If the defendant appears and puts in sureties for his fu ture attendance, which sureties are called common bail, be ing the same two imaginary persons that were pledges fur the plaintiff's prosecution, John Doc and Richard 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 appearance for him, and proceed thereupon as if the defendant had entered his appearance himself.
If it be for a debt contracted, and the plaintiff make oath that the defendant truly owes him 151. or upwards, 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 W i t. s suffi and that there had been no O'er 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 attend ing the courts of justice. These must be sued by bill of privilege. Clergymen performing divine service, mem bers of convocation when in attendance, suitors and witness es attending courts of record, and the king's servants, are also exempt. An arrest must not take place in the pre sence of the king, or in the verge of his royal palace, or where his justices are sitting. No arrest can be made up on a Sunday, except for treason, felony, and a breach of the peace.
1Vhen the defendant is regularly arrested, he must either go to prison, or put in special bail to the sheriff. Upon re turn of the writ, or four days after, if the defendant do not appear and justify bail above, that is, by the bailers swear ing themselves to be householders, and of sufficient sub stance, the plaintiff may take an assignment of the bail be low from the sheriff, and bring an action thereupon, and if that bail be bad, the sheriff is responsible.
25. (3.) Pleadings are the mutual altercations between the plaintiff and defendant, delivered in writing into the pro per 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 jurisdiction of the court, the abili ty of the plaintiff, he being an alien, outlaw, infant, Ste. A plea to action is either by silence, and thereby suffering judgment to go by default ; or traversing, that is, by ac knowledging some pm, and denying the rest. The de fendant may plead a set off, by stating that the plaintiff owes him a sum of money, and deducting such sum from the plaintiff'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 de ny 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, Scc. An estoppel is likewise a spe cial plea in bar ; this happens where a man has done some actor executed some deed, that stops or precludes him from averring any thing to the contrary.
In all pleadings, it is necessary to observe, 1. That they be single, and without duplicity. But a man, with leave of the court, may plead two or more distinct matters or sin gle pleas ; as in an action of assault and battery, not guilty, son assault demesne, and the statute of limitations. 2. That the plea be direct and positive ; and not argumentative. S. That it have convenient certainty of time, place, and per sons. 4. That it answer 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, the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut, and the plaintiff may answer him by a sur-rebutter.