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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.
Vol. I.
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