not then cause sufficient bail to be put in above, he will himself be responsible to the plaintiff.

The bail above, or bail to the action, 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. These bail, who must at least be two in number, must enter into a recognizance in court or before the judge or commissioner, 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. And, if required, the bail must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers, and each of them to be worth double the sum for which they are bail, after payment of all their debts. 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 apprehend him.

But in actions where the damages are precarious, being 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; and therefore no special bail is taken thereon, unless by a judge's order, or the particular directions of the court, in some peculiar species of injuries, as in of mayhem or atrocious battery; or upon such

cases

́special circumstances, as make it absolutely necessary that the defendant should be kept within the reach of justice. Also 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 devastavit, or wasting the goods of the deceased; that wrong being of their own committing.

CHAPTER XX.

OF PLEADING.

PLEADINGS are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing.

The first of these is the declaration, narratio, or count, anciently called the tale; in which the plaintiff sets forth his causes of complaint at length.

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 and place that it really did happen; but in transitory actions, for injuries

that might have happened any where, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be in that county in which the declaration is laid.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time, to make his defence and to put in a plea; or else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant.

Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification; but merely an opposing or denial of the truth or validity of the complaint.

Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court. Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is set at liberty to pursue his remedy in the special jurisdiction.

After defence made, the defendant must put in his plea. But, before he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one imparlance, or licentia loquendi; and may, before he pleads, have more granted by consent of the court; to see if he can end the matter amicably without farther suit, by talking with the plaintiff: a practice which is supposed to have arisen from a principle of religion, in obedience to that precept of the gospel," agree with thine adversary quickly, whilst thou art in the way with him." He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He 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.

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action.

1. Dilatory pleas are, 1. To the jurisdiction of the court alleging, that it ought not to hold plea of this injury, if arising in Wales or beyond seas, &c. 2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a præmunire, not in rerum natura (being only a fictitious person) an infant, a married woman, or a monk professed. 3. In abatement :

which abatement is either of the writ, or the count, for some defect in one of them; as by misnaming the defendant, which is called a misnosmer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect. The death of either party is at once an abatement of the suit.

By statute 4 & 5 Ann. c. 16. no dilatory plea is to be admitted, without affidavit made of the truth thereof, or some probable matter shewn to the court to induce them to believe it true. And with respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a better; that is, shew him how it might be amended, that there may not be two objections upon the same account.

When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction, or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court, or to amend and new frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It is then incumbent on him to plead.

2. A plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.

A confession of the whole complaint is not very usual, for then the defendant would probably end