30 Dec 1806

Facienda

Outline

4. For the purpose of bringing about of this simultaneous appearance, this can not but be an ex parte application on the part of the Plaintiff: if there be any thing special in the application it is to the Judge or his deputy that he must address himself (always upon Oath). If the nature of his demand be such as to be capable of being expressed by the filling up of a blank form, to serve as a summons for compelling the simultaneous attendance of the defendant, this part of the business may be transacted by a subordinate officer, indeed[?] for instance the Registrar or Clerk: but even here to intitle him to impose upon the defendant the trouble of attendance, he must assert upon oath by the filling up of a blank form his own persuasion of the justice of his demand, and of the necessity of his taking this course in order to obtain the effect of it: and by submitting to a penalty, or by means of some other security, bind himself to appear at the time appointed for the meeting, and whether he appear or fail, to render in case of his not having justice on his side, other satisfaction to the defendant for the vexation and expense if any, attached to the forced attendance.

5. If it be the wish of the plaintiff to have the attendance of the defendant in Court secured by arrest instead of summons his application must be made to the Judge, who before he grants his warrant for that purpose, must satisfy himself, as well as it is in his power to satisfy himself of the necessity of such infringement upon personal liberty, except in particular cases of necessity which it may be allowable to the plaintiff to employ himself or others in the arrestation of the defendant but upon no other terms than that of conveying him directly /taking him with him/ into the presence of the Judge.

N.B. In Scotish judicature such examination is a preliminary to arrestation,if not in all civil cases in some. By English Judges, to get Plffs [...?], defendants liberty has for ages been sold for fees, to any body that will buy it -[...?] no questions asked.