the sheriff, that is, sufficient security for his appearance, called bail, from the French word 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 jail.

21. What if the sheriff does not keep the defendant safely, so as to be forthcoming in court?-290.

An action lies against him for an escape.

22. How is the defendant's appearance effected ?-291.

By putting in and justifying bail to the action, which is commonly called putting in bail above.

23. How is bail to the action put in, and what do they undertake? -291.

It must be put in either in open court, or before one of the judges thereof; or else in the country, before a commissioner appointed for that purpose by statute, which must be by him transmitted to the court. These bail, who must, at least, be two in number, must enter into a recognizance in court, or before the judge or commissioner, 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.

24. What if the bail be excepted to?—291.

It must be perfected, that is, they must justify themselves in court, or before the commissioner in the country, by swearing that they are house-keepers, and each of them worth the full sum for which they are bail, after the payment of all their debts.

25. When shall special bail be required ?-292.

Special bail is required (as of course) only upon actions of debt, or actions on the case in trover, or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds; in other cases no special bail is taken unless by a judge's order, or the particular directions of the court.

26. When only is special bail demandable of heirs, executors, and administrators ?-292.

In actions for a devastavit.

27. How may special bail be discharged?—292.

By surrendering the defendant into custody within the time allowed by law.

CHAPTER XX.

OF PLEADING.

1. What are pleadings?-293.

Pleadings are the mutual altercations between the plaintiff and defendant.

2. What is the first pleading?-293.

The declaration, narratio, or count, anciently called the tale, in which the plaintiff sets forth his cause of complaint at length.

3. In what actions must the plaintiff lay his declaration, or declare his injury to have happened, in the very county and place where it did really happen ?—294.

In local actions; but in transitory actions he may declare in what county he pleases.

4. Which are local actions ?-294.

Actions where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c., affecting land.

5. Which are transitory actions ?--294.

Actions for injuries which might have happened anywhere as debt, detinue, slander, and the like.

6. What is venue?-294.

Venue, or visne, is the vicinia, or neighborhood, in which the injury is declared to be done.

7. When will the court direct a change of venue ?—294.

When the defendant will make affidavit that the cause of action arose not in that in which it is laid, but in another county.

8. For what purpose are different counts introduced into the same declaration?-295.

So that if the plaintiff fails in the proof of one, he may succeed in another.

9. What was anciently understood by the word suit ?—295.

By suit, or secta (a sequendo), was anciently understood the witnesses or followers of the plaintiff.

10. What is a nonsuit?-295.

When the plaintiff neglects 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, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit, or non prosequitur, is entered, and he is said to be nonpros'd.

11. What is a retraxit ?-296.

A retraxit is an open and voluntary renunciation of his suit in court by this act he forever loses his suit.

12. What is a discontinuance ?-296.

When the plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and from time to time, as he ought to do, the suit is discontinued.

13. What is defense, in its true legal sense?—296.

Merely an opposing or denial (from the French verb defendre) of the truth or validity of the complaint. It is the contestatio litis of the civilians; a general assertion that the plaintiff hath no ground of action, which assertion is afterward extended and maintained in his plea.

14. What is claim of cognizance?-298.

It is a claim to have the action tried in some special jurisdiction.

15. When must cognizance be claimed or demanded?— 298. Before defense made, if at all.

16. What is an imparlance ?-299.

cause.

Imparlance, or licentia loquendi, is a continuance of the Before he defends, if the suit is commenced without any special original, the defendant is entitled to demand an imparlance, or licentia loquendi; and, may, before he pleads, have more time granted by consent of the court, to see if he can end the matter amicably, without further suit, by talking with the plaintiff.

17. When, and for what, may a view be demanded?-299.

In real actions, the defendant may demand a view of the thing in question, in order to ascertain its identity and other circumstances.

18. What is oyer?-299.

The defendant may crave oyer of the writ, or of the bond, or other specialty, upon which the action is brought; that is, to hear it read to him; whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition, or other part of it, not stated in the plaintiff's declaration.

19. What are praying in aid, and voucher?-300.

In real actions the tenant may pray in aid, or call for assistance of another, to help him to plead, because of the feebleness or imbecility of his own estate; thus a tenant for life may pray in aid of him who hath the inheritance in remainder, or reversion. Voucher, also, is the calling in of some person to answer the action that hath warranted the title to the tenant or defendant.

20. What is the writ of warrantia chartæ ?-300.

Warrantia charta is a writ allowed to the tenant in assises, against the warrantor, to compel him to assist him with a good plea or defense, or else to render damages and the value of the land, if recovered, against the tenant.

21. Of what sorts are pleas?—301.

Of two sorts: Dilatory pleas, and pleas to the action.

22. What are dilatory pleas --301.

They are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury.

23. What are pleas to the action ?—301.

They are such as dispute the very cause of suit, or answer to the merits of the complaint.

24. Of what kinds are dilatory pleas?-301, 302.

They are of three kinds : 1. To the jurisdiction of the court; alleging that it ought not to hold plea of the injury.

2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit.

3. In abatement; which is either of the writ or the court, for some defect in one of them.

25. What effect has the death of either of the parties, in a suit?— 302.

suit.

The death of either party is at once an abatement of the

26. When cannot the suit be revived?—302.

In actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is actio personalis moritur cum persona; and it never shall be revived either by or against the executors or other representatives.

27. How is a plea to the action made?—303.

By confessing or denying the merits of the complaint

28. What is the effect of tender?—303.

A tender by the debtor, and refusal by the creditor, will in all cases discharge the costs, but not the debt itself.

29. Why is the complaint sometimes confessed in part?-304. In order to avoid the expense of carrying that part to a formal trial which the defendant has no ground to litigate.