We have seen that on the former process by capias, the sheriff, by the connivance of the courts, instead of arresting the defendant, gave him notice to appear to the action; no actual arrest was required, and merely nominal bail being taken. But if the plaintiff made affidavit that the cause of action amounted to ten pounds or upwards, then he might arrest the defendant, and make him put in substantial sureties for his appearance, called special bail; the sheriff, or his officer the bailiff, being then obliged actually to take the body of the defendant, and to return the writ with a cepi corpus indorsed thereon. The issue of a capias is now allowed, however, in those cases, only in which a judge is satisfied that the plaintiff has a cause of action against the defendant to the amount of twenty pounds or upwards, and that there is probable cause for believing that the defendant is about to quit England. A writ of capias may then be sued out along with the writ of summons, and the defendant, when arrested, will remain in custody until he finds bail, or makes a deposit in the action.

An arrest must be by corporal seizing or touching the defendant's body; after which the bailiff may justify breaking open the house in which he is to take him: otherwise he has no such power, but must watch his opportunity to arrest him. For every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence. Which principle is carried so far in the civil law, that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a Iman within his own walls.

The queen's chaplains and certain other officials are privileged from arrest; and the servants in ordinary of the sovereign cannot be taken unless upon leave obtained from the lord chamberlain. Ambassadors and ministers of foreign states, and their domestics, are also privileged from arrest; consuls and their servants are not, nor are the couriers or messengers of foreign ministers. Peers and peeresses are privileged, so are members of parliament during the session, and for forty days after it. The judges of the superior courts cannot be arrested; and barristers or attorneys attending any court upon business cannot be taken during their actual attendance, which includes their necessary going to, waiting in, and returning from court. Certificated bankrupts and persons having an order of protection, should not be arrested; neither can a married woman be taken; nor should an infant, who, however, is left to plead his infancy. Seamen and soldiers have certain privileges in this respect conferred by the annual Mutiny acts. Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrest; as likewise members

of convocation actually attending thereon. Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the presence of the sovereign, nor in any place where the queen's justices are actually sitting. Lastly, no arrest can be made, nor process served upon a Sunday, except for treason, felony, or breach of the peace.

When the defendant is arrested he has twenty-four hours allowed him, before going to gaol, to procure bail, to get money to deposit with the sheriff, or to apply for his discharge from custody. For when regularly arrested he must either go to prison for safe custody; deposit the amount indorsed on the capias, and ten pounds as costs, with the sheriff; or put in special bail, or security for his appearance to the action, and obedience to the judgment of the court of Bail-so called, from the French bailler, to deliver because the defendant is bailed, or delivered to his sureties, upon their giving security for his appearance, and is supposed to continue in their friendly custody instead of going to gaol. They usually enter into a bail-bond, whereby they 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. And, 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 for which they are bail, after payment of all their debts. The bail may be discharged at any time, 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 apprehend him.

But to return to the writ of summons, on which, as we have already seen, the plaintiff, in suits for a debt or other liquidated demand, must indorse his claim. It is otherwise in actions brought to recover damages, as therein no indorsement is required; for until the jury shall assess the amount, it is unascertained. Such damages, indeed, constitute in general the only redress which courts of law can give, as they can only redress a wrong already done, having no means of preventing an injury from being committed, of restraining a breach of contract, or prohibiting its being attempted. When, therefore, the plaintiff seeks to prevent a threatened injury, he must resort to the Court of Chancery: when he has already sustained a wrong, he may not only maintain an action for damages, but in the same suit obtain a prohibition of the repetition or continuance of the

wrongful act complained of; an injunction for this purpose being obtainable at any stage of the cause at which it becomes necessary, provided an indorsement to that effect is made on the writ. So the plaintiff may indorse on his writ a notice that he will demand a mandamus, in order that the duty of a breach of which he complains may be performed. But this writ being practically a writ of execution, its nature, and the mode in which it is enforced, falls to be described hereafter.

The writ of summons is thus a letter missive from the sovereign, notifying the defendant that the plaintiff demands from the crown, as the fountain of justice, redress for some injury which he has sustained at his hands; and therefore commanding him to appear in one of the established courts of justice, there to abide the determination of the judges; to whom, as we have already seen, the crown has delegated its whole judicial authority. The defendant is made acquainted with the plaintiff's claim, by the service of the writ, which is usually effected by the delivery to him of a copy, the original being shown if it be required. And this service, be it observed, ought always, if practicable, to be personal, and to be made by some one who knows the defendant and can swear to his identity. For, as a general rule, there is no equivalent for personal service, except an undertaking by an attorney to appear; which undertaking will, if necessary, be enforced by attachment, every attorney being an officer of the court, and subject to its direct control. If, however, the defendant keeps out of the way, so that personal service cannot be effected, the plaintiff must then use all reasonable efforts to do so; and if he can then satisfy a judge that such efforts have been made, and either that the writ has come to the defendant's knowledge, or that he wilfully evades service of it, authority may be obtained to proceed as if personal service had been effected. The service of the writ is thus in all cases the most important step in the cause, as it is the foundation of all the future proceedings therein.

The next step ordinarily taken in a defended action is the entry of an appearance by the defendant; for if this be not done by him, the plaintiff may sign judgment by default, and proceed to recover the debt or damages claimed by him by the ordinary process of execution. If, however, the defendant has inadvertently neglected to appear in time, so that a judgment by default has been signed against him, he is not debarred from still disputing the justice of the plaintiff's claim; for it has long been a matter of course to let in a defendant to defend on an affidavit of merits. He must, however, account in some way for not having entered an appearance; he must also generally pay the costs of the application; and as he is obtaining an interference of the court on his behalf calculated to

delay the plaintiff, it is generally made a condition of his being allowed to appear, that he shall plead on the same day; and in some cases he may be ordered to bring money into court.

There is a peculiar, and indeed exceptional, mode of proceeding which may be adopted by the holder of an unpaid bill of exchange or promissory note, which I have reserved for consideration in this place. It was first given by the statute 18 & 19 Vict. c. 67; previous to which the remedy open to the holder of an unpaid bill or note was precisely the same as that of a plaintiff in any other action; the defendant being at liberty to appear and plead any number of fictitious defences, the sole effect of which was to force the plaintiff to trial, and create delay and expense. This practice became so much a reproach to the administration of justice, that the legislature thought fit to place under restriction the right even of a defendant to appear to the action. All actions on bills or notes, brought within six months after the same have become payable, may consequently be commenced by a writ, which, instead of commanding the defendant to enter an appearance, warns him that unless within twelve days after the service he obtains leave to appear, and do appear accordingly, the plaintiff may proceed to judgment and execution. The defendant cannot then simply appear; he must, if he has a defence, apply for and obtain leave to appear; and unless he obtains such leave within the time allowed, judgment by default may be signed and execution issued, eight days afterwards. This leave may, however, be obtained as a matter of right, on the defendant bringing into court the sum indorsed on the writ; or upon affidavits, disclosing a legal or equitable defence. But terms may also be imposed on the defendant, as for instance, that he shall give security for the amount claimed. On the other hand, he is not foreclosed by a judge's refusal of leave to appear; for even after judgment the court will permit a defence to the action, if special circumstances can be stated to justify their doing so; the object of the law being not to shut out the defendant from taking the opinion of a jury in his case; but solely to prevent actions, brought on these most important instruments of commerce, from being defended on frivolous and vexatious grounds merely to obtain delay.

Thus much for process which in general is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When, having received, as we have seen he now does, full notice of the nature of the plaintiff's claim, the defendant does not appear in court to dispute it, he is considered to admit the justice of the demand; and the sovereign then, by his delegates the judges, sitting in his courts of justice, awards to the plaintiff that redress to which he is by law entitled, and which by

his writ he has demanded. When the defendant appears, either in person or by attorney, as a prisoner or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.

CHAPTER XI.

OF PLEADING.

Declaration-Venue-Conclusion-Non pros-Claim of cognizance Security for costs-Inspection-Interpleader-Pleas in abatement or in bar-to the jurisdiction-to the disability of plaintiff or defendant-to the action, either confessing or denying-Payment and Set-off-The general issueSpecial pleas-Statutes of limitation-Not guilty-Estoppel-The replica tion-The rejoinder, &c.-New assignment-Departure-Joinder of issue. WHEN the defendant has appeared, both parties are theoretically in court; and the plaintiff ought now to "declare" to the judges what is his cause of action. This is usually ascertained from the pleadings, which are the mutual altercations between the plaintiff and defendant; and which formerly were put in by their counsel ore tenus, or vivâ voce, in court, and then minuted down by the chief clerks or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol. That practice gave way in time to the more convenient course of producing previously-prepared written pleadings; which innovation was in its turn supplanted by our modern system, all the pleadings in an action being now simply interchanged between the attorneys or parties, if they appear in person; and only solemnly entered on the records of the court, when it becomes necessary to do so, as for the purpose of giving them in evidence.

There is a course open to the parties, however, which may render formal pleadings unnecessary. For as the object of all pleading is to ascertain what is in issue between the litigants, whether they disagree upon a matter of fact or on a question of law, there is no reason, if they can ascertain this without pleadings, why these should be resorted to. And they are accordingly allowed to take the simplest mode of stating the question at issue for the decision of the proper tribunal. For if they differ on a matter of fact, the truth must be determined by a jury; if they differ as to the law, arising from certain facts, the court alone shall decide between them.