responsible persons, the plaintiff may take an assignment from the sheriff of the bail bond and bring an action thereupon against the sheriff's bail. But if the bail so accepted by the sheriff be insolvent persons, the plaintiff may proceed against the sheriff himself by calling upon him, first to return the writ (if not already done), and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff. When Special Bail is Required, as of Course. 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: 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 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. 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. Definition. 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, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries. Declaration. The first of these is the declaration, narratio, or count, anciently called the tale; 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. 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 very county and place that it really did happen in; but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like, 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.. It is generally 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. He concludes with declaring that the defendant had refused to fulfill any of these agreements, whereby he is endamaged 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 recover proportionable damages. This declaration always concludes with these words, "and thereupon he brings suit, etc.," "inde producit sectum, etc." Nonsuit. Retraxit. Discontinuance. At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe, which as we before observed, are now mere names of form, though formerly they were of use to answer to the king for the amercement of the plaintiff in case he were nonsuited, barred of his action, or had a verdict of judgment against him. For if 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. And for thus deserting his complaint, after making a false claim or complaint (pro falso clamore suo), he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit in that the one is negative and the other positive; the nonsuit 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. A discontinuance is somewhat similar to a nonsuit; 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; but the plaintiff must begin again by suing out a new original, usually paying costs to his antagonist. When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defense and to put in a plea; else the plaintiff will at once recover judgment by default or nihil dicit of the defendant. Defence. 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 (from the French verb defender) 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 afterwards extended and maintained in his plea. By defending the force and injury, the defendant waived all pleas of misnomer; 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. 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 of Westminster, to demand the cognizance thereof; or with such exclusive words, which also entitles 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 left at liberty to pursue his remedy in the special jurisdiction. Plea. Imparlance. View. Oyer. 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, 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. There are also many other previous steps which may be taken by a defendant before he puts in his plea. 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; the generality of defendants in the times of ancient simplicity, being supposed incapable to read it themselves, 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 brief. Plea, 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. Dilatory pleas 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: pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action. For imparlances are either general, of which we have before spoken, and which are granted of course; or special, with a saving of all exceptions to the writ or count, which may be granted by the prothonotary; or they may be still more special, with a saving of all exceptions whatsoever which are granted at the discretion of the court. Dilatory Plea. 1. Dilatory pleas are: 1. To the jurisdiction of the court: alleging that it ought not to hold plea of this injury, it arising in Wales or beyond sea; or because the land in question is of ancient demesne, and ought only to be demanded in the lord's court, etc. 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 praemunire not in rerum natura (being only a fictitious person), an infant, a feme-covert, 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 misnomer; giving him a wrong addition, as esquire, instead of knight; or other want of form in any material respect. Or it may be that the plaintiff is dead; for the death of either party is at once an abatement of the suit. And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona; and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury, But in actions arising ex contractu, by breach of promise, and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executors: being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before. These pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now, by statute 4 and 5 Anne, c. 16, no dilatory plea is to be admitted without affidavit made of the truth thereof, or some probable matter shown 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, show him how it might be amended, that there may not be two objections upon the same account. Neither by statute 8 and 9 W. III. c. 31, shall any plea in abatement be admitted in any suit for partition of lands; nor shall the same be abated by reason of the death of any tenant. All pleas to the jurisdiction conclude to the cognizance of the court; praying "judgment, whether the court will have further cognizance of the suit:" pleas to the disability conclude to the person; by praying "judgment, if the said A, plaintiff, ought to be answered;" and pleas in abatement (when the suit is by original) conclude to the writ or declaration; by praying "judgment of the writ, or declaration, and that the same may be quashed," cassetur, made void, or abated; but, if the action be by bill, the plea must pray "judgment of the bill," and not of the declaration; the bill being here the original, and the declaration only a copy of the bill. 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. Plea to the Action. 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 the matter sooner, or not plead at all, but suffer judgment to go by default. Yet sometimes, after tender and refusal of a debt, if the creditor harasses his debtor with an action, it then becomes necessary for the defendant to acknowledge the debt, and plead the tender; adding that he has always been ready, tout temps prist, and still is ready, uncore prist, to discharge it: for a tender by the debtor and refusal by the creditor will in all cases discharge the costs, but not the debt itself, though in some particular cases the creditor will totally lose his |