650 



L A 



If heap, 

 pears. 



If suit for 

 a debt con- 

 tracted, ar- 

 rest may 

 follow. 



Persons ex- 

 empt from 



arrest. 



Lw coroners of the county ; and if after outlawry he ap. 

 of England. p ears> he may be arrested by capias ullagalum. These 

 '"""V"' are tile established rules of proceeding in the common 

 pleas, in which the other courts vary but little. 



If the defendant appears and puts in sureties for his 

 future attendance, which sureties are called common 

 tail, being the same two imaginary persons that were 



Sledges for the plaintiff's prosecution, John Doe and 

 lichard Roe; or if the defendant does not appear 

 upon the return of the writ, or within four (or in some 

 cases eight) days after, the plaintiff may enter an ap- 

 pearance for him and proceed thereupon as if the de- 

 fendant had entered his appearance himself. 



If it be for a debt contracted, and the plaintiff make 

 oath that the defendant truly owes him L.I 5 or up- 

 wards, over and above and exclusively of any costs, 

 charges, or expences that may have been incurred in 

 the endeavour to recover the same", (except where the 

 debt arose upon any bill or promissory note, for in that 

 case the sum of L.I is sufficient,) and that there had 

 been no offer to pay in bank notes, he may arrest him, 

 and compel him to put in substantial or special bail. 

 The arrest must be by corporally seizing or touching 

 the body ; after which the bailiff is justified in breaking 

 open doors to take his prisoner. 



Persons exempt from arrest are, peers of the realm, 

 peeresses by birth or marriage, members of parliament, 

 corporations, clerks, attornies, and all other persons at- 

 tending the courts of justice. These must be sued by 

 bill of privilege. Clergymen performing divine ser- 

 vice, members of convocation when in attendance, sui- 

 tors and witnesses attending courts of record, and the 

 king's servants, are also exempt. An arrest must not 

 take place in the presence of the king, or in the verge 

 of his royal palace, or where his justices are sitting. 

 No arrest can be made upon a Sunday, except for trea- 

 son, felony, and a breach of the peace. 



When the defendant is regularly arrested, he must 

 either go to prison, or put in special bail to the sheriff. 

 Upon return of the writ, or four days after, if the de- 

 fendant do not appear and justify bail above, that is, 

 by the bailors swearing themselves to be householders, 

 and of sufficient substance, the plaintiff may take an as- 

 signment of the bail below from the sheriff, and bring 

 an action thereupon, and if that bail be bad, the she- 

 riff is responsible. 



25. ( 3.) Pleadings are the mutual altercations be- 

 tween the plaintiff and defendant, delivered in writing 

 into the proper office ; under which are comprised, 

 1. The declaration, or count on which the cause of 

 complaint is set forth. 2. The defence, which is either 

 to action, or a dilatory plea, such as questioning the ju- 

 risdiction of the court, the ability of the plaintiff, he 

 being an alien, outlaw, infant, &c. A plea to action is 

 either by silence, and thereby suffering judgment to go 

 by default ; or traversing, that is, by acknowledging 

 some part, and denying the rest. The defendant may 

 plead a set off, by stating that the plaintiff owes him a 

 sum of money, and deducting such sum from the plain- 

 tiff's demand, and paying the remainder into court, 

 which is done by motion : and if the plaintiff do not 

 recover more than the sum paid in, he shall pay the 

 defendant's costs. Pleas that totally deny the cause of 

 complaint, are either the general issue, or special pleas 

 in bar, which deny at once the whole declaration ; as 

 nil debet to a debt ; non est factum to a bond ; in real 

 actions, a general release, or a fine; in personal actions, 

 an accord, arbitration, nonage, statute of limitations, &c. 

 An estoppel is likewise a special plea in bar ; this hap. 



5 



Conse- 

 quences of 

 arrest, 



and of non- 

 appearance 

 to justify 

 bail abore. 



<3.) Plead- 

 ings. 



pens where a man has done some act, or executed some Law 

 deed that stops or precludes him from ^averring any t England. 

 thing to the contrary. 



In all pleadings, it is necessary to observf, 1. That p r0)Cr ,j 

 they be single, and without duplicity. But a man, with common t, 

 leave of the court, may plead two or more distinct mat- all plead. 

 ters or single pleas ; as in an action of assault and bat- in ". 

 tery, not guilty, .son assault demesne, and the statute of 

 limitations. 2. That the plea be direct and positive ; 

 and not argumentative. 3. That it have convenient 

 certainty of time, place, and persons. 4. That it an- 

 swer the plaintiff's allegations in every material point. 

 5. That it be so pleaded as to be capable of trial. When 

 the plea of the defendant is thus put in, ^if it does not 

 amount to an issue, or total contradiction, but only 

 evades the allegation, the plaintiff may plead again, and 

 in his replication may totally traverse the defendant's 

 bar, by denying the facts adduced. To the replication, Rgojn^g, 

 the defendant may rejoin, or put in an answer called a 

 rejoinder. The plaintiff may answer the rejoinder by r-rejom. 

 a stir-rejoinder ; upon which the defendant may rebut, 

 and the plaintiff may answer him by a sur-rebut- "^ 



ter. rebutter. 



26. (4.) Issue and demurrer. Issues is where the ( 4 ) i 68Ue 

 parties in a course of a pleading come to a point affirm- and demot- 

 ed on one side and denied on the other, which, if it be r - 

 matter of law, is called demurrer, and confesses the fact 



to be true, but denies that the plaintiff has any legal 



remedy ; a demurrer may also arise from informality in 



the course of pleadings. The party thus demurring, if 



it be special, must set forth where such deficiency lies, 



and the opposite party must aver it to be sufficient, j 



which is called a joinder in demurrer ; and then the 



parties are at issue in point of law, which issue in law 



is determined by the judges of the court wherein such 



action is brought. An issue of fact is where the fact 



only, and not the law is disputed. And where he that 



denies or traverses the fact pleaded by his antagonist 



has tendered the issue thus, " and this he prays may 



be inquired of by the country ;" it may be immediately 



subjoined by the other party, " and the said A. B. doth 



the like." Which being done, the issue is said to be 



joined ; the action is then to be tried by the country 



(per patriam,) that is by jury. 



27. (5.) Trial, and the several species of trial. Trial (5-) Trial ; 

 is the examination of any fact put in issue. The trial of an issue 

 of an issue of law, or demurrer, is by the opinion of the ( law; 

 judges of the court. The trial of an issue of fact is, of an issue 

 1. By the record. 2. By inspection. 3. By witnesses. of ' 



4-. By wager of batlel. 5. By wager of law. 6. By "f 

 jury. 



Trial by the record is had where the matter of record as by the 

 is pleaded in action ; as a fine, judgment, or where record; 

 such a manor is held of ancient demesne, &c. and the 

 opposite party plead " nul tiel record," . that there is no 

 such record. 



Trial by inspection or examination,^ is had when the by hispec- 

 matter in question is the evident object of the senses ; tion ; 

 wherein the judges of the record shall decide upon 

 their own investigation. Trial by certificate is allowed 

 when the fact in question lies out of the cognizance of 

 the court; as whether such a one was absent in the 

 king's army; this shall be tried by certificate under 

 seal. Whether defendant be a citizen of London, here 

 the certificate of the sheriff of London is sufficient. 



The trial by witnesses, without the intervention of a by witness." 

 jury, is the only method of trial known to the civil law, es without 

 and is used only upon the writ of dower, when the di- 

 rect issue is whether the husband be dead ; and in a 



