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Bail, before whom Entered. The bail above, or bail to the action, must be put in either in open court, or before one of he judges thereof, or in the country, before a commissioner appointed for that purpose, which must be transmitted to the court.

The Recognizance. The bail, who must be at least two in number, must enter into a recognizance in a sum equal, or in some cases double to that which the plaintiff has sworn to, whereby they do jointly and severally undertake, that if the defendant be condemned in the action, he shall pay the costs and condemnation, or render himself a prisoner, or that they will pay it for him, which recognizance is transmitted to the court in a slip of parchment, entitled a bail piece.

Justifying Bail. If excepted to, the bail must be perfected, that is, they must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers, and each of them to be worth the full sum of which they are bail, after payment of all of their debts.

Provisions of Bond. This is similar to the stipulatio or satisdatio of the Roman laws, which is mutually given by the litigant parties; by the plaintiff, that he will prosecute his suit and pay the costs, if he loses his cause; by the defendant, that he shall continue in court, and abide the sentence of the judge.

Surrender by the Bail. There exists this difference, that under the Roman law, the sureties were bound to see the costs and condemnation paid, whereas our special bail may be discharged, by surrendering the defendant into custody, within the time allowed by law, for which purpose they are at all times entitled to a warrant to arrest him.1

Where Special Bail Required. Special bail is required only upon actions of debt, or on the case in trover, or for money due, where the plaintiff can swear the cause amounts to ten pounds, but in actions, where the damages are precarious and to be assessed ad libitum by a jury, as in actions for words, ejectment or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action. In such cases, no special bail

Bail may surrender the defendant even after judgment. He has no exemption from arrest, either on Sunday or going to or to coming from court, or in the house of a stranger, so no outer door be broken. He can be arrested under a bail piece, wherever found, even if he be beyond the jurisdiction of the court.- Chitty.

is taken, except by a judge's order, or by the particular direction of a court in some peculiar species of injury, as in cases of mayhem or atrocious battery, or upon such special circumstances, as make it absolutely necessary, that the defendant should be kept within the reach of justice.

When Demandable of Executors, etc. In actions against heirs, executors and administrators for debts of the deceased, special bail is not demandable; for the action is not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them in actions for a devisavit, or wasting the goods of the deceased; the wrong being of their own committing.

CHAPTER XX.-PLEADINGS.

Defined. Pleadings are the mutual altercations between the plaintiff and defendant, which at present are delivered into the proper office in writing, though formerly they were put in by counsel, ore tenus or viva voce, in court, and then minuted down by the prothonotaries.

DECLARATION.

Its Form. The first of these is the declaration or narratio, the count, in which the plaintiff sets forth his cause of complaint at length, being indeed only an amplification or exposition of the original writ, upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed.

Optional, in what Action to Declare. In the king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper, unless he has held him to bail by special ac etiam, which the plaintiff is then bound to pursue. And so also, to have the benefit of a capias to secure the defendant's person, one may in the common pleas sue out a writ of trespass quare clausum fregit, for breaking the plaintiff's close, and when the defendant is once brought in upon

this writ, the plaintiff declares in whatever action the nature of his true injury may require, as in an action of covenant, or on the case for breach of contract, unless by holding the defendant. to bail on a special ac etiam, he is bound himself to declare accordingly.

Local Actions. In local actions, where possession of land is to be recovered, or damages for an actual trespass or for waste, etc., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the county.

Transitory Actions. For injuries, that might have happened anywhere, as debt, detinue, slander and the like, the plaintiff may declare in any county he pleases, and the trial will be had in the county, where the declaration is laid.

Change of Venue. If, however, the defendant make affidavit, that the cause of action, if any, arose not in that but another county, the court will direct a change of venue or visne, that is the vicinia or neighborhood, 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. For as the statute ordered all writs to be laid in their proper counties, this, as the judges believed, empowers them to change the venue, if required, and not to insist on abating the writ. This power is discretionally exercised, so as to prevent and not to cause a defeat of justice. And it will sometimes remove the venue from the proper jurisdiction, especially of a limited kind, npon a suggestion, duly supported, that a fair and impartial trial cannot be had therein.1

Counts in a Declaration. In actions on the case, it is customary 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 to another. As in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant, to wit, twenty pounds, and lest he should fail in the proof of this, he counts likewise upon a quantum valebant, that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth, and he avers that they were worth other twenty pounds, and so on in

1 The power of changing the venue has been extended in England, by statute, to local actions.

three or four different shapes, and at last concludes, with declaring that the defendant had refused to fulfil any of these agreements, whereby he is damaged to such a value. And, if he proves the case laid in any one of his counts, though he fails in the rest, he shall receive proportionate damages.

Conclusion of the Declaration. The declaration concludes with these words: "And thereupon he brings suit." By suit, secta (a sequendo), was formerly understood the followers or witnesses of the plaintiff.

Laches in Filing. Non-suit or Non-pros. If the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against rules of law in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy, as he ought to do, and thereupon a non-suit or non prosequitur is entered, and he ought to be non-prossed. He shall not only pay costs to the defendant, but is liable to be amerced to the king.1

Retraxit. A retraxit differs from a non-suit, in that the one is negative, and the other positive; the non-suit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon payment of costs, but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action.

Discontinuance. This is somewhat similar to a non-suit, for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend. The plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. By the death of the king, no action is discontinued.

Plea must be Filed. After the filing of the declaration, the defendant, within a reasonable time, must make his defence, and put in his plea, else the defendant will at once recover judgment by default, or nihil dicit, of the defendant.

Defences. Defence signifies not a justification, protection or guard, but merely an opposing or denial (from the French verb defender), of the truth or validity of the complaint. It is a

1 The introduction of John Doe and Richard Roe, at the end of the declaration as plaintiff's common pledges, no longer is requisite.

general assertion, that the plaintiff has no ground of action, which assertion is afterwards extended and maintained in his plea. It would be absurd to suppose that the plaintiff comes and defends, or in the vulgar acceptation, justifies, the force and injury in one line, and pleads that he is not guilty of the trespass complained of in the next. All this is clear, if we understand by defence an opposition or denial.1

Technicalities. Formerly the nature of the defence was examined carefully, so that if no defence was made, though a sufficient plea was pleaded, the plaintiff recovered judgment. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court were allowed. By defending the force and injury, the defendant waived all pleas of misnomer, and by defending the damages, all exceptions to the person of the plaintiff, and by defending either one or the other, when and where it should behoove him, he acknowledged the jurisdiction of the court. But of late years these niceties have been discountenanced, thongh they may be insisted on.

Special Jurisdiction, Franchises. Before defence made, if at all, cognizance of the suit must be claimed, when any person or body corporate has the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas. Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction.

Claim of Cognizance. This claim of cognizance must be put in before full defence is made or imparlance prayed, for these are a submission to the jurisdiction of the superior court; and the delay is a laches, which will not be allowed, if it occasion a failure of justice, or if an action be brought against the person himself, who claims the franchise, unless he has also a power in such case of making another judge.

Amicable Settlement. Imparlance. After defence made,

1 Therefore in actions of dower, where the demandant does not count of any injury done, but merely demands her endowment, the tenant makes no defence. In writs of entry, where no injury is stated in the count, but merely the right of the demandant and the defective title of the defendant, the tenant defends his right or also denies his own right to be such as suggested. In writs of right, the defendant defends the right of the demandant and his seisin.

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