. 8 Dowl. & Rvl. 609, S. C. 
 
 \dd) R. T. 12 W.'lII. (a), K. B. {ee) R. M. 41 Geo. III. K. b'. 1 East, 132.
 
 072 0^ SIGNING AND DELIVERING PLEAS, ETC. 
 
 that all special picas must be signed by counsel ;(/) and filed in the office 
 of the clerk of the papers,(f7) who makes copies of them, if required, for 
 the plaintiff's attorney: And all double pleas must be filed, and not merely 
 delivered to the plaintiff's attorney ; though two pleas be pleaded, which 
 separately need only have been delivered.(7iA) But where an avowry was 
 not filed, but delivered to the plaintiff's attorney, and on demand of plea 
 in bar, and to know if defendant's attorney might sign judgment of non 
 'pros, or whether plaintiff would save that expense, by paying the rent and 
 costs then incurred, plaintiff's attorney told him, he might sign judgment 
 if he pleased, which he accordingly did ; the court, under these circum- 
 stances, discharged the rule for setting aside the judgment w4th costs. (w) 
 
 In the Common Pleas, all pleas, whether general or special, are either 
 delivered to the plaintiff's attorney, or filed with the prothonotaries : The 
 general issue, when delivered to the plaintiff's attorney, must be drawn 
 up at length, in the same manner as when it is filed in the office :(M-) 
 And, except where the defendant appears in person, all pleas must be 
 pleaded in the name of an attorney of this court. (?) The following pleas 
 did not formerly require a Serjeant's hand, viz. comperuit ad diem, son 
 assault demesne, j^lene admiiiistravit, riens per discent, ne unques executor 
 or administrator, 7iul ticl record, per minas, per duress, infra oitatem, 
 and solvit ad diem :{m) But it is now usual to sign all these pleas, except 
 comperuit ad diem, nul tiel record,{n) and solvit ad diem,{o) which are 
 considered as general issues ; and it has been determined, that a plea of 
 non assumpsit infra sex annas, [p) or plea of bankruptcy in the defend- 
 ant,(^) must in this court be signed by a serjeant ; although the 
 [ *673 ] latter plea need not, we have *seen,(a) be signed by counsel in 
 the King's Bench. So, all double pleas are required to be signed 
 by a Serjeant -.[b) and if a plea, which ought to be signed, be delivered or 
 filed without a Serjeant's hand, the plaintiff may sign judgment, as if no 
 plea had been pleaded :(c) And although a defendant conduct his cause in 
 person, yet if he file a special plea, it is a nullity, unless it be signed by a 
 seijeant or counsel. (c?) 
 
 In the King's Bench, the defendant cannot commonly waive the general 
 issue, or a general demurrer, and instead thereof give a special plea or de- 
 mmTer:(e) but it is said, that if the general issue be not entered, the de- 
 fendant may waive it, and plead specially, without leave of the court, in 
 four days;(_^) or, as it should seem, before the adjournment day of the 
 tQxm.,{gg) or within the first five days of the ensuing term -jili) and even after- 
 
 (/) R. E. 18 Car. 11. K. B. 2 Chit. Rep. 319. 1 Car. & P. 95, a. And for the origin and 
 reason of the signature of i^leas by counsel, see 2 Wils. 74. 2 Barn. & Aid. 392. 1 Chit. Rep. 
 211, S. C. 
 
 (g) R. T. 2 Jac. I. rcg. 1. R. T. 16 Car. II. R. M. 2 W. & M., K. B. 
 
 (M) 2 East, 225. 
 
 {ii) Kingsbury v. Vanbergh, E. 22 Geo. III. K. B. 
 
 (M) Cas. Pr.'C. P. 126. Pr. Reg. 306, S. C. Barnes, 239, S. P. 
 
 {I) Barnes, 259. Pr. Reg. 307, S. C. A^ite, 566 ; but see 2 Bos. & Pul. 111. Ante, 91, (b). 
 
 (m) Cas. Pr. C. P. 41. Pr. Reg. 282, 3, S. C. Barnes, 365. 
 
 (n) 2 Blac. Rep. 816 ; but see 2 Wils. 74, contra. 
 
 (o) 5 Durnf. & East, 663 : and see Imp. C. P. 6 Ed. 239. 
 
 (p) Cas. Pr. C. P. 41. ' (q) 3 Bos. & Pul. 171 
 
 (a) Ante, 671. (b) Imp. C. P. 6 Ed. 241. 
 
 (c) Pr. Reg. 282. (d) Id. 3 Bos. & Pul. l7l. 3 Taunt. 386. Ante, 567. 
 
 (e) R. T. 5 & 6 Geo. II. (b), K. B. 1 Wils. 29, in marg. Rich. Pr. K. B. 255. 
 
 (/) 1 Ld. Raym. 674. 3 Salli. 211, 274, S. C. {gg) Say. Rep. 87. 
 
 [h) Prax. utr. Band, 37. R. T. 5 & 6 Geo. II. (6), K. B.
 
 OF FILING AND WAIVING PLEAS, ETC. 673 
 
 "wards, wlicre it is not to the prejudice or delay of the plaintift', tlic defend- 
 ant, bj leave of the court, may withdraw the general issue, in order to 
 plead spccially,(/) or to plead it again, with a notice of 8et-ofF,(A:) or of the 
 defendant's intention to dispute the petitioning cretlitor's debt, &c.,(?) or 
 upon lu'inging money into court. (//«) lUit, on a motion to strike out the 
 plea of the general issue, and file a plea that the jjlaintifl" was convicted of 
 felony, the defendant must produce a certified copy of the record of con- 
 viction, and prove the identity of the party convicted.(;i) In the Common 
 Pleas, the defendant has been allowed, under circumstances, to withdraw 
 a general demurrer, and plead tlie general issue ;(o) or, where no delay or 
 inconvenience Avould arise, to withdraw the general issue and plead spe- 
 cially, (yjy?) or plead it again with a notice of set-off, or upon l)ringing money 
 into court,((y(y) or to add a special plea to those already pleaded. (r) But, 
 in general, the court Avill not permit a demurrer to be withdrawn, after a 
 trial has been lost ;[s) nor unless a full and reasonable cause be shown for 
 so doing.(f) And they would not formerly have given the defendant leave 
 to withdraw the general issue, in order to plead it again, with a pica of the 
 statute of limitations. («^) 
 
 In tlic King's Bench, if a special plea or special demurrer be put in, and 
 the book is made up, and delivered to the defendant's attorney, he may, 
 by the ancient practice of the court, if not under terms of plead- 
 ing *issuabli/, strike out the special plea or demurrer, and return [ *G74 ] 
 it with the general issue, or a general demurrer. (««) To prevent 
 this, if the defendant plead a dilatory or frivolous plea, the court in term- 
 time, or a judge in vacation, (iZ') will order him to abide by it, or plead 
 some other plea, peremptorily, on the morrow ;{ce) or, if it be towards the 
 end of the term, (that the plaintiff may have sufficient time to give notice 
 of trial,) the court will order the defendant, if he will not abide by his plea, 
 to plead anotlier instantli/, provided always that the time allowed by the 
 common rule to plead be expired :{d) And the practice is the same, Avith 
 regard to frivolous demurrers. (f?) The motion for these purposes is a 
 motion of course, requiring only counsel's signature. But where the de- 
 fendant is under terms of pleading issuahli/, he is bound to abide by his 
 plea ; and cannot afterwards strike out a special plea or demurrer, Avhen 
 the Ijook is made up, and return it with the general issue. ((•) After a rule 
 for the defendant to abide by his plea, the plaintiff cannot sign judgment 
 as for want of a plea, without an application to the court ; although such a 
 rule will not prevent the court from allowing the plaintiff to sign judg- 
 ment.(/) 
 
 When the defendant, in the King's Bench, is i-uloil to abide by his plea, 
 he either abides by it,(//) or pleads another : In tlie former case, he may 
 
 (t) 2 Sir. 906, 1181. 1 Wils. 1m, 254. 1 Blac. Rep. 357. (k) 2 Str. 12(m. 
 
 (/) Ante, GG8. (m) 2 Str. 1271. I Wils. 25-i, S. C. cited. 
 
 (n) 2 Chit. Rep. 400. (o) B:irnc.=!, 337. Cus. Pr. C. P. 135, S. G. 
 
 (pp) Dames, 346. 2 Wils. 204, 254. (77) IJanies, 280, 362. 
 
 (r) /(/. 362. (#) Cas. Pr. C. P. 141. Barnes, 155, S. C. 
 
 {t) 6 Moore, 495. 
 
 («) 2 Wils. 253 ; and sec Barnes, 338. 1 Blac. Rep. 35. 2 Durnf. k East. 390 : but see 
 3 Durnf. & East, 124. 1 Bos. & Pul. 228. Ante, 471. 
 
 (au) 2 Salk. 515. R. T. 5 & 6 Geo. II. (&), K. B. 1 Wil?. 29. 
 
 hb) 2 Bur. 781. 2 Ken. 483, S. C. (cc) Append. Chap. XXVII. § 14. 
 
 (d) 2 Salk. 515. R. T. 5 & 6 Geo. II. (b). (e) While x. Gicait, T. 57 Geo. III. K. B. 
 
 ( f) I Chit. Rep. 565, in notis ; and see 5 Manle i Sel. 518. 
 
 (ff) 2 Str. 1234.
 
 Qfj^ OF ABIDING BY PLEAS, ETC. 
 
 afterwiivJs demur to tlic plaintiff's replication ; in the latter, he can only 
 plead the general issue,(/i) to which, however, he may add a notice of set- 
 off :(?') And whether he be ruled to abide by his plea or not, it is a general 
 nde, that the defendant cannot waive a special plea or special demurrer, but 
 in order to plead the general issue ;(/i;) though leave has been given under 
 circumstances, for the defendant to add a plea after issue joined, and even 
 after two terms have elapsed since he first pleaded.(/) In the Common 
 Pleas, the defendant must always abide by his plea, after the plaintiff has 
 replied to it ; and therefore where the plaintiff moved that the defendant 
 might abide by his plea, the court rejected the motion as unnecessary. (m) 
 But after a special plea pleaded, though the plaintiff has prepared his repli- 
 cation, yet the defendant in that court may the same term, before the delivery 
 or filing of the replication, waive his special plea, and plead the general 
 issue, without paying costs :(n) And where the defendant pleads fairly, and 
 there has been no delay,(o) the court on motion will at any time give him 
 leave to withdraw a special plea, and plead the general issue, upon payment 
 
 of costs, in order to let in a trial upon the merits. But where a 
 [ *675 ] defendant has already pleaded a tender,(p) *or the plaintiff has 
 
 been delayed, (a) the court will not grant this indulgence ; and in 
 one instance it was denied, where the defendant had pleaded a sham plea :{h) 
 but in a subsequent case, where the defendant's attorney not having received 
 instructions as to the nature of the defence to an action, pleaded a sham 
 plea, and afterwards swore to merits, the court allowed such plea to be 
 withdrawn on terms.((?)[l] 
 
 (h) 1 Durnf. & East, 693. (i) Id. 694, in notis. 
 
 {k) 2 Str. 960. 1 Wils. 29. {I) 1 Wils. 223. 
 
 {m) Cooper v. Mansfield, T. 31 Geo. III. C. P. Imp. C. P. 7 Ed. 258. Ante, 484, (w). 
 
 {n) Gas. Pr. C. P. 155. (o) 2 Wils. 391. 
 
 ip) Barnes, 330. («) 2 Wils. 392. 
 
 (6) Id. 369. (c) 7 Taunt. 278. 1 Moore, 28, S. C. 
 
 [1] By the late act for the further amendment of the law, 3 & 4 W. IV. c. 42, | 1, and see 
 2 Eep. C. L. Cora. 24, &c., 89, &c. ; reciting that it'would greatlj- contribute to the diminish- 
 ing of expense in suits in the superior courts of common law at Westminster, if the pleadings 
 therein were in some respects altered, and the questions to be tried by the jury left less at 
 large than the}' then were, according to the course and practice of pleading in several forms 
 of action ; but this could not be conveniently done, otherwise than by rules and orders of 
 the judges of the said courts, from time to time to be made ; and doubts might arise, as to 
 the power of the said judges to make such alterations, without the authority of parliament; 
 it was enacted, that " the judges of the said superior courts, or any ei^ht or more of them, 
 of whom the chief of each of the said courts should be three, should and might, by any rule 
 0" order to be from time to time by them made, in term or vacation, at any time within ^we 
 years from the time when that act should take effect, make such alterations in the mode of 
 pleading in the said courts, and in the mode of entering and transcribing pleadings, judg- 
 ments, and other proceedings, in actions at law, and such regulations, as to the payment of 
 costs and otherwise, for carrying into effect the said alterations, as to them might seem ex- 
 pedient; and all such rules, orders, or regulations, should be laid before both houses of par- 
 liament, if parliament were then sitting, immediately upon the making of the same ; or if 
 parliament were not sitting, then within five days, after the next meeting thereof; and no 
 such rule, order, or regulation, should have effect, until six weeks after the same should 
 have been so laid before both houses of parliament ; and any rule or order so made should, 
 from and after such time aforesaid, be binding and obligatory on the said courts and all other 
 courts of common law, and on all courts of error, into which the judgments of the said courts, 
 or any of them, should be carried by any writ of error, and be of the like force and effect, 
 as if the provisions contained therein, had been expressly enacted by parliament." 
 
 In pursuance of the power given by the law amendment act, general rules, we have seen, 
 were made by all the judges of the supei'ior courts of common law at Westminster, in Hilary 
 term, 1834; which, after Ijeing laid the requisite time before both houses of parliament, and 
 receiving their sanction, came into operation on the first day of Easter term following. These
 
 OF REPLICATIONS, ETC. *676 
 
 ^CHAPTER XXVIII. 
 Of Replications and subsequent Pleadings. 
 
 When tlie defendant has put in his plea, he may rule the plaintiff to 
 reply,(a) by obtaining a rule from the master, in the King's Bench, on the 
 
 (fl) Append. Chap. XX VIII. ? 1, 2, 3. 
 
 rules, ^vhicll are con-^iJered a.s statutory, and part of the law of the land, llnjfaj v. Smith, 6 
 Car. & P. GG2, are of two kinds : first, general rules and refi;ulations, relating to all plead- 
 ings, &c. ; and secondly, rules relating to the mode of pleading in the particular actions of 
 assuvipsit, covenant, debt, detinue, case, and trespass. The former of these rules prescribe the 
 form of declaring in a second action, after a plea in abatement of the non-joinder of another 
 person, R. PI. Gen. II. 4 W. IV. reff. 20. 5 Barn, k Ad. Append, vii. 10 Bing. 4C9. 2 
 Cronip. k JI. I'J. Ante, 210, 11 ; of a plea of payment of money into court. Id. reg. 17. 
 Ante, Cha]). XXV.; and the rejjlication thereto. Id. rcg. 19. Ante, Chap. XXV. Post, 
 Chap. XXVIII.; of a pleajouw daricn continuance, or after the last pleading, or issuing of 
 the jury process. Id. reg. 2. Po-it, Chap. XXXVII. ; and of a demurrer, and joinder in de- 
 murrer. /(/. reg. 14. Post, Chap. XXIX. Jlaterial alterations are also made thereby, in 
 the mode of entitling and entering declarations, and other pleadings. Id. rcg. 1. Ante, 207, 
 8. Post, Chap. XXX.; the beginning and conclusion of pleas. Id. reg. 9, 11, 13; the 
 entry of proceedings on the record for trial, or on the judgment roll. Id. reg. 15. Post, 
 Chap. XXXIV. ; and of all judgments, whether interlocutory or final. Id. reg. 3. Ante, 295. 
 Post, Chap. XXXIX. ; and the fees chargeable in respect of issues. Id. rcg. IG. Post, Chap. 
 XXX. The statement of the venue in the body of the declaration, or any subsequent plead- 
 ing. Id. reg. 8. Ante, 209 ; the formal defence in a plea. Id. reg. 10; the rule or order to 
 pay money into court, except under the 3 & 4 W. IV. c. 42, § 18. Id. rcg. 18. Ante, Chap. 
 XXV.; the use of a protestation in any pleading. Id. reg. 12. Post, Chap. XXVIII.; the 
 entry of continuances, with certain exceptions. /(/. reg. 2. Ante, 227, 8. Post, Chap. XXX. ; 
 and of warrants of attorney to sue or defend. Id. rcg. 4. Post, Chap. XXX. ; arc abolished 
 by these rules : and the use of several counts. Id. reg. 5, G, 7. Ante, 21G, &c. ; pleas, avow- 
 ries, or cognizances. Id. ih. ; are prohibited thereby, unless a distinct subject-matter of 
 complaint, or ground of answer or defence, is intended to be established at the trial, in re- 
 spect of each count, or plea, &c. 
 
 The principal ol)ject of the latter rules, or those which relate to pleadings in particular 
 actions, seems to have been, to limit the operation of the general issues formerlj- used, and 
 confine the pleas in denial substituted in lieu thereof, in actions upon contracts, to a direct 
 denial of the contract. Passenger v. Brookes, 1 Bing. N. R. 587. 1 Scott, 5G0. 1 Hodges, 123. 
 7 Car. & P. 110, S. C. ; and in actions for wrongs, to a denial only of the breach of duty, or 
 wrongful act, alleged to have been committed by the defendant. Pcarcy v. Walter, G Car. 
 & P. 232 ; making him plead specially in denial or any other material fact stated in the de- 
 claration, and all matters in confession and avoidance, or discharge of the cause of action. 
 3 Rep. C. L. Com. 54, 5 ; 59, GO. These latter rules, however, do not contain any particular 
 directions as to the mode of pleading in actions of account, annuilg, debt, or scire facias on 
 matters of record, as judgments, or recognizances, or debt on penal statutes ; nor in the action 
 oi replevin, or trespass to iha person; though these actions are subject to the general rules 
 and regulations applicable to all pleadings, &c. And there is & proviso in the act, 3 & 4 
 W. IV. c. 42, g 1, that " no such rule or order shall have the effect of depriving any person 
 of the power of pleading the general issue, and of giving the special matter in evidence, in 
 any case wherein he then was, or thereafter should be entitled so to do, by virtue of any act 
 of parliament then or thereafter to be in force." 
 
 In actions upon contracts, the plaintiff, by the above statutory rules, must prove, on the 
 plea of /("« assumpsit, in all actions of assumpsit, except on bills of exchange and jiromissory 
 notes, the express contract or promise alleged in the (leclaration, or the matters of fact from 
 which the contract or promise alleged may be implied liy law ; as, in an action on a warranty, 
 the fact of tiic warranty having l)een given upon the alleged consideration ; in an action on 
 a policy of insurance, the subscription to the alleged policy by the defendant; in actions 
 agiunst carriers and other bailees, for not delivering or not keeping goods safely, or not re- 
 turning them on request. R. PI. H. 4 W. IV. Assumpsit, reg. I, § 1. 5 Barn. & Ad. Append, 
 vii. 10 Bing. 469. 2 Cromp. k M. 20; and in actions against ugent.i for not accounting, an 
 express contract to the effect alleged in the declaration, and such bailment or employment 
 as would raise a promise in the law to the effect alleged ; in an action of indebitatus as- 
 sumpsit for goods sold and delivered, the sale and delivery- of the goods in point of fact ; and
 
 Q'jQ OF KEPLICATIONS, 
 
 back of tlic pica ; -wliicli is entered with the clerk of the rules, and a copy 
 served on the plaintiiF's attorney : In the Common Pleas, the rule to reply 
 
 in the like action for money bad and received, botli tlie receipt of the money and the exist- 
 ence of those facts which make such receipt by the defendant a receipt to the use of the 
 plaintill". R. PI. II. 4 W. IV. Assumpsit, reg. I. § 1. 5 Barn. & Ad. Append, vii. 10 Bing. 
 
 469. 2 Cromp. & M. 20. In debt on specialty, or covenant, the plaintiff must prove, on the 
 plea of non est factum, the execution of the deed, in point of fact. Id. Covenant and Debt, reg. 
 II. § 1. 5 Barn. & Ad. Append, viii. 10 Bing. 470. 2 Cromp. & M. 21 ; and in actions of 
 debt on simple contract, other than on bills of exchange and promissory notes, the plea of 
 7iiinquam indebitatus has the same operation as the plea of non assumpsit in indebitatus as- 
 sumpsit ; Id. I 1. 5 Barn. & Ad. Append, viii. 10 Bing. 470. 2 Cromp. & M. 22. 
 
 In actions for wrongs, independently of contract, the plaintiff must prove, on the plea of 
 non detinct in an action of detinue, the detention of the goods by the defendant; and, on the 
 plea of not guilty in actions on the case, the breach of duty, or wrongful act, alleged to have 
 been committed by the defendant ; as, in an action on the case for a nuisance to the occupa- 
 tion of a house, by carrying on an offensive trade, that the defendant carried on the alleged 
 trade in such a way as to be a nuisance thereto; in an action on the case for obstructing a 
 right of way, the obstruction complained of; in an action of trover, the conversion of the 
 plaintiff"'s goods. R. PI. H. 4 AY. lY. Detinue, reg. III. 5 Barn. & Ad. Append, ix. 10 Bing. 
 
 470. 2 Cromp. & M. 22 ; and in an action of slander, the speaking of the words, or publica- 
 tion of the libel complained of, and that they were spoken or published maliciously, and 
 in the sense imputed. Empson v. Fairfax, 13 Leg. Obs. 222 ; and, if spoken and published 
 of the plaintiff in his office, profession, or trade, that they were so spoken or published with 
 reference thereto. The plaintiff must also prove, in an action for an escape, the neglect or 
 defiiult of the sheriff, or his officers ; and in action against a carrier, the loss or damage for 
 which the action is brought. R. PI. H. 4 W. IV. Case, reg. IV. §1.5 Barn. & Ad. Append, 
 ix. 10 Bing. 470. 2 Cromp. & M. 22. In actions of trespass quare clausum fregif, he must 
 prove, on the plea of not guilty, that the defendant committed the trespass alleged, in the 
 locus in quo. R. PL H. 4 W. IV. Trespass, reg. V. § 2. 5 Barn. & Ad. Append, ix. 10 Bing. 
 470. 2 Cromp. & M. 23 ; and in actions of trespass de bonis asportatis, that he committed the 
 trespass alleged, by taking or damaging the goods mentioned in the declaration. Id. § 3, 5, 
 Barn. & Ad. Append, x. 10 Bing. 471. 2 Cromp. & M. 24. 
 
 It should also be remembered, that by the law amendment act, 3 & 4 "W. IV. c. 42, § 8, 
 ''no plea in abatement for the non-joinder of any person as a co-defendant shall be allowed 
 in any court of common law, unless it shall be stated in such plea, that such person is re- 
 sident within the jurisdiction of the court ; and unless the place of residence of such per- 
 son shall be stated, with convenient certainty, in an affidavit verifying such plea: and that 
 to any plea in abatement, in any court of law, of the non-joinder of another person, the 
 plaintiff may reply that such person has been discharged by bankruptcy and certificate, or 
 under an act for the relief of insolvent debtors." 3 & 4 W. IV. c. 42, § 9. 
 
 The plea of nil debet was abolished, and another plea substituted in lieu thereof, by the 
 late statutory rules of pleading. R. PI. H. 4 W. IV. Covenant and Debt, reg. II. | 2, 3. 5 
 Barn. & Ad. Append, viii. 10 Bing. 470. 2 Cromp. & M. 22. Ante, 338 ; which declare 
 that "the plea of nil debet shall not be allowed in any action;" and that " in actions of debt 
 on simple contract, other than on bills of exchange and promissory notes, the defendant may 
 plead that he never was indebted, in manner and form as in the declaration alleged ; and 
 such plea shall have the same operation as the plea of non assumpsit in indebitatus assump- 
 sit: and all matters in confession and avoidance shall be pleaded specially, as therein directed 
 in actions of assumpsit." In other actions of debt, in which the plea of nil debet has been 
 hitherto allowed, including those on bills of exchange and promissory notes, it is declared 
 by another statutory rule. R. PI. H. 4 W. IV. Covenant and Debt, reg. II. § 4. 5 Barn. & 
 Ad. Append, viii. 10 Bing. 470. 2 Cromp. & M. 22, that "the defendant shall deny speci- 
 fically some particular matter of fact alleged in the declaration, or plead specially in con- 
 fession and avoidance." 
 
 The form of plea to an action of debt, prescribed by the above rules, must be adhered to 
 in terms : and therefore, a plea that the defendant "never did oive," was holden to be bad on 
 special demurrer ; the form being that he " never was indebted." Smedley v. Joyce, 1 Tyr. k 
 G. 84. 2 Cromp. M. & R. 721. "l Gale, 357. 4 Dowl. Rep. 421. 11 Leg. Obs. 484, S. C. In 
 an action of debt for goods sold and delivered, if the defence be that the goods were sold on 
 a credit which had not expired at the time of bringing the action, this, it has been holden 
 in the King's Bench, must be specially pleaded. Edmunds v. Harris, 6 Car. & P. 547. 4 
 Nev. & M. 182. 2 Ad. & E. 414, S. C. 1 Chit. Jun. PL 204 ; 291 ; 378, 9 ; and see Rose. Law 
 Tracts, 21,2; but from subsequent decisions it seems that this ground of defence may be 
 given in evidence on the plea of nunquam indebitatus. Taylor v. Hillary, 1 Cromp. M. & R. 
 741. 5 Tyr. Rep. 373. 3 Dowl. Rep. 461. 1 Gale, 23. 9 Leg. Obs. 494, S. C. Per Parke, 
 B. Knapp v. Harden, 1 Gale, 47. Cousins v. Paddon, 2 Cromp. M. & R. 553. 5 Tyr. Rep.
 
 AND SUBSEQUENT PLEADINGS. 676 
 
 is given on u, prcccipc, witli tlic secondaries. This rule may be given at 
 any time in term, or within sixteen days after, in the King's Bench,(6) or 
 
 (/') Imp. K. B. 10 Ed. 2C4. And the practice is the same in the Common Pleas, except 
 that after Easter term, the rule must be given in ten days. Imp. C. I*. 7 Ed. 2'J^. 
 
 535. 4 Dowl. Rep. 488, S. C. Jones v. Nanney, 1 Meeson & W. 33G. 1 Tyr. & G. 638. 5 
 Dowl. Rep. 90, S. C. Per J'arkf, B.;and see Rose. Law Tracts, 21, 2. Ante, 345. And in an 
 action of debt, a plea that parcel of tiie money claimed was the residue of a sum agreed to 
 be paid for a boat, warranted sound and fit for use, but wiiich was afterwards found to be 
 of no greater value than the amount i)aid at the time of sale, was holden to he bad on de- 
 murrer, as amounting to tlie general issue. iJicken v. Ncalc, 5 Dowl. Re[). 17G. 1 Meeson 
 & W. 55G, S. C. In an action of debt for work and labor, on an implied contract, the defen- 
 dant, on the plea that he never was indebted, may go into evidence to j)rove that the work 
 was done under such circumstances as show that there was no implied contract to pay any 
 thing; but upon tiiis plea, the defendant cannot go into evidence of misconduct, except such 
 as goes to show that there was no implied contract to pay. Cooper v. W/iilelioiisc, G ('ar. & 
 P. 445, per Aldcrson, li. ; and see Cousins v. Faddon, 2 Cromp. M. <fe R. 553. 5 Tyr. Rep. 
 535. 4 Dowl. Rep. 488, S. C. Ante, 344, 5, 6. And in an action of debt, brought by two of 
 three Syndics of a French bankrupt, it was doubted, whether the objection to the non- 
 joinder of the tliir<l .Syndic, if available, could be taken on the plea of ml debet. Alivon v. 
 Furnival, 1 Cromp. M. <fe R. 277. 4 Tjt. Rep. 751, S. C. 
 
 The late statutory rules of pleading do not contain any particular directions as to the mode 
 of pleading in the actions of account, annuity, debt, or scire facias, on matters of record, as 
 judgments or recognizances, or debt on penal statutes ; though these actions are subject to 
 the general rules and regulations applicable to all pleadings. 
 
 In detinue, the defendant might formerly have given in evidence under the general issue of 
 nan detinet, his property in the goods, or a gift of them from the plaintiff; for that proved he 
 detained not the plaintiff's goods. Co. Lit. 283. But now, by a late statutory rule of plead- 
 ing. R. PI. H. 4 W. IV. Detinue, reg. III. 5 Barn. & Ad. Append, i.x. 10 Bing. 470. 2 
 Cromp. ifc J[. 22; "the plea of non detinet shall o])erate as a denial of the detention of 
 the goods by the defcudant, but not of the plaintiff's ])roperty therein ; and no other 
 defence than such denial, shall be admissible under that plea." In this action, therefore, 
 the defendant must, under the above rule, specially deny the plaintiff's property in the 
 goods, wlien necessary for his defence ; or he niiiy plead a gift of them from the plaintiff, or 
 some other matter of fact to prove that the defendant is entitled to the possession of them ; 
 as that they were pawned to him for money which still remains unpaid. Co. Lit. 283 ; or 
 that he has alien thereon. Alexander \. M-Gowan, Sit. after M. T. 3 Geo. IV. per Abbott, 
 Ch. J. ; or, if the action be founded upon a bailment, that they were delivered over to the 
 person for whose use they were bailed. Com. Dig. tit. Pleader, 2 X. G ; and see 1 Chit. PL 
 114,430. Tidd. Prac. 9 Ed. G52. ^l«^c, 329. In an action of fA7/«M<' against an attorney, 
 for not delivering up papers to his client after his bill has been paid, if the defendant plead 
 non detinet, the plaintiff must prove that the papers were in the defendant's possession ; but 
 evidence that the}' were firoduced by his agent before the master, on the taxation of his bill, 
 is suflicient proof of his possession. Anderson \. Passman, 7 Car. & P. 193. And as the gist 
 of the action of detinue is the detainer, the bailment in the declaration is in general imma- 
 terial ; therefore, the defendant may set uj) in his plea, a bailment difl'erent from that stated 
 in the declaration ; and the ]daintiff, without traversing it, may show that the detainer is 
 wrongful notwithstanding, without being guilty of a departure, d'led.stanc (or O'lcdstone) 
 V. Jlen-itt, 1 Tyr. Rep. 445. 1 Cromp. & J. 5C5. 1 Price, N. R. 71, S. C. 
 
 In actions on the case, the defendant, upon the plea of not guilty, might formerly not only 
 have put the plaintiff upon proof, of the whole charge contained in the declaration, but 
 might have ofl'ered any matter in excuse or justification of it. Keijina v. Tuchin, 2 Mod. 27G, 
 T. Newton v. Creswick, 3 Mod. 1G6. Anon. Com. Rep. 273. Barber v. JJixon, 1 Wils. 44. 
 Brown V. Best, Id, 175 ; or he might have set up a former recovery, release, or satisfaction. 
 Bird V. Randall, 3 Bur. 1353. 1 Blac. Rep. 388, S. C. For an action on the case was con- 
 sidered as founded upon the mere justice and conscience of the plaintiff's case, and in the 
 nature of a bill in eipiity, and in efl'ect was so ; ami therefore such a former recovery, release, 
 or satisfaction, need not have been plcadeil, but might have been given in evidence under 
 the general issue ; since whatever would in equity and conscience, according to the circum- 
 stances of the case, bar the plaintiff's recovery, might in this action have been given in evi- 
 dence by the defendant, because the plaintiff must recover upon the justice and conscience 
 of his case, and ui)on that only. Jd. Ibid. Tidd. Prac. 9 Ed. G51. 1 Chit. PL 432. But by 
 a late statutory rule of pleading. R. PI. II. 4 W. IV. Case, rey. IV. ^, 1. 5 Barn. & Ad. Ap- 
 pend, ix. 10 Bing. 470, 71. 2 Cromp. & M. 22, 3, it is declared that, ''in actions on the 
 cast", the plea of not guilty shall operate as a denial only of the breach of duty, or wrongful
 
 676 or REPLICATIONS, 
 
 Exchequer ;(c) and, in the Common Pleas, when time to plead has been 
 obtained, if the defendant plead, and give a rule to reply, before the 
 
 (c) R. H. IG Geo. III. in Scac. Man. Ex. Append. 220. 
 
 act, alleged to have been committed by the defendant, and not of the facts stated in the in- 
 ducement ; and no other defence than such denial shall be admissible under that plea : all 
 other pleas in denial shall take issue on some particular matter of fact alleged in the decla- 
 ration, and all matters in confession and avoidance shall be pleaded specially, as in actions 
 of assianjjsif." Id. I 2. 5 Barn. & Ad. Append, ix. 10 Bing. 4'71. 2 Cromp. & M. 23. 
 
 In an action on the case for an injury to real property corporeal, by nuisances to houses, 
 lands, water-courses, &c., to the prejudice of the plaintiff's possession or reversion, or to 
 real property incorporeal, by obstructing rights of loay, &c., it vras formerly incumbent on 
 the plaintifl" to prove, on the general issue, all the facts stated in the inducement to the de- 
 claration, as well as the wrongful act complained of, and the consequential damages arising 
 therefrom ; and the defendant was allowed to give the whole of his case in evidence under 
 the general issue. But, by a late statutory rule of pleading. R. PI. H. 4 W. IV. Case, reg. 
 IV. § 1. 5 Barn. & Ad. Append, ix. 10 Bing. 471. 2 Cromp. & M. 22, it is declared that 
 " in an action on the case for a nuisance to the occupation of a house, by carrying on an offen- 
 sive trade, the plea of not guilty will operate as a denial only that the defendant carried on 
 the alleged trade in such a way as to be a nuisance to the occupation of the house, and 
 Avill not operate as a denial of the plaintiff's occupation of the house ; and in an action on 
 the case for obstructing a right of w«y, such plea will operate as a denial of the obstruction 
 only, and not of the plaintiff's right of way." In an action for a nuisance, however, where 
 thedefendant pleads not guilty, the plaintiff must still, notwithstanding the above rule, not 
 only prove the existence of the nuisance, but that the defendant was the person who caused 
 it. Ban-son v. Moore, 1 Car. & P. 25. But since the above rule, the plea of not guilty to a 
 declaration in case, for the wrongful diversion of water from the plaintiff's mill, puts in 
 issue the mere fact of the diversion, and not its wrongful character. Frankum v. Earl of 
 Falmouth, 4 Nev. & M. 330. 2 Ad. & E. 452. 1 Har. & W. 1. 6 Car. & P. 529, S. C. ; and 
 see 5 Nev. & M. 268, (a). Therefore, where the fact of the diversion was proved, but the 
 plaintiff failed to show his right to the water, the court ordered the verdict, which had 
 been entered for the defendant on the issue of not guilty, to be set aside, and a verdict to 
 be entered for the plaintiff but without damages. And, in an action on the case for a 
 nuisance to the plaintiff's property, by digging a trench in an adjoining close, the defendant 
 cannot now, under the plea of not guilty, raise any objection as to defective proof of the in- 
 ducement in the declaration. DwA-e-sv. G^os^Zm^r, 3 Dowl. Rep. 619. 1 Scott, 570. 1 Hodges, 
 120, S. C. To an action on the case for a nuisance in making a noise, &c., near plaintiff's 
 dwelling-house, which he was possessed of for a term of years, the defendants pleaded that 
 they had been possessed of certain workshops in which the noise was made ten year before 
 the plaintiff was possessed of the term in his house, and that they had always during that 
 time made the noise in question, which was necessary for carrying on the trade ; and the 
 plea was holden to be bad. Elliotson v. Feetham, 2 Bing. N. R. 134. 2 Scott, 174. 1 Hodges, 
 259, S. C. And, in an action on the case by a lodger, for removing a water-closet, &c., if 
 the defendant merely plead the general issue, he cannot give in evidence that the water- 
 closet was useless before he removed it ; but, in mitigation of damages, he may go into 
 evidence to show that the plaintiff and his family were bad lodgers, and that he did the acts 
 complained of to cause them to quit the house. Underwood v. Burrows, 7 Car. & P. 26. 
 Where the defendant claims a right of common or of way, &c., he must set forth in his plea 
 a strict legal right thereto. Ryder v. Smith, 3 Durnf. & E. 766. Grimstead v. Marlowe, 4 
 Durnf. & E. 7l7, 719. 
 
 In trover, it was formerly necessary for the plaintiflp to prove on the general issue of not 
 guilty, his property in the goods for the conversion of which the action was brought, and 
 their value, and that the defendant actually converted them to his own use, or, having them 
 in his possession, refused to deliver them to the plaintiff" on demand, which was evidence of 
 a conversion. In this action, it was commonly said, there could l^e no special plea, except 
 a release ; but this was a mistake ; for the defendant might have pleaded specially any thing 
 else which, admitting the plaintiff had once a cause of action, went to discharge it, as the 
 statute of limitations. Coupcr v. Toicers, 1 Lutw. 99. Pratt V. Swainc, 8 Barn. & C. 285. 
 2 Man. & R. 350, S. C. ; or a former recovery, &c. Lechmore v. Toplady, 1 Show, 146. The 
 bankruptcy of the plaintiff, before the cause of action accrued, might have been given in 
 evidence in this action, under the plea of not guilty. Webb v. Fox, 7 Durnf. & E. 391 ; and 
 see Tidd Prac. 9 Ed. 651. 1 Chit. PI. 436. Worswick v. Bcswick, 10 Barn. & C. 676. Jolt 
 T. Fisher, 5 Car. & P. 514, per Tindal, Ch. J. ; but see Alston v. Underhill, 1 Cromp. & M. 
 492. 3 Tyr. Rep. 427. 2 Dowl. Rep. 26, S, C. : but where the bankruptcy happened after 
 the cause of action accrued, it should it seems have been pleaded specially. But now, by
 
 AND SUBSEQUENT PLEADINGS. 
 
 676 
 
 expiration of that time, the rule to reply will be of no avail, unless he 
 give notice of his plea.((7) If the rule be not given tiWfom' terms have 
 elapsed, after plea pleaded, the plaintiff must have a term's notice(c) of 
 the defendant's intention to give it, unless the cause hath been stayed by 
 injunction or privilege :(/) which notice must be given before the essoin 
 day of the terra ;{g) and it is usual to give the rule on the day after the 
 term is expired. (A) And where a cause has stood over for several terms, 
 the rule to reply must be given of the term in Avhich the judgment of 
 non i^ros is signed. (/) The rule to reply expires in fcmr days exclusive 
 after service, in the King's Bench ; and Sunday, or any holyday on which 
 the court does not sit, or the office is not open, if it be not the last, is to 
 be accounted a day within the rule. (A:) If the plaintiff do not reply Avithin 
 the time limited, or obtain an order for further time, wliich may be obtained 
 on a judge's summons, in like manner as an order for further time to plead, 
 the defendant may sign a judgment of non jjros ;{l) and it is not necessary 
 for him, in the King's Bench, to demand a replication, the service of the 
 
 (d) 1 Now Rep. C. P. 273. 
 
 (/) R. T. 5 & G Geo. II. (6), K. B. 
 
 {/>) Imp. K. 15. 10 Ed. 2G4. 
 
 (k) R. T. 1 Geo. II. (a), K. B. 
 
 (l) Append. Chap. XXVIII. § 5, 6. 
 
 (f) Append. Chap. XXVIII. § 4. 
 
 {(/) 2 Str. 1104. 
 
 ({) 2 Chit. Rep. 283. 
 
 a late statutory rule of pleading. R. PI. H. 4 W. IV. Case, rcg. IV. ? 1. 5 Barn & Ad. Ap- 
 pend, ix. 10 Bing. 471. 2 Cromp. & M. 23 ; it is declared that, " in an action for convert- 
 ing the jjlaintiff 's goods, the plea of not guilty will operate as a denial of the conversion 
 only, and not the plaintiff's title to the goods." The intention of this rule was to confine the 
 operation of the plea of not guilty to the denial of the fact of conversion only, and not to 
 allow the defendant to give evidence of its Icf/alitji, any more tlian on a plea of not guilty to 
 an action on the case for obstructing a right of way, the defendant could be allowed to show 
 that the obstruction was lawful, or, under the like plea to an action for diverting a water- 
 course, to give evidence that such diversion was justifiable, by licence or prescription. Stan- 
 cliffe V. Ilardinck, 2 Cromp. M. & R. 1. 5 Tyr. Rep. 551. 1 Gale,127. 3 Dowl. Rep. 762, S. C, 
 per Parke, B. ; and see Farrar v. Besu-ick, 1 Meeson & W. 682. 
 
 If the defendant mean to deny the plaintiff's title to the goods, he should plead that the 
 plaintiff was not possessed of them as of his own property, or as of his own proper goods and 
 chattels, as alleged in the declaration : and, under this pica, it will be incumbent on the 
 plaintiff to prove his title to the goods; and the defendant may give in evidence any matter 
 tending to disprove it. But it seems, that a plea that the goods arc not, nor were the pro- 
 perty of the plaintiff, as alleged in the declaration, and concluding to the country, Avhere 
 the declaration alleges that the plaintiff was /^Mfsscc? of the goods as of his own property, 
 is an informal plea, and would be bad on special demurrer. Samuel v. Morris, 6 Car. & P. 
 G20, per Parke, B. ; and see Ilou-ell v. Wliite, 1 Moody & R. 400. And where the plaintiff in 
 trover claims under a sale, the defendant, on a plea that the plaintiff was not possessed of 
 the goods as of his own property, cannot show the sale to have been fraudulent: the fraud 
 must be pleaded. Iloinll v. White, 1 Moody k R. Ai)Q, per Paltcson, 5. 
 
 The conversion which is put in issue by the plea of not guilty since the new rules, is a 
 conversion infnet, and not merely a wrongful conversion. Ante, 307. And wherever there 
 has been a conversion in fact, and tiie defendant insist that such conversion was lawful, he 
 must confess and avoid it, by pleading specially the right or title by virtue of which 1;,e was 
 justified in the conversion. But where there has been no actual conversion of the goods, but 
 merely a refusal to deliver them on demand, a defendant who pleads not guilty in an action 
 of trover, admits thereby only that the plaintiff has some property in the goods, in resj)ect of 
 which he would be entitleil to recover against the defendant; and such admission does not 
 preclude the defendant from showing that he is tenant in common with the jilaintiff. Stan- 
 cliffe v. llurdwick, 2 Cromp. M. & R. 1. 5 Tyr. Rej). 551. 1 Gale, 127, 3 Dowl. Rep. 702, 
 S. C, per Parke, B. ; and see Forror v. Besuick, 1 Meeson & W. 082. Vernori wShipton, 2 
 Meeson k W. 9 ; or is otherwise entitled to ret:iin the possession of the goods. And where 
 the defendant in such case has a lien thereon, a doubt has been entertained as to the neces- 
 sity of his pleading it specially; though as the lien may be considered as matter of title, the 
 safer way seems to be to plead it specially, as in the action oi detinue ; and see Townley 
 T. Cmmj), 4 Ad. & E. 58. Rose. Law Tracts, 63, 4.
 
 (5Y5 OF SETTING ASIDE PLEAS. 
 
 copy of tlic rule being deemed in that court a demand of itself :(?>?) but, in 
 the Common Pleas, a replication must be demanded in writing, by the 
 defendant's attorney ;(w) after which, if a replication be not delivered, or 
 filed at the prothonotaries' office, in due time, he may sign a judgment of 
 non pro8.{6) And it seems that such judgment may be signed 
 [ *677 ] by one of two defendants in ^'trespass, who has pleaded sepa- 
 rately: (a) or for not replying to a plea, as to one of several 
 counts in a declaration. (5) This is a final judgment, on which the defend- 
 ant may tax his costs, and take out execution. (c) 
 
 Within the time limited by the rule to reply, or order for further time, 
 the plaintiff either moves the court to set aside the plea, if unfounded ; or, 
 admitting it to be well founded, in point of fact as Avell as law, he discon- 
 tinues his action,(fZ) enters a nolle prosequi,{e) stet jjrocessus, or cassetur 
 hilla vel breve,{f) or in an action against an executor or administrator, 
 takes judgment of assets in futuro,{g) &c. ; or, admitting the fact, he 
 denies the law by a demurrer ; or, admitting the law, he denies the fact, 
 or confesses and avoids it, or concludes the defendant by matter of estoppel. 
 If the defendant plead in abatement after a general imparlance, or to the 
 jurisdiction of the court after a special imparlance, the plaintiff, we have 
 seen, (A) may sign judgment, or apply to the court by motion to set aside 
 the plea. We have also seen, that when it is doubtful whether the plea be 
 issuable, the better way, in term time, is to move the court to set it aside -.{i) 
 And in general, if it be not clear that a bad plea may be considered as a 
 nullity, the safest course is not to sign judgment, but to take issue thereon, 
 demur, or move the court to set it aside. (Z:) When the defendant pleads a 
 release, fraudulently obtained from the nominal plaintiff, to the prejudice of 
 the party really interested, and for whose benefit the action is brought, or 
 from one of several plaintifis to the prejudice of the rest, the court on 
 motion will set aside the plea, and order the release to be delivered up to be 
 cancelled : Thus, where the obligor of a bond, after notice of its being 
 assigned, took a release from the obligee, and pleaded it to an action brought 
 by the assignee, in the name of the obligee, the court of Common Pleas set 
 the plea aside ; and under these circumstances, would not allow the obligor 
 to plead payment of the bond.(??) So, if a person who is sued by a landlord, 
 in the name of his tenant, procure a release from the nominal plaintiff, the 
 court will order the release to be delivered up, and permit the landlord to 
 proceed -.[mm) And where a landlord, with the permission of his bailiff, who 
 had made a distress for rent, commenced an action, in the bailiff's name, 
 against the sherifi", for taking insufficient pledges, and the bailiff afterwards, 
 without the landlord's privity, executed a release to the sherifi", who pleaded 
 it p)ui8 darien continuance, the court of Common Pleas set aside the plea, 
 
 (m) Imp. K. B. 10 Ed. 263. (n) Append. Chap. XXVIII. § 3. 
 
 (o) Imp. K. B. 10 Ed. 263, 4; 496. Imp. C. P. 1 Ed. 294, 5. 
 (a) Fhilpoi V. Mullcr, T. 23 Geo. III. K. B. (h) 4 Barn. & Cres. 135. 
 
 (c) Imp. K. B. 10 Ed. 263, 4; 496. Imp. C. P. T Ed. 294. 5. 
 \d) Append. Chap. XXYIII. § 9, 10 {e) Id. g 11, 12, 13. 
 
 (/) Id. Chap. XXVI. § 7. 
 
 {g) Id. Chap. XXII. § 10, &c. 21, &c.; and see 1 Chit. PI. 4 Ed. 498. 
 \h) Ante, 463, 4; 476, 638, 9; and see ante, 534, 636. 
 \i) Ante, 473. {k) Ante, 565. 
 
 {II) 1 Bos. & Pul. 447 ; and see the case of Craib and icife \. D'Aeth, T. 30 Geo. III. 7 
 Duraf. & East, 670, (6). 7 Moore, 617. 1 Younge & J. 362. 
 
 [mm) Doug. 407; and see 7 Durnf. & East, 670, (a). 1 Bos. & Pul. 448, {a).
 
 OF DISCONTINUANCE. 077 
 
 and ordered the release to be delivered up to be cancelled.(w) So, a plea 
 of release by one of several plaintiffs was set aside by the court of 
 King's Bench, without costs, on the terms of indemnifying *the [ *G78 ] 
 plaintiffs who had released the action, against the costs of it 
 although the consent of such plaintiffs had not been obtained before action 
 brought ; it appearing that no consideration had been given for the release, 
 and that the plaintiffs sued as trustees for the creditors of an insolvent per- 
 son. (a) But, except a very strong case of fraud be made out, the court will 
 not control the legal power of a co-plaintiff" to release the action :{b) And 
 unless the plea be set aside, a judge atwiSi j)r«<shas no equitable jurisdic- 
 tion, and can only look to the strict legal rights of the parties upon the 
 record : Therefore if, in an action for goods sold, the defendant prove a 
 receipt in full signed by the plaintiff", evidence cannot be admitted, by way 
 of answer to this defence, that the plaintiff had assigned all his effects for 
 the benefit of his creditors, that the action was brought by his trustees in his 
 name, that no money passed Avhen the receipt was given, and that the 
 plaintiff on the record and the defendant had colluded together to defeat 
 the action. (c) 
 
 If the plaintiff perceive that he cannot maintain his action, it is usual for 
 him to take out a rule for leave to discontinue. Discontinuance in a civil 
 suit, is either of process, or of pleading : The former, before judgment, is 
 the act of the clerk : but after judgment, it is the act of the court :((?) the 
 latter, of which something has been already said,(e) is the act of the party. 
 The process, or proceedings in a suit, should be regularly continued from 
 term to term, or from one day to another in the same term,(/) between the 
 commencement of the suit and final judgment ; and if there be any lapse 
 or want of continuance that is not aided, the parties are out of court, and 
 the plaintiff" must begin de novo. Before declaration, there is, properly 
 speaking, no continuance ;(r/) though we have seen, (A) that the parties by 
 consent might have obtained a day before declaration, which was called a 
 dies datus prece jmrtium ; After declaration, and before issue joined, the 
 proceedings are continued by imparlance ;{i) after issue joined, and before 
 verdict, hj vicecomes non misit breve ;(k) and after verdict or demurrer, 
 by cwia advisari vult.(l) In the King's Bench, the practice is never to 
 enter continuances till the plea roll is made up, though the declaration be 
 of four or five terms standing :(w) And after plea pleaded, though the 
 plaintiff have day to reply for several terms, yet no mention need be made 
 on the roll, of any imparlance or continuance. (wt) After judgment by 
 default, and writ of inquiry awarded, there is no subsequent continuance 
 between the parties, in the Common Pleas ;(o) but in the King's Bench, it 
 is otherwise. Continuances may be entered at any time :(^') 
 *And in a late case, the court granted leave to enter continu- [ *G79 ] 
 
 (n) 7 Taunt. 48. (a) I Chit. Rep. 300. 
 
 (b) 7 Taunt. 421 ; and see 4 Moore, 192. 7 Moore, 356. 
 
 (c) 1 Canipb. 392 ; and see 1 Chit. Rep. 391, in rwtis. 6 Moore, 497. 
 \d) Cart. 51. 1 Salk. 177. 1 Wils. 40. Id. 303, cites Com. Rep. 419. 
 
 U) Ante, 660, 61. (/) 1 Str. 492. 1 Wils. 40. 
 
 \g) Gilb. C. P. 40. \h) Ante, 421. 
 
 (i) Append. Chap. XXII. § 6, 10, 41. Chap. XXX. g 2, 4, 6. 
 
 h) Append. Chap. XXX. § 46, 49, 52. 
 
 h) Append. Chap. XXII. § 41. Chap. XXLX. g 3, 4. Chap. XXXIX. g 3, 4. 
 
 (m) 1 Salk. 179. 2 Ld. Rajin. 872, S. C. 
 
 (nn) 5 Co. 75. 2 Wms. Saund. 5 Ed. 1, e, (2). 
 
 (o) 11 Co. 6. b. Yelv. 97. 1 Rol. Abr. 486. (/») Ante, 162.
 
 679 
 
 OF DISCONTINUANCE. 
 
 anccs after verdict, in order to arrive at the justice of the case. (a) The 
 want of a continuance is aided by the appearance of the parties :{h) And 
 as a discontinuance can never be objected pendente placito,{c) so after 
 judgment, it is cured by the statute of jeofails. (c?) It has even been hohlcn, 
 that a continuance may be added, after judgment in a jpe^iaZ action ;(e) 
 but then, there must be something to amend by.(/) 
 
 A rule to discontinue(^) may be had either before or after declaration ;(/») 
 and it is usually granted upon payment of costs. (^') An executor or ad- 
 ministrator is liable to costs upon a discontinuance, when he has knowingly 
 brought a wrong action ;{Jc) but when that is not the case, he may have 
 leave to discontinue, without paying costs :(Z) And where, upon setting 
 aside a verdict for the plaintiff, the costs are directed to abide the event, 
 and then the plaintiff" discontinues the action, the defendant is not enti- 
 tled to the costs of the trial. (m) The rule to discontinue is a side-bar rule ; 
 and may be had as a matter of course, from the clerk of the rules in the 
 King's Bench, at any time before trial or inquiry :(w) and leave has been 
 given to discontinue after argument, and before judgment on demurrer. (o) 
 And even after a special verdict, the plaintiff" may discontinue, by leave of 
 the court, because that is not complete and final ; but in this case it is a 
 great favour :{p]j) And it is never granted after sl general verdict,(p^) 
 or writ of inquiry executed and returned,(g) nor after a peremptory rule 
 for judgment on demurrer. (r) In rejjlevin, the avowant, though an actor, 
 cannot have a rule to discontinue :(s) And where a rule to discontinue is 
 obtained by unfair practice, the court will discharge it.(^) 
 
 The court of Common Pleas will not permit the demandant on a writ of 
 right to discontinue ;(w) And a discontinuance is not allowed in that court, 
 after a special verdict, in order to adduce fresh proof in contradiction to the 
 verdict. (.'») The plaintiff" cannot have leave to discontinue, pending a rule 
 for judgment as in case of a nonsuit :(?/) And where he moved to discon- 
 tinue upon payment of costs, after judgment given for him on demurrer, but 
 not entered of record, and a writ of error brought, and bail put in there- 
 upon, the court refused to make a rule to discontinue, without 
 [ *680 ] *payment of costs on the writ of error.(a«) After notice of trial 
 given, and regularly countermanded, the plaintiff in the Common 
 Pleas, obtained a rule to discontinue, upon payment of costs ; and it appear- 
 ing that after the notice of trial, and before the countermand, a witness for 
 the defendant, who resided in Londo7i, had set out for the York assizes, the 
 question was, whether the expense of this witness could be allowed the 
 
 (a) 1 Durnf. & East, 618. (b) 1 Wils. 40. 6 Durnf. & East, 255. 
 
 (c) Cro. Jac. 211. 
 
 (d) 32 Hen. VIII. c. 30. Cro. Eliz. 489. Cro. Jac. 528. 3 Lev. 374. 6 Durnf. & East, 255. 
 
 (e) 2 Str. 1227. 1 Wils. 125, S. C. in Cam. Scac. 6 Durnf. & East, 255, 618. 
 
 (/•) 1 Wils. 303. (ff) Append. Chap. XXVIII. g 7, 8. 
 
 {/i) R. M. 10 Geo. II. (6), K. B. (i) Conih. 299. 
 
 (i) Cas. Tr. C. P. 79. Barnes, 169, S. C. 3 Bur. 1451. 1 Blac. Eep. 451, S. C. 2 New 
 Rep. C. P. 72. 
 
 (l) 2 Str. 871. 4 Bur. 1927. 8 Moore, 689. (m) 1 Barn. & Aid. 566. 
 
 (n) 1 Salk. 178, 9. (o) 3 Lev. 440. 1 Str. 76, 116. 
 
 (pp) 1 Salk. 178. (q) Carth. 86. 
 
 (r) 1 Salk. 172 ; and see 2 Wms. Saund. 5 Ed. 73, (1). 
 
 («) 1 Str. 112. (t) 4 Bur. 2532. 
 
 (u) 1 New Rep. C. P. 64. 2 New Rep. C. P. 429. 
 
 (x) 2 Blac. Rep. 815. . (y) Barnes, 316. 
 
 (era) Barnes, 169.
 
 OF DISCONTINUANCE. G80 
 
 defendant in costs : The court held that, as the countermand was regular, 
 the costs for this witness could not be allowed. (i) 
 
 The rule to discontinue is obtained from tlie clerk of the rules in the 
 King's Bench, or secondaries in the Common Pleas ; but in the latter court, 
 if it be after plea pleaded, tlic defendant's attorney must first consent to a 
 rule in the treasury chamber in term time, or before a judge in vacation ;{c) 
 or else there must be a rule to show cause. And upon a rule to discon- 
 tinue, the plaintiff must get an appointment from the master in the King's 
 Bench, or prothonotaries in the Common Pleas, to tax the costs, and servo 
 a copy of it on the defendant's attorney ; it having been holden, that the 
 service of a rule to discontinue, without an appointment to tax the costs, is 
 not of itself a discontinuance of the action. (J) In the King's Bench, the 
 master will tax the costs ex i)arte, if the defendant's attorney do not attend 
 on the first appointment :(c) But in the Common Pleas, another copy of the 
 rule must be made, in case of non-attendance, and a second appointment 
 obtained thereon, and served as before, and so a third time ; and if he do 
 not attend the third appointment, the prothonotaries will tax the costs ex 
 pa7'te.{f) The costs being taxed, are to be forthwith paid ; otherAvisc the 
 plaintiff may be compelled to proceed in the action : for the rule being 
 conditional, is no stay of proceedings ; and it has been holden that, for the 
 non-payment of these costs, the plaintiff is not liable to an attachment. (^) 
 An averment in an action for a malicious arrest, that the suit is wholly 
 ended and determined, is proved by evidence of the rule to discontinue 
 upon payment of costs, and that the costs were taxed and paid, without 
 producing the roll, with judgment of discontinuance entered upon it.(7/) 
 And where a rule to discontinue, on payment of costs, was obtained by the 
 plaintiff on the 6th of February, but the costs were not taxed until the 11th 
 of March ; the court held that, when the costs were taxed, and the judgment 
 of discontinuance entered up, it related back to the day when the rule for 
 a discontinuance was obtained, and that the action was to be considered 
 discontinued from that time. (2) So, a rule for discharging the 
 defendant out of custody at the *plaintiff's suit, in an action on [ *681 ] 
 a bill of exchange, and that all further proceedings in the cause 
 should be stayed, and the bill of exchange delivered up to the defendant, 
 has been deemed evidence of the termination of the suit.(rt) But it seems 
 that a judge's order to stay proceedings on payment of costs, and proof of 
 such payment, is not sufficient evidence that the first suit is at an cn(\.{hb) 
 And where it was averred in the declaration, that the defendant voluntarily 
 permitted his suit to be discontinued for want of prosecution, and there- 
 upon it was considered by the court that he should take nothing by his 
 h'lW, jjront pat et 2)er rccordiim, whereb}'- the suit was ended and determined ; 
 it was holden that this averment was not proved by the production of a 
 
 [h) 1(1. 307. Sed qua're ; for in a Inte case, the cxpcnsea of a witness, under similar rir- 
 cumstanccs, were allowed by the jirothonotarv ; and sec 1 Price, 381. Poxt. Chap. XXXV. 
 (c) Imp. C. P. 7 Ed. 723. ' {d) G Durnf. & East, 7G5. 
 
 {/) Imp. K. B. 10 Ed. G75. [f) Imp. C. P. 7 Ed. 723, 4. 
 
 (r/) 7 Durnf. & East, 6; and sec 2 Str. 1220. 3 Maule & Sel. 153. 5 Barn & Aid. 905. 
 
 1 Dowl. k Rvl. 55G, S. C. 
 
 {h) 4 Cauipb. 2U. 1 Stark. Ni. Pri. 48, S. C. ; and see 2 Barn k Crcs. C93. 4 Dowl. & EyI. 
 187, S. C. 4 Barn. & Cres. 21. G Dowl. & Ryl. 12, S. C. 
 (?) 1 Barn. & Crcs. 649. 3 Dowl. & Kyi. 2, S. C. 
 \a) 3 Bing. 297, 303. 
 {bb) 4 Campb. 214. 1 Stark. Ni. Pri. 48, S. C. 1 Esp. Rep. 80 ; and see 11 East, 319. 
 
 2 New Rep. C. P. 473.
 
 (381 OF A NOLLE PllOSEQUL 
 
 rule to discontinue ; but the record having been averred, ought to have 
 been proved. (c) 
 
 A nolle prosequi is an acknowledgment or agreement by the plaintiff, 
 that he will not further prosecute his suit, as to the whole or a part of the 
 cause of action ; or, where there are several defendants, against some or 
 one of tliem.((Z) 
 
 On a plea of coverture, &c., if the plaintiff cannot answer it, he may 
 enter a 7iolle prosequi as to the whole cause of action ; but the defendant 
 in such case is entitled to costs, under the 8 Eliz. c. 2, § 2.(e) So, if the 
 defendant demur to one of several counts of a declaration, the plaintiff 
 may enter a nolle 2)7'osequi as to that count which is demurred to, and 
 proceed to trial upon the other counts ;(/) or if he join in demurrer, and 
 obtain judgment, he may enter a nolle prosequi as to the issue, and pro- 
 ceed to a writ of inquiry on the demurrer :[g) And if the plaintiff enter a 
 nolle prosequi as to any of the counts in a declaration, he is not entitled to 
 costs on such counts. (7i) But, after a demurrer for 7nis-joinder, the plain- 
 tiff cannot cure it, by entering a nolle prosequi :{i) And if there be a 
 demurrer to a declaration, consisting of two counts, against two defendants, 
 because one of them was not named in the last count, the plaintiff cannot 
 enter a 7iolle prosequi on that count, and proceed on the other. (^) 
 
 If there be a demurrer to part, and an issue upon other part, and the 
 plaintiff prevail on the demurrer, it was in one case holden that, without 
 a nolle p>rosequi as to the issue, he cannot have a writ of inquiry on the 
 demurrer ; because, on the trial of the issue, the same jury will 
 [ *682 ] ascertain *the damages for that part which is demurred to.(a) 
 But, in a subsequent case,(5) where the declaration consisted of 
 four counts, to three of which there was a plea of 7ion assump)sit, and a 
 demurrer to the fourth ; and, after judgment on the demurrer, the plain- 
 tiff took out a writ of inquiry, and executed it : this was moved to be set 
 aside, there being no nolle prosequi on the roll; and it was insisted, that 
 the plaintiff ought to take out a venire, as well to try the issue, as to inquire 
 of the damages upon the demurrer: Sed per Curiam, "that is indeed the 
 course, where the issues are carried down to trial, before the demurrer is 
 determined, and in that case the jury give contingent damages ; but here, 
 the demurrer being determined, and the plaintiff being able to recover all 
 he goes for upon the fourth count, there is no reason why we should force 
 him to carry down the record to nisi prius ; and as to the want of a nolle 
 prosequi upon the roll, he may supply that, when he comes to enter the 
 final judgment ; if not, the defendant will have the advantage of it upon 
 a writ of error : The judgment upon the inquiry must stand." 
 
 (c) 5 Price, 540; and see 1 Moore & P. 191. 
 
 (d) Cro. Car. 239, 243. 2 Rol, Abr. 100. And for the nature and effect of a nolle prosequi, 
 and in what cases it may or may not be entered, see 8 Co. 58. Cro. Jac. 211, S. C. Hardr. 
 153. 1 Wms. Saund. 5 Ed. 207, in noiis. 1 Ld. Ravm. 598, &c. 1 Wils. 90. 3 Durnf. & 
 East, 511. (e) 3 Durnf. & East, 511. Pos«, Chap. XL. 
 
 (/) 2 Salk. 456. 1 Bos. & Pul. 157. 6 Taunt. 444. 2 Marsh. 144, S. C. 
 
 (5^) 1 Salk. 219. 2 Salk. 456. 1 Str. 532, 574. (A) 16 East, 129. 2 Marsh. 145. 
 
 {i) 1 H. Blac. 108 ; and see 2 Chit. Rep. 697. 
 
 {k) 4 Durnf. & East, 360; and see 1 Wms. Saund, 5 Ed. 285, (5). 
 
 (a) 1 Salk. 219. 12 Mod. 558, S. C. 
 
 [b) 1 Str. 532. 8 Mod. 108, S. C; and see 1 Durnf k East, 473. 1 Wms. Saund. 5 Ed, 
 109, (1).
 
 OF A CASSETUR BILLA, ETC. 682 
 
 In trespass, or otlier action for a wron;:, against several defendants, the 
 plaintiff may, at any time before final judgment, enter a noUe j)ro8C(jiii as 
 to one defendant, and proceetl against the otiiers:(c) And so in assunt/jsit, 
 or other action upon contract, against several defendants, one of whom 
 pleads bankruptcy, or other matter in his personal discharge, the plaintiflf 
 may enter a 7iolle prosequi as to him, and proceed against the other de- 
 fendants.(J) So, in trespass against several defendants, where the jury by 
 mistake have assessed several damages, the plaintiff may cure it by entering 
 a nolle prosequi as to one of the defendants, and taking judgment against 
 the others. ((') ]5ut a nolle prosequi cannot be entered as to one defendant, 
 after final judgment against the others :(/) And it seems that in assump- 
 sit, or other action upon contract, against several defendants, the plaintiff 
 cannot enter a nolle prosequi as to one, unless it be for some matter ope- 
 rating in his personal discharge, without releasing the others.(^) So, wliere 
 the plaintiff dechires on a joint contract against two defendants, and one of 
 them pleads infancy, the plaintiff cannot enter a nolle prosequi as to him, 
 and proceed against the other defendant in that action ; but should com- 
 mence a new action against the adult defendant only. (A) In entering a 
 nolle prosequi, the plaintiff need not be amerced j^ro /aZi'o clamore ; but it 
 is sufhcient that the defendant be put without day.(i) 
 
 Of a natvu'e similar to a nolle p>rosequi, is the entry of a stet proce8Sus,{k) 
 by which the plaintiff agreos that all fui'ther proceedings in the action shall 
 be stayed. This entry is usually made, where the defendant be- 
 comes *insolvent pending the action ; and the object of it is to [ *683 ] 
 prevent him from obtaining judgment, as in case of a nonsuit. («) 
 
 On a plea in abatement, if the plaintiff cannot deny the truth of the 
 matter alleged, and it is sufficient in law to quash the bill or writ, he may 
 enter a cassetur hilla, vel hreve ;{b) or, in other words, pray that the bill 
 or writ may be quashed, to the intent that he may exhibit or sue out a 
 better bill or writ against the defendant : and upon such entry, the de- 
 fendant is not entitled to costs. For the purpose of making this entry, a 
 roll should be obtained, of the term of the declaration, on which the de- 
 claration and plea should be entered : after which, the roll is taken to and 
 docketed with the clerk of the judgments, in the King's Bench ; and the 
 master having marked the cassetur billa thereon, it is filed with the clerk 
 of the treasury. (w) In the Common Pleas, the roll is obtained from the 
 prothonotaries, with whom it is afterw^ards docketed and filed. (<;?(?) 
 
 In an action against an executor or administrator, if the defendant 
 lAciid pic ne administravit, and it cannot be proved that he has assets in 
 hand, the plaintiff may confess the plea, and take judgments of assets in 
 futuro ; which is an interlocutory or final judgment, according to the nature 
 of the action : and if it be only interlocutory, there must be a writ of inquiry 
 to complete it. So, in an action against an insolvent debtor or fugitive, 
 
 (r) nob. TO. Cro. Car. 239, 243. 2 Rol. Abr. 100. 2 Salk. 455, G, 7. 3 Salk. 244, 5. 
 1 Wils. 30G. 
 (rf) 1 Wils. 89. 
 
 (e) 11 Co. 5. Cro. Car. 239, 243. Carth. 19. {f) 2 Salk. 455. 
 
 ig) 1 Wils. 89; and see 2 Maule & Sel. 23, 444. 6 Taunt. 179. 
 \h) 3 Esp. Rep. 7i>. 5 Esp. Rep. 47, S. P. ; and see 3 Taunt. 307. 4 Taunt. 468. 
 (/) 1 Str. 574. [k) Append. Cliap. XXVIII. § 14. 
 
 (a) 7 Taunt. 180. h) Append. Chap. XXVI. i 7. 
 
 (cc) Imp. K. B. 10 Ed. 218, 19. 
 \dd) Imp. C. P. 7 Ed. 279, 80. 
 
 Vol. I.— 13
 
 683 
 
 OF TRAVERSES. 
 
 ■whose future effects remain liable to the payment of his debts, the plaintiff 
 may take judgment for his demand, to be levied of those effects. (ee) 
 
 A replication, denying the truth of the plea, is either in denial of the 
 whole, or a part of it ; and such denial is either direct and immediate, or 
 consequential to, and preceded by an inducement : the latter mode of denial 
 is called a traverse.{f) 
 
 When the defendant's plea consists merely of matter of fact, triable by 
 the country, in excuse or justification of the injury complained of, as Avhere 
 the defendant, in trespass and assault, pleads son assault demesne, or jus- 
 tifies in an action for words, there the plaintiff may reply generally, that 
 the defendant committed the injury of his own wrong, and without any 
 such cause as the defendant hath alleged ; which puts the whole matter of 
 the plea in issue, and is called a replication de injurid sud projjrid, absque 
 tali causd.(g) But where the plea consists of matter of record, as well as 
 matter of fact, or the defendant claims, in his own right, or as servant to 
 another, any interest in the land, or any common or rent issuing out of the 
 land, or a way or passage over it, there de injurid, &c. generally is not a 
 good replication ;(7i) but the plaintiff must either deny *the matter 
 [ *684 ] of record, or traverse the title specially ; or, admitting the matter 
 of record or title, he must reply, that the defendant committed 
 the injury of his own wrong, and without the residue of the cause alleged 
 by the defendant. So, if the defendant, without claiming any interest in 
 the land, justify under an authority derived immediately or mediately from 
 the plaintiff, or by authority of law, de injurid, &c. generally, is not a good 
 replication. 
 
 When there is an affirmative and negative, either in express words or by 
 necessary implication, («) or a complete confession and avoidance, a traverse 
 is unnecessary and superfluous. But when there are two affirmatives which 
 do not impliedly negative each other, or a confession and avoidance by 
 argument only, it is necessary to add a traverse. A traverse is a denial of 
 the whole, or most material point of the adversary's pleading ;(5) or, if 
 there be several points equally material, of one of them :(6') and it should 
 consist of some matter of fact, triable by the country, either expressly 
 alleged, (fZ) or necessarily implied. (e) Matter of inducement therefore, or 
 conveyance to the action,(^) a mere suggestion, surmise or supposal, the 
 time and place, or what is alleged under a scilicet, if immaterial, is not 
 allowed to be traversed ; nor matter of \?t\f,{gg) or mere legal inference ; 
 matter of intention, which is not triable, as the sciens in an action of deceit; 
 matter of record which is not triable by the country ; or any other matter, 
 which is not expressly alleged, or necessarily implied. But matter of in- 
 ducement, &c., is traversable, if material. (AA) 
 
 (ee) 1 Durn£ & East, 80. Append. Chap. XXII. § 14. 
 
 (/) For the replications usually made to pleas in different actions, see 1 Chit. PI. 4 Ed. 
 500, &c. (ff) Croffate's case, 8 Co. 67. 
 
 (A) Id. ibid, and see Willes, 52, 99, 202. 7 Price, 670. Yet, where the title alleged is 
 only inducement, de injuria, &c. generally, is a good replication. 2 Wms. Saund. 5 Ed. 
 295, (1.) And see further, as to the replication oi de inj'urid, &c., and when allowed, or not 
 proper or advisable, and the form of it, 1 Chit. PL 4 Ed. 525, &c. Steph. PI. 186, &c. 
 
 (a) 2 Str. 1177. 1 Wils. S. C. (b) Steph. PI. 256, 7. (c) Id. 258, 9. 
 
 (d) Id. 216, 17, 18. (e) Id. 218, 19. {/) Id. 212, 13; 257, 8. 
 
 {gg) Id. 215. 
 
 (hh) See further as -to the nature and properties of traverses in general, and their different 
 kinds, &c. Steph. PI. 170, &c. 230, &c. And as to special traverses, and what fact may be 
 traversed or denied, see 1 Chit. PI. 4 Ed. 531, &c. Steph. PI. 188, &c.
 
 OF REPLICATIONS IX GENERAL, ETC. (3g4 
 
 Every traverse ourrlit to have a proper iiiduccinont ; and if that be bad, 
 the traverse is insufficient :(/) But the inducement to a traverse does not 
 require much certainty ; though the traverse itself shouhl be certain, (/c) and 
 neither too hirge nor too narrow,(^) that is, it shoukl deny so much as is 
 material, and no more. The proper words for beginning a traverse, are 
 ahsrpie hoc ; but any words tantamount are sufficient, as et non : And the 
 replication ought not to conclude to the country, unless it comprise the 
 whole matter of the plea. There cannot be a traverse after a traverse, 
 when the first was apt and material :{m) but it is otherwise, Avhen the first 
 traverse was not to the point of the action, or immaterial. (?i) And the kino' 
 is allowed to take a traverse after a traverse, when his title appears by 
 office, or other matter of record. 
 
 The want of a necessary traverse, or a traverse that is unnecessary and 
 superfluous, is merely form, and aided after verdict, on a general 
 demurrer, *or by pleading over. A traverse improperly taken [ *G85 ] 
 is also aided in like manner ; as where it is without an induce- 
 ment, or of an immaterial point, or of one that is not the most material, or 
 too large or too narrow, or after a former traverse. (a) 
 
 If the plaintiff cannot deny the truth of the plea, he may confess and 
 avoid it, or conclude the defendant by matter of estoppel. Avoidance, we 
 have seen,(6) is either by matter precedent, which is called an avoidance in 
 law, or by matter subsequent, which is called an avoidance in fact.(c) And 
 it is a rule, with regard to estoppels, that they should be pleaded with cer- 
 tainty in every particular ;(<:?) and in pleading or replying, the paity must 
 rely upon them.(e) 
 
 In general we may observe, that the qualities of a replication are similar 
 to those of a plea : therefore it should answer the whole matter alleged, and 
 be single,(/) certain, direct and positive, triable, and capable of proof. (_(/) 
 But though a replication must not be double, yet it may contain several 
 distinct answers to different parts of the plea : Thus, at common law, where 
 the defendant in assumpsit pleads infancy, to a declaration consisting of 
 several counts, the plaintiff may reply, as to part of his demand, that it was 
 for necessaries ; to other part, that the defendant Avas of full age at the 
 time of the contract ; and to other part, that he confirmed it after he came 
 
 {i) Stcph. PI. 208, 9, 10. {k) Id. 213, 14. 
 
 (/) Id. 259, &c. (?«) Id. 210, 11. 
 
 («) Id. 211, 12. 
 
 («) For the above rules respectinj^ travcr.'cs, and the cases whicli illustrate thcni, see 
 Com. Dig. tit. Pleader, (G.) &c. And see further as to traverses when necessary, and wlien 
 not ; 1 Wms. Saund. 5 Ed. 85, (1), 133, (4), 207, d. c. (3, 4, 5), 209, (7, 8). 2 Wins. Saund. 
 6 Ed. 5, (3), 50, (3), what may or 7nav not be traversed; 1 Wms. Saund. 5 Ed. 23, (5), 298, 
 (3), 312, d. (4, 5). 2 Wms. Saund. 5"Ed. 10, (14), 206, (21, 22,) in what manner a traverse 
 should be taken; 1 Wms. Saund. 5 Ed. 82, (3), 2G8, (1), 2G9. a. (2). 2 Wms. Saund. 5 Ed. 
 207, (24), 295, b. (2), of a traverse after a traverse ; 1 Wms. Saund. 5 Ed. 22, (2), and when 
 and how the want of, or a bad or defective traverse is aided ; 1 Wms. Saund. 5 Ed. 14, (2), 
 20, rt. (1). See also 1 Chit. PL 4 Ed. 531, &;c. Steph. PL 188, &c. 
 
 (6) Ante, 643. 
 
 (c) See further, as to replications in confession and avoidance, 1 Chit. PL 4 Ed. 540, &c. 
 Steph. PL 219, &c. 
 
 (d) Co. Lit. 303, a. 
 
 (e) 1 Wms. Saund. 5 Ed. 325, a. (4). And see further, as to estoppels, 1 Wras. Saund. 
 5Ed. 210, (2). 2 Wms. Saund. 5 Ed. 418, (IJ. 1 Chit. PL 4 Ed. 522, 3. Stcph. PL 239, 40, 41. 
 Ante, 662. 
 
 (/) But see 2 Barn. & Cres. 908. 4 Dowl. k Ryl. 579, S. C. 
 
 (ff) See further, as to these qualities, 1 Chit. PL 4 Ed. 55G, 7. Stcph. PL 264. kc. 297, &c 
 342, &c.
 
 335 or AssiGXiNG breaches, etc. 
 
 of a"-e.(7t) So, if an executor or administrator plead several judg- 
 ments outstanding, and no assets ultra, the plaintiff may reply, as to 
 one of the judgments, mil tiel record ; and to another, that it was obtained 
 or kept on foot by fraud. (z) And to a plea of set-off, consisting of several 
 demands upon judgment or recognizance and simple contract, the plaintiflf 
 in his replication may give several answers ; as, to the judgment 
 [ *686 ] or *recognizance, 7iul tiel record, and to the simple contract, that 
 he was not indebted, or the statute of limitations. («) 
 At common law, when an action was brought on a bond with a penalty, 
 conditioned for the performance of covenants, the plaintiff could only have 
 assigned one breach of the "condition, by which the forfeiture was incurred; 
 for if he had assigned several breaches, the declaration would have been bad 
 for duplicity ; and if the issue joined on the breach assigned had been found 
 for the plaintiff, he was entitled not orly to recover the penalty, that being 
 the legal debt, but also to take out execution for the same, although it far 
 exceeded the amount of the damages actually sustained : and the defendant 
 could only have obtained relief in a com't of equity. For preventing these 
 inconveniences, to the plaintiff as well as to the defendant, it was enacted by 
 the statute 8 & 9 W. III. c. 11, § 8, that " in all actions upon any bond or 
 bonds, or on any penal sum, for non-performance of any covenants or agree- 
 ments, in any indenture, deed or writing contained, the plaintiff or plaintiffs 
 may assign as many breaches as he or they shall think fit ; and the jury, 
 upon the trial of such action or actions, shall and may assess, not only such 
 damages and costs of suit as have heretofore been usually done in such cases, 
 but also damages for such of the said breaches, so as to be assigned, as the 
 plaintiff, upon the trial of the issues, shall prove to have been broken ; and 
 that the like judgment shall be entered on such verdict, as heretofore hath 
 been usually done in such like actions." This statute, we have seen, (6) is 
 compulsory on the plaintiff, to proceed in the method it prescribes : and 
 under it, the breaches may either be assigned in the declaration, or in the 
 replication. It was not formerly usual to assign them in the declaration ; 
 but this is now commonly done, for avoiding the necessity of a suggestion 
 after judgment on demurrer, or by confession or nil dicet, or after a plea of 
 non est factum, kc. ; And where they are so assigned, the defendant may 
 deny the truth of them in his plea ; and, if necessary for his defence, may 
 plead several matters. But when the breaches are not assigned in the de- 
 claration, the usual course of pleading is, for the defendant in his plea to set 
 out the condition, and plead performance generally ; upon which the plaintiff 
 assigns the breaches in his replication. (c) In debt on bond, conditioned 
 for the payment of mortgage money, when the defendant pleads that he 
 paid the money according to the condition, the plaintiff in his replication may 
 take issue thereon, and conclude to the country, without assigning any fur- 
 
 [h) But a promise made after the commencement of an action, is not sufficient to sustain 
 a reijlication that the defendant, (who had pleaded infancy) ratified his contract after he 
 came of age. 2 Barn. & Cres. 824. 4 Dowl. & Ryl. 545, S.''C. 
 
 (?) 1 Wms. Saund. 5 Ed. 337, a. h. (2), and see 1 Salk. 298. 1 Ld. Raym. 263, S. C. 
 
 (a) 1 Chit. PI. 4 Ed. 500, 501. {b) Ante, 584. 
 
 (c) Per Chamhre, J. 5 Taunt. 390. 1 Marsh, 97, S. C. 2 Chit. Rep. 298, {a). And see 
 Com. Dig. tit. Pleader, F. 14, and the authorities there cited; by which it seems, that at 
 common law, where a breach was not admitted by the plea, the plaintiflf must have assigned 
 it in his replication, and concluded with a verification, so as to give the defendant an oppor- 
 tunity of answering it.
 
 OF A PKOTESTANDO. (386 
 
 ther breach :(fZ) But, in general, the breaelies are hehl to he suffi- 
 ciently assigned, though they are *not said in terms, to he accord- [ *687 ] 
 ing to the form of the statute.{(ra) After a ploa of no7i est fac- 
 tum,{bli) or that the bond was obtained by fraud, (re) &c. when the breaches 
 are not assigned in the declaration, the plaintiff, in the King's Bench, is 
 allowed to suggest them, in making up the issue ; and proceed to assess 
 damages thereon, at the time the issue is tried. This suggestion may be 
 entered at anytime before the trial ; though, -where the issue has been pre- 
 viously made up and delivered on such plea, it is irregular to deliver a second 
 issue with a suggestion, without a summons and judge's order.((A/) And, in 
 a late case,((') leave was given by the court of King's Bench to the plaintiff, 
 in debt on bond conditioned to perform an award, after judgment for him 
 upon a plea of judgment recovered, and writ of error allowed, to execute a 
 writ of inquiry upon the above statute, and to sign a new judgment, on the 
 terms of paying costs, and putting the defendant in statu quo, kc. But, in 
 the Common Pleas, on a plea of general performance, if the plaintif!', instead 
 of assigning hreaches in his replication, deny the performance and conclude 
 to the country, and then suggest breaches of the condition, it is bad on de- 
 murrer ; and if the defendant do not demur, but take issue and go to trial 
 on the question of performance, the court will after verdict award a re- 
 pleader.(/) 
 
 In order to avoid duplicity, Avhen a party is to answer two matters, an<l 
 yet by law he can only plead or reply to one of them, he may j^rotcst 
 against the one, and plead or reply to the other : as where a delivery and 
 acceptance are stated, of money or goods, &c. he may protest against the 
 delivery, and take issue on the acceptance ; or if a defendant plead that 
 he is seised in fee of land, and prescribe for common of pasture, kc. the 
 plaintiff in his replication may protest against the seisin, and take issue on 
 the prescription. This is called a j^rotestatioyi, or, from the gerund used 
 in making it when the proceedings were in Latin, aj^ro^es^ancZo; and is 
 defined to be a saving to the party who takes it, from being concluded by 
 any matter alleged or objected against him on the other side, upon Avliich 
 he cannot take issue. (^) A p-otestando is said by Lord Coke to be an 
 exclusion of a conclusion ; or a safeguard to the party, which keepeth him 
 from being concluded by the plea he is to make, if the issue be found for 
 him :(/«) And where it is doubtful whether a pleading be good, it is usual 
 for the party to protest that it is insufHcient in law, before he answers it. 
 But that which is the ground of the party's suit cannot be taken by pro- 
 testation ; for it may be denied by answer, and issue may be joined upon 
 it : as in detinue by the executor of A., the defendant cannot 
 *take by protestation that A. did not make the plaintiff his exe- [ *688 ] 
 cutor, for it is the ground of the suit, and utterly destroys the 
 plaintifiF's action ; and that which is the effect of the party's suit cannot be 
 
 {(1) 5 Moore, 198, and sec 2 Chit. Rep. COT, nnd the cases there cited. 
 
 {an\ 13 East, 3 ; and see 5 Diirnf. & East, 540. 
 
 \hh) 8 Durnf. & East, 255; and see 1 E^j). Rep. 2T7. Append. Chap. XXX. § 10. 
 
 (cc) 5 J[aule & Sel. 60. 2 Chit. Rep. 298, S. C. 
 
 (dd) 8 Durnf. & East, 255. {e) 14 East, 401. 
 
 (/) 5 Taunt. 386. 1 Marsh. 95, S. C. And for the mode of proceeding in general, on 
 the statute 8 & 9 W. III. c. 11, § 8, see 1 Wms. Saund. 5 Ed. 58, (1). 2 Wms. Saund. 5 Ed. 
 187,(2). Sel. Xi. Pri. 6 Ed. 591, &c. 1 Chit. PI. 4 Ed. 504, &c. .540. ^n^f. 583, &c. 
 
 {g) Plowd. 27G, b. Finch. L. 359, GO. (A) Co. Lit. 124, b. Doc. Plac. 295.
 
 688 
 
 OF DEPARTURE, 
 
 taken by protestation. (a) Also it is a rule, that a protestation -svliicli is 
 repugnant to, or inconsistent with the plea, or an idle and superfluous pro- 
 testation, is not good. (5) 
 
 A protestation is perfectly inoperative in the pleading in which it is used, 
 it neither admitting nor denying any thing in that suit ; and where one 
 pleads a plea, and takes another matter by protestation, and the issue is 
 found against him, the protestation is of no service ;(<?) it being a rule, that 
 a protestation does not avail the party that takes it, if the issue be found 
 against him, but only prevents a conclusion where the issue is found for 
 him, unless it be a matter that cannot be pleaded,((i) or on which issue 
 cannot be joined ;(e) and then it shall be saved to the party protesting, 
 though the issue be found against him.(/) 
 
 The only additional quality required in a replication, is that it be con- 
 sistent with, and do not depart from the declaration. Departure in pleading 
 is, wdien a man quits or departs from the case or defence which he has first 
 made, and has recourse to another ;[a] or, in other words, when the repli- 
 cation or rejoinder contains matter not pursuant to the declaration or plea, 
 and which does not support and fortify it.((/) Thus, if the declaration be 
 founded on the common law, the plaintiff in his replication cannot maintain 
 it by a special custom, or act of parliament, (7i) So, in an action of deht 
 on an arbitration bond, if the defendant plead "no award made," and the 
 plaintiff, in his replication, set out an award, and assign a breach, the de- 
 fendant cannot rejoin that the award was not tendered, (z) or is void,(/c) or 
 that the defendant hath performed, or been ready to perform it.(Z) So, in 
 an action of deht on bond, conditioned for the payment of an annuity, if 
 
 (a) Plowd. 27G. Doc. Plae. 296 ; and see Moor, 355, 6. Cro. Car. 365. 3 Wils, 109, 10 ; 116. 
 
 (b) Bro. Abr. tit. Protestation, I. 5. Plowd. 276, (c) Bro. Abr. tit. Protestation, 14. 
 [d) Finch, L. 359. , {e) Plowd. 276, b. Co. Lit. 124, b. 
 (f) For the several cases on this subject, see 2 Wms. Saund. 5 Ed. 103, (1). See also 
 
 3 Blac. Com. 311, 12. Reg. Plac. 70, 71, 3 Reeve's Hist, 437. 1 Chit. PI. 4 Ed. 533, &c, 
 Steph. PI. 235, &c. 
 
 (ff) Co. Lit. 304, a. 2 Wils. 98; and see 2 Wms, Saund, 5 Ed. 84, (1), 189, (3). 
 
 (h) Co. Lit. 304, a. 1 Lev. 81. 3 Lev. 48. 
 
 (i) 1 Lev. 300. 2 Wms. Saund. 5 Ed, 188, S. C. 3 Salk. 123. 
 
 (/i) 1 Lev. 85, 127, 133. 1 Wils. 122. (/) 1 Sid. 10. 
 
 [a] a departure in pleading, is where a previous ground in the pleading is abandoned 
 and a new ground assumed. Haley v. 3f'Pherson, 3 Humph. 104. JPAden v. Gibson, 5 Ala. 
 341, To assumpsit on an account, the defendant pleaded the statute of limitations, to which 
 the plaintiff replied fraud. Held, that the replication was a departure in pleading, and de- 
 fective on demurrer. Alien v. Mayson, 3 Brevard, 207. So in debt on a note, the plea was, 
 "no consideration." The replication set out a consideration, and the rejoinder showed a 
 partial failure of consideration. Held, that the rejoinder was a departure. Kilgore v. Powers, 
 5 Blackf. 22. On a declaration in the usual form, in a suit bj* the assignee against the 
 maker of a promissory. note, the pleas were, want of consideration, &c. The reijlication was, 
 that the note was made in the State of Ohio, &c., setting out a statute of that State, which 
 showed the pleas to be inadmissible. Held, that the replication was a departure. Yeatvian 
 v. Cullen, 5 Blackf. 240. Departure consists, also, in alleging new matter not tending to 
 fortify the traversed matter, and will vitiate a pleading. Paine v. Fox, 16 Mass. 129. Keay 
 V. Goodwin, lb. 1, 2. Darling v. Chapman, 14 lb. 101, 103. Thus, a marshal, to whom an 
 execution was given upon a judgment obtained by the United States for a penalty, re-deli- 
 vered to the debtor the goods upon which he had levied, on being served with a warrant of 
 remission. An action was thereupon brought against him, in the name of the L^nited States, 
 for the moiety of the penaltj^ allowed to the officers of the customs; but the declaration 
 alleged no interest in them, but only in the United States. The defendant pleaded the re- 
 mission. " The plaintiffs replied, the interest of the officers in the penalty. Held, on special 
 demurrer, that this was a departure. United States v. Morris, Paine, 209.
 
 OF DEPARTURE. G88 
 
 the defendant plead, "no sueli memorial as the statute requires," to which 
 the plaintiff replies that there was a memorial, which contained the names 
 of the parties, kc. and the consideration fur which the annuity Avas granted, 
 and the defendant rejoins that the consideration is untruly alk'<fed in the 
 memorial to have been paid to both obligors, for that one of them did not 
 receive any part of it ; this rejoinder is bad, as being a departure from 
 the plea.(m) So, in an action of debt on bond, conditioned for the per- 
 formance of covenants, if the defendant plead performance, and 
 *the plaintiff reply and assign a breach, the defendant cannot [ *G89 ] 
 rejoin any matter in excuse of performance.(a) But Avhere the 
 rejoinder discloses new matter, in explanation or fortification of the bar, it 
 is no departure :[b) Thus, where the defendant in an action of debt on an 
 arbitration bond, pleaded no " award," and the plaintiff in his replication 
 set out the award, and the defendant in his rejoinder stated the whole 
 award, in which was recited the bond of submission, by Avhich it appeared, 
 upon the face of the award, that it was not warranted by the sulnnission, 
 and then demurred ; the court held, that the rejoinder was not inconsistent 
 with, nor a departure from the plea.(6') In scire facias against bail, they 
 pleaded that there was no ca. sa. against the principal, the plaintiff replied, 
 by shoAving the ca. sa. and a return of non est inventus, the defendant re- 
 joined that the ca. sa. did not lie four days in the office ; and this, on de- 
 murrer, was holden to be a departure ; although, by the practice of the 
 court, the proceedings were on that account irregular, and might have been 
 set aside. (fZfZ) But where bail, sued in scire facias upon their recogni- 
 zance, pleaded that no ca. sa. was duly sued out, returned and filed, 
 against the principal, according to the custom and practice of the court, to 
 which the plaintiff in his replication showed a Avrit of ca. sa. issued into 
 3Iiddlesex, it was holden to be no departure for the defendant to rejoin, that 
 the venue in the action against the principal was laid in London ; for that 
 sustains the plea.(6') 
 
 Time and place, when material, cannot be departed from ; as, in an action 
 upon a bond,(/) or promissory notc,(^) the plaintiff in his replication can- 
 not vary from the day laid in the declaration. So, in an action for a local 
 trespass, he cannot reply that it was committed at a different place. But 
 when the time laid in the declaration is immaterial, there, if it become ne- 
 cessary by the defendant's plea, the plaintiff in his replication may depart 
 from it ; as in trespass,{lt) or trover,{i) or upon a general indebitatus as- 
 sumpsit,(Jc) when the time becomes material by the defendant's plea of a 
 release, tender, or the statute of limitations, &c. So, in an action for a 
 transitory trespass, when the defendant pleads a local justification, the 
 plaintiff, in his replication, may vary from the place laid in the declara- 
 tion. (Z) The proper mode of taking advantage of a departm'e, is by demur- 
 
 (m) 4 Durnf. & East, 585. 
 
 (a) Co. Lit. 304, a. 2 Lev. Gl. 1 Salk. 221, 2. (b) 2 Wils. 03. 
 
 (c) 11 East, 188; and sec 1 Barn. & Cres. 4G5, 6. 2 DowL & Ryl. 472, 3, S. C. 
 (dd) 1 Wils. 334. IG East, 41. 1 Dowl. & Ryl. 50. 
 
 M 10 East, 39; ami see 5 Dowl. & Ryl. 615. (/) 1 Salk. 222. 3 Lev. 348. 
 
 Iff) 1 Sir. 22. 2 Sir. 806. 
 
 (A) Co. Lit. 282, a. b. 1 Salk. 222. 2 Ld. Raym. 1015. 
 (t) Cro. Car. 245, 333. 1 Salk. 222. 
 
 (k) 1 Str. 22. 2 Str. 80G. 1 Lev. 110. 1 Kcb. 5G6, 578. 10 Mod. 251. F»rt. 375. 1 
 Barnard, K. B. 54. 
 {I) 1 Ld. Raym. 120.
 
 ggg OF NEW ASSIGNMENTS. 
 
 rer ; for if the defendant, instead of demurring, take issue upon a replica- 
 tion containing a departure, and it be found against him, the court will not 
 arrest the judgment.(m) 
 
 *But though a departure be not allowable, yet in many actions, 
 r *690 ] and particularly in trespass, the plaintiff, who has alleged in his 
 declaration a general wrong, may, in his replication, after an eva- 
 sive plea by the defendant, reduce that general wrong to a more particular 
 certainty, by assigning the injui-y afresh, with all its specific circumstances, 
 in such manner as clearly to ascertain and identify it, consistently with his 
 general complaint; which is called a neiv or 7wvel assignment. [a) 
 
 A new assignment is either as to time, place, or other circumstances. 
 With respect to time, when the defendant justifies under a right of com- 
 mon, &c. at particular times, the plaintiff may new assign the trespass at 
 other times. So, in an action of assault and battery, if the defendant plead 
 son assault demesne, and there were in truth two assaults, one of which 
 the defendant can justify, and the other not, the plaintiff may new assign 
 the assault for Avhich he brought his action. (J) And it seems that the de- 
 fendant in such case may prove an assault on any day before the action 
 brought ; and the plaintiff cannot give in evidence an assault at another 
 day, or at another time on the same day, without a new assignment. (c) 
 But where the defendant, in trespass quare clausum fregit on several 
 days, pleads leave and license to the whole, if some of the trespasses were 
 committed after the license was revoked, the plaintiff need not new assign ; 
 as the defendant, by his plea, undertakes to prove a license sufficient to 
 cover all the acts of trespass, (c^) 
 
 With respect io jjlace, it is a rule, that if the plaintiff in trespass give it 
 a name by his writ, the defendant cannot vary from that name ; but if the 
 writ be only general, quare clausum fregit, and the plaintiff give a name 
 in his count, this shall not bind the defendant, but he may give the place 
 another name.(e) And it is on all hands agreed, that when the writ and 
 count are both general, the defendant may give the place a name in his 
 plea ;(/) or he may plead liherum tenementum generally, without giving 
 it a na,me.(g) But when the place is made material by the defendant's plea, 
 he must show it with certainty ; as in trespass, for taking and carrying 
 away the plaintiff's goods in D., the defendant pleaded that the locus in 
 quo was his freehold, and that he took the goods damage feasant, &c. the 
 plaintiff demurred generally, and had judgment ; for the action being transi- 
 tory, there is no locus in quo supposed, D. being only alleged for a venue ; 
 therefore, if the defendant will make the place material, it must come on 
 his part to show the certainty of it. (7i) 
 
 If the defendant say, that the locus in quo is six acres in D. which are 
 
 his freehold, and the plaintiff say they are Ms freehold, and in truth the 
 
 plaintiff and defendant have both six acres there, it was in one 
 
 [ *691 ] case *determined, that the defendant cannot give in evidence, that 
 
 he committed the trespass in his own soil, unless he give a name 
 
 (m) T. Raym. 86. And see further, a,s to departure in pleading, 2 Wms. Saund. 5 Ed. 84, 
 a. &c. 1 Chit. PI. 4 Ed. 556, &c. Steph. PL 405, &c. 
 
 (a) 3 Blac. Com. 311. {h) 6 Mod. 120. 2 Ld. Rayra. 1015. 
 
 (c) Bui. Ni. Pri. 1*7; and see 1 Esp. Rep. 38. Ry. & Mo. 118. 1 Car. & P. 381, S. C. ; 
 but see Cro. Car. 514, 15, contra. (d) 1 Car. & P. 448, 677 ; and see 11 East, 451. 
 
 (e) Per Fairfax, Just. 22 Edw. IV. 17. Willes, 222, &c. 2 Blac. Rep. 1090. 
 
 (/) Bro. Abr, tit. Trespass, pi. 277, 300, 366. {g) Id.pl. 153. 
 
 (A) 2 Salk. 453. 6 Mod. 117, S. C.
 
 OF NEW ASSIGNMENTS. ' 691 
 
 certain to the six acres ; for otherwise, it is said, the phiintiff cannot make 
 a new assignment. (r/) So where the plaintiff, in trespass qiiare clausum 
 fregit, names the close in his declaration, and the defendant pleads liberum 
 tene7nentum generally, without giving any further descrij)tion of the close, 
 the plaintiff is not driven to a new assignment ; hut is entitled to recover, 
 upon proving a trespass committed in a close in his possession, bearing the 
 name given in the declaration, although the defendant may have a close in 
 the same parish, known by the same name. (6) But where the defen<lant, 
 in trespass quare clausum fregit in D. pleads Uheriim tenementum, with- 
 out giving the close a name, and issue is joined thereupon, it seems to be 
 sufficient for him to show ang close there that is his freehold ;(c) and there- 
 fore, in that case, the better way is to make a new assignment. 
 
 As the plaintiff may new assign the trespass in a different close, so ho 
 may new assign it in another part of the same close. In the latter case, he 
 ought to allege, in what other part of the close the defendant committed the 
 trespass, as in the south or north part, so that the difference may be plainly 
 perceived. ((^) If the defendant justify under a right of way, the plaintiff 
 may either deny the existence of the right claimed by the defendant, or 
 admitting it, he may new assign the trespass, extra viam : or, if the decla- 
 ration be so framed as to include several trespasses of the same nature, he 
 may deny the right, as Avell as make a new assignment, by saying that he 
 brought his action, not only for the trespass attempted to be justified, but 
 also for the other trespass extra viam. And where the defendant justifies 
 under a right of common of pasture, or turbary, &c. the plaintiff ma}', if the 
 declaration will admit of it, state the trespass to have been committed on 
 other occasions, and for other purposes, than those mentioned in the plea. 
 But Avhere the plaintiff' complains of a single act of trespass, which is justi- 
 fied by the defendant, the plaintiff cannot in his replication take issue upon 
 the facts of the justification, and also newly assign either the same or differ- 
 ent matters ; such replication and new assignment being double. (e) The 
 plaintiff therefore, in such case, should either reply to the plea, or new assign 
 the trespass, according to the facts of the case : If the plea do not contain 
 a complete answer to the trespass, then the plaintiff" should reply, by denying 
 or confessing and avoiding it :(/) but if the trespass be completely justified 
 by the plea, the plaintiff should not reply thereto, but make a ncAV assign- 
 ment, if the facts of the case will warrant it :{g) By new assigning, 
 however, he admits that the trespass in *the declaration is answered [ *C92 ] 
 by the plea; and therefore, uidess a different trespass of the same 
 nature can be proved, the plaintiff' must fail in his action. (aa) And where 
 the declaration consisted of two counts, to the first of which there was a 
 justification, and the plaintiff new assigned the trespass, as having been 
 committed at a subsequent time, but failed at the trial in proving his new 
 
 (a) Dyer, 23. 
 
 (b) 1 Barn. & Cres. 489. 2 Dowl. & Rvl. TlO, S. C; and sec 2 Binp. 49. 
 
 (c) 2 Salk. 453. 6 Mod. 119, S. C. ; and see Willcs, 223. 7 Durnf. & [Eapt, 335, per 
 Lawrence, J. Atherton v. Fritchard, E. 43 Geo. III. K. B. 2 Taunt. 159. 1 '\Vms. Suund. 
 299, b. c. 1 Chit. PI. 4 Ed. 546, 7. 
 
 {(I) Bfo. Abr. tit. Trespass, pi. 203. 
 
 (<•) 10 East, 73, 80 ; and see 7 Taunt. 150. (/") 16 East, 82. 
 
 . (<j) 2 Wils. 3 ; and sec Cro. Car. 228. 2 Durnf. &'East, 172, 177. 3 Durnf. k East, 292. 
 7 Durnf. & East, 654. 11 East, 400. 8 Moore, 326. 1 Bing. 317, S. C. Kv. & Mo. 118. 
 1 Car. & P. 381, S. C. 4 Barn. & Cres. 704. 7 Dowl. & Ryl. 187, S. C. 5 'Barn. & Cres. 
 485. 8 DowL & Ryl. 257, S. C. 
 
 {aa) 16 East, 82.
 
 Qf)2 OF CONCLUDING THE REPLICATION, ETC. 
 
 assio-nment, the court held, that he couhl not have recourse to the second 
 count : for by new assigning he admitted that he did not intend to proceed 
 for tlic trespass that was justified, but to rely on his new assignment ; and 
 as there were only two trespasses, one of which was admitted to be answered, 
 he could not avail himself of the other trespass, both on the new assign- 
 ment and on the second count. (&) 
 
 A new assignment, being in nature of a new declaration, (c) should be 
 equally certain ; and the defendant may answer it in the same way, either 
 by pleading the general issue of not guilty, or a special justification. (c^) 
 But, in answer to a new assignment at a difl'erent place, he cannot say that 
 the places mentioned in the plea and new assignment are the same ;(ee) for 
 by new assigning, the plaintiff admits the truth of the plea, and is estopped 
 from giving any evidence in the place stated therein ; so that if the places 
 are in truth the same, the defendant may take advantage of it on the general 
 issue of not guilty. Neither can the defendant justify at a difierent place, 
 and traverse the place mentioned in the new assignment. (^) 
 
 When a replication denies the whole substance of the defendant's plea, 
 there the plaintiff ought to tender an issue, and conclude to the country :{gg) 
 and it matters not whether the replication in such case be with or without 
 a traverse ; for where a traverse comprises the whole matter of the plea, 
 the replication may still conclude to the country.(A) But when a particular 
 fact is selected and denied, the conclusion seems to depend on the form of 
 the replication : If it be so framed, as simply to deny the fact, without any 
 inducement or traverse, it ought to conclude to the country ;[i) but the 
 plaintifi" is not always obliged to reply in that way, for in some cases he is 
 allowed, after a proper inducement, to traverse the fact, with an absque 
 hoc ;{k) and when a particular fact is so traversed, the replication should 
 conclude to the court, with an averment and prayer of damages, 
 [ *693 ] or *of the debt and damages :(a) And it is an invariable rule, 
 that whenever new matter is alleged in the replication, it should 
 be concluded with an averment, in order to give the defendant an oppor- 
 tunity of answering it. {bb) A new assignment concludes, by averring that 
 the trespass newly assigned is another and different trespass than that 
 mentioned in the plea ; wherefore, inasmuch as the defendant hath not 
 answered the trespass newly assigned, the plaintiff prays judgment, and 
 his damages, &c. 
 
 (b) 2 Duruf. & East, 1T6, 7 ; and see 1 Durnf. & East, 479. Bui. Ni. Pri. 17. 1 Car. & P. 
 394, 5. 
 
 (c) 1 Ken. 389. (d) Bro. Abr. tit. Trespass, pi. 1G8, 359. 
 (ee) Id.pl. 3, 168. Cro. Eliz. 355, 492, 3. 
 
 [ff) Id. pi. 163. And see further as to new assignments, when necessary or not, and how 
 made, and the pleadings thereon, 1 Wms. Saund. 5 Ed. 299, (6). 2 Wms. Saund. 5 Ed. 5, 
 (3). 1 Chit. PL 4 Ed. 542, &c. Steph. PI. 241, &c. 
 
 {gg) 1 Bur. 316. 2 Bur. 1022. Doug. 94, 428. 2 Durnf. k East, 442, 3. 
 
 \h) 1 Salk. 4. 
 
 \i) 2 Durnf. & East, 439 ; and the cases there cited of Bush v. Leake, T. 23 Geo. III. K. B. 
 Slater v. Came, H. 25 Geo. III. K. B. and Carter v. Yates, T. 27 Geo. III. K. B. accord. 
 Mulliner v. Wilkes, E. 23 Geo. III. K. B. semb. contra. 
 
 (k) Fen T. Alston, cited in 1 Bur. 320, 21. 2 Str. 871. 2 "VVils. 113. Barnes, IGl, S. C. 
 Doug. 428. 
 
 (a) Id. Ibid. 1 Bur. 319. 2 Durnf & East, 442, 3. 
 
 (bb) 2 Wils. 65. Doug. 58. 2 Durnf & East, 576. And see further, as to the mode of 
 concluding replications, &c., and when they should conclude to the contrary, or with a 
 verification ; 1 Wms. Saund. 5 Ed. 103, (1), 327, (1), 334, (9), 338, (5, 7), 339, (8). 2 Wms. 
 Saund. 5 Ed. 190, (5). 1 Chit. PL 4 Ed. 554, &c. Steph. PL 247, 8; 39G, &c.
 
 OF DEMURRERS. 693 
 
 In the King's Bench, Avhen the plea was entered in the general issue 
 book, or deUvered to tlic pLiintifT's attorney, the replication should in all 
 cases be deUvered to the (lefciKlant's attorney ; but otherwise it should be 
 filed in the office of the clerk of the papers: And a similiter to the general 
 issue must be delivered, or the defendant will be entitled to sign a judg- 
 ment of non pro8.{c) The replication also should be signed by counsel, 
 unless it conclude to the country. In the Common Pleas, the replication 
 is either filed in the prothonotary's office, or delivered to tlie defendant's 
 attorney : And, in that court, a tender of an issue in fact must be signed 
 by a Serjeant, but a joinder in issue need not.(d) 
 
 If the plaintift' reply, Avithout joining issue, the defendant may be called 
 upon to rejoin; or if there be a new assignment, he may be ruled to plead 
 thereto, in like manner as to the original declaration. (e) The rejoinder 
 should be delivered to the plaintiff's attorney, or filed in the office of the 
 clerk of the papers, in the King's Bench, in like manner as the replication ; 
 In the Common Pleas, it is filed with the prothonotaries. And after a re- 
 joinder, if the parties are not yet at issue, the plaintiff must surrejoin, the 
 defendant rebut, and the plaintiff surrebut, &c. till issue is joined. The 
 rule for these purposes is given by the master or secondaries, in like man- 
 ner as the rule to reply ; and if the defendant neglect to rejoin or rebut, 
 when called upon for that purpose, the plaintiff, in the King's Bencli, may 
 strike out the previous pleadings, and sign judgment by default, as for want 
 of plea.(/) If the plaintiff, on the other hand, do not surrejoin, or surre- 
 but, within the time limited by the rule, or order for further time, the de- 
 fendant may sign a judgment of non jJros ; and it is not necessary for him, 
 in the King's Bench, to demand a surrejoinder, &c. the service of the copy 
 of the rule being deemed a demand of itself; but, in the Common Pleas, a 
 surrejoinder, &c. must be demanded, before judgment is signed. 
 
 *CIIAPTER XXIX. [*694] 
 
 Of Demurrers, and Amendment. 
 
 A Demurrer admits the facts, and refers the law arising thereon to the 
 judgment of the court :(a) And it is either to the whole or part of a decla- 
 ration ; or to the plea, replication, &c. When tlierc are several counts in 
 a declaration, some of which are good in point of law, and the rest bad, the 
 defendant can only demm* to the latter ; for if he were to demur generally 
 to the whole declaration, the court would give judgment against him. (6) 
 So, if the sum demanded by a declaration in scire facias be divisible on 
 the record, and there be no objection to one part of it, a demurrer which 
 goes to the Avhole is bad.(c'6') If a plea or replication, Avhich is entire, be 
 
 {c) 3 Dowl. k Ryl. 1. 
 
 (d) 1 Bos. k Pul. 4GD. 3 Bos. & Pul. IVI. (r) Append. Chap. XVIII. § 9. 
 
 (/) 5 Duruf. k East, l.")2. And see further, as to rcjoiitdcn!, &c. 1 Wms. JSauud. 5 Ed. 
 • 318, a. (1). 1 Chit. PI. 4 Ed. 5G3, &c. 
 {a) Co. Lit. 71, b. 5 Mod. 132. 
 
 {/j) I Wms. Samid. 5 Ed. 28G, (9). 2 Wms. Saund. 5 Ed. 380, (14). 1 Wils. 248. 1 
 New Rep. C. P. 43. 
 (cc) 11 East, 5G5
 
 g94 0^ DEMURRERS. 
 
 bad in part, it is in general bad for the whole :{d) But a plea of set-off, 
 wherein the demands are divisible, and in nature of several counts in a 
 declaration, forms an exception to this rule.(e) 
 
 Demurrers are general or sjyecial ;{f) the former are to the substance, 
 the latter to the form of pleading. Thus if a defective title be alleged, it 
 is a fault in substance, for which the party may demur generally ; but if a 
 title be defectively stated, it is only a fault in form, which must be specially 
 assigned for cause of demurrer. Of the latter nature is duplicity : and it 
 is not sufficient to say that the pleading is double, or contains two mat- 
 ters ; but the party demurring must specially show wherein the duplicity 
 consists. (^) 
 
 At common law, there were special demurrers, but they were never ne- 
 cessary except in cases of duplicity, and therefore were seldom used ; for 
 as the law was then taken to be, upon a special demurrer, the party could 
 take advantage of no other defect in the pleadings, but of that which was 
 specially assigned for cause of his demurrer ; but upon a general demurrer, 
 he might take advantage of all manner of defects, that of duplicity only 
 excepted. And there was no inconvenience in this practice ; for the plead- 
 ings being at bar viva voce, and the exceptions taken ore tenus, 
 [ *695 3 *the causes of demurrer were as well known upon a general de- 
 murrer, as upon a special one. (art) 
 
 Afterwards, when the practice of pleading at bar was altered, this public 
 inconvenience followed from the use of general demurrers ; that the practice 
 went on to argument, without knowing what they were to argue : and this 
 was the occasion of making the statute 27 Eliz. c. 5, by which it is enacted, 
 that "after demurrer joined and entered in any action or suit, in any court 
 of record, the judges shall proceed and give judgment, according as the very 
 right of the cause and matter in law shall appear to them, without regarding 
 any imperfection, defect, or want of form, in any writ, return, plaint, decla- 
 ration, or other pleading, process, or course of proceeding whatsoever, 
 except those only which the party demurring shall specially and particu- 
 larly set down and express, together with his demurrer." This statute, by 
 making known the causes of demurrer, was so far restorative of the common 
 law :(rt) and as a general demurrer before did confess all matters formally 
 pleaded, so by this statute, whenever the right sufficiently appeared to the 
 court, it confessed all matters, though pleaded informally. (5) 
 
 But there were still many defects and imperfections, which were not 
 aided as form upon a general demurrer : to remedy which it was enacted, 
 by the statute 4 Ann. c. 16, § 1, that " no advantage or exception shall be 
 taken of or for an immaterial traverse, the default of entering pledges upon 
 any bill or declaration, the default of alleging a jjrofert in ciirid of any 
 bond, bill, indenture, or other deed, mentioned in the declaration or other 
 pleading, or of letters testamentary, or letters of administration, the omis- 
 sion ofvi et armis, or contra pacem, the want of averment of hoc paratus 
 
 (d) 1 Wms. Saund. 5 Ed. 28, (2), 337, (1). 2 "Wms. Saund. 5 Ed. 127, b. c. 1 Salk. 312. 
 1 Durnf. & East, 40. 3 Durnf. & East, 374. 1 Chit. PI. 4 Ed. 464, 5. Steph. PI. 159, &c. 
 
 (e) 2 Blac. Rep. 910. 
 
 (/) Co. Lit. 72, a. Steph. PI. 403, 4. And for the forms of general demnirers to declara- 
 tions, and pleas, &c. and joinders therein, see Append. Chap. XXIX. § 1, 3, 6, 7. 
 
 {(j) R. M. 1654, I 17. K. B., R. M. 1654, | 20, C. P. 1 Salk. 219. Wilies, 220. Cas. 
 temp. Hardw. 167 ; and see 1 Wms. Saund. 5 Ed. 337, b. (3). Steph. PL 264, &c. 1 
 Moore & P. 102. 4 Bing. 428, S.C. (aa) 3 Salk, 122. 
 
 (a) 3 Salk. 122. (b) Hob. 233.
 
 OF DEMURREKS. 695 
 
 est verifieare, or hoc paraUis est verificare 'per recordum, or not alleging 
 prout patet per recordum :{c) but the court sliall give judgment, according 
 to the very right of the cause, Avithout regarding any such imperfections, 
 omissions and defects, or any other matter of like nature, except the same 
 shall be specially and particularly set down, and shown for cause of demur- 
 rer, notwithstanding the same might have heretofore been taken to be 
 matter of substance, and not aided by the statute of Queen Elizabeth, so as 
 sufficient matter appear in the pleadings, upon which the court may give 
 judgment, according to the very right of the cause." Since the making of 
 these statutes, the party, on a general demurrer, can only take advantage 
 of defects in substance ; and therefore, if the defects be not clearly of that 
 nature, it is safest to demur specially, in which case he might not only take 
 advantage of such defects, but also of any others that are specially set 
 down.((Z) The plaintifl', however, need never demur specially to a plea in 
 abatement. ((^) 
 
 *A11 demurrers, whether general or special, must be signed by [ *696 ] 
 counsel in the King's Bench,(aa) or a Serjeant in the Common 
 Pleas ;(66) and, in the King's Bench, general demurrers to the decla- 
 ration UMist be delivered(c6') to the plaintiff 's attorney ; but special 
 demurrers, or general demurrers after special pleas, must be filed in the 
 oJBice of the clerk of the papers, who makes copies of them. And a general 
 demurrer to part of a declaration, and a general issue to the rest, or a 
 general demurrer to a plea of nil debet, in an action of debt on bond, must, 
 we have seen,(t?(i) be delivered to the opposite attorney, and not ^^ecZ with 
 the clbrk of the papers. In the Common Pleas, all demurrers, whether 
 general or special, may either be filed in the prothonotarics' office, or de- 
 livered to the opposite attorney. (et^) And when either party has demurred, 
 he should obtain a rule from the master in the King's Bench, and enter it 
 ■with the clerk of the rules, for the opposite party to join in demurrer ;(/) 
 a copy of Avhich rule should be duly served. In the Common Pleas, a rule 
 to join in demurrer is given with the secondaries,(^) in like manner as the 
 rule to plead; and a joinder in demuiTcr should be demanded, (//) before 
 judgment ; and in that com't, a joinder in demurrer must have a seijeant's 
 hand.(i) The defendant, we may remember, cannot waive a general de- 
 mm'rer to the declaration, in the King's Bench ; but a special one may be 
 waived after the book is made up, unless the defendant has been previously 
 ruled, and elected to abide by \i.{k) In the Exchequer it is a rule,(Z) that 
 "in all cases where the plaintiff demurs to the defendant's plea, or other 
 subsequent pleading, and the defendant joins in demurrer, the plaintiff shall 
 be at liberty to enter the issue in law upon the roll, and move for a con- 
 cilium, without giving the defendant any rule to bring in the demurrer 
 book." 
 
 (c) 11 East, 516, 5G5. 
 
 \d) 1 Wnis. Saund. 5 Ed. 337, b. (3). And see further, as to demurrers and Joinders, 1 
 Chit. PI. 4 Ed. 573, &c. Stcph. PI. 158, &c. 
 
 (?) Per Bayley, J. 2 Maiile & Sel. 485. Ante, 638. [aa) Per Cur. T. 21 Geo. III. K. B. 
 
 {bb) Douqlas'x. Child, E. 33 Geo. III. C. P. Allen v. Ilall, Imp. C. P. 7 Ed. 298, S. P. 
 
 (cc) 1 Chit. Rep. 212. 2 Chit. Rep. 295. {dd) Ante, 672. 
 
 \ee) Imp. C. P. 7 Ed. 298. (/) Append. Chap. XXIX. I 1. 
 
 h) Id. § 8. (h) Id. I 10. 
 
 (t) 2 Bos. & Pul. 336 ; and see 3 Bos. & Pul. 171, in notis. 
 
 (k) Ante, 673, 4. 
 
 {l) R. T. 26 & 27 Geo. II. § 4, in Scac. Man. Ex. Append. 211.
 
 696 
 
 OF AMENDMENT. 
 
 When eitlier party demurSj the other, in due time, joins in demurrer, 
 and proceeds to argument ; or he amends, discontinues,(77i) or enters a nolle 
 prosequi. (n) 
 
 Ame7id7nents are either at common law, or by statute. (o)[a] At common 
 law, there was very little room for amendments : for, according to Britton^ 
 the judges were to record the parols, or pleadings, deduced before them in 
 judgment; but they were not to erase their records, nor amend them, 
 nor record against their inrolment,(jo) &c. All mistakes, however, were 
 amendable at common law, during the same term ;{q) and after- 
 [ *697 ] wards, an *amendment was in some instances permitted, as in the 
 recital of a writ, or entry of an essoin or continuances, («) &c. 
 So, at common law, when the pleadings were ore tenus at the bar of the 
 court, if any error was perceived in them, it was presently amended.(6) 
 Afterwards, when the pleadings came to be in paper, it was thought but 
 reasonable that the parties should have the like indulgence, (e) And hence 
 it is now settled,((i) that whilst the pleadings are in paper, and before they 
 are entered of record, the court or a judge will amend the declaration, (e) 
 plea,(/) replication, (^^) &c. in form or substance, on proper and equitable 
 terms ;[a] and declarations in actions on bail-bonds may be amended, in 
 
 (m) Ante, Gil. 
 
 (n) Co. Lit. 12, a. R. M. 1654, ? 17. K. B., R. M. 1654, | 20. C. P. Ante, 681, 2. 
 
 (o) 1 Str. 137. 
 
 (p) 4 Inst. 255. Gilb. C. P. 107. (?) 8 Co. 157. Gilb. C. P. 108. 
 
 (a) Gilb. C. P. 108, 9. (i) 10 Mod. 88. 1 Str. 11. 
 
 (c) 2 Salk. 520. Gilb. C. P. 114, 15. (d) 1 Salk. 47. 3 Salk. 31. 
 
 (/) 1 Wils. 7. (/) Id. 223. 
 
 (gff) Id. 16. 
 
 [a] See note [b] ante p. 161. 
 
 [bJ An amendment in a declaration may be allowed -which does not change the nature 
 or subject-matter of the action, even though without such amendment, the action could not 
 have been sustained. Skinner v. Grant, 12 Verm. 456. Cabarga v. Secffcr, 5 Harris, 514. 
 So long as the form of action is not changed, and the court can perceive that its identity is 
 preserved, the particular allegations of the declaration may be changed by amendment, and 
 others superadded, in order to cure imperfections and mistakes in the manner of stating the 
 plaintiff's case. Stevenson v. JIudgett, 10 New Hamp. 338. Pcrleyy. Brown, 12 New Hamp. 
 493. Thompson v. Phelin, 2 Post. (N. H.) 339. Christian v. Penn, 5 Geo. 482. Lawrence 
 V. Langley, 14 New Hamp. 70. 
 
 Thus, it has been held, that a new count for the assertion of a right or the enforcement 
 of a claim, growing out of the same transaction, act, agreement, or contract, upon which 
 the original declaration is founded, is not for a new cause of action, and may be inserted as 
 an amendment, however different the form of liability may be. Smith, v. Palmer, 6 Cush. 
 513. But the form of the action must remain the same. Bishop v. Baker, 19 Pick. 517. 
 Guilford v. Adams, 19 Pick. 376. Casnard v. Eve, Dudley, (Geo.) 108. Pearson v. Reid, 10 
 Geo. 580. Rugby v. Robhson, 19 Ala. 404. French v. Gerrish, 2 Foster, (N. H.) 97. Wilcox 
 T. Sherman, 2 Rh. Island, 540 ; and the court will presume the cause of action to remain the 
 same unless the contrary is shown. Penobscot Co.y. Baker, 4 Shep. 233. Thus, in an action 
 of trover, a count for additional property may be added. Iloskins v. Berris, 8 Washb. (Vt.) 
 673 ; or for conversion, 3 Red. 353 ; or perfert of a covenant relied on even after demurrer. 
 Bowles V. Ellmore, 1 Gratt. 385. Uale v. Lawrence, 2 Zab. (N. J.) 72 ; lor a variation between 
 the declaration and the bond. Fulkerson v. The State, 17 Miss. 49; or after demurrer over- 
 ruled, plaintiff may amend. Whitfield v. Woldredge, 1 Cushm. (Miss.) 183 ; or an omission of 
 seizin and disseizin. Roivell v. Small, 17 Shep. (Maine) 30; or by adding a separate demise. 
 Deny. La Greaves, 1 HaiT. (N. J.) 357; or diminishing the extent of the claim. Plummer v. 
 Walker, 11 Shep. 14 ; or by striking out a count as to which the court has no jurisdiction. Pol- 
 lardx. Barnes, 2 Cushm. 191. Soule v. Russel, 13 Metcf. 436 ; or in the assignment of a breach. 
 Sharpy. Colgan, 4 Miss. 29 ; or by adding a bill of particulars. Tarbell v. Dickinson, 3 Cush. 
 345; or adding a plea of property in replevin. Helling y. Wright, 2 Harris, (Penn.) 273 ; or a 
 new count alleging promises to an administrator. Smith v. Proctor, 1 Sandf. Sup. C. Rep.
 
 OF AMENDMENT, 697 
 
 the Common Pleas, as well as any other declarations. (Zi/?) Amendments 
 are commonly made by summons and order, at a judge's chambers : or 
 they may be made by the judges, on their circuits, by the statute 1 .Geo. 
 IV. c. 55, § 5 •,{u) previously to Avhich statute, it seems that -when the 
 amendment proposed was material, it could not have been made by a judge 
 
 (/(/() Barnes, 2C, 114. (//) An(e, 510. 1 Car. & P. IS?, 8, (d.) 
 
 12. Hill V. rinny, 5 Shep. 40'J; or an omi.=;sion in ejectment to state the quantity of the 
 estate, whether in fee or a lesser estate. IJanning v. Ilarley, 4 Denio, 203; or after arbitra- 
 tion and aAvard, 5 Harris, (Penn.) 173; or judgment by default. Nei(ifnbur(/erx. CainplfU^ 11 
 Miss. 359; or by striking out names of some of the defendants. Taylor v. Jonci, 1 Carter 
 (Ind.) 17 ; or by correcting a writ, sci.fa. and declaration to make it conform to the record. 
 Condet V. Gregory^ 1 Zab. (N. J.) 429; or an omission to plead a custom specially. Lcrjatlv. 
 Withers, 5 Gratt. 24; or a misdescription of a note. Nimmons v. Worthinyion, 1 ISmitli, 22G; 
 or in covenant, the omission to state that the contract was under seal. Winy v. Chase, 5 
 Red. 260 ; or in a date hiid under a videlicet. Zeiyler v. David, 23 Ala. 127. Moore v. Boyd, 
 11 Shep. 242 ; or in the amount of damages laid in the declaration. Williamson v. Canna- 
 day, 3 Ired. 349 ; or new ground may be laid for damages even after general demurrer, to a 
 special plea. Ten Eych v. 2'he Bel. c^' Ear. Can. Co., 4 Harr. (N. J.) 5 ; or new count on an 
 agreement where the former count is for worlv and labour. Mixer y. Ilotcarth, 21 Pick. 205 ; 
 or a new count for goods and merchandize where fresh count is on a note. Jiurnham v. 
 Spooncr, 10 New Hamp. 165 ; or in the style or name in which the action is brought. Me- 
 garyell v. The Hazle. Coal Co., 8 "W. & S. 342. Ellett v. Abbott, 12 New Hamp. 5C9. But an 
 entirely new cause of action cannot be introduced by amendment; though a count substan- 
 tially different from the declaration may be added. Maxivell v. Harrison, 8 Geo. 61. Thus, 
 in an action of trover an amendment was allowed, adding a count for additional property, 
 which was taken at the same time with that originally mentioned in the declaration. Ilas- 
 kins V. Berris, 23 Vt. (8 Wash.) 0, 673. But where the original declaration was trover for 
 certain goods, the plaintiff cannot amend by introducing a new count — charging that the 
 defendant attached the same goods on a writ in favour of the plaintiff, and by his negligence 
 lost them. Goddard v. I'crldns, 9 New Hamp. 488. Neither Mill the court, after trial, a 
 verdict for the plaintiff, and an arrest of judgment for the insufficiency of the declaration, 
 allow an amendment of the declaration in ordinary cases. Bettsv. Hoyt, 13 Conn. 469. Nor 
 after a case has gone to the jury and been arrested by non suit. Law v. Franks, iCheves, 9. 
 Neither can a declaration in a suit against two, husband and wife, for slander, be amended 
 by striking out those counts whicli allege a joint slander, and leaving those only which 
 allege slander by the wife, where the writ was against the two, without naming them as 
 husband and wife. Martin v. Kussell, 3 Scam. 342. 
 
 In New York, where a suit is intended to be commenced by the filing and service of a 
 declaration; and bj' mistake the declaration and the rule to plead arc entered in the Clerk's 
 Office of a court different from that in which the subsequent proceedings are had, the court 
 in which the subsequent proceedings are had cannot grant an amendment b}' permitting a 
 declaration to be filled and rule to plead to be entered nunc pro tunc. The Pcojdev. Superior 
 Court jVew York, 18 Wend. 675. 
 
 These applications are matters of discretion, and a refusal to grant them is not assignable 
 as error. Phillips v. Dana, 1 Scam. 498. Cartright v. Chabeil, 3 Texas, 261 ; and generally 
 they must go to the merits. Waples v. MGce, 2 Harring. 444. Robinson v. Holland, 2 Id. 
 445; and if granted upon terms, they must be complied Avith before the cause can proceed. 
 Smith V. Johnston, 4 Harring. 541. 
 
 As to the Statute of Amendments, in Maine, consult Carter v. Thompson, 3 Shep. 464. 
 Treat v. Strickland, 10 Id. 234. Whiter Cartr^r, 5 Red. 534. Eastman's Digest tit. Amendment. 
 As to New Hampshire, Smith v. Bron-n, 1 4 New Hamp. 67. Gijchrist's Digest, tit. Amendment, 
 p. 15. As to Massachusetts, Minofs Digest and Supp. tit. Amendment, p. 28, 11. As to Con- 
 necticut, Day's Digest, tit. Amendment, p. 15. As to New York, 1 Clinton's Digest, tit. 
 Amendment Law, p. 44. As to New Jersey, 1 Halsted's Digest, tit. Araedment, p. 51. As 
 to Pennsylvania, 1 Wharton's Digest, tit. Amendment, p. 96, 6 Ed. As to Virginia, 1 Tate's 
 Digest. As to North Carolina, 1 Ired. Digest, tit. p. 28. As to South Carolina, Rice's Digest, 
 tit. Amendment. As to Georgia, Vane v. Cravford, 4 Geo. 445. Arnold v. Wells, 5 Id. 380. 
 Short V. Kellogg, 10 Id. 180. As to Alabama, Clay's Digest, p. 312, § 39. Cheun v. Owens, 
 22 Ala. 782. As to Kentucky, Digest of Ken. Reps, by Monroe and Harlan, vol. i. p. 54. 
 As to Ohio, Wilco.x's Digest, p. 20. As to Indiana, Gilman's Digest, tit. Amendment. As to 
 Illinois, Anthony's Digest, tit. Amendment, p. 71. As to Michigan, Parks v. Barkham, 1 
 Mann. 95. As to Arkansas, .4n</io/jy v. Bcebee, 2 Eug. 447. As to Iowa, Humphries v. Dagg, 
 1 Greene, 435.
 
 QQI OF AMENDMENT. 
 
 at nisi prius.{kJc) And, by tlie statute 9 Geo. IV. c. 15, " it shall and 
 may be bnvful for every court of record holding plea in civil actions, any 
 judge sitting at nisi prius, and any court of oi/er and terminer and general 
 gaol delivery, in England, Wales, the town oi Berwiak-\x\)on-Tiveed, and 
 Ireland, if such court or judge shall see fit so to do, to cause the record on 
 which any trial may be pending before any such judge or court, in any 
 civil action, or in any indictment or information for any misdemeanor, 
 where any variance shall appear between any matters in writing or in print 
 produced in evidence, and the recital or setting forth thereof upon the 
 record whereon the trial is pending, to be forthwith amended in such par- 
 ticular, by some officer of the court on payment of such costs, if any, to the 
 other party, as such judge or court shall think reasonable ; and thereupon 
 the trial shall proceed, as if no such variance had appeared : and in case 
 such trial shall be had at nisi prius, the order for the amendment shall be 
 indorsed on the postea, and returned together with the record, and thereupon 
 the papers, rolls, and other records of the court from which such record 
 issued, shall be amended accordingly." 
 
 The declaration may be amended, in form or in substance : and it may 
 be so amended, even after a plea in abatement of misnomer,(Z) or the statute 
 of additions, (m) &c. or a plea of 7iul tiel record.(7i)[_A] And leave has been 
 granted, upon the application of the plaintiff, to amend the declaration after 
 verdict, by increasing the damages laid, according to the truth of the case, 
 as found by the jury ; the former verdict being at the same time set aside, 
 and a new trial granted, to enable the defendant to make his defence to 
 the demand so enlarged. (o)[b] So, after a nonsuit had been set aside in 
 prohibition, the plaintiff had leave to amend the suggestion, which inad- 
 vertently alleged immemorial payment of tithes to the king and his prede- 
 cessors, by inserting " and to such other person or persons as had or 
 claimed title thereto. "(j!>) And the court of Common Pleas permitted the 
 record to be amended, and a new trial had, after nonsuit for a variance, in 
 an undefended cause.(g) And that court, in a late case, amended the de- 
 claration in quare impedit, after it had been twice amended before, and 
 after a trial had thereon. (gg) But in the King's Bench, the plaintiff was 
 not formerly allowed to add a new count to his declaration, under pretence 
 
 (kk) 1 Stark. Ni. Pri. 74. 
 
 [l) 1 Salk. 50. 1 Ld. Raym. 6G9, S. C. 1 Str. 11 Cas. temp. Hardw. 44. 7 Durnf. & East, 
 698. 3 Maule & Sel. 450. 2 Chit. Rep. 8, 28. Fer Cur. H. 32 Geo. III. C. P. Imp. C. P. 
 rEd. 176. 
 
 (m) 2 Str. 739. 2 Ld. Raym. 1472, S. C. ; but see 1 Salk. 50. 2 Ld. Laym. 859, S. C. 
 Id. 1307, contra. 
 
 («) 1 Wils. 87. 7 Durnf. & East, 447, {il). 2 Chit. Rep. 27, K. B.; and see Cas. Pr. C. P. 
 76. Barnes, 3 S. C. Id. 4, 5; but see 1 Salk. 52. 6 Mod. 263, 310, S. C. semh. contra. See 
 also 2 Bur. 901. 
 
 (o) 7 Durnf. & East, 132 ; and see 2 Chit. Rep. 27. 
 
 \p) Franklin v. Holmes, T. 21 Geo. III. K. B. 
 
 [q) 3 Taunt. 31 ; and see 2 Bos. & Pul. 243. 1 New Rep. 0. P. 28. 9 East, 335. 1 Stark. 
 Ni. Pri. 312, 13. 5 Barn. & Aid. 896. 8 Moore, 104. 1 Bing. 233, S. C; but see 5 Moore, 
 164. 2 Brod. & Bing. 397, S. C. contra. 
 
 (qq) 4 Bing. 525; and see 13 Price, 736. M'Clel. 388, 392, S. C. 
 
 [a] See CartwrightY. Chabeil, 3 Texas, 2G1. But one action cannot be substituted for 
 another, as trover for trespass. Wilcox v. Sherman, 2 Rhode Island, 540. Maxwell v. Harrison, 
 8 Geo. 61. 
 
 [b] See accord 3F Vicar v. Beedi/, 1 Red. Maine R. 314. Spence v. Ondotf, 3 Texas, 147. 
 Strange v. Floyd, 9 Gratt. Va. 474. Garland v. Davis, 4 How. S. C. Rep. 131.
 
 OF AMENDMENT. ^97" 
 
 of amending it, after plea pleaded, or after the end of tlie second 
 term *from the return of the writ :(«) and a new right of action [ *698 ] 
 was considered, in tliis respect, as a new count. (/>) Yet, where 
 the plaintiffs declared as executors, on a promise to their testator, and 
 issue was joined on a plea of the statute of limitations, the court of King's 
 Bench, after two terms, permitted the plaintiffs to amend, by laying the 
 promise to have been made to themselves :{r) But the amendment in this 
 case was under particular circumstances ; and if it had not been allowed, 
 the action would have been lost, by the running of the statute of limita- 
 tions.((Z) It is now the practice however, in the King's Bench, to permit 
 a new count to be added after the end of the second term, when the cause 
 of action is substantially the same ; though not for a different cause of 
 action. 
 
 In the Common Pleas, the course of the court formerly was, that the 
 plaintiff might, at any time before the end of the second term, have leave 
 to amend his declaration, by adding new counts, but not afterwards.(e) At 
 present, however, it is not an invariable rule in that court, that a new count 
 shall not be added after the second term. The principle of the rule is, that 
 as the plaintiff would have been out of court at the end of the second term, 
 if he had not declared at all, so the court will not suffer him to declare upon 
 a fresh cause of action, after that time has elapsed ;(/) but when the cause 
 of action is substantially the same, a new count may be added : Therefore, 
 "where the plaintiff having obtained leave to amend a count in his declara- 
 tion, added new counts, which contained no ncAv cause of action, but only 
 varied the manner of stating that which was demurred to, the court of 
 Common Pleas would not order them to be struck out.(^) So in an action 
 by the assignees of a bankrupt, for the rescue of goods distrained for rent 
 due to the bankrupt, that court allowed the declaration to be amended, by 
 adding new counts, stating the facts to have taken place in the time of the 
 provisional assignees, though two terms had elapsed since the return of 
 the writ, the cause of action being substantially the same.{/<) In an action 
 for money lost by stock-jobbing, on the statute 7 Geo. II. c. 8, tlie court 
 of Common Pleas permitted the declaration to be amended, as between the 
 plaintiff and defendant, l)y changing it from assumpsit to debt :{i) But 
 where the plaintiff having sued out process in debt, declared in case, by 
 Avhich the bail were discharged, that the court refused to amend the decla- 
 ration, by changing it from case to deht.{k) And in an action of debt, to 
 recover penalties against a sheriff's officer for extortion, on the statute 32 
 Geo. II. c. 28, § 12, that court will not allow the declaration to be 
 amended, by adding new counts on the statute 23 Hen Yl. c. O.(^) 
 
 *In a real action, it is not of course to amend the declaration 
 or count, in the Common Ple.as ; but the demandant ought to make [ *609 ] 
 out a case by affidavit :{aa) And the court refused to allow the de- 
 
 (a) R. M. 10 Geo. II. rer/. 2 in notis, K. B. 1 Wils. 149. Saj". Rep. 97, 151, 234. 
 (6) Sav. Rep. 234. 
 
 (c) 2 Str. 8'JO. Fitzgib. 193. 1 Barnard, K. B. 408, 418, S. C. 1 Ken. 141. 
 
 (d) 1 Wils. 149. Sav. Rep. 235, 6; and sec Barnes, 488. 
 
 (e) Cas. Pr. C. P. isl ; and see Barnes, 19. 
 
 (/) 2 Marsh, GO, per Gibbs, Ch. J. ; and sec G Moore, 490. 
 
 \g) 6 Taunt. 300. 1 Marsh. 609, S. C. 
 
 (h) 6 Taunt. 358. 2 Marsh. 59, S. C. ; and see 6 Moore, 490. 
 
 (t) 6 Taunt. 419. 2 Marsh. 124, S. C. ; and see 6 Taunt. 422. 2 Marsh. 125, (a). 
 
 (k) C Taunt. 483. 2 Marsh. 185, S. C. (/) 5 Moore, 330. 
 
 {an) 3 Bos. & Pul. 45G. 
 
 Vol. I.— 44
 
 699 
 
 OF AMENDMENT. 
 
 mandant in a writ of right to amend the mistake of a christian name in the 
 count, or to discontinue the suit, though an affidavit accounting for the mis- 
 take was produced. (S) In a subsequent case, they refused to permit the 
 count in a writ of right to be amended, by introducing an additional step in 
 the descent ; though it was sworn that the mistake had arisen from the de- 
 mandant having been misinformed in the country, where inquiry had been 
 made, respecting the title, and that the demandant would be barred, unless 
 the amendment were allowed :[e) And amendments are so little favoured in 
 a writ of right, that after an amendment of the count had been made under 
 a judge's order, the court discharged the order for making it.[d) So, they 
 would not allow a writ of summoyis to be quashed, which had been irregu- 
 larly executed. (ee) And an amendment of the disseisor's name was refused, 
 in a writ of entry sur disseisin en le post.[f) But a declaration on a writ 
 of partition, and the sheriff's return, were amended, by striking out an 
 erroneous description of the quality of the estates conveyed to the different 
 parties. (^) And the demandant was allowed to withdraw a demurrer and 
 reply de novo, in a writ of formedon, upon showing good ground by 
 affidavit. (7i) 
 
 Fines and recoveries, being considered as common assurances, the court 
 of Common Pleas w^ill amend them, when they have sufficient authority, so 
 as to effectuate the intention of the parties. The ground upon which the 
 court proceeds, in making these amendments, is the statute 8 Hen. VI. c. 
 12, which authorises them to amend the misprision of the clerk ; and as the 
 pj'ceeipe in the cursitor's instruction for an original writ, so a deed to lead 
 or declare the uses is considered as his instruction for a fine or recovery. (i) 
 By the above statute, a mistake in the form,(^) teste,[l) or return, (m) of a 
 writ of covenant for levying a fine, or writ of entry for suffering a reco- 
 very,(w) may be amended by the court, where the mistake was occasioned 
 by the mispi^sion of the clerk, and there is something to amend by ; but 
 otherwise, it seems, it is not amendable, (o) 
 
 Fines may in general be amended, by the deed to lead or declare the 
 
 uses,( j9) in the names of the parties, (^) or in the description of the 
 
 [ "TOO ] premises,(r) *t)r of the place where they are situate :(«) and, in 
 
 one case,(5&) the court permitted a fine to pass as to all the conusors 
 
 except one, whose acknowledgment had been taken incorrectly, and whose 
 
 interest was so inconsiderable that the parties did not think it worth while 
 
 {h) 1 New Rep. C. P. 64. 2 New Rep. C. P. 429. Ante, 679, 80; but see 2 Wils. 118. 
 2 Blac. Rep. 758. 3 Wils. 206, S. C. 
 
 (c) 1 New Rep. C. P. 233. 
 
 id) 1 Bing. 208. 8 Moore, 42, S. C. {ee) 1 Marsh. G02. 
 
 {/) 4 Taunt. 572. [g) 6 Taunt. 193. 1 Marsh. 537, S. C. 
 
 {h) 10 Moore, 246. 3 Bing. 1, S. C. («") Barnes, 22. 
 
 {k) 4 Taunt. 644, 708. * \l) 5 Rep. 44, 5. 
 
 (to) Gas. Pr. C. P. 127. (/i) 5 Taunt. 259. 8 Taunt. 197. 
 
 (o) 1 Salk. 52. Willes, 563. Barnes, 17, S. C. 2 Blac. Rep. 1013. 8 Taunt. 104, 5. 
 
 Ip) 4 Taunt. 257. 6 Taunt. 73. 1 Marsh. 452, S. C. 
 
 Iq) 1 Marsh. 578. 6 Taunt. 586. 1 Moore, 125. 8 Taunt. 20. 1 Brod. & Bing. 151; 
 but see 2 Bos. &. Pul. 455. 8 Moore, 15, 449. 4 Bing. 104. 
 
 (r) Gas. Pr. C. P. 10. 4 Taunt. 257, 708. 6 Taunt. 276. 1 Taunt. 79. 2 Marsh. 391, 
 S. G. 8 Taunt. 74, 335. 
 
 [a) Gas. Pr. C. P. 10, 52, 121. Barnes, 216, S. C. Id. 24. 3 WHs. 58. 3 Taunt. 396. 
 6 Taunt. 73. 1 Marsh. 452, S. C. Id. 468. 6 Taunt. 162. 1 Marsh. 519, S. G. 7 Taunt. 
 79. 2 Marsh. 391, S. G. 8 Taunt. 87. /(/. 692. 3 Moore, 22, S. G. 4 Moore, 170. 8 Moore, 
 103, 334. 10 Moore, 109. 
 
 {hb) 5 Taunt. 249.
 
 OF AMENDMENT. 700 
 
 to have another fine. So, the court allowed the warranty in a fine to be 
 amended, by altering it from a warranty by tlic husband and wife, and the 
 heirs of the husband, to a warranty by the husband and wife, and the heirs 
 of the ivife.{c) But where there was no deed to declare the uses, they 
 would not permit an alteration to be made in the christian((^) or surnames(<j) 
 of the parties : And if the name of a party be written on an erasure, this, 
 being a suspicious circumstance, must be explaini'd by affidavit, Ijcfore the 
 amendment can be made ',{jf) although the party had signed his right name 
 at the foot of the deed.(^</) Where the deed was general, and the intent 
 only proved by affidavit, the court would not allow the number of acres 
 inserted in a fine to be increased.(/J<) So, where a fine was levied, of 
 tliirty acres of land, tivclve acres of meadow, and tiventy-five acres of pasture, 
 and in the deed to lead the uses, the estate was described as consisting of 
 thirtij-five acres in the whole, the court refused to amend tlie fine, by in- 
 creasing the quantity of each species of land, so as to make each cover the 
 whole quantity intended to be conveyed. (e) And where a mistake having 
 been made in the concord of a fine, in the number of messuages to be con- 
 veyed, the writ of covenant was altered in conformity thereto, but was 
 afterwards restored to its original form ; the court would not amend the" 
 concord by the writ of covenant so altered, but left the party to his rcmctly 
 by a new caption, or by re-acknowledging the concord. (/c) So, if there be 
 two prcecipes to a fine, and the premises be described in the one as manors, 
 tithes and tenements, and in the other as tenements only, the court will not 
 allow the fine to pass.(/) But a fine, with a double operation, was amended, 
 by striking out lands in reversion. (wi) 
 
 The court in one case permitted the name of a parish to be inserted in a 
 fine, according to the deed to lead the uses, although, on account of the 
 length of time which had clasped since the date of the deed, no one could 
 swear that the parcels lying in that parish were intended to pass ;(w) and in 
 another, the fine was amended, by inserting a parish different from that 
 which was named in the deed to lead the uses, it being ccrtiiin by the deed, 
 which specified the quantities and occupiers, that the land was 
 *intendcd to pass.(a) And a fine may be amended, by substi- [ *701 ] 
 tuting one county for another, if it appear that the lands intended 
 to pass are situate in the same parish, Avhich runs into both counties. (5) But 
 in general an amendment cannot be made, by transposing parishes from one 
 county to another. (c) And where a fine comprised only lands lying 
 in the parishes of S. and S., within a larger district, the deed so describ- 
 ing the lands, which were in truth within the parish^of F. in the same 
 district, the court refused to amend the fine, by insertmg also the parish 
 of ¥.{d) 
 
 (c) 3 Moore, 329. 1 Brod. & Bing. G8, S. C; but sec 8 Taunt. 87. 
 
 (d) 2 Blac. Rep. 816. 4 Taunt. 22G. (c) 2 Bos. & Bui. 455. 
 (/) 3 Moore, 23. 8 Taunt. 003, S. C. 1 Brod. & Bing. 15. (ffff) 3 Moore, 241. 
 (hk) 2 Blac. Rep. 1202; and see 1 IT. Blac. T3. 
 
 (i) 6 Taunt. 58. 1 Marsh. 44G, S. C. ; and sec 3 Moore, TO. 5 Moore, 94. C Moore, 50. 
 Post, 703, 4. 
 
 (k) 6 Taunt. 1. 1 Marsh. 406, S. C. (0 3 Moore, 210. 
 
 (m) 5 Taunt. 031. («) 2 Taunt. 1. 
 
 (a) 5 Taunt. 207. 1 Marsh. 23, S. C; and sec 5 Taunt. 303. 1 Marsh. 532. 9 Moore, 
 195. 2 Bing. 93, S. C. 9 Moore, 740. 2 Bing. 380, S. C. 
 
 (b) 8 Taunt. 87. 1 Moore, 530, S. C. 
 
 (c) 4 Taunt. 708 ; and see 3 Taunt. 418 ; and the other cases referred to in 8 Taunt. 88. 
 1 Moore, 530, S. C. accord. 
 
 (d) Taunt. 284.
 
 701 
 
 OF AMENDMENT. 
 
 A fine may also be amended, where there has been a mistake in the entry 
 of the king's silver,(e) or of the proclamations :(/) And the concord of a 
 fine being lost, before it had passed the custos hrevium office, the court 
 permitted a new concord and acknowledgment to be prepared, and the fine 
 to be perfected.(^) So, a fine was allowed to pass, by a copy of the|)rflpc^j^e 
 and concord left with the chief justice, and signed by the parties, the origi- 
 nal having been lost.(/i) But although the court will amend a fine in mat- 
 ters of form, yet when it is recorded of one term, they will not alter it, and 
 make it a fine of anotlier.(M) A fine cannot in general be amended, without 
 an affidavit connecting it with the deed produced to warrant the amend- 
 ment -.{kk) And the affidavit must state that the possession has been in con- 
 formity to, and followed the deed to lead or declare the uses, since the fine 
 was levied.(/Z) 
 
 Recoveries in like manner may be amended, by the deed to lead or declare 
 the uses, in striking out,(w) altering,(w) adding to,(o) or transposing(j!?) 
 the names of the parties : And where a recovery was intended to be suffered 
 by A. B. and C. his wife, but the name of the wife was totally omitted, the 
 court ordered it to be amended. ((/) So, a recovery may be amended in 
 fieri, by substituting a new commissioner for the demandant in the dedimus 
 potestatem, and retaking the acknowledgment :(r) But the court would 
 not amend a recovery, by inserting the name of the husband of a vouchee ;(s) 
 nor by substituting the name of one joint-tenant to the j^rcccipe, for that of 
 his companion.(^) And a recovery cannot be amended, by insert- 
 [ *702 ] ing an additional christian name of the vouchee, if he has *always 
 been known, and signed the deed to make a tenant to the p?'ceci^pe, 
 without such name. (a) 
 
 A warrant of attorney in a recovery was amended in one case, by insert- 
 ing an additional christian name of the vouchee ;{b) and in another, by sub- 
 stituting the name of the attorney for that of the vouchee, which had been 
 inserted by mistake instead of the attorney's. (c) But it is now settled, that 
 the court will not amend a warrant of attorney, which is the act of the 
 party :{d) and therefore they refused to amend a recovery, by adding the 
 name of one of the parties, which had been omitted in the warrant of attor- 
 ney ; nor would they suffer the recovery to pass with this defect.(e) So, 
 where the prcecijpe, in the vouchee's warrant of attorney in a recovery, 
 rightly described the parties to the plea, but the. body of the warrant of at- 
 torney expressed that the vouchee appointed his attorney, to gain or lose in 
 a plea of land against the tenant, instead of the demandant, the court re- 
 fused either to amend the warrant of attorney, or to suffer the recovery to 
 
 (e) 5 Rep. 43. (/) Id. 44. 
 
 {ff) 4 Taunt. 195. (h) 6 Taunt. 231. 1 Marsh. 553, S. C. 
 
 («') 2 Blac. Rep. 788; and see Vin. Abr. tit. Fhie B. b. 2. Wilson on Fines, 53. 
 
 (kk) 6 Taunt. 432. (U) 6 Moore, 259. 
 
 (m) 3 Taunt. 59. 5 Taunt. 73. 7 Taunt. 697. 
 
 (w) Cas. Pr. C. P. 127. Pigott, 170, 71. 2 Blac. Rep. 1230. 8 Taunt. 226, 556. 4 Moore, 
 514. 2 Brod. & Bing. 98, S. 0. 
 
 (o) 8 Taunt. 27; but see 3 Moore, 577. 
 
 (p) Barnes, 24. 2 Taunt. 222. 4 Moore, 514. 2 Brod. & Bing. 98, S. C. But the court 
 "will not allow a recovery to be amended, by transposing the names of the demandant and 
 tenant, unless the documents relative to its being suffered be produced. 6 Moore, 46. 
 
 (q) Cas. Pr. C. P. 127. (r) 5 Taunt. 747. 
 
 (s) 1 Taunt. 478. (t) 4 Taunt. 101; and see 3 Moore, 577. 
 
 (a) 8 Taunt. 045. 2 Moore, 721, S. C. (b) 4 Taunt. 196. 
 
 (c) Id. 98. (d) 6 Taunt. 373. 
 
 (e) Id. 652. 2 Marsh. 328, S. C.
 
 OF AMENDMENT. 702 
 
 pass, and construe the latter clause as repugnant and inoperative.(/) So, 
 they would not direct their officer to pass a recovery, where their was a 
 mistake in the form of the writ of entry, to which the warrant of attorney 
 related, by making it a demand, instead of ^ 2)rcccipe ;[(j) nor would they 
 permit the same mistake to be rectified, by amending tlie warrant of attor- 
 ney :(/i) And where a part of the premises named in the deed to lead the 
 uses had been omitted in the copy of the prcecipCy which precedes the war- 
 rant of attorney, the court refused to permit an amendment, by inserting the 
 words omitted ; saying they could not apply the warrant of attorney to 
 premises not named in the pra'cipe.{i) The prcucipe for the writ of entry 
 however, at the head of the warrant of attorney, is not so conclusively a part 
 of it, but that it may be amended, after execution, by the writ of entry :(A;) 
 And where the vouchee's warrant of attorney in a recovery omitted to ex- 
 press, in the body of the warrant, against whom the plea of land was, which 
 appeared by the prcecipe, the court, though they would not amend the war- 
 rant of attorney, held that the authority must refer to the plea as described 
 by the prceeipe, and permitted the recovery to pass.(Z) So, a recovery was 
 permitted to pass, where the warrant of attorney did not state between whom 
 the plea of land was ; it being evident from the joracz/^e, for what purpose 
 the attorneys were appointed -.{in) and also, where the warrant of attorney 
 was "in a plea of land," omitting the words "to gain or lose."(m) And 
 where, in the warrant of attorney, the words, to gain or lose 
 *in a plea of trespass, were inserted by mistake, instead of the [ *703 ] 
 usual words, to gain or lose in a plea of land, the court permitted 
 the recovery to pass ; as the word trespass might be rejected as surplusage. (a) 
 So, a recovery was allowed to pass, although the Avords "their attorneys," 
 were omitted in the warrant of attorney given by two vouchees. (J) And 
 if a wrong surname of the demandant be inserted by mistake in the war- 
 rant of attorney and subsequent instruments, the court will allow the re- 
 covery to pass, on the production of a new warrant of attorney, rectifying 
 such mistake, and on depositing the other instruments with the officer in 
 the mean time.(c) 
 
 A recovery may also be amended, by the deed to lead or declare the 
 uses in the description of the premises, or of the place where they are 
 situate. ((Z) With regard to the former, it has been holden, that a recovery 
 may be amended, by inserting other premises not mentioned therein, 
 according to the deed to lead or declare the uses, on payment of an addi- 
 tional fine at the alienation office :{e) and it has been amended, by increasing 
 
 (/•) 1 Brod. & Bing. 92. 3 Moore, 495, S. C. 
 
 {g) 8 Taiiut. 167. (/*) Id. 1G8. («) 3 Bing. 446. 
 
 \k) 7 Taunt. 434. 1 Jfoorc, 130, S. C. In the printed reports of this case the prceeipe 
 for the writ of entry is inaj)propriateIy called the caption of the warrant of attorney. 3 
 Moore, 499, n. 1 Brod. & Bing. 96, S. C; and see 7 Moore, 257. 1 Bing. 22, S. C. 7 Moore, 
 372. 1 Bing. 72, S. C. 
 
 {I) 6 Taunt. 373; and see 7 Taunt. 435, (a). (»«) 8 Taunt. 164. 
 
 (rt) 8 Moore, 339. 1 Bing. 343, S. C. (6) 8 .Moore, 51. 1 Bing. 212, S. C. 
 
 (c) 3 Moore, 673. 
 
 \d) Cas. Pr. C. P. 9, 10, 17, 30. Com. Rep. 386, S. C. Cas. Pr. C. P. 85. Pr. Reg. 371, 
 S. C. Pigott, 171, 2. Barnes, 21. 2 Blac. Rep. 747. 3 Wils. 154, S. C. 2 BKac. Rep. 
 1065. 1 H. Blac. 73. 2 Bos. & Pul. 560, 578. 4 Taunt. 249, 738, 749. 5 Taunt. 624, 661. 
 6 Taunt. 177. 1 Marsh. 532, S. C. 8 Taunt. 86. 8 Moore, 324. 1 Bing. 317, S. C; but 
 see a Moore, 520. 1 Bing. 425, S. C. 10 .Moore, 109. 
 
 (r) 1 Bos. & Pul. 137. 2 Bos. & Pul. 578, .580, [a). 1 Taunt. 257, 355, 484. 3 Taunt. 
 74, 408, 462. 4 Taunt. 155, 226, 366, 734, 737, 8. 5 Taunt. 748, 811. 8 Taunt. 303. 2 
 Moore, 299, S. C; but see 5 Taunt. 616. 6 Taunt. 145.
 
 Y03 <^F AMENDMENT. 
 
 the quantities of specific closes, described in the deed as being less than 
 they really were.(/) But no amendment can be made in the description 
 of the premises, or of the parish in which they are situate,((/) where it is 
 not warranted by the deed to lead or declare the uses ;(/i) nor unless the 
 true number of messuages, &c. be distinctly and precisely sworn to ;{i) nor 
 without proof of seisin of the vouchee of an estate tail therein, at the time 
 of the recovery, and that it was intended they should pass. (A;) And where 
 a recovery o^ffty years old was found by mistake to comprise only two 
 messuages and twenty acres of land, instead of six messuages and three 
 hundred acres of land, the blunder being wholly unexplained and unac- 
 counted for, the court refused to permit an amendment, by substituting the 
 larger quantity. (/^) If inarsh land be described as land generally, in a 
 recovery, it may be amended, by inserting the word " marsh" before 
 "land," on an affidavit stating how the premises had been occupied since 
 the recovery was suffered. (wi?^) So, a recovery of land may be amended, 
 by inserting the words " meadow and pasture" before land ; although it 
 was described as laud generally in the recovery, and deed to lead the 
 
 uses.(w) But where wood land had been converted into arable, 
 [ *704 ] the court would not allow an *amendment by increasing the 
 
 quantity of the latter ; as the land would have passed under either 
 description. (rt) So, the court would not permit a recovery to be amended, 
 by increasing the quantity of land, where the deed to lead the uses con- 
 tained sufficient terms to show that it was intended to pass : nor was it 
 deemed necessary that the exact admeasurement should be inserted in such 
 deed.(6) And as meadow will pass in a recovery under the word " land," 
 the court it seems will not now amend a recovery, by adding the word 
 ^^meadoiv.'\c) A recovery maybe amended, by inserting a rent charge,((;^) 
 fee farm rent,(g) or tithes,(^) where it appears that they were intended to 
 pass, and the words of the deed are sufficiently comprehensive to include 
 them ; or, by inserting the words "the advowson of," before those of "the 
 rectory of the church of H.,"(^^) or, of " the vicarage, "(A/i) &c. ; or by sub- 
 stituting the words " advowson of the church," for the word rectory ;[ii) or, 
 the words " perpetual advowsons," for those of " tithes to rectories belong- 
 ing and appertaining \\kk) or, by describing tithes, as arising out of a 
 borough and parish, instead of a rectory. (/) But the court refused to amend 
 a recovery, suffered many years before, by inserting an advowson, although 
 it was omitted by mistake, and had formed part of the estate since the re- 
 covery was suffered ; without an affidavit, stating how the presentations 
 had gone in the mean time.(??i) So, an amendment was refused, by striking 
 out the aggregate sum of several rents, and inserting the different rents or 
 sums of which it was composed, (/m) And the court will not amend a reco- 
 
 15 
 
 4 Taunt. 734. 8 Ttiimt. 74. 2 Moore, 163. 9 Moore, 591 ; but see 5 Taunt. 616. 
 8 Moore, 520. 1 Bing. 425, S. C. 
 
 {h) 3 Bos. & Pul. 362. [i) 5 Taunt. 632. 
 
 {k) Id. 811 ; and see 3 Moore, 70. 1 Brod. & Bing. 09. 
 
 hi) 1 Brod. & Bing. 83. {mm) 5 Moore, 98. 
 
 (n) 7 Moore, 257. 1 Bing. 22, S. C. 
 
 \a) 5 Moore, 94. {b) 6 Moore, 50. (c) 4 Bing. 90. 
 
 {d) 1 Taunt. 484. {e) 5 Jloore, 474. 
 
 • (/) 2 Marsh. 264. 7 Taunt. 341, 352. 1 Moore, 95, S. C. 8 Taunt. 303. 2 Moore, 299, 
 S. C. 5 Moore, 94, 5. 6 Moore, 224. 
 
 {gg) 8 Moore, 586. {hh) 10 Moore, 251. 
 
 iii) 8 Taunt. 333. 6 Moore, 53. {kk) 4 Moore, 49. 
 
 {l) Id. 170. (wt) 7 Moore, 208. 3 Bing. 176. " {nn) 2 Marsh. 264.
 
 OF AMENDMENT. 704 
 
 very, by adding the tithes of tlic premises, under the words hereditaments, 
 where the word does not occur in the operative part of the deed;(o) nor, 
 by striking out a ^^ portion of tithes," and substituting ^^ all the tithes" 
 arising from the lands conveyed. (j;) 
 
 With regard to the situation of the premises, recoveries have been 
 amended, by substituting a hamlet for a parish,(ry) or part of a parish which 
 lay within a liberty, for other part of a parish which lay within a borough, 
 in the same county ;(r) and by inserting a parish named in the deed to lead 
 or declare the uses, after a considerable lapse of time.(«) So, a recovery of 
 the manor of A. and eight messuages in A. was amended, by adding the 
 names of the parishes in which the premises were partly situate ; those 
 parishes being comprised in the manor of A.(^) And a recovery was 
 amended by inserting a parish not named in the deed to lead the uses ; 
 the lands intended to pass having been specified therein, as to the 
 *numl)er of acres, as well as the names of the vendor and occu- [ *705 ] 
 pier, at tlie time the recovery was suffered.(rt) So, where lands in 
 two parishes were conveyed as lying in the parish of Gr. which was not the 
 true name of either, nor of any parish, but was an addition equally applicable 
 to both, the court permitted both parishes to be added to an old recover jAb) 
 And where a deed to make a tenant to the prcecipe comprised thithes in two 
 parishes, and an amendment had been improperly introduced into the reco- 
 very, which confined its operation to one parish only, the court allowed the 
 words of such amendment to be transposed, so as to give effect to the deed, 
 and comprise both parishes.(c) So, a recovery may be amended, by substi- 
 tuting the parish of A. for B. if the deed to lead the uses comprehend all 
 the estates of the demandant, situate in the county where such parishes lie.('7) 
 So, a recovery has been amended, by altering the name of a parish misnamed 
 in the deed, making the tenant to the prcecipe, as well as in the recovery, 
 upon an affidavit that the vouchee was seised of the land in question in one 
 parish, and that he was seised of no land whatever in the other. (<?) And the 
 recovery was amended in a modern case, by inserting the county of the town 
 of S. or the county of S. the court considering it merely as a clerical mis- 
 prision. (/) But where the situation of the premises is mistaken in the deed 
 to lead or declare the uses, it cannot be amended by the court :( r/) And they 
 would not permit a recovery to be amended, by inserting a parish not named 
 in the deed to make a tenant to the p)rcecip)e, although it appeared that the 
 parish was named in the instructions given for preparing that deed, and that 
 the lands were parcel of an estate which was intended to pass : for by the 
 omission in the deed, there could be no good tenant to the pra'ripe.[]i) So, 
 the court refused to amend a recovery, by adding two parishes in unqualified 
 
 {; 
 
 (o) 2 Marsh. 194; and see 4 Moore, 604. 2 Brod. k Bin?. 105, S. C. 
 
 \p) 6 Taunt. 489. 2 Marsh. 195, S. C. ; but see 2 Marsh. 264. 
 
 \q) 1 Moore, 131. (/•) 3 Taunt. 396. 
 
 Is) 5 Taunt. 2 ; and see 3 Taunt. 408. 8 Taunt. 101, 262. 3 Moore, 326. 
 
 \t) 2 Marsh. 330. 
 
 (a) 9 Moore, 195. 2 Bing. 93, S. C. ; and sec 5 Taunt. 207. 1 Marsh. 23, S. C. Moore, 
 ■740. Ante, 700, 701. 
 
 (h) 4 Taunt. 737. 5 Taunt. 024. 
 
 (c) 7 Taunt. 352. 1 Moore, 05, S. C. ((?) 2 Moore, 237. 
 
 (c) 5 Taunt. 303 ; and see 8 Taunt. 244 ; but see Id. 262. 
 
 (/■) 4 Taunt. 855 ; and see 6 Moore, 259, Id. (a) ; but see 4 Moore & P. 178. 4 Bing. 426, 
 S. C. 
 
 (f/) 6 Taunt. 145. 
 
 (A) 2 Taunt. 96; but see 9 Moore, 105. 2 Bing. 93, S. C. Ante, 700, 701, 704, 5.
 
 "jQg OF AMENDMENT. 
 
 terms, wliere the deed enumerated several manors, and a great extend of lands 
 in many parishes, and the purpose of the amendment was only to include 
 certain parcels of one manor, which lay in the omitted parishes. (^) And 
 they will not amend a recovery, by inserting more parishes, unless it be 
 clear that the land in those parishes passed by the deed i^k) nor unless it 
 appear to be absolutely necessary. (/) So, where a recovery was suffered in 
 the city of Litchfield, which is a county of itself, where the vouchee had 
 lands upon which it might operate, the court would not suffer it to be 
 amended, by striking out the city of Litchfield, and inserting the county 
 of Stafford, with other consequential amendments, and also by 
 [ *706 ] *inserting the name of a vill, after another mentioned in the re- 
 covery -.[aa) nor can a recovery be amended, so as to make it of 
 premises in one of two counties, in the alternative ',{hh) nor by changing it 
 from one county to another.(6'(?) So, where a vouchee had, in his instructions 
 to suffer a recovery, and in the deed to lead the uses prepared in pursuance 
 thereof, misdescribed the parish in which certain closes were situate, though 
 they were described in the deed with truth and certainly in other respects, 
 the court refused to substitute the parish in which the lands lay, for the 
 parish named in the deed and recovery. (c?) 
 
 The return of the Avrit of entry may be amended, by adapting it to the 
 time of taking the acknowledgment :(e) And the return of a writ of sum- 
 mons was altered, by inserting a subsequent return day, wdiere there were 
 several vouchees residing in different counties, and one of them could not 
 sign it until a day after it was made returnable. (/) So the court, in order 
 to give effect to a recovery, allowed the returns of the writ of entry and 
 summons to be abridged to three returns inclusive, instead of fiour, as re- 
 quired by the statute 24 Geo. II. c. 48, § 8. 1 Moore & P. 136. 4 Bing. 
 425, S. C. But the court would not enlarge the return of a writ of sum- 
 mons, as to make a term intervene between the teste and return. (^) The 
 judgment on a common recovery has been amended, by striking out the 
 word adjudged, and inserting instead thereof, the word considered:[h) and 
 amendments have been made in the award and return of the writ of 
 seisin.(M) But, by the statute 23 Eliz. c. 3, § 10, "none of the fines or 
 recoveries theretofore levied, passed or suffered, which shall be exemplified 
 under the great seal, according to the form of that act, shall after such 
 exemplification had, be in any wise amended." 
 
 The court, we have seen,(M) will not entertain a motion on the last day 
 of term, for the amendment of fines or recoveries, or any of the proceedings 
 therein,(/Z) or on any svibject relating thereto. (m) And when a fine or reco- 
 very is moved to be amended, the court will always require an affidavit to 
 be made, that the possession has been in conformity to, and followed the 
 deed to lead or declare the uses, since such fine or recovery was levied or 
 suffered :(n) And a recovery was not permitted to be amended, on an un- 
 
 {i) 7 Taunt. 177. {k) 4 Taunt. 738. 
 
 [l) 8 Taunt. 683. 3 Moore, 20, S. C. 
 
 (aa) 2 Blac. Rep. 874. (hb) 1 Taunt. 538. 
 
 {cc) 3 Taunt. 418 ; and see 4 Taunt. 708 ; but see 8 Taunt. 87. 1 Moore, 530, S. C. 
 
 (d) 6 Taunt. 145. (c) 5 Taunt. 259; and see 8 Taunt. 197. 
 
 (/■) 7 Moore, 269. 
 
 (g) 2 Blac. Rep. 1201, 1223, 4; and see 8 Taunt. 104, 5. (/») Barnes, 20, 22. 
 
 \ii) Oas. Pr. C. P. 127. Barnes, 23. 2 Wils. 2. 6 Taunt. 195. 1 Marsh. 538, S. C. 
 
 \kk) Ante, 499. 
 
 \ll) R. H. 60, Geo. III. & 1 Geo. IV. C. P. 4 Moore, 320. 2 Brod. & Bing. 122. 
 
 {m) 4 Moore, 113. 1 Brod. & Bing. 468, S. C. {n) 6 Moore, 259.
 
 OF AMENDMENT. 706 
 
 qualified uffidavlt that tlie possession had gone along with the title, for a 
 period long before the deponent's knowledge, -without stating the grounds 
 of his belief.(o) On applying to amend a recovery, it is not necessary to show 
 a title to the court, further back than a seisin in tail of the vouchee.(j^) 
 And it is a rule, that the material part of the deed, which is to authorize 
 the amendment, shall be read to the court by one of the sergeants 
 at law, *or by the officer of the court, and not by the attorney for [ *707 ] 
 the amendment. (a) The court refused to make an order, compell- 
 ing the amendment of a recovery suffered by an insolvent debtor :(6) And a 
 remainder-man in tail may be heard to show cause against the amendment 
 of a recovery. (e) When the deed is lost, a recovery cannot be amended by 
 an attested copy ; nor by an office copy of the inrolment of the deed : but 
 it may be amended by the inrolment itself being brought into court.(t7J) 
 If there be palpable mistakes in a fine or recovery, through the neglect of 
 the attorney, the court will order him to pay the costs of its amendment. (ee) 
 Before plea, there are no costs payable upon amending the declaration, in 
 ordinary cases, except the costs of the application ; and in the King's Bench, 
 the declaration may be amended in matter of form, after the general issue 
 pleaded, and before entry, without paying costs, or giving an imparlance :(/) 
 But if the amendment be in matter of substance, or after the general issue 
 is entered, (^) or a special plea pleaded,(A) the plaintiff must pay costs or 
 give an imparla,nce, at the election of the defendant. (i) And where the 
 plaintiff gave notice of trial for the assizes, and afterwards countermanded, 
 and then applied for an order to amend the declaration, which order was 
 obtained on the terms of the defendants having an imparlance till the next 
 term, the court of King's Bench refused to rescind so much of the order as 
 related to the imparlancc.(Z;) In the Common Pleas, it is a rule, that before 
 the declaration is actvially entered, the plaintiff may amend it, paying costs 
 or giving an imparlance at his own election, by order of a judge of the 
 coui't, or prothonotary : and even after it is entered, if the amendment be 
 but a small matter, that doth not deface the roll, it is amendable, before 
 issue or demurrer entered, by rule of court, upon payment of costs, and 
 liberty to plead with a new or further imparlance. (/) But where the de- 
 fendant had demurred, and given a rule to join in demurrer, the court held 
 that the plaintiff must pay costs, on amending his declaration, and could 
 not amend on giving an imparlance. (wi) And where a motion was made 
 to amend a declaration, after the plea-roll filed, it was objected that the 
 motion ought to be to amend the roll, and not the declaration : and the 
 amendments prayed being very long, and such as could not be made without 
 greatly defacing the roll, the motion was denied; although it was con- 
 
 (o) 7 Taunt. GOT. {p) 4 Taunt. 155. 
 
 («) 5 Taunt. 579. {b) 8 Taunt. 105. 
 
 (c) 7 Taunt. 352. 
 
 Idd) 4 Taunt. 798; and see 5 Taunt. 579. 
 
 \ee) 4 Moore, 171. 
 
 (/) R. il. 10 Geo. TI. rrg. 2. (i), K. B. And for the form of the rule to amend, in K. B. 
 or C. P. see Append. Chap. XXIX. j^H, 12. 
 
 {<)) K. M. 10 Geo. II. rcg. 2, (6), K. B. Sty. P. R. 20. 2 Str. 050. 1 Lil. P. R. 50. 
 
 {h) 2 Str. 890. Lofft. 155. 
 
 («■) Sed quoire: as it seems, from R. M. 1G54, § 13, K. B. & § 17, C. P., that the election to 
 pay costs, or give an imparlance, is with the plaintiff : and see 2 Keb. 120, 362. 1 Lil. P. R. 
 58, 60, 62. accord. 
 
 (k) 1 Chit. Rep. 246. Ante, 460. 
 
 {l) R. M. 1654, g 17, 0. P. I but see 2 Str. 050, scmb. contra. (;n) Barnes, 6.
 
 707 
 
 OF AMENDMENT, 
 
 tended that a vacatur might he marked on the roll filed, or it 
 [ *708 ] might be taken off the file, and a new roll of the *same nmnher 
 
 filed in its place, which the court held to be an unwarrantable 
 practice.(a) It has been said, that when amendments are made at the 
 trial, they are made Avithout costs. (^)) But this must be understood as con- 
 fined to cases, where the action is meant to be defended on the merits : For 
 where the ground of defence is some formal slip or mistake in the declara- 
 tion, which would be obviated by the amendment, the plaintiff must pay all 
 the costs subsequent to the declaration, if the defendant will thereupon pay 
 the debt and previous costs ; or, in an action for general damages, let judg- 
 ment go by default ;(c) or, in ejectment, give up the possession of the pre- 
 mises •,[d) but otherwise, the plaintiff will be allowed to amend, on payment 
 of the costs of the application merely. (t^) 
 
 On amending the declaration in the King's Bench, after plea pleaded, 
 the defendant is at liberty to plead de novo, if his case require it, and has 
 two days allowed him for that purpose, after the amendment made, and 
 payment of costs ;(e) and if a rule to plead be entered the same term the 
 amendment is made, though before such amendment, it is sufficient ; other- 
 wise a new rule to plead must be entered.(/) But, in the Common Pleas, 
 we have seen, the defendant is entitled in all cases, on amending the decla- 
 ration, to a new four day rule to plead '.[g) And in that court, after an 
 amendment of a declaration, the defendant is at liberty to plead de novo, 
 that is, he may do so if he has occasion, or thinks proper, but he is not 
 obliged to vary his first defence :(7i) And as this liberty is not incident to 
 every amendment, it is not always necessary to insert it in the judge's 
 order to amend. (^) If the declaration, however, be amended after issue 
 delivered, it should be re-delivered after the amendment made, and pay- 
 ment of C0StS.(2) 
 
 The reason for not permitting a new count to be added, or right of action 
 alleged, after the end of the second term, is that the plaintiff is obliged to 
 declare within two terms ; and a new count or right of action is considered 
 as a new declaration. (/?) But this reason is not applicable to pleas or repli- 
 cations, &c. which may be amended at any time, so long as they are in 
 paper : Thus, where the defendant in trespass pleaded two pleas in Hilary 
 term, and in Trinity term, after issue joined, obtained a rule to show cause 
 why he should not have leave to amend his two pleas, and to add a third 
 plea, the rule was made absolute, upon payment of costs. (/) So where, in 
 
 a plea by an executor of a former judgment recovered, a less sum 
 [ *709 ] was stated by mistake than the judgment was really *for, the 
 
 court of Common Pleas permitted the defendant to amend the 
 record, by inserting the real sum in the plea, though the application for 
 such amendment was not made till a considerable time after the record 
 
 (a) Barnes, 8 ; and see 2 Chit. Eep. 34. Id. 302. 1 Dowl. & Ryl. 173, S. C. 
 
 (6) 3 Taunt. 81. 
 
 (c) V. Home, T. 7 Geo. IV. K. B. per Bcn/lci/, J. (d) Ry. & Mo. 380. 
 
 (e) R. M. 10 Geo. II. reg. 2, (b), K. B. Ancientlj^, it seems, the defendant did not plead 
 de novo, after an amendment: 2 Salk. 5l7; but he is now at liberty to do so, when the 
 amendment is of sucli a nature as to occasion any alteration in the plea, but not otherwise. 
 
 ( /) 2 Salk. 517, 18 ; 520. R. T. 5 & 6 Geo. II. (b), K. B. Yaies v. Edmonds, T. 35 Geo. 
 III.'K. B. 8 Durnf. & East, 87. 2 Chit. Rep. 332. 
 
 (ff) 2 Blac. Rep. 785. Ante, 469, 475. (h) Barnes, 273. 
 
 (i) G Taunt. 400. (k) 1 Wils. 223. 
 
 (l) Id. ibid; and see Barnes, 22.
 
 OF AMENDMENT. 709 
 
 bad been made up :(«) and the plaintiif in such case was allowed to reply 
 per fraudem.[a) So where, in covenant, the defendant was not allowed to 
 give a counter-demand in evidence at the trial, under a notice of set-off 
 delivered with the plea of non est factum, the court afterwards granted a 
 rule to show cause, why the defendant should not be permitted to plead a 
 set-off, on payment of the costs of the former trial. (i) And, in a late 
 case,(c) the court of Common Pleas allowed several avowries in replevin 
 to be amended, by altering the name and description of the locus in quo, 
 and stating the holiling to have been for a year, instead of half a year, 
 and also l)y adding new avowries, varying the amount of the rent ; although 
 issue had been joined, and notice of trial given and countermanded, and 
 more than two terms had elapsed, previously to the application for the 
 amendment. In like manner, the plaintiff has been allowed to amend, by 
 withdrawing his replication, and replying de novo, after a lapse of many 
 terms :((Z) And, in one case, the plaintiff had leave to amend his replica- 
 tion, Avhere issue had been joined upon it, and the cause entered at the 
 assizes, and made a remanet for defect of jurors.(c) But where, to a plea 
 of specialties outstanding, in an action on simple contract against an exe- 
 cutrix, the plaintiffs replied assets ultima, which was found for them, but 
 the verdict set aside, the court of King's Bench refused to give them leave 
 to alter their replication, and ycy)\j fratid ;{ff) for besides that there had 
 been a trial, it might have been dangerous to permit the alteration ; 
 because the defendant, on the former issue, might have paid away assets, 
 as knowing the replication could not affect her. So, where the plaintiff 
 had been nonsuited upon a general replication, " that the cause of action 
 arose within six years," the court refused to set aside the nonsuit, and to 
 give the plaintiff leave to reply de novo, " that the writ of latitat issued 
 within the six years. "(^) 
 
 After a demurrer, the courts would not formerly have permitted an 
 amendment to be made, without the consent of the adverse party. (A) But 
 of late years, they have not observed the same strictness as formerly, with 
 regard to amendments ;(/) and it is much better for the parties that they 
 should not. Hence it is now settled, that after a demurrer or joinder in 
 demurrer, either party is at liberty to amend, as a matter of course, wliilst 
 the proceedings are in paper :(/c) Indeed, the very intent of requiring mis- 
 takes in point of form to be shown for cause of demurrer, was to 
 give the *party an opportunity of amending.(flrt) And even where [ *710 ] 
 the proceedings are entered on record,(i?>) and the demurrer has 
 been argued,(cc?) the coui'ts will give leave to amend, where the justice of 
 
 (a) 1 n. Blac. 238. 
 
 (i) 1 Stark. Ni. Pri. 312, 13; and sec 2 Chit. Rep. 28. 5 Barn. & Aid. 89C ; but see 5 
 Moore, 164. 2 Bred. & Bing. 395, S. C. 
 - (c) 8 Moore, 584. 
 
 \d) Sav. Rep. 172. 2 Bur. T5G ; and sec 1 Dowl. & Rvl. 4T3. ; (r) Say. Rep. 285. 
 
 Iff) 2 Str. 1002 ; and see G Taunt. 45. 1 Marsh. 401, S. C. (y) 5 Bur. 2G02, 3. 
 
 (A) 1 Ld. Raym. 310. Id. GG8. 1 Salk. 50, S. C. 1 Ld. Raym. 679, S. P. ; but see Cas. 
 temp. Hardw. 171. 
 
 (i) 2 Bur. 75G. 
 
 {k) 2 Salk. 520. Gilb. C. P. 114, 15. (aa) 2 Str. 84G. 
 
 (hb) Id. ihid. 1 Barnard. K. B. 213, 220, S. C. Barnes, 8. 
 
 (fc) 2 Wms. Saund. 5 Ed. 402. 2 Str. 735, 954, 976. Caa. /rw;>. ITardw. 42, S. C. 1 Bur. 
 321,2. Doug. 330, G20. 1 East, 372. Barnes, 9, 20, 21, 25. But after the court had given 
 their opinion on the argument, an amendment was denied. 1 East, 391 ; and see Barnes, 9. 
 1 IT. Bhu". 37. 2 Bos. & Pul. 482. 3 Bos. & Pul. 11, 12. 5 Tauut. 765. 6 Taunt. 248. 1 
 Marsh. 567, S. C.
 
 n-^Q OF AMENDMENT. 
 
 the case requires it, and there is any thing to amend by, upon payment of 
 costs. ((/) But, in the Common Pleas, after a party has once amended on 
 a dcniurrer, the court will not give him leave to amend again, on a second 
 demurrer, (e) 
 
 Upon similar grounds, the courts will sometimes give a party leave to 
 withdrcav his demurrer, after it has been argued, and to plead or reply de 
 novo, in order to let in a trial of the merits.(/) Thus, in the King's 
 Bench, after a demurrer to the defendant's plea had been argued, and the 
 matter stood over for the judgment of the court, a rule was made to show 
 cause, why the plaintiff should not have leave to withdraw his demurrer, 
 and reply to the plea; which rule, no cause being shown, was afterwards 
 made absolute. (^//) So, in the Common Pleas, where the defendant plead- 
 ed, in debt on bond, that he paid the money before the day, according to 
 the condition, which was in the disjunctive, to pay on or before the day, 
 and the plaintiff demurred to the plea, the coui't, after argument, allowed 
 him to withdraw his demurrer, and to reply, upon payment of costs. (7i7i) 
 And the demandant, we have seen,(/i) was allowed to withdraw a demurrer, 
 and reply de novo, in a writ of formedon, upon showing good ground by 
 affidavit. The courts, however, will always take care, that if one party 
 obtain leave to amend, or to withdraw his demiu-rer, the other party shall 
 not be delayed or prejudiced thereby. (M) 
 
 But the giving or withholding leave to withdraw demurrers, is altogether 
 discretionary in the courts :(/) Therefore where, to an action of debt upon 
 a bail bond, the defendent pleaded there was no bill of Iliddlesex, and the 
 plaintiff demurred, the com't of King's Bench, after delivering their opinion 
 in favour of the defendant, refused to give the plaintiff leave to withdraw 
 his demurrer, and amend :{m) And by Wright, Just. " It is not usual to 
 amend, after a demurrer has been argued, and the opinion of the court is 
 known : and it is certainly improper to give leave in the present case, it 
 being an action against bail, whom the court are always inclined to fa- 
 vour." So, where the defendant rejoined to several replications in tres- 
 pass, and demurred to others, and a verdict was found for him 
 [ *711 ] *upon the issues in fact, and contingent damages assessed upon 
 the demurrers, which were afterwards overruled ; the court of 
 King's Bench refused to let the defendant withdraw his demurrers, and 
 plead to issue :(a) And, by De7nson, Just. "Where the demurrer is first 
 argued, before any trial of the issues, the court will give leave to amend ; 
 as in the case af G-iddins v. Cfiddins :{b) But this is an attempt to amend 
 issues in law, after a verdict has been found on the issues in fact, and con- 
 tingent damages assessed ; of which there never was an instance. And we 
 do not know where it would end ; nor how the cause could be agani carried 
 down to trial. The court cannot help seeing that this is upon record : Here 
 are verdicts and contingent damages found. The cases of amendment cited 
 
 (d) 2 Chit. Rep. 292. 
 
 (e) 2 H. Blac. 561 ; but see 8 Taunt. 515, 16. 2 Moore, 566, S. C. 
 (/) Doug. 385, 452. 
 
 (gff) 1 Kea. 335. Say. Rep. 316, S. C. ; and see 2 Chit. Rep. 5. 
 (hh) 2 Wils. 173 ; and see 1 Moore, 61. (n) Ante, 699. 
 
 (M) 2 Bur. 756 ; but see 1 East, 372, where the plaintiff had leave to amend a replication 
 to a sham plea, after argument, without paying costs. 
 (I) 1 East, 135, (a). 5 Price, 412. 
 (7/1) Say. Rep. 116, 17 ; and see 7 Dowl. & Ryl. 41. 
 (a) 1 Bur. 321, 2. (6) Say. Rep. 316. '
 
 OF AMENDMENT. 711 
 
 are, ■when the •whole is supposed to be in paper ; or else the court could not 
 have done it. We have no authority to do this, after it is plainly upon re- 
 cord." So, where judgment had been given for the defendant on demur- 
 rer to a plea, the court of Common Pleas would not, in a subsequent term, 
 set aside that judgment, and suffer tlie plaintiff to reply, by confessing 
 the matters contained in the plea, and taking judgment of assets qucmdo 
 acciderint.{c) 
 
 Whilst the proceedings are in jJctjyer, the amendment is at common law; 
 and not within any of the statutes of amendments, which relate only to pro- 
 ceedings of record.((^) And there is no difference, as to the doctrine of 
 amending at common law, between civil and criminal cases :(e) ■ nor between 
 penal and other actions. (/) Thus, in a qui tarn action of usury, the plain- 
 tiff was permitted to amend his declaration, by altering the date of a note, 
 after issue joined and entered on the roll, and after many terms had elapsed 
 since the commencement of the action. (_r/) A similar amendment was per- 
 mitted, in a subsequent case, after the record had been made up for trial, 
 and withdrawn upon discovery of the mistake. (/i) So, where the defendant 
 was served with the copy of a latitat in a penal action, by a wrong name, 
 and declaration filed conditionally by the same name, to whicli he appeared, 
 and pleaded a misnomer in abatement, the court of King's Bench held, that 
 a judge's order to amend the bill and declaration, by substituting the true 
 name, was good ; and that after such amendment, the proceedings could not 
 be set aside for irregularity. (^) And in general it seems that where there 
 has been no unnecessary delay on the part of the plaintiff, the courts will 
 give him leave to amend his declaration in a penal action, even after the 
 time allowed for bringing a new one is expired. (A;) But where 
 the plaintiff in such an action has been guilty of any *unncces- [ *712 ] 
 sary delay in prosecuting his suit, the courts in their discretion 
 will not permit amendments to be made in the declaration, though the 
 pleadings are still in paper :{a) And in a late case, the court of Cummon 
 Pleas would not, in a penal action, alter the term of which the declaration 
 was entitled, to a previous term, Avithout a sufficient reason being assigned 
 by affidavit. (J) So, in an action of debt, to recover penalties against a 
 sheriff"s officer for extortion, on the statute 32 Geo. II. c. 28, that com-t, 
 we have seen,(cc) would not allow the declaration to be amended, by adding 
 new counts on the statute 23 Hen. VI. c. 9. And there is said to be no 
 instance, in which the court of King's Bench have given leave to amend, 
 as to the parties to the suit in a qui tarn action, after demurrer. (t?f7) 
 
 AVhen the proceedings are entered on record^ the courts, it is said, will 
 amend no farther than is allowable by the statutes of amendments. (ce) 
 
 (c) 6 Taunt. 45. 1 M.arsh. 401, S. C. {d) 1 Salk. 47. 3 Salk. 31. 
 
 \e) 1 Salk. 51. 2 Ld. Raym. 10G8. 6 Mod. 285, S. C. Cas. temp. Hardw. 42. 2 Str. 
 739. 4 East, 175. 
 
 (/) 1 Str. 137. 2 Str. 1227. 1 Wils. 25G. 1 Bur. 402. 2 Ken. 82, S. C. 3 Maule & Sel. 450. 
 
 \g) 2 Bur. 1098, 9. 
 
 (A) 5 Bur. 2833, 4; and see Taillcur, qui (am v. Codes, T. 22 Geo. ITI. K. B. C Durnf. 
 &East, 173. 
 
 (i) 3 Maule & Sel. 450. 
 
 (k) 6 Durnf. & East, 543. 7 Durnf. & East, 55. 4 East, 433, 435 ; and see 2 Chit. Rep. 
 23, 25. 
 
 (a) 2 Durnf. & East, 707. G Durnf. & East, 171. 8 Durnf. & East, 30. 
 
 (b) 6 Taunt. 19. 1 Marsh. 419, S. C. ; but see 2 Chit. Rep. 22, 25. 
 
 (cc) Ante, G98. (dd) Per Butler, J, 4 Durnf. & East, 228. 
 
 [ee) 1 Balk. 47. 3 Salk. 31. Gilb. C. V. 114, 15. 2 Wils. 147. 2 Blac. Rep. 920,
 
 712 ^*' OF AMENDMENT. '^ 
 
 By the first of these statutes, (14 E^. III. stat. 1, c. 6,) it is enacted, 
 that " no process shall be annulled (flytscOiftinued, by misprision of the 
 clerk, in writing one syllable or letter too much or too little ; but as soon 
 as the mistake is perceived, by challenge of the party, or in other manner, 
 it shall be amended in due form, without giving advantage to the party 
 that challengeth the same, because of such misprision." The judges con- 
 strued this statute so favourably for suitors, that they extended it to a 
 iVord.{f) And, by the 9 Hen. V. stat. 1, c. 4, it is declared, that they 
 shall have the same power, as well after as before judgment, so long as 
 the record and process are before them. This statute is confirmed, and 
 made perpetual by 4 Hen. VI. c. 3, with a proviso, that it shall not 
 extend to process of outlawry, &c. By the 8 Hen. VI. c. 12, the justices 
 are further empowered to examine and amend what they shall think, in 
 their discretion, to be the misprision of their clerks, in any record, pro- 
 cess, [a] word, plea, warrant of attorney, writ, panel, or return : And, by 
 the 8 Hen. VI. c. 15, they may amend the misprisions of their clerks and 
 other officers, as sheriffs, coroners, &c. in any record, process, or return 
 before them, by error or otherwise, in writing a letter or syllable too much 
 or too little. These are, properly speaking, the only statutes of amend- 
 ments ;{g) and it seems they apply to peyial as well as to other actions ;(A) 
 but they do not extend to crimmal cases,(^) nor, as it should seem, to 
 
 process in inferior courts. (^^)[b] 
 [ *713 ] *In order to amend upon these statutes, it is a general rule, 
 
 that there must be something to amend by.[c] And in compli- 
 ance with this rule, it has been determined, that the original writ,(a) or 
 bill,(Z>) is amendable by the instructions given to the officer ; the declara- 
 
 (/) 8 Co. 157, a. 
 
 {(/) 1 Salk. 51. The rest, beginning with the 32 Hen. VIII. c. 30, are statutes o? jeofails. 
 Id. ibid; and see Steph. PI. Append, xxxv. v. 
 
 (A) I ^o\. Khv.m. Amendment. 2 Str. 1227. Doug. 114. 1 Marsh. 180. 2 Chit. Rep. 25. 
 1 Stark. Ni. Pri. 400, S. C. 
 
 r«) 1 Salk. 51. 2 Ld. Raym. 1307. Gilb. C. P. 116. 
 
 \kk) Willes, 122. The language, however, used by the court in this case, " that the words 
 of the statutes of amendments do not extend to inferior courta," must, it is presumed by Mr. 
 Durnford, be understood with this qualification, that the inferior coui't itself cannot amend; 
 For, if a writ of error be brought in the King's Bench from an inferior court, for an error 
 amendable by the statute 8 Hen. VI. c. 12, there seems to be no reason why the superior 
 court sliould not amend that error ; the words of that statute not being, that " in any action 
 broiif/lit in any of the superior courts," but "for error assigned in «?;?/ records, &c.," no judg- 
 ment shall be reversed, &c. but the king's judges, &c. piay amend, &c. Id. 126, n.] but see 
 1 Rol. Abr. 209, 10, scmb. contra. 
 
 {a) 8 Co. 161. 1 Ld. Raym. 564. 1 Salk. 49, S. G. Barnes, 10, 16, 22. 
 
 {b) Barnes, 3, 11, 16, 24, 26. 
 
 [a] An original writ may be amended. Bartholomeio v. Chautaque Bank, 19 Wend. 99. 
 Dean V. Swift, 11 Verqi. 531. Fitzgerald v. Garvin, T. U. P. Charlton, 281. Sneets v. 
 Weathersbee, R. M. Charl. 537 ; so a writ of right. Boston v. Otis, 20 Pick. 38 ; so an at- 
 tachment in Alabama. Scott v. dlaei/, 3 Ala. 250. But where there is no declaration in 
 the writ, the court, in Massachusetts, will not grant leave to amend by filing a declaration. 
 Brown v. Seymor, 1 Pick. 32. Bringham v. Esbe, 2 Pick. 425. 
 
 A ea. sa. returnable on Sunday, or out of term, being final process, is amendable. Aliter, 
 per Bronson C. J., of mesne process, which would be void in such case. Stone v. Martin, 2 
 Denio, 185. Woodx. Hill, 5 New Hamp. 229. Bell v. Austin, 13 Pick. 90. Cramer v. Van 
 .4^67//ne, 9 Johns, 386. /iTy/fs v. i^orrf, 2 Rand. 1. S. P. 2. Pen. 632. 1 Monr. 146. But a 
 writ of entry cannot be amended by striking out the name of one of the demandants. 
 Pickett V. King, 4 New Hamp. 212. Treat v. M'Mahan, 2 Greenl. 120. 
 
 [b] See note [b] ante p. ICl. 
 
 [c] See ante, note [b] page 161, where the cases are collected.
 
 '*» 
 
 OF AMENDMENT. 7;[3 
 
 tion by the bill ;(6') the pleadings, subsequent to the '%claration, by the 
 paper-book, (cZ) or draft under counsel's hand ;(e) the liisijjrius roll by the 
 plea roll;(/) the verdict, whether general or special, b^ the plea roll,((/) 
 memory,(A) or notes(i) of the jiMge, or notes of the associate,(;t-) or clerk 
 of assize :{l) and if special, by the notes of counsel, (w«) or even by an 
 affidavit of what was proved upon the trial ;(><) the judgment by the 
 verdict ;(o) and the writ of execution by the judgmcnt,( jj) or by the award 
 of it* on the roll,(5') or by former process. (r) But notwithstanding the 
 general rule, Avhich prohibits amendments not authorized by the above 
 statutes, after the proceedings are entered on record, the courts, we have 
 seen,(.s) have in particular instances permitted the plaintiflF to amend his 
 declaration or replication, and the defendant to amend his plea, in cases 
 where there has been nothing to amend by, after issue joined, 
 and after the proceedings have been entered on record, and *even [ *714 1 
 after a trial has been had thereon, and the plaintiff has been non- 
 suited, or failed in producing the record. 
 
 The amendment may be made in any stage of the proceedings :(aa) and 
 those things which are amendable before error brought, are amendable after- 
 wards, so long as diminution may be alleged, and a certiorari awarded.(66) 
 After error brought in the King's Bench, on a judgment of the Common 
 Pleas, the amendment may be made in the former court, (c<?) or in the court 
 below. ((^) If it be made below, a certiorari may be had, on alleging dimi- 
 nution, to bring up the record in its amended state ; or, if the clerk of the 
 treasury of the Common Pleas attend with the record in the King's Bench, 
 
 (c) 1 Str. 583. 2 Str. 954, 1151, 1162, 1271. 1 Ken. 368. Say. Rep. 294, S. C. 
 
 (d) 8 Co. 161, b. Palm. 404, 5. Latch, 58, 86, S. C. Cro. Car. 144. 1 Salk. 50, 88. 2 
 Ld. Raym. 895, S. 0. 
 
 (<?) Cro. Eliz. 258. 2 Str. 846. 1 Barnard, K. B. 213, 220, S. C. 
 
 (/) 8 Co. 161, b. Cro. Car. 203. 1 Salk. 48. 1 Ld. Raym. 94. 12 Mod. 107. Comb, 
 393, S.C. 2 Str. 1264. Say. Rep. 76. Barnes, 14. 1 Campb. 57. 2 Chit. Rep. 22; but see 
 1 Ld. Raym. 511. 
 
 (ff) 1 Ld. Raym. 133. 
 
 (h) Cro. Car. 338. Gilb. C. P. 164. 1 Bac. Abr. 101. Bui. Ni. Pri. 320. Cas. Pr. C. P. 
 118, 19. Barnes, 6, S.C. /(/. 449. 
 
 (/) 2 Str. 1197. 1 Wils. 33, S. C. Doug. 376, 673, 722, 745. 3 Durnf. & East, 659, 749. 
 8 East, 357. 1 Bos. & Pul. 329. 3 Bos. & Pul. 343. 1 Marsh. 182. 3 Biug. 334; but see 
 1 H. Blac. 78. 6 Durnf. & East, 691. 1 Barn. & Aid. 161. 2 Chit. Rep. 352. 7 Moore, 269. 
 But the court of King's Bench rejected an application to amend the entry of a verdict, ac- 
 cording to the notes of an arbitrator, to ■n-liom the cause had been referred, on the ground 
 that they had no power to compel such notes to be brought before them. 1 Chit. Rep. 283. 
 And the application to amend the verdict by the judge's notes, should be made to the judge 
 who tried the cause, and not to the court. Id. ibid. 
 
 (k) 2 Chit. Rep. 352. 
 
 (I) Cro. Car. 144. 1 Salk. 47, 8. 1 Ld. Raym. 138, S. C. 1 Salk. 53. 1 Ld. Raym. 335. 
 1 Barnard. K. B. 191. 1 Bac. Abr. 101. Gilb. C. P. 103 ; but see 2 Durnf. & East, '281. 
 
 (m) 1 Rol. Rep. 82. 1 Rol. Abr. 207, pi. 15. 1 Salk. 47, 8 ; 53. 
 
 (n) 1 Str. 514. 8 Mod. 49, S. 0. 
 
 (o) 2 Str 787. 3 Durnf. & East, 349. 1 Marsh. 182. 11 Price, 410. 3 Ring. 346. 
 
 (j9) Barnes, 10, 11. 2 Blac. Rep. 836. 2 Durnf. & East, 737. 5 Durnf. & East, 577. 6 
 Durnf. & East, 450. 4 Taunt. 322. 
 
 (q) Say. Rep. 12. 3 Wils. 58. 2 Bos. & Pul. 330. 1 Marsh. 237. 5 Taunt. 605, S. C. 
 
 (r) 3 Wils. 58. 3 Durnf. & East, 057. 1 H. Blac. 541. 
 
 (s) Ante, 697, 8 ; 708, 9. (aa) Ante, 697, 8. 
 
 (bl>) 8 Co. 162, a. W. Jon. 9. 3 Durnf. & East, 349, 569, 74^. 7 Durnf. & East, 474, 703. 
 4 Taunt. 588. 2 Chit. Rep. 22, (a) ; and see 1 Salk. 269. Cas. tenip. Hardw. 119, for the 
 time of awarding a certiorari. 
 
 (cc) Poph. 102. 8 Co. 1G2, a. 2 Rol. Rep. 471. 3 Manle & Sel. 591. 3 Bing. 346. 
 
 ((W) Poph. 102. Hardr. 505. 1 Salk. 49, 270, 71. 2 Str. 787. 1 H. Blac. 643. 4 Taunt. 
 588. 1 Marsh. 180. 3 Bmg. 346.
 
 tr-iA OF AMENDMENT. 
 
 the latter court on motion will order the transcript to be amended by it.(e) 
 And this way of amending the transcript in the King's Bench, is the com-se 
 of the court, in order to save a certiorari ; for if the record be right below, 
 the party, upon diminution alleged, may have a certiorari of common right 
 for bringing it up.(/) After error brought in the Exchequer Chamber, 
 upon a judgment of the King's Bench, it is said to be necessary to make 
 the amendment in the latter court ; as this differs from the case of a writ of 
 error from the Common Pleas, because that court is supposed to send up the 
 very record, but the King's Bench sends only a transcript.(^) But where 
 the issues are entered informally, the court of Exchequer Chamber will ad- 
 journ the hearing of the case, to afford an opportunity for the party to apply 
 to the court below, to amend the record, unless the counsel will consent to 
 argue upon the supposition of such an amendment. (A) When the record 
 has been amended, it is either certified into the Exchequer Chamber, upon 
 diminution alledged ;(i) or upon carrying it there, by the clerk of the trea- 
 sury of the King's Bench, the justices and barons will order the transcript 
 to be amended :{k) or the transcript may be brought back, and amended in 
 the King's Bench, by the original record.(?) So, after error brought in the 
 House of Lords, upon a judgment of the King's Bench,(m) or of the Com- 
 mon Pleas affirmed in that court on a writ of error, (><) the amendment 
 should be made in the court of King's Bench, where the record still re- 
 mains. If there be any mistake in the transcript, by the negligence of the 
 clerk, the court above, on carrying up the record, will order the transcript 
 
 to be amended by it :(o) and though after a writ of error, it is 
 [ *715 ] not usual to ^suffer an amendment of the record of an inferior 
 
 court, (a) yet where there is a mistake in the transcript, the court 
 above will order it to be rectified :(h) And a certiorari has been issued to 
 the judge of an inferior jurisdiction, to return the practice of this court.(c) 
 The clerk of the errors in the Common Pleas, in transcribing the record, 
 by mistake entitled the declaration generally, instead of specially, and 
 error was assigned thereon ; after which he amended the transcript, by in- 
 serting the special title ; and the court of King's Bench would not restore 
 the transcript, to the state in which it stood at the time when the plaintiff 
 in error assigned his error. (cM) 
 
 On an amendment after error brought, it was not formerly usual to allow 
 the plaintiff his costs of the writ of error :{ee) but it is now settled, that 
 they shall be allowed him, provided the amendment be made after final judg- 
 ment, and the plaintiff, after notice of the amendment, do not proceed 
 farther ;(^) though if the amendment be made before final judgment,(^^) 
 or the plaintiff proceed after notice thereof,(A7i) he shall not be allowed his 
 
 (f) 2 Rol. Rep. 471. Hardr. 505. 
 
 (/) 1 Salk. 49 ; and see Cas. temp. Hardw. 118. 2 Str. 1023, S. C. 
 
 {g) 2 Str. 83'7. But see 6 Moore, 135. 3 Bred. & Bing. 66. 9 Price, 432, S. C, where 
 the amendment was first made in the Exchequer Chamber, and afterwards in the King's 
 Bench. 
 
 (h) 1 Younge & J. 376. (i) Cro. Jac. 429, 628. 2 Rol. Rep. 471. 
 
 {k) 1 Rol. Abr. 208. (Z) Id. 209. 2 Str. 837. 
 
 {m) 3 Durnf. & East, 659. («) 3 Maule & Sel. 591. (o) Hardr. 505. 
 
 (a) 1 Rol. Abr. 209, 10; but see Willes, 126, (n). Ante, 712. 
 
 \b) 1 Wils. 337. Say. Rep. 59, S. C. 4 Dowl. & Ryl. 315. 
 
 (c) 4 Dowl. & Ryl. 315. {dd) 1 Maule & Sel. 232. {ee) 3 Mod. 113. 
 
 (/) 3 Lev. 361. 2 Ld. Raym. 897. Lloid v. Skutt, T. 23, Geo. III. K. B. 
 
 {gg) 1 Ld. Raym. 95. 
 
 \hh) 1 Salk. 49, in marg. Lloid v. Skutt, T. 23 Geo. III. K. B.
 
 OF AMENDMENT. 715 
 
 costs. And when amendments arc made upon a writ of error, after verdict, 
 &c., by virtue of the statutes of joufails, no costs are given ; for the con- 
 struction of those statutes has been, to give judgment fur the party upon 
 the writ of error, as if the amendments had been made. (/)[!] 
 
 (i) Cas. icmp. Hardw. 314. And see further, as to the doctrine of amendment, Stcph. PI. 
 97, 8. 2 Archb. K. B. 230, &c. 
 
 [1] By the Law amendment act, 3 & 4 W. IV. c. 74, wliich is one of the principal recent 
 statutes for the improvement of the law in England, fines and recoveries are abolished, and 
 there is a clause therein, § 7, that "if it shall be apparent, from the deed declaring the uses 
 of any fine already levied, or hereafter to be levied, that there is in the indentures, record, 
 or any of the proceedings of such fine, any error in the name of the conusor or conusce of 
 such fine, or any misdescription or omission of lands intended to have been passed by such 
 fine, then and in every such case the fine, without any amendment of the indentures, record, 
 or proceedings, in which such error, misdescription, or omission sliall have occurred, shall 
 be as good and valid as the same would have been, and shall be held to have passed all the 
 lands intended to have been passed thereby, in the same manner as it would have done, if 
 there had been no such error, misdescription, or omission." On this clause, the court re- 
 fused to amend a fine, in a case of misdescription cured by the statute ; Lockington, de- 
 mandant ; Shipley and wife, conusors; 1 Bing. N. R. 355. 1 Scott. 2G3, S. C. And they 
 would not amend the warrant of attorney for suffering a recovery, even to the extent of 
 transposing names placed in a wrong order; Lamont, vouchee, 3 Bing. N. R. 297. 
 
 By anotlier clause of the same statute, g 8, " if it shall be apparent, from the deed making 
 the tenant to the writ of entry, or other writ for sull'ering a common recovery, already suf- 
 fered, or hereafter to be suffered, that there is in the exemplification, record, or any of the 
 proceedings of such recovery, any error in the name of the tenant, demandant, or vouchee 
 in such recovery, or any mis-description or omission of lands intended to have been passed 
 by such recovery, then and in every such case the recovery, without any amendment of the 
 exemplification, record, or proceedings in which such error, mis-description, or omission 
 shall have occurred, shall be as good and valid as the same would have been, and shall be 
 held to have passed all the lands intended to have been passed thereby, in the same manner 
 as it would have done, if there had been no such error, mis-descrii)tion, or omission. Pro- 
 vided always, tliat nothing in this act contained shall lessen or take away the jurisdiction of 
 any court, to amend any fine or common recovery, or any proceeding therein, in cases not 
 provided for by this act." | 9. 
 
 END OF VOLUME I. 
 
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