fecondly, common bailiffs, who are ufually bound with fureties to the sheriff, in an obligation for the due execution of their office, and thence are called bound bailiffs; thirdly, fpecial bailiffs, nominated by the plaintiff or his attorney, and appointed by the fheriff pro hac vice. Blackftone fays, bailiffs or theriff's officers, are either bailiffs of hundreds, or fpecial bailiffs. Bailiffs of hundreds are officers appointed over those respective diftricts by the fheriffs to collect fines, to fummon juries, to attend the judges and juftices at the affizes and quarter fefhons, and alfo to execute writs and procefs in the feveral hundreds ; but as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs and making arrefts and executions, it is now ufual to join fpecial bailiffs with them; and thefe being, as already is mentioned, bound for the due execution of their office, the fheriff is anfwerable for all their mifdemeanors, but he has recourse to their fureties for an indemnity. The fheriff's officer ought to execute his warrant with all speed and fecrecy, and he is bound to purfue the effect of it in every behalf, otherwise it will not excufe him. A fworn and known officer, (be he fheriff, under-fheriff, bailiff, or ferjeant) need not fhew his warrant or writ when he comes to ferve it upon any man's perfon or goods, although the party demand it; but a fpecial bailiff, or other perfon, who is no fworn and known officer, muft fhew his authority or warrant, or the party may make resistance.

ARREST. Arreft, in common law, is the apprehending or reftraining of one's perfon, in execution of the command of fome court, or officer of justice. Arrest for debt is in two modes, the one on what is called mefne process, that is, where there is no judgment of a court against the party, but only an affidavit made by his creditor, that he owes him to the amount of 10l. at least; and from this the perfon arrefted may be setat liberty on finding bail to the fheriff, as here after mentioned. The other arreft is on what is called final procefs, or where judgment has been obtained, and from this there is no difcharge, but by payment of the money directed to be levied. An arreft must be, "by corporal feifing or touching the defendant's body;" after which the bailiff may justify breaking open the houfe, in which he is, to take him: otherwife he has no fuch power, but must watch his opportunity to arrest him; for every man's house is his caftle of defence and afylum, wherein he should fuffer no violence. If a bailiff lays hold of one by the hand (whom he has a warrant to arreft) as he holds it out of the window, this is a fufficient taking to justify the breaking open the house to carry him away. A bailiff may lfo break open the door of a lodger, having firft gained peace

able entrance at the outer door of the house. It is alfo to be obferved, that the privilege of a man's houfe only extends to the owner, and will not protect any man that flies to it to escape the ordinary procefs of law, nor the goods of any perfon received into it to prevent lawful execution. Therefore, if the fheriff, having procefs against a stranger, defire to have the door opened, or to have the body of the party flying thither, if after fuch request, denial or refufal be made, the fheriff or his officers may lawfully break open the houfe, and execute the procefs. Where perfons having authority to arreft or imprifon, and, ufing proper means, are refifted, and the party making refiftance is killed in the struggle, this homicide is juftifiable; but, on the other hand, if the officer happen to be killed, it will be murder in all who take part in fuch refiftance; for it is homicide committed in defpite of the juftice of the kingdom. The ftatute 29 Chas. I. c.7. enacts, that on the Lord's day no writ or procefs fhall be ferved or executed (except in cafes of treafon, felony, or breach of the peace), and perfons arrested on that day may recover damages as if no writ or procefs had iflued.

PRIVILEGED PLACES. No arreft ought to be made in the king's palace at Weftminster, where his royal perfon refides, (except where the procefs iffues out of the palace court) or in the king's prefence, nor in any place where his juftices are actually fitting. Formerly one of the greatest obftructions to public juftice, both civil and criminal, was the number of pretended privileged places, efpecially in London and Southwark, where difhoneft perfons could fhelter themfelves from juftice, under pretext of their being ancient palaces of the crown; fuch as White Friars, the Savoy, Salisbury-court, Ram-alley, Mitrecourt, Fuller's-rents, Baldwin's gardens, Montague close, or the Minories, the Mint clink, and Deadman's place, within the hamlet of Wapping or Stepney. All these fanctuaries for iniquity are now demolifhed, and the oppofing of any process in any of them is made highly penal by ftat. 8 and 9 W. III. c. 27. 9 Geo. I. c. 28. and by 11 Geo. I. c. 22., which enacts that perfons oppofing the execution of any process in such pretended privileged places, or abufing any officer in his endeavours to execute his duty, fo that he receives bodily hurt, fhall be guilty of felony, and tranfported for feven years and perfons in difguife, joining in, or abetting any riot or tumult, on fuch account, or committing the fame offences, fhall be felons without benefit of clergy.

PRIVILEGED PERSONS. The perfons by law privileged from arrest are, the king, the queen, whether regnant, confort, or dowager; all peers of the realm and parliament; peereffes by

birth, and by marriage, until they lofe their privileges by efpouring a commoner; members of the lower house of parliament; embafacors and their fervants, if bona fide retained; all these are abfolwvely and generally privileged, except the members of the house of commons, and their privilege is, by contrivance, rendered perpetual. To fome other perfons perpetual or temporary privilege is given. The king's domeftic fervants cannot be arrested without notice to the lord chamberlain; affiftant officers of both houfes of parliament down to the door-keepers, are privileged during the feffion, and until their return home; the clergy are protected while proceeding to and from church to perform divine fervice; judges and their neceffary fervants can in no cafe be arrested, but their clerks may; ferjeants and barristers are not privileged; officers of the fuperior courts are; attornies have a limited privilege with refpeét to mesne process, but they may be taken in execution. The right of being exempted and freed from arreft by procefs of other courts, belongs to the lord chancellor, or keeper, and to all the mafters, curfitors, minifters, and fworn clerks of the court of chancery, and to the menial fervants of the chancellor or keeper, and of the minifters and officers. The clerk of the pells has privilege. Curfitor's clerk, auditor of the exchequer, and his fervants, commiffioners of the treafury, garter king of arms, receiver general of the revenues, clerk of the remembrancer, and an attorney of the exchequer, are intitled to privilege. The marfhal of the King's Bench and warden of the Fleet are not to be arrested. Witneffes are protected in their neceflary attendance, going to and returning from courts where they are called to give evidence; a bankrupt has his protection for forty-two days after actual furrender; foldiers and failors, and perfons in Wales and the counties palatine cannot be arrefted, except in execution, unless the debt fworn to amounts to 20. nor any other of his majefty's fubjects, unless it amounts to 10%.

PERSONS ARRESTED. For the protection of perfons who are arretted against infult, fraud, and extortion, the ftat. 32 Geo. II. c. 28. provides that no fheriff or fheriff's officer fhall convey them to any tavern or public houfe, or to any houfe of their own (which are commonly called lock-up-houfes, or by an expreffive nick-name, fpunging-houfes) without their free confent; and the ofheers are not to carry the debtor to prifon in lefs than twenty four hours after caption, unless he refufes to go to fome other fafe place of cuftody. The intent of this regulation is, that the unfortunate prifoner may not be made an object of gainful fpeculation on one hand, nor on the other, hurried to a common gaol, if he has reafonable hopes of procuring bail. The statute

alfo

also contains strict regulations for prevention of imposition in charges for victuals and lodging, and the fair prices are directed to be publicly exhibited in the house of the bailiff.

If the perfon arrested means to difpute the juftice of the plaintiff's claim, he is, by a late act of parliament framed by Lord Ellenborough, at liberty to pay into the hands of the sheriff the fum fworn to, with a certain additional fum for cofts, and give notice that he will defend the action, and in that cafe the plaintiff cannot, as he formerly could, demand the money depofited, from the theriff, but muft proceed in the caufe. If the defendant procures bail to the fheriff, they enter jointly with him into a bond with a penalty, double the amount of the debt fworn to, that good bail fhall be put in at the return of the writ; but if the debtor can neither pay nor depofit the debt, nor find bail, he is conveyed to the gaol of the county in which he was arrested, or he may, by writ of habeas corpus, be removed to the King's Bench, or the Fleet prifon; and in London and fome other towns and cities, there are gaols fet apart for the citizens, fome of which have peculiar benefits. Of the proceedings fubfequently taken by the plaintiff to compel the fheriff to do his duty, or pay his demand, or upon affignment of the bail-bond; or of the menfures purfued by the defendant to prevent these advantages, and of all other matters which arife in the courfe of a fuit, it would be too technical here to treat.

POUNDAGE. On levying an execution the fheriff is entitled to poundage, or an allowance of one fhilling in the pound up to 100l., and fixpence in the pound on all monies after the first 100l. This fum was formerly paid by the plaintiff, but by the act laft mentioned it is to be levied on the defendant.. ESCAPE. In either cafe of bailable, or final process, if the defendant, after being taken, runs away, or is discharged from cuftody without due bail, to the injury or delay of the plaintiff, it is termed an efcape, and the fheriff is liable to pay the debt and costs, which he may recover from the negligent officer or his fureties; but if a special bailiff is appointed at the requeft of the plaintiff, the sheriff is not answerable for his acts.

GAOLERS. Gaolers are alfo fervants of the sheriff, and he must be responsible for their conduct. Their business is to keep fafely all perfons committed to them by lawful warrant: and if they fuffer any fuch to escape, the fheriff must answer it to the king, if a criminal matter; or, in a civil cafe, to the party injured. The abufes of gaolers toward the unfortunate perfons in their custody are alfo well reftrained and guarded against by 32 Geo. II. c. 28; and by ftatute 14 Geo. III. c. 59. provifions are made for better preferving the health of prifoners, and preventing the gaol distemper.

VOL. II.

JURIES.

JURIES. As caufes relating to property alone, and profecutions for crimes are both tried by juries, it is intended in this place to treat of every kind of jury, the fubject being equally connected with the defcription of courts which has been before given, and that of criminal courts which is immediately to follow.

Before this, the moft ufual kind of trial, is defecribed, it may be proper to notice fome others, which are only had in certain fpecial and eccentrical cafes; where the trial by the country, per pais, or by jury, would not be fo proper or effectual. They are fix: by record; by inspection or examination; by certifi cate; by witneffes; by wager of battel; and by wager of law.

TRIAL BY RECORD. This trial is only ufed where a matter of record is pleaded in any action, as a fine, a judgment, or the like; and the oppofite party pleads, that there is no fuch matter of record exifting: upon this, iffue is tendered and joined, and the party pleading the record has a day given him to bring it in, and proclamation is made in court for him " to bring "forth the record by him in pleading alleged, or elfe he

fhall be condemned;" and, on his failure, his antagonist fhall have judgment to recover. The trial therefore of this iffue is merely by the record; for, as Sir Edward Coke obferves, a record or enrolment is a monument of fo high a nature, and imports in itself fuch abfolute verity, that if it be pleaded that there is no fuch record, it fhall not receive any trial by witnefs, jury, or otherwife, but only by itfelf. Thus titles of nobility, as whether earl or no earl, baron or no baron, fhall be tried by the king's writ or patent only, which is matter of record. Alfo in cafe of an alien whether alien friend, or enemy, fhall be tried by the league or treaty between his fovereign and ours; for every league or treaty is of record. And alfo, whether a manor be to be held in ancient demefne, or not, fhall be tried by the record of domesday in the exchequer.

INSPECTION. Trial by infpection, or examination, is when in fome point or iffue, evidently the object of fenfe, the judges of the court decide the point on the testimony of their own senses; for in matters of fuch obvious determination, it is not thought neceffary to fummon a jury, who are properly called in to inform the confcience of the court, in refpect of dubious facts: thus in fome cafes of age, death, and maihem, the court may decide by examination of the perfon; and in fome relating to days and times by infpection of the almanac.

CERTIFICATE. The trial by certificate is allowed in cafes where the evidence of the perfon certifying is the only proper criterion of the point in difpute. For, when the fact in question