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Evidence in Nonjoinder.
As to which party begins, ante, 8.
Proof for Defendant.] The burden of the evidence lies upon the dest. who will have to prove that the party omitted was a partner, or joint contractor. As to proving a partnership, post, “ Partners." The declarations of the party not joined, if made before action brought, are evidence in support of the plea: Clay y. Langstow, I M. & M. 45.
Proof for Plaintiff.] A plea or objection, that the action is not brought jointly with a person who ought to have sued, the plt. may in answer prove that such person never was an ostensible, but a mere dormant partner, 2 Taunt. 324-5; 4 B. L. A. 437, 3 Stark. 9, R. f. M. 293 ; or that he was a mere nominal partner, having no interest, provided deft.'s interests would not be affected by the nonjoinder, 1 Stark. 25, 14 East, 210, 2 Camp. 302, 1 C. &. P. 89; or an infant, 1 Stark. 25; or not a partner when the contract was made or the cause of action accrued, 1 Esp. Rep. 180; or that the party omitted did not seal, and refused to seal, the deed: 2 Str. 1146; 1 Saund, 291, f., 154, n. 1; 3 B. 4. C. 254, 353; 6 M. & S. 75. But it is no answer to show that the party not joined was dead when action brought, 4 B. 8. A. 374, 2 Saund. 121 n., 1 B. L. P. 74; or that he was a bankrupt, 10 East, 418; or, in the case of executors or administrators, that the party not joined is an infant under 17 years of age, or has not proved the will, or has even refused before the ordinary, i Salk. 3, 3 B. L. A. 863, 1 Saund. 291, g. 2, ib., 209, 212; but it is an answer if it be proved he formally renounced before the ordinary: 4 T. R. 565. Nor is it any answer to prove that the parties, among themselves, agreed that the plı. alone should sue, 3 M. & S. 488.
[*17] *To a plea of nonjoinder of a person as a deft., plt. may in answer
prove that such person was not a partner in the contract or cause of action, or a mere dormant partner: 3 Price, 538; 1 Stark. 338, 341, 272; Holt. C. 253; 4 M. S.S. 475; 7 T. R. 361; 1 Bing. 201; 3 Stark. 8. As, where defendant ordered goods in the name of “Levy and Co." it was held he could not plead a nonjoinder in abatement: 3 Stark. 8. Plt. may also show such person was a mere nominal partner, 2 Camp. 302, 14 East, 210, or infant or feme coverte, the contract as to them being void on that account, 3 Esp. Rep. 76, 1 Wils. 89, or that he was dead when plea pleaded, Carth. 170-1, 3 Lev. 290, 2 T. R. 479, or that the contract was several as well as joint.
But it is no answer to show that the party not joined was a bankrupt and obtained his certificate, 2 M. L. S. 23, 444, 6 Taunt. 179, 4 Taunt. 326; or an infant, if the contract be merely voidable, 4 Taunt. 468; or that partners amongst themselves stipulated that the deft. only should be sued: 3 B. . A. 611; 1 H. Bla. 236.
Plt. should be prepared to prove his damages in case issue should be found for him, ante, 9.
PENDENCY OF ANOTHER ACTION.
When it may be pleaded, 17.
Evidence, 18. When it may be pleaded.] The pendency of another action against the same parties, for the same cause, may be pleaded in abatement, Com. D. Abt. H. 24, but not in bar, 5 B. 8. A. 101, except at the suit of an informer, Say. 216, Tidd, 989; and it is said, if two suits are brought on the same day for the same cause, their pendency may be pleaded reciprocally the one to the other: Hob. 128; Mo. 864-5; Com. D. Abt. H. 24. It may be pleaded, whether the suit be depending in the same or a different court, 5 Co. 62, a.; but not so to an action brought in the superior courts at Westr., where the other action is in an inferior court: ib.; Dyer, 92, 3; Fitzg. 313. It may be pleaded, though the actions be of a different nature: Bac. A. Abt. m., sed quære. It is said that this plea is improper where the former suit was a real or personal one; where no certainty of description is required in the suit, and the plt. did not make a plaint or declaration, as it does not appear that it is the same suit; the reasons, however, seem unsatisfactory : see Com. D. Abt. H. 24; Bac. Ab. Abt. M.; 5 Co. 61, b.; sed vide 3 Chit. Pl. 904, n.; 6 T. R. 307; 1 Saund. 92, n. 2. It is no plea that another action is depending for the same cause, at the suit of another person, 2 T. R. 512, Com. D. Abt. H. 24; as to an action at the suit of assignees of a bankrupt, that a former action by bankrupt is pending, 4 B. 8. C. 920, or against another person, Hob. 137, or against deft. jointly with others, Com. D. Abt. H. 24, Cr. E. 202, Carth. 96, sed quære, Hob. 137, or to an action at suit of the king, Th. Dig. l. 11, c. 39, s. 19; but it is to an action at the suit of a common informer : Say. 216; 3 Bur. 1423, supra. And it has been held at nisi prius, that where separate actions have been brought against several defts. for the same single act of trespass, the party against whom the last action was commenced may plead the pendency of the first in abatement: 1 Camp. 6019; 1 Chit Pl. 76.
The plt. cannot, after the plea, avoid the effect of it hy discontinuing the first action : 1 Salk. 329; 2 Ld. Raym. 1014.
PLEA OF PENDENCY OP ANOTHER ACTION PREVIOUSLY BROUGHT FOR THE SAME CAUSE. In the K. B. (or C. P)
- Term, 8 Geo. 4. (Term of declaration or a subsequent term, with a special imparlance,
as ante, 7. If the first action is in the same term as the second, deft. should compel pli. lo entille his second declaration specially in the
term.) Joseph Styles ) And the said deft. by — , his attorney, comes and defends the wrong
ats. and injury (or if in trespass or ejectment, force and injury,) when, &c., and John Hill. Sprays judgment of the said bill (or by original, or C. P., writ and declaration thereon), because he says, that, before the exhibiting of the said bill (or issuing of the said writ), to wit, in term, in the year of the reign of our lord the now king, in the court of our said lord the king, before the king himself, the said court then and still being holden at West., in the county of Mids., the said plt. impleaded the said deft., and exhibited
his certain bill against him (or the said plt. sued out his said writ and declared thereon against him), in a plea of debt on demand, of and upon the same identical writing obligatory (or in a certain plea os trespass on the case upon the very same identical promises and undertakings, or in a certain plea of trespass for and in respect of the very same identical trespasses and causes of action), in the said declaration, in this present suit mentioned, as by the record and proceedings thereof remaining in the said court of our said lord the king, before the king himself, to wit, at Westr, aforesaid, more fully appears. And the said dest. further saith, that the parties in this and the said former suit are the same, and not other or different persons, and that the supposed causes of action in this and the said former suit are, and each and every of them are, the same and not other or different causes of action; and that the said former suit, so brought and prosecuted against him the said deft., by the said pit., as aforesaid, is still depending in the said court of our said lord the king, before the king himself. And this the said deft. is ready to verify, Wherefore he prays judgment of the said bill (or writ and declaration), in this suit, and that the same may be quashed, &c. (Add usual affidavit.)
Notes on Forms of Plea, &c. Plea, &c.] The notes as to pleas in abatement in general will be here applicable. The plea must show that the cause of action in both suits is the same, Doc. Pl. 10, whether they are of the same or different forms of action, as detinue and trover: Freem. 401. And, in some cases, the plea must state on what particular day the former action was brought; as, in an action at the suit of an informer, the deft. must show a prior right attached in somebody else, and, if the prior action be brought in the same term, it must be shown on what particular day such prior action was brought, that its priority may be ascertained, 3 Bur. 1423, 1 W. Bla. 437, S. C.; and so in other cases, where the plea is of another action pending of the same term; 2 Lev. 141; 2 Str. 1169. It does not seem essentially necessary to state the declaration in the prior action, 3 Chit. Pl. 904, n.; nor to aver that such action is still pending, as it is sufficient to abate the second writ to show that it was pending at the time that the second action was commenced: 6 Co. 7.
Replication.] The plt. may reply nul tiel record of the former action. If an action pending in the same court be pleaded, plt. may pray oyer, that the record may be inspected by the court, or demand oyer of it, which, if not given in convenient time, he may sign judgment: Com. D. Abt. H, 24. Where, to debt on a statute, the deft. has pleaded a prior action depending, or a compromise by the rule of court, &c., plt. may traverse the fact, or reply per fraudem: 1 Chit. Pl. 507. [*19]
* Evidence in. For Defendant.] The burden of the evidence lies upon the deft., who must prove the commencement of the former suit, and that it is for the same cause. If the former suit be on record, as, according to some authorities, it ought to be, the record should be produced, or proved in the usual way: post, “ Record.” If a writ only has been issued, the same should be proved in the usual way: post, “ Process.” If there has been any affidavit of debt, or particulars of demand, or any other legal document or writing, in any way showing the former suit is for the same cause of action, the same should be proyed : post, “ Affidavit Particulars of Demand."
Por Plaintiff.] Plt. should be prepared with evidence in answer; also to prove his damages, in case the plea should be found for him : ante, 9.
PRIVILEGE AS AN OFFICER TO A COURT,
When it may be pleaded, 19 to 20.
This plea, claiming a privilege of being sued in a particular court, is, as before stated, strictly a plea to the jurisdiction of the court. There are various privileges which may be thus pleaded : such as that deft. is a baron of the Cinque Ports, Com. D. Abt. D. 5, a minister, ib. D. s, a tin ner, ib. D. 7, or scholar of the universities; but the only one of any extent in practice, is that of being an officer of a court, as an attorney.
By Attorneys.] If an attorney be improperly sued in a court of which he is not an attorney, he must plead his privilege, 11 Mod. 168, 2 Bulst. 207, Lutw. 195, 639; and he cannot take advantage of it upon motion only, I Wils. 306, 2 Salk. 544, 1 Arch. P. 48, 24, 2 ib. 118, 9, sed vide Tidd, 76; unless, indeed, he be sued in an inferior court, in which case a writ of privilege may be issued to relieve him: Tidd, 76. If an attorney be sued in his own court by improper process, he can only plead his privilege in abatement; unless he be arrested, when the court will discharge him on common bail: Tidd, 76. Suing a person who is not an attorney, as an attorney, does not appear to be ground for plea in abatement, but is irregular: 5 M. &. S. 324; 6 B. & C. 77; 2 Chit. R. 396.
In some cases, an attorney cannot plead his privilege; as, where both he and plt. are attorneys of different courts, and the plt. sues him in the court of which plt. is an attorney, for plt.'s privilege prevails : 1 W. Blac, 19, 2; ib. 1325; 4 D. &. R. 73. And, as his privilege extends only to actions in his own right, he cannot plead it when sued in autre droit, as executor, &c., 1 Salk. 2, 7, Raym. 533, or sued jointly with unprivileged persons, even his wife, and though the nature of the action be not absolutely joint, i Taunt. 254, 1 Vent. 298, 2 Salk. 544, 2 Rol. 580, 4 Buc. Ab. 223, or is in prison for debt, 4 B. L. A. 88, or has left off practice, 2 Wils. 232, 7 T. R. 25; but the omitting to take out his certificate, unless for a year, does not deprive him of his privilege: 5 M. . S. 281. He also loses his privilege by appearing to the action, if he be an attorney of the court in which he is sued, or by not pleading his privilege, if he be sued out of his own court: 2 W. Bla. 1088; 2 ib. 231; Barn. 53. If he be arrested and bailed in one suit, he may plead his privilege to another action brought against him [*207 in the same court: Carth. 377. An attorney in an action at suit of the king loses his privilege, 2 Rol. Ab. 274; but not in an action qui
tam, 2 Salk. 543, nor in an action jointly against him and a privileged person, 4 M. & S. 585, nor in an action on a bill of exchange : 2 Chit. R. 63; 1 Doug. 312.
Other Officers.] These rules also apply to other officers of the courts. Thus if the filacer, 2 Salk. 544, or prothonotary, or any of his clerks, Str. 546, 705, For. 344; or warden of the Fleet, 1 Salk. 1, or the like, be impleaded out of their own court, they may plead their privilege. So a clerk in the exchequer, if sued in the K. B. or C. P., may plead bis privilege: Lutw. 44; 6 Mo. 305. So one of the six clerks, or of the sixty clerks in chancery, if sued out of his court, may plead his privilege: 20 H. 6, 32 b.; 1 Vent. 264; Bro. 498; see form, 8 T. R. 631. So, if a sergeant at law be sued in any other than the courts at Westr., he may plead his privilege: 2 Lev. 129; 2 Mod. 297; Com. D. Abt. D. 6.
Forms of Pleas of Privilege.
PLEA OF PRIVILEGE, BY AN ATTORNEY OF THE C. P., TO AN ACTION BROUGHT AGAINST HIM
IN THE K, B. BY BILL, AS A COMMON PERSON. In the K. B.
- Term, 8 Geo. 4. John Hall, gent., ) And the said deft., in his own proper person, comes and defends one of the allorneys, &c. ( the wrong and injury, &c. (or in Irespass or ejectment, the force and ats.
(injury, &c.), and saith, that he, the said dett., long before, and at Joseph Styles, the time of the exhibiting of the bill of the said plt., was, and from thence hitherto hath been, and still is, one of the attorneys of the court of our lord the king, of the bench, to wit, at Westr., in the county of Mids, aforesaid; and that he, the said deft., during all the time aforesaid, hath prosecuted and defended, and still doth prosecute and defend, divers pleas and suits in the said court of the bench at Westr. aforesaid, for many true and faithful subjects of our said lord the king, as their attorney; and the said deft. further saith, that he, and all other the attorneys of the said court of the bench prosecuting and defending suits and pleas therein for their clients, have been, and ought, according to the custom of the said court, and the privilege of such attorneys, to be exempt from being compelled to answer any plea or plaint, in any action personal, (pleas of freehold felony and appeals only excepted), before any justices or ministers of our lord the king, or other judge whomsoever, in any court whatsoever, except before the justices of our lord the king, of the court of the bench at Westr. aforesaid, by bill filed in the said court, against such attorney or attorneys as present here in court; and this he is ready to verify. Wherefore he prays judgment, if he ought to be compelled to answer to the said plt. in the said plea in the said court here.
PLEA OF PRIVILEGE OF AN ATTORNEY OF K. B., SUED IN THAT COURT BY LATITAT, In the K. B.
- Term, 8 Geo. 4. John Stiles, gent., And the said deft., in his own proper person, comes and prays one of the attorneys, &c. judgment of the bill of the said plt., because he says that he, the ats.
I said deft., long before the exbibiting of the bill of the said plt. John Nokes. J against the said deft., and at the time of exhibiting the same, was, and still is, one of the attorneys of the court of our said lord the king, before the king himself, as aforesaid ; and that he then was, and now is, prosecuting and defending many pleas and suits for many true and faithful subjects of our lord the king, in the said court of our said lord the king, before the king himself, as their attorney; and the said dest. further says, that he, and all others the attorneys of the said court of our said lord the king, before the king himself, by an ancient and laudable custom, used and approved of according to the laws and
customs of the realm, and the liberties of the same court of our said lord the king, [*217 before the *king himself, have been, and ought to be, in all personal suits, at the suit
of any subject of our said lord the king, impleaded only by bill exhibited in the said court of our said lord the king, before the king himself, against such attorneys respectively, as being present in the same court, in their own proper persons, and not as being in the custody