after arrest.

in the king's presence, nor in any place where the king's justices are actually sitting. And by 29 Car. 2, c. 7, no arrest can be made, or process served on a Sunday, except for treason, felony, or breach of the peace. When the defendant is Proceedings arrested, he must either go to prison, or put in special bail to the sheriff; which is done by entering into a bond, with sufficient sureties to insure the defendant's appearance at the return of the writ: and this is called the bail bond. After taking the defendant, the sheriff must keep him safely to be forthcoming in court; otherwise an action lies against him for an escape. By 12 Geo. 1, c. 29, the sheriff shall take bail for no other sum than such as is sworn to by the plaintiff, and indorsed on the back of the writ. Upon the return of the Appearance at writ, or within four days after, the defendant must this is effected by puttingin and justifying bail to the action; which is called bail above (w). If this be not done, and the Assignment of bail taken by the sheriff below are responsible persons, the the bail bond. plaintiff may by 4 & 5 Ann. c. 16, take an assignment from the sheriff of the bail bond, and bring an action thereon against the sheriff's bail (x). But if the bail so accepted by the sheriff Proceedings against the be insolvent persons, the plaintiff may call on the sheriff to sheriff. return the writ, and to bring in the body of the defendant (y). And if he does not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff.

in

and appear,

return of writ.

The bail above, or bail to the action, must be put in, either Of bail above. open court, or before one of the judges thereof: or else in

the country, before a commissioner, appointed by 4 Wm. & M. c. 4 (z). These bail, who must at least be two in number, must

(w) By 1 Wm. 4, c. 3, s. 2, all writs, now returnable before the courts at Westminster, may be made returnable on the third day exclusive, before the commencement of such term, or on any day not being Sunday, between that day and the third day exclusive, before the last day of the term; and the day for appearance, shall as heretofore, be the third day after such return, exclusive of the day of the return, or in case such third day shall fall on a Sunday, then on the fourth day after such return, exclusive of such day of return.

of

(x) By 5 Geo.4, c.41, the stamp required on this assignment is now no longer necessary. (y) By 2 Wm. 4, c. 39, s. 15, rules and orders may be made for return of writs; and by Reg. Gen. M. T. 3 W. 4, if a judge shall have made an order in vacation for return any writ on any day in vacation, which having been duly served shall be disobeyed, it shall not be necessary to serve such rule of court, or make any fresh demand of performance thereon; but an attachment shall issue forthwith, whether the thing required by the order shall or shall not have been done in the meantime.

(2) By 1 & 2 Vict. c. 45, the judges of the courts at Westminster may issue commissions for taking special bail, and the cognizors of such bail may justify before such commissioners.

E E

Of special bail where required.

enter into a recognizance, in a sum equal (or in some cases double) to that which the plaintiff has sworn to, conditioned on the payment of the debt and costs, or rendering the defendant a prisoner (a) if he be condemned in the action; which recognizance is transmitted to the court in a slip of parchment, entitled a bail piece. If excepted to, the bail must be perfected, that is, they must justify themselves in court, or before the commissioners in the country (b), by swearing themselves housekeepers; and each of them to be worth the full sum for which they are bail, after payment of all their debts.

Special bail is required only upon actions of debt, or actions on the case in trover, or for money due where the cause of action amounts to 20%.; but not in actions for words, ejectment, or trespass, where the damages have to be assessed ad

(a) By 1 Wm. 4, c. 70, s. 21, a defendant may be rendered, in discharge of his bail, either to the prison of the court or to the jail of the county where he was arrested; for which purpose the defendant, or his bail, or one of them is to obtain an order of a judge and lodge it with the jailer, and a notice of such lodgment, and of the defendant being actually in custody by virtue of the order signed, by the defendant, or the bail, or either of them, or by the attorney or agent, shall be delivered to the plaintiff's attorney, or agent; and the sheriff, or other person responsible for the custody of debtors in such county jail, shall, on such render so perfected, be duly charged with the custody of such defendant, and the bail shall be exonerated.

By 43 Geo. 3, c. 46, persons arrested on mesne process, may, in lieu of bail to the sheriff, deposit with him the debt, and 10%. for costs, and then are entitled to be discharged. The money is to be paid into court by the sheriff, at or before the return of the writ, and upon bail being put in and perfected, is to be returned to the defendant upon motion to the court and order; or if no bail be put in, it is to be paid to the plaintiff on the like motion and order.

And by 7 & 8 Geo. 4, c. 71, a defendant discharged from arrest, upon making deposit with the sheriff pursuant to 43 Geo. 3, c. 46, may, instead of perfecting special bail, allow the deposit paid into court, to remain in court to abide the event of the suit; or if he remains in custody, or gives bail to the sheriff, he may pay the debt, with 201, for costs into court, to abide the event of the suit, and file common bail. And upon perfecting special bail may receive such deposit and payments out of court. Or after perfecting bail, he may make deposit and payment, and file common bail. (b) By 1 Wm. 4, c. 70, s. 12, bail may be justified before a judge at chambers, or in some other convenient place, to be by him appointed, as well in term as in vacation; and whether the defendant be actually in custody or not. By Reg. Gen. T. T. 1 Wm. 4, a defendant may justify bail at the time when they are put in, upon giving four days' notice for that purpose, before eleven o'clock A. M., and exclusive of Sunday; and if the plaintiff desires to inquire after the bail, and shall give one day's notice to the defendant, his attorney, or agent, before the time appointed for justification, stating the further time required, not to exceed three days in case of town bail, or six days if country bail, then (unless the judge or the court shall otherwise order), the time for putting in and justifying bail shall be postponed accordingly, and all proceedings shall be stayed in the meantime.

libitum by a jury, unless by a judge's order, or the particular directions of the court.

Also in actions against heirs, executors, and administrators, for debts of the deceased, special bail is not demandable, except in actions for a devastavit, or wasting the goods of the deceased.

CHAPTER XX.

OF PLEADING.

PLEADINGS are the mutual altercations between the plaintiff Of the pleadings. and defendant (a), which at present are set down and delivered into the proper office in writing, though formerly they were put in by their counsel, ore tenus, or viva voce, in court, and minuted down by the chief clerks, or prothonotaries. The first of these is the declaration, narratio, or count, in which The declarathe plaintiff sets forth his cause of complaint at length (b).

tion.

(a) The science of pleading (however those who do not understand, may affect to despise it) is admirably calculated for the purposes of analysing a cause; of extracting, like the roots of an equation, the true points in dispute, and referring them, with all imaginable simplicity, to the court or to the jury. It is reducible to the strictest rules of pure dialectic; and were it scientifically taught in our public seminaries of learning, would fix the attention, give a habit of reasoning closely, quicken the apprehension, and invigorate the understanding, as effectually as the famed peripatetic system, which, how ingenious and subtle soever, is not so honorable, so laudable, or so profitable, as the science in which Littleton exhorts his sons to employ their courage and their care; Jones's Isaus, Pref. Disc. 25. The Earl of Mansfield, who, with the most comprehensive and enlightened genius, possessed the most consummate and enlarged knowledge, remarked that, "the substantial rules of pleading are founded in strong sense, and in the soundest and closest logic, and so appear when well understood and explained; but by being misunderstood and misapplied, are often made use of as instruments of chicane;" 1 Burr. 313; Hale's Hist. C. L. by Runnington, 212, note a.

Special pleading, considered in its principle, is a valuable forensic invention, peculiar to the common law of England, by the effect of which the precise point in controversy between the parties is developed, and presented in a shape fit for decision. If that point is found to consist of matter of fact, the parties are thus apprized of the exact nature of the question to be decided by the jury, and are enabled to prepare their proofs with proportionate precision. If on the other hand it turns out to be matter of law, they have the means of immediately obtaining the decision of the cause, without the expense and trouble of a trial, by demurrer, that is, by referring the legal question so evolved to the determination of the judges. Report of the Common Law Commissioners ; and see on this subject Co. Litt. 303 a.

(b) Since the passing of the Uniformity of Process Act, the writ of summons is to be considered as the commencement of the action, and the declaration must correspond with the form of action specified in the writ; otherwise it is irregular, and the court will

actions.

In transitory actions.

Venue in local In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c. affecting land, the plaintiff must lay his declaration, or declare his injury to have happened in the very county or place where it did happen (c); but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like (d), the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid (e). Though, if the defendant will make affidavit that the course of action, if any, arose not in that but in another county, the court will direct a change of the venue, or visne (that is, the vicinia or neighbourhood in which the injury is declared to be done), and will oblige the plaintiff to declare in the other county, unless he will undertake to give material evidence in the first (ƒ). It is usual in actions upon the case to set forth several cases by different counts in the same declaration, so that if the plaintiff fails in the proof of one he may succeed in another (g). If the plaintiff neglects

When venue may be changed.

set it aside, leaving the plaintiff to declare on his writ, if he can do so, according to his cause of action; Thompson v. Dicas, 1 C. & M. 768; 2 Dowl. P. C. 93. And by Reg. Gen. H. T. 4 Wm. 4, made pursuant to the provisions of 3 & 4 Wm. 4, c. 42, s. 1, every declaration and pleading must be entitled of the day of the month and year when pleaded, and shall be entered on the record and judgment roll, under the date of the day of the month and year when the same respectively took place, unless otherwise ordered by the court or a judge.

(c) By 3 & 4 Wm. 4. c. 42, s. 22, in any action depending in any of the superior courts, the venue, in which is by law local, the court in which such action is depending, or any judge of any of the said courts, may, on the application of either party, order the issue to be tried, or writ of inquiry to be executed in any other county or place than that in which the venue is laid; and for that purpose any such court or judge may order a suggestion to be entered on the record, that the trial may be more conveniently had, or writ of inquiry executed in the county or place where the same is ordered to take place.

(d) Actions are either local or transitory. An action is local if all the principal facts on which it is founded be local; and transitory, if any principal fact be of the transitory kind. In a local action the plaintiff must lay the name in the action truly. In a transitory one he may lay it in any county that he pleases. Principles of Pleading, by Sergeant Stephen, 4th ed. p. 317.

(e) By Reg. Gen. H. T. 4 Wm. 4, the name of a county shall, in all cases, be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff; and no venue shall be stated in the body of the declaration, or in any subsequent pleadings.

(ƒ) In actions on bills of exchange and promissory notes, the venne cannot be changed unless on special grounds; Tidd's Prac. 653; 1 Wils. 41; Downes v. Brian, 2 W. Black. 993.

(g) By Reg. Gen. H. T. 4 Wm. 4, after stating that by the mode of pleading by this rule prescribed, the several disputed facts material to the merits of the case will, before

to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent stage of the action, a nonsuit,

the trial, be brought to the notice of the respective parties more distinctly than heretofore. And that by 3 & 4 Wm. 4, c. 42, s. 23, the powers of amendment at the trial in cases of variance in particulars not material to the merits of the case, are greatly enlarged. It is ordered, that several counts shall not be allowed, unless a distinct subject matter of complaint is intended to be established in respect of each, nor shall several pleas or avowries, or cognizances, be allowed, unless a distinct ground of answer or defence is intended to be established in respect of each. Counts founded on one and the same principal matter of complaint, but varied in statement, description, or circumstances only, are not to be allowed. Counts founded on the same contract described in one as a contract without a condition, and in another, as a contract, with a condition, are not to be allowed. Counts for not giving or delivering, or accepting a bill of exchange in payment according to the contract of sale for goods sold and delivered, and for the price of the same goods, to be paid in money, are not to be allowed. Counts for not accepting and paying for goods sold, and for the price of the same goods as goods bargained and sold, are not to be allowed. But counts upon a bill of exchange, or promissory note, and for the consideration of the bill or note in goods, money, or otherwise, are to be considered as founded on distinct subject matters of complaint for the debt and the security, or different contracts, and such contracts are to be allowed. Two counts upon the same policy of insurance are not to be allowed; but a count upon a policy of insurance, and a count for money had and received to recover back the premium upon a contract implied by law, are to be allowed. Two counts on the same charter party are not to be allowed; but a count for freight upon a charter party, and a count for freight pro ratá itineris upon a contract implied by law, are to be allowed. Counts upon a demise, and for use and occupation of the same land for the same time are not to be allowed. In actions of tort for misfeasance, several counts for the same injury, varying the description of it, are not to be allowed. In the like actions for nonfeasance, several counts, founded on varied statements of the same duty, are not to be allowed. Several counts in trespass for acts committed at the same time and place are not to be allowed. Where in indebitatus assumpsit several debts are alleged to be due in respect of several matters, as for wages, work, and labour, as a hired servant, work and labour generally, goods sold and delivered, goods bargained and sold, money lent, money paid, money had and received, and the like, the statement of each debt is to be considered as amounting to a several count within the meaning of the rule, which forbids the use of several counts, though one promise to pay only is alleged in consideration of all the debts. But an account for money due on an account stated, may be joined with any other count for a money demand, though it may not be intended to establish a distinct subject matter of complaint in respect of each of such counts. The rule which precludes the use of several counts is not to preclude the plaintiff from alleging more breaches than one, of the same contract in the same count. Where more than one count, plea, avowry, or cognizance, shall have been used contrary to the preceding rule, the opposite party may apply to a judge for an order, that all such introduced in violation of the rule be struck out at the cost of the party pleading, whereupon the judge shall order accordingly, unless he be satisfied that some distinct subject matter of complaint is bona fide intended to be established in respect of each of such counts, or some distinct ground of answer or defence in respect of each of such pleas, avow.. ries, or cognizances, in which case he shall indorse upon the summons, or state in his order that he is so satisfied; and shall specify the counts, pleas, avowries, or cognizances so allowed; Reg. Gen. H. T. 4 Wm. 4. Upon the trial where there is more