ex delicto. of the judges. Although the above rule is confined in 3d. In Form terms to the actions of trover or detinue, it is clear that the same principle which dictated the introduction of it, would equally apply to the action of trespass de bonis asportatis. perty. There does not appear to be any case, where bail has For injuries to real probeen ordered for injuries to real property; indeed, from the nature of this species of wrong, it would be almost impracticable to suggest, with any degree of precision, the extent of the damage sustained by the aggression. It is not improbable that the court, under aggravated circumstances, of extensive waste or other spoliation, would make an order for special bail, particularly if it were suggested that the offender was about to absent himself from the kingdom. (8) ment. By the stat. 1 Geo. 4. c. 87. tenants holding over after In ejectthe determination of their tenancy, by notice or otherwise, are now required to find bail for their appearance to the action (if ordered by the court); to enter into a rule to give judgment of the term preceding the trial; and to enter into recognizances, with sureties, to pay the costs and damages recovered by the plaintiff. for mesne profits. The action for mesne profits is bailable or not, at the In actions discretion of the court, and when an order for bail is made, the recognizance is usually taken in two years' value of the premises, but this is likewise discretionary. (t) 1 Sell. Prac. 36. Hunt. v. Hudson, Barnes 85. 1 Sell. Prac. 36. Election of particular forms of ac tion. SECTION III. ON THE EXPEDIENCY OF ADOPTING PARTICULAR FORMS OF THE privilege of having the security of bail does not always necessarily depend upon the nature of the right sought to be maintained. The mode adopted to preserve its existence, or to enforce its fulfilment, not unfrequently regulates the power of exercising this privilege. It is, therefore, in many cases important, where several concurrent remedies present themselves for the redress of the same injury, that a judicious selection should be made. Thus we have seen in actions, in form ex delicto, as in case, trover, detinue, and trespass, the defendant cannot be holden to bail without a special order of the court or of a judge. Hence, in cases where it may be material to have the security of bail, the action should, if possible, be framed in assumpsit for money had and received, adding such other counts in the declaration as may be advisable under the circumstances of each particular case. (u) But in exercising this discretion, it is material to consider the effect it would produce on the ulterior proceedings in the cause, as by a prudent choice of a remedy the defendant may be frequently precluded from availing himself of a defence which he might otherwise establish. Thus by waiving the right to bail, and bringing an action of trover, a set-off may be avoided; as where goods have been sold by a person in contemplation of bankruptcy, by way of fraudulent preference to a creditor, the remedy by the assignees should be trover, and not as (u) See Govett v. Radnidge, 3 East 70. exemption. sumpsit; because in the latter form of action the defendant Personal might avail himself of the debt due from the bankrupt as a set-off; (x) and where a person who has been a bankrupt, is sued in assumpsit for money had and received by him before his bankruptcy, however tortiously obtained, his certificate would be a sufficient bar, but by electing to proceed in case or trover, he would be deprived of that defence. (y) CHAPTER III. OF THE PERSONS WHO MAY OR MAY NOT BE HELD TO BAIL. rule. It may be assumed as a general principle, that all na- General tural persons having capacity to contract, may be holden to bail, where the cause of action is such as to admit of an arrest, and the party not within any of the exemptions enumerated in the present chapter. The privilege of exemption from the ordinary liability of being holden to bail, may be considered as personal, temporary, or local. SECTION I. OF PERSONAL EXEMPTION. Of the king. THE dignity of the Sovereign and the safety of the state, concur in establishing the necessity of exempting the king under any circumstances from being held to bail. (a) The Queen Consort, or Queen Dowager, and the other Queen and (x) Nixon v. Jenkins, 2 H. Bl. 135. Smith v. Hodson, 4 T. R. 211. Parker v. Norton, 6 T. R. 695. Govett v. Radnidge, 3 East 70. Hunter v. Prinsep, 10 id. 392. Thomason v. Frere, id. 418. (y) Parker v. Norton, 6 T. R. 695. Hamond v. Toulman, 7 id. 613. Forster v. Surtees, 12 East 605. (a) 2 Inst. 50. Chit. Jun. Prerog. 374. Of the Royal Family. Personal exemption. branches of the royal family, are from their exalted station equally free from such liability. (b) Servants of. As a mark of respect to the king, and to prevent inthe king. convenience accruing to him from the coerced absence of his domestics, none of his majesty's household, or menial servants, or officers bona fide, substantially and continually employed, or liable to be permanently engaged in waiting or attending on the royal person, can be holden to bail. (c) This is the prerogative of the king. An exemption from the ordinary course and operation of the laws; instituted, not for the protection of the servant, but for the convenience and dignity of the sovereign. The reason for this privilege, is thus stated by Lord Coke : "Concerning those that serve the king in his household, "their continual service and attendance upon the royal "person is necessary." To persons of this description, therefore, must the privilege be limited and restrained. Where the party is actually a domestic and menial servant of the king, and the acts performed not merely colourable, as for instance, coachman in ordinary, (d) or clerk of the kitchen, (e) there can be no doubt of his privilege. In a recent case a person stating that he was invested by patent with the office of lighter of the fires and candles to the king's yeomen of the guards, was discharged on filing common bail; it being positively sworn, that he had acted in that capacity, and was every moment liable to be summoned to perform the duties of his office. (f) (b) Co. Lit. 133. 2 Inst. 50. (c) Rex v. Moulton, 2 Keb. 3. Starkie's case, 1 Keb. 842. Rex and Capell v. Baud, ibid. 877. Rex v. Frampton, ibid. 485. Anon. Ld. Raym. 152. Wiltshire's case, Het. 52. See 2 Inst. 631. 4 id. 24. Wood Inst. 576, and Bartlett v. Hebbes, 5 T. R. 686. (d) King v. Foster, 2 Taunt. 167.1 (e) Bartlett v. Hebbes, 5 T.R. 686. Forster v. Hopkins, 2 Chit. Rep. 46. In Sard v. Forrest, the court of King's Bench thought it doubtful whether a yeoman of the guard, as such, is privileged from arrest. M. T. 3. G. 4. MSS. 1 B. & C. 139. s. c. 2 D. & R. 250. s. ci The criterion to be adopted, in order to ascertain Personal exemption. who are entitled to the benefit of this exemption, is the Servants of nature of the duties to be fulfilled by the party claiming the king. it; for if he be merely a nominal servant, without remuneration or emolument, and his official duty only consists in attending at the performance of state solemnities—as coronations, public funerals, &c. without being compelled to act either in the capacity of servant in ordinary in the royal household, or a continual attendant on his majesty's person, such employments do not come within the reason assigned for this privilege. Therefore, the court refused to discharge the major of the Tower of London out of custody, on the ground, that he was arrested when returning from an attendance on the Prince Regent; because it did not appear that he had been attending by the command of his royal highness; or that it was part of the defendant's duty to be in attendance at Carlton House; but that he merely attended there, on the unauthorized supposition, that he had official business with the Prince Regent. (g) And it appears that a gentleman of the king's privy chamber is not, as such, privileged from being holden to bail. (h) On the accession of his late majesty to the throne, a proclamation was issued, (i) “whereby,—after reciting that his majesty's predecessors had signified their pleasure that the royal servants should have and enjoy all ancient privileges, his majesty thinking it reasonable that all his servants in ordinary with fee should, in regard of their constant attendance upon his majesty's person, enjoy the like (g) Batson v. M'Lean, 2 Chit. Rep. 48. 2 Keb. 3. contra. Tapley v. Battine, 1 D. & R. 79. The King v. Moulton, (i) Pegge's Curialia, dissertation on the original nature and duty of the gentlemen of the privy chamber, p. 77., cited in Luntley v. Battine, 2 Barn. and Ald. 238, and 239, note. |