IX.

X.

XI.

XII.
XIII.

XIV.

RETURN OF, AND FORMS OF RETURNS TO A CAPIAS AD RESPONDEN-
DUM.

ALIAS, PLURIES AND TESTATUM CAPIAS, AND PROCLAMATION AND

FORMS.

THE DISCHARGE OF THE DEFENDANT ON BAIL AND WITHOUT BAIL;

1

AND HIS ESCAPE, RESCUE, AND IMPRISONMENT.

1. Bail bond to the sheriff.

2. When bail bond to the sheriff to be executed.

3. Form of the bail bond.

4.

Discharge of the defendant by the sheriff without a bail bond.

5. Escape and recaption.

6. Rescue.

7. Lodging the defendant in prison-prison bounds-insolvents cer-
tificate.

IN WHAT CASES THE COURT WILL DISCHARGE THE DEFENDANT.
PROCEEDINGS AGAINST THE SHERIFF.

1. For not returning a capias ad respondendum.

2. For taking insufficient bail, or not taking a bail bond, or when special bail is not given, with forms of rules, notices, &c. on

amercement.

PROCEEDINGS, &c., ON THE BAIL BOND TO The sheriff.

1. When the condition of the bail bond to the sheriff is forfeited. 2. Assignment of the bail bond.

XV.

XVI.

XVII.

5. Setting aside or staying proceedings on the bail bond as of course.

6. Staying regular proceedings upon terms.

WHEN AND HOW APPEARANCE OF THE DEFENDANT EFFECTED, WHEN
SUIT IS COMMENCED BY CAPIAS.

SPECIAL BAIL.

1. In what cases to be entered.

2. By whom put in.

3. When put in.

4. How and by whom taken,

5. Its form, and form and object of bail piece, and form of notice that

special bail is put in.

6. Who may or may not become bail.

7. Excepting to bail-with forms.

8. Justification of bail-with forms.

9. Adding and putting in fresh bail-with forms.

COMMON BAIL.

SEC. I. WHO ARE PRIVILEGED FROM ARREST.

1. Members of Congress. Senators and members of Congress are priviledged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.1

(1) Const. U. States, Art. 1, §6.

Public officers - Militia, &c.

2. Members and Officers of the Legislature of this State. The members of the General Assembly, their clerks, sergeants-at-arms, doorkeepers, and messengers, are privileged from arrest during the sitting of the Legislature, and also while traveling to, and returning from, their place of meeting, allowing one day for every twenty five miles distance, by the road most usually traveled. The officer who arrests a member, or any one of the above named officers, of the General Assembly, during the time he is entitled to privilege, must forfeit and pay one hundred dollars.3 The privilege, does not extend to cases of treason, felony, or breach of the peace; but if a member or officer of the General Assembly is arrested for a crime, the person who issues the process on which the arrest is made, must forthwith give written notice thereof to the house of which the person arrested is a member or officer.4

3. Ambassadors and their Servants. All writs or process, whereby any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic, or domestic servant, of any such public minister, may be arrested or imprisoned, or his or their goods or chattels may be seized, are void. And any person suing out such process, or issuing or serving it, is liable to a fine, in the discretion of the court, and imprisonment, not exceeding three years. This statute does not, however, extend to any citizen or inhabitant of the United States, who shall have contracted debts prior to his entering into the service of any ambassador or other public minister, which debts are still due; nor to consuls, or their servants.7

4. Judges, Officers, Suitors, &c., of Courts. Judges of the Supreme Court, and the presiding Judges of the Courts of Common Pleas, while attending court, and during the time necessarily employed by them in going to and returning from the courts which the law makes it their duty to attend, are privileged from arrest. So, the Associate Judges of the Courts of Common Pleas, during the sitting of their respective courts, and all attorneys, counselors at law, clerks, sheriffs, coroners, constables, criers, and all suitors, witnesses and jurors, are privileged from arrest while attending court, and while going to and returning therefrom.8

5. Militia of this State, and Soldiers, &c., of the United States. Citizens of this State, while under the order of their commanding officers and doing military duty, or while going to, or returning from, the place of duty or parade,9 are privileged from arrest. Officers and soldiers of the Revolutionary War, are at all times privileged from arrest on any process or execution for any debt,

(2) Stat. 75, $1.

(3) Id. ib. §2.

(4) Id. 76, §9.

(5) 2 Laws U. S. 97; Ing. Abr. 464.

(6) Id. ib. §26.
(7) 3 M. & S. 284.

(8) Stat. 75, 76, §4, 5.

(9) Id. 76, §6.

Soldiers - Voters - Females-Insolvents, &c.

claim or demand, where the cause of action is founded on contract. 10 All noncommissioned officers, musicians, seamen and marines, who are, or shall be inlisted in the service of the United States, and the noncommissioned officers and musicians who are, or shall be, inlisted in the army of the United States, are exempted during their term of service, from all personal arrest for any debt or contract. All noncommissioned officers, artificers, privates and musicians, who are, or shall be, inlisted, and the noncommissioned officers, artificers, privates and musicians of the militia, or other corps, who at any time may be in the actual service of the United States, shall be exempted during their term of service from all personal arrest for any debt or contract.12 And no noncommissioned officer, musician or private, can be arrested, nor are they subject to arrest, or to be taken in execution, for any debt under the sum of twenty dollars, contracted before inlistment, nor for any debt contracted after inlistment.13

6. Voters at Elections. All persons legally qualified to vote for members of the General Assembly, during their attendance at an election, and while on their way going to and returning from an election, are privileged from arrest.14

7. Females. Every female is exempted from arrest or imprisonment on any process for any debt, claim, or demand, where the cause of action is founded upon a contract, express or implied.14

8. Insolvents. The certificate granted by the Court of Common Pleas to an insolvent, protects him from arrest upon any debt mentioned in the schedule,15 except debts of a fiduciary character. 16 An officer would be liable to an action of trespass, if he held a defendant in custody, who produced his certificate.15 So, if a debtor hold the certificate of the commissioner of insolvents, and his application for relief be pending in court, it will exempt him from arrest upon any debt mentioned in his schedule. The officer, upon the production of the certificate, should discharge the defendant,17 returning a copy of the certificate with the writ. Where a discharge has been obtained in another State, under insolvent laws which exempt the person from imprisonment, but leave the future acquisitions of the debtor liable to execution, it will not protect the debtor from arrest, and payment of the debt here.18 But, where the insolvent laws of another State or country not only discharge the debtor from imprisonment, but also discharge the debt itself, then, he can neither be arrested here, nor can such debt be recovered.19

Administrators, Corporations-Persons before arrested for same cause.

9. Executors, Administrators, and Corporations. Persons prosecuted in their representative character, as executors, administrators, State, county, or township officers, or other corporate bodies, must, in general, be sued by summons, unless they have entered into such a personal contract as to make their own property liable for the payment of the debt.

10. Where a defendant has been before arrested for the same cause of action. It has always been regarded as a general rule, that a defendant who has been once holden to bail, cannot be held to bail a second time, for the same cause of action;20 but an exception has always been recognized, where the second arrest did not appear to be vexatious.21

Under this practice, it has been held, that if a defendant be superseded, for the laches of the plaintiff, he cannot, afterwards, be holden to bail for the same cause of action; even although, after his discharge, he give the plaintiff his pomissory note for the amount of the debt, and the second arrest be upon the note thus given;22 or, although the second arrest be in a different form of action, provided it be for the same cause.23 But if the plaintiff, through the mistake of his attorney, have misconceived his form of action, he may, upon discontinuing his action, hold the defendant to bail in another for the same cause ;24 provided the discontinuance of the first action did not arise from any gross laches on the part of the plaintiff, and the second arrest do not appear to be vexatious.25 Also, where the plaintiff has been non prossed in the first action,26 or, where the judgment in the first action has been reversed for error,27 it has been holden, that he may, after payment of costs, hold the defendant to bail, in a new action for the same cause. 26 But, in the case of a non pros, as well as for discontinuance, it must clearly appear, that the second action is not vexatious; and the court will always intend it to be vexatious, unless the contrary is shown.28 Where a defendant, on being arrested, gave the plaintiff a draft, for part of the debt, and promised to settle the remainder in a few days; the draft not being paid, when presented for payment, the plaintiff sued out a new writ on the former affidavit, and had the defendant arrested on it; the court held, that he was justified in doing so, for the draft, not being paid, might be considered as a nullity;29 the court regarding the defendant's conduct as fraudulent.

A defendant may, also, be again holden to bail for the subject matter of the former suit, if the plaintiff be nonsuited, from inability to prove the execution

(20) 2 Str. 1209; 6 T. R. 218; 7 Taunt. 192. (21) In England, provision has been made by rule, H. 2 W. 1V. r; 7, that after "nonpros, nonsuit, or discontinuance, the defendant shall not be arrested a second time, without the order of a judge;" and, in cases where the plaintiff's proceedings, in the first cause, have been set aside, it is usual to apply for, and in a proper case, obtain, such permission. 1 Chit. Archb. 87. With us, however, no such rule exists, and the party is left, as he was formerly in England, to act at the

peril of the discharge of the defendant, and, per-
haps, of an action for damages.
(22) 2 Str. 1218; 8 East 334.

(23) 3 East 309; see 8 Taunt. 24; 3 D. & R.

189.

(24) 3 Wils. 381; 14 Johns 347; 5 Taunt. 851; 3 M. & Selw. 153; 5 B. & Ald. 905. (25) 5 M. & Selw. 93. (26) 1 Str. 439.

(27) 7 Taunt. 192. (28) 1 Brod. & Bing. 289. 514; 3 Moore 607; 4 Moore 294. (29) 6 T. R. 52.

Provisions and construction of the acts.

of the instrument, on which the action is brought;29 or, on the ground of a variance between the cause of action stated on the record, and that proved at the trial, unless it be shown that the second arrest was vexatious.30

If the defendant have not been holden to bail, but merely served with process, in the first action, the plaintiff may hold him to bail in a second action for the same cause.31 So, a defendant who has been arrested in a foreign country, may be again arrested in this country for the same cause of action;32 although it be alledged, that he escaped from custody, in such foreign country; and even though he may have been discharged from imprisonment under the insolvent. laws of another State, after judgment and execution.33

11. Where the defendant has been wrongfully arrested, or detained in custody. If the defendant have been wrongfully taken, without process, or on void process;34 or after it is no longer in force;35 or whilst he was privileged from arrest, or the like ;36 he cannot be lawfully detained in custody, on other process, at the suit of the same plaintiff, though regularly issued. So, where by contrivance of the plaintiff, the defendent is brought into the State on criminal process, as a mere pretext, he will be discharged.37 This rule does not apply, however, to detainers or arrests by third persons, unless there be some collusion between them and the plaintiff;38 or unless the first arrest was illegal, by the act of the sheriff.36

SEC. II. IN WHAT ACTIONS, AND FOR WHAT CAUSES A CAPIAS AD RESPONDENDUM MAY ISSUE UNDER THE NON-IMPRISONMENT ACTS.

The act of March 19th, 1838,45 entitled "an act to abolish imprisonment for debt"; and the acts amendatory thereto, passed March 16th, 1839,46 and February 7th, 1843,47 will be here designated as the non-imprisonment acts.

The first section of the above mentioned act of March 19th, 1838, provides "that no person shall be arrested or imprisoned on any mesne or final writ or process, issuing out of any court of law or equity, in any suit, action or proceeding, instituted for the recovery of any debt due on any contract, promise or agreement, or for the recovery of damages for the nonperformance of any contract, promise or agreement, or for the recovery of damages in any action of trespass, or on any judgment or decree founded upon any such contract, promise or agreement, or damages for the nonperformance thereof, or on any judgment in an action of trespass, or for consequential damages," unless an affidavit be filed, establishing one of the eight particulars hereinafter mentioned.

(29) Barnes 73.

(30) 18 Eng. C. L. Rep. 77 to 79, note.

(31) 1 Wend. 293; 18 Eng. C. L. Rep. 77 to 79.

(32) 7 T. R. 470; 2 East. 455.

(33) 14 Johns. 346; 2 Cowen 632.

(34) 1 N. R. 135.

(35) 2 H. Bl. 29.

(36) 23 Eng. C. L. Rep. 384.

(37) 10 Wend. 636.

(38) 18 Eng. C. L. Rep. 169, n.

(45) Stat. 646.

(46) Stat. 649.

(47) 41 Stat. 28.