of the Marshalsea of our lord the king, before the king himself; and this he, the said deft. is ready to verify. Wherefore, because he, the said deft., is not impleaded in this action as one of the attorneys of the said court of our said lord the king, before the king himself, he, the said deft., prays judgment, whether he ought to be compelled to answer the said bill, &c. PLEA OF PRIVILEGE, BY ATTORNEY OF C. P. WHEN SUED IN HIS OWN COURT, BY In the C. P. John Stiles, gent., one of the attorneys, &c. ats. ORIGINAL. Term, 8 Geo. 4. And the said deft., in his own proper person, comes and says, that he ought not to be compelled to answer the said original writ, because, he says, that he is, and on the same day of suing out of the John Nokes. said original writ, and long before, was, one of the attorneys of the court of the lord the king, of the bench here; and that, in the same court here there is, and from time whereof the memory of man is not to the contrary, there hath been, a custom used and approved of in the same court, that no attorney of the said court hath, against his will, been compelled to answer any person in any personal action prosecuted in the same court here, by original writ sued out, which have not concerned the king, unless he hath been first forejudged from his office of an attorney of this court, upon a bill exhibited here to the justices of the said lord the king of the bench against such attorney, and filed in the same court; and the said deft., in fact, saith, that he hath not been forejudged from his office of an attorney of this court, and that be is impleaded by the original writ aforesaid, against his will, and against the custom aforesaid; and this he is ready to verify. Wherefore, as the said deft, is an attorney of the said court here, and, on the day of suing out the said original writ, and long before, was an attorney of the said court here, the said deft. prays his privilege aforesaid to be allowed and adjudged him; and that he may not answer the said original writ for the cause aforesaid. REPLICATION, TO A PLEA OF PRIVILEGE BY AN ATTORNEY, THAT HE NEGLECTED TO OB- v. And the said plt. saith, that, notwithstanding any thing by the said deft. in his said plea above alleged, he, the said deft., ought to be compelled to answer John Styles. the said original writ, because, he says, that before, and on the 15th of Nov., A. D. 1825, and from thence for the space of one whole year then next following, the said deft, was a person admitted, sworn and enrolled as an attorney, in the said court of our said lord the king, of the bench; and that the said deft., so being a person sworn and enrolled as such attorney as aforesaid, from and after the 15th day of Nov., A. D. 1825, did neglect to obtain his certificate thereof, in the manner directed in and by a certain act of Parliament made and passed in the 37th year of the reign of his late majesty, King George the Third, entitled, An Act for granting to his Majesty certain Stamp Duties on the several matters therein mentioned, and for better securing Duties on Certificates to be taken out by Attorneys, Solicitors, and others, practising in certain Courts of Justice in Great Britain, and of a certain other act of Parliament made and passed in the 54th year of the reign of his said late majesty, and for the space of one whole year, to wit, at London. Whereby, and by force of the said acts of Parliament, the admission and enrolment of the said deft. in the said court, &c. as such attorney as aforesaid, became, and was, and from thence hitherto hath been, and still is, null and void; without this, that the said deft. now is, or on the day of issuing out the said original writ of the said plt. was one of the attorneys, &c. present here in court, in his own person, in manner and form as he, the said deft., hath above alleged; and this he, the said plt., is ready to verify. Wherefore he prays judgment, and that the said deft. may be compelled to answer the said original writ, &c. Notes on Form of Plea, &c. [*22] Plea.] The general notes, as to pleas to the jurisdiction and in abatement, will here apply: ante, 3 to 5. If a bill be filed against an attorney in vacation, he may plead within the first four days of the ensuing term without a special imparlance: 1 Chit. R. 704; 2 Saund. 2; & ante, 3. A plea of privilege in K. B. will be received after appearance and bail, Bunb. 113; but it cannot be pleaded after imparlance, 2 Show. 145, or after he has been forejudged: Barn. 41. The plea should be pleaded in person, and not by attorney, 1 Lutw. 7, 6 Mod. 146; nor more than half defence must be made: Co. L. 127, b. It is not unusual to commence the plea with a prayer, "that the court ought not to take cognizance," &c.; but this seems unnecessary: 3 T. R. 186; Gilb. C. P. 309; 8 T. R. 631. It must be stated deft. was an attorney of the court at the time of exhibiting bill, or issuing writ: 1 Salk. 1; 2 Str. S64; 2 Ld. Raym. 1567. The allegation as to the custom of the court is usual; but it is sufficient for the deft. to plead that he is an attorney of this court, and, as such, to claim his privilege not to be sued by "original;" for we will take notice that he can "only be sued by bill:” p. Ld. Ellenb., Stokes v. Mason, 9 East, 426. Therefore, a mistake in the statement of the custom does not seem material: 9 ib. 339; 2 Lutw. 1606. No venue need be stated: 2 Ld. Raym. 1172-3; 2 Salk. 545. The deft. may plead with a profert of his writ of privilege, and the plt. cannot deny the privilege, but must plead nul tiel record: 1 Ld. Raym. 336; Com. D. Abt. D. 6. The conclusion of the plea of privilege by an attorney is, in some of the precedents, thus: "Wherefore he prays judgment if the said court of our said lord the king, before the king himself, now here, will or ought to take cognizance of the said plea," 3 Chit. Pl. 896; but it seems to be good both ways: 1 Salk. 298; 5 Mod. 145: Carth. 363; 12 East, 544-5. Affidavit.] It seems doubtful whether it is absolutely necessary to add the usual affidavit: 2 B. & P. 397; 1 Chit. Pl. 401. Replication.] Plt. may reply to the plea by traversing, or confessing and avoiding it. The plt. cannot traverse the custom, the same being matter of law: 2 Salk. 543; Com. D. Abt. D. 6. A replication in debt to a plea of privilege as an attorney of C. P., that, for five years before, the deft. had not prosecuted or defended any suit, is bad, 2 Lutw. 1664. In a replication, that an attorney of C. P. consented to be sued in K. B., if no venue be laid, it is bad: 1 Salk. 4; 2 Ld. Raym. 898-9. Evidence. As to which party is to begin, see ante, 8. Proof for Defendant.] Deft. may prove himself to be an attorney either by producing the original roll, signed by the party on his admission, together with the proof of his signature, or by means of an examined copy; or he may prove it by the entry in the book of the chief clerk, kept in the Master's office, into which the names of all attorneys are copied, by the chief clerk, from the original roll: see 1 Tidd, 61; v. Crossley, 2 Esp. Rep. 526; Lewis v. Walter, 3 B. & C. 138, n. b., 4 D. & R. 810, s. c.; Jones v. Stevens, 11 Price, 251. R. Proof for Plaintiff.] In answer to the plea, plt. may prove deft. is in custody for debt, 4 B. & A. 88, 2 Str. 837, or has left off practising, 2 Wils. 232, 7 T. R. 25, or has neglected to take out his certificate for a year, Skirrow v. Tagg, 5 M. & S. 281 (and this must be proved strictly), 5 B. & C. 38, or that he became an attorney after the com mencement of the action, Smith v. Bower, 3 T. R. 662, or matter of estoppel. Plt. should be prepared to prove his damages, in case plea should be found for him: ante, 9. ACCORD AND SATISFACTION. [*23] ACCORD is a satisfaction agreed on between the party injuring and the party injured, which, when performed, is a bar of all actions upon that account; 3 Bla. Co. 15. HOW DEFENDANT MAY AVAIL HIMSELF OF, 23 to 24. Plea of in Assumpsit by Delivery of Goods, 25. in Debt, 25. in Covenant of a Sum of Money given, 25. Replication, denying Delivery or Acceptance, 26. EVIDENCE FOR DEFENDANT In General, 26. Satisfaction must be reasonable and complete, 26 to 27. Bill of Exchange, &c. given, 28. must be certain, 28. must be executed, 29. by and to whom made, 29. EVIDENCE FOR PLAINTIFF, 29. How Defendant may avail himself of. The plea may be pleaded specially in assumpsit, or debt on simple contract specially, or given in evidence under the general issue: Tidd, 705; 1 Ld. Raym. 566: In an action on the case, it may be given in evidence under the general issue: Lane v. Applegate, 1 Stark. 98; 3 Bur. 1353; Martin v. Thornton, 4 Esp. Rep. 181. In trespass, it must be specially pleaded: 3 Bur. 1353; Doe d. Hill v. Lee, 4 Taunt. 459. So, also, in actions on specialties, and in actions of covenant, Co. VOL. I. 4 D. Pl. 2 V. 13, Sham v. Farrington, 1 B. & P. 640, 8 Taunt. 277, 1 Moore, 460, s. c., 7 Price, 604, and in all cases, if made after action brought see Francis v. Crywell, 5 B. & A. 886; Lee v. Levy, 4 B. &C. 390. It cannot be pleaded to an action on a record: 4 Moore, 165. This plea may be pleaded with the general issue and other pleas: Ste. Pl. 293; Chitty v. Hume, 13 East, 256. When it is not necessary to plead it, inasmuch as, from the nature of the defence, the plt., in his replication, can in general merely traverse or deny the same, [*24] and the issue is not, therefore, capable of being narrowed, so as to afford the deft. any advantage by pleading it specially, it is rarely so pleaded: Chit. Con. 288. When a negotiable or other security has been given, it is best to plead it. The court will not permit this plea to be pleaded as a sham plea, for the purpose of delay: see Rickley v. Proone, 1 B. & C. 286; 2 D. & R. 661; Blewitt v. Marsden, 10 East, 237. Sed quære, see 1 Chit. Pl. 449. See, also, Phillips v. Bruce and others, 6 M. & S. 134; Draycote v. Pilkington, 5 M. & S. 518. Form of Pleadings. Plea.] The plea must be framed so as to afford a complete answer to the whole of the demand it professes to answer: Thomas v. Heathorn, 2 B. & C. 477; 2 Chit. R. 303. The safest way is to plead it as a satisfaction, and not to state the accord and agreement, Co. D. Acd. c.; the plea must allege the delivery, Steph. Pl. 236, and set out what the deft. gave in satisfaction: it seems unnecessary to allege the satisfaction to be reasonable, according to the dictum in 1 Str. 426, which was overruled, Heathcote v. Crookshank, 2 T. R. 26, a.; nor does it seem generally necessary or advisable to allege the value of the satisfaction: Steph. Pl. 235; 3 Chit. Pl. 925, n. a. It must be expressly averred that the goods were accepted in satisfaction and discharge; and an averment that they were given in payment and satisfaction is insufficient: Drake v. Mitchel, 3 East, 256, 8; 1 Str. 573. If the plea profess to answer the whole demand, but apply to part only, it will be fatal on demurrer, 1 Saund. 28, n. 3; therefore, if, in assumpsit on several promises, deft. allege satisfaction" of the cause of action," it is bad, "being only an answer to one of the causes of action:" Hopkinson v. Tahourdin, 2 Chit. Rep. 303; Willes, 55; Thomas v. Heathorn, 2 B. & C. 477; 3 D. & R. 647, s. c. If the plea be of a bill, a note or security given in satisfaction, or on account, it should be pleaded only to the amount of the sum contained in such bill, note, or security, or allege that deft. was found indebted in that sum, and “ no more:" Thomas v. Heathorn, 2 B. & C. 481. The correct way of pleading is to say, as to all the sums of money except £- non assumpsit; and then, as to that sum, that the bill was accepted. If the accord and satisfaction took place after action brought, the plea must aver, and it must be proved, that it was a satisfaction of the costs and damages sustained by the breach of contract: Francis v. Crywell, 5 B. & A. 886; 1 D. & R. 546, s. c. Replication.] It may either deny the delivery of the chattel in satisfaction, or, protesting against that fact, may deny the acceptance, Steph. Pl. 236; but, where the receipt is confessed, the acceptance should not be traversed: 1 Ld. Raym. 60. If the deft. plead that he delivered a bill or note in payment, plt. may traverse the plea; or, admitting it, show that the bill or note has been dishonoured: Kearslake v. Morgan, 5 T. R. 513. Where the defendant, in his plea, states that the chattels or money were accepted in satisfaction only of the promises in the declaration, before the exhibiting of plaintiff's bill, the plt. may reply, and set out a writ issued prior to the exhibiting plt.'s bill, whereby deft. became liable to the costs thereof: Francis v. Crywell, 5 B. & A. 888. In replying to a plea of accord and satisfaction in trespass, plt. may deny the accord, or state it to be for another trespass, and traverse the acceptance in satisfaction; or he may reply, that deft. was guilty after the accord: Co. D. 3 M. 13. (Sed quære, if the plt. ought not in such case to new assign: Chit. Pl. 518, a.) Where, to a plea of accord and satisfaction, the replication denies that the plt. received the property in satisfaction, it must conclude to the country: 1 Saund. 103, c. n. Precedents. PLEA OF ACCORD AND SATISFACTION IN ASSUMPSIT, BY DELIVERY OF GOODS. (Commencement of plea as usual; see post, title " Assumpsit.") [*25] Because he says that, after the making of the said several promises and undertakings, and the accruing of the several causes of action in the said declaration mentioned, and before the exhibiting of the bill of the said plt. against him, the said deft. in this behalf (or if by original, or in C. P., before the commencement of this suit); to wit, on, &c., at, &c. aforesaid, he, the said deft., delivered to the said plt. one ton weight of Riga hemp, and one hundred weight of Russia tallow, in full satisfaction and discharge of the several promises and undertakings and causes of action in the declaration mentioned, and of each and every of them; and which said ton Riga hemp, and said hundred weight of Russia tallow, he, the said plt., then and there accepted and received, of and from the said deft., in full satisfaction and discharge of the several promises and undertakings and causes of action in the said declaration mentioned, and of each and every one of them. And this, &c. (Usual verification, see post, title “Assumpsit." If the plaintiff pleads also the general issue, see the form, post, title " Assumpsit.") PLEA OF ACCOUNT STATED, AND DELIVERY OF DEFENDANT'S PROMISSORY NOTE. And the said deft., as to the sum of £- (the amount of bill), parcel of the said several sums in the said declaration mentioned, says, that the plt. ought not to have or maintain his action thereof against him, because he says that, after the making of the said promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said plt., against him, the said deft., in this behalf (or, if in C. P. or by original, before the commencement of this suit); to wit, on, &c., at, &c., aforesaid, an account was had and stated, by and between the said plt. and deft., of and concerning the said several sums of money in the said declaration mentioned, and upon that occasion he, the said deft., was then and there found in arrear and indebted to the said plt., in the sum of £, for which said sum of £, he, the said deft., then and there made and delivered to the said plt., his certain promissory note, in writing, bearing date a certain day and year therein mentioned; to wit, the day and year last aforesaid; whereby he, the said deft., promised to pay to the said plt. or his order, three months after the date thereof, the said sum of £, wherein he, the said deft., was so found in arrear and indebted to the said plt., as aforesaid; and the said plt., then and there accepted and received the said promissory note, for and on account of the said sum of £, parcel of the said sums of money in the said declaration mentioned; and, by reason thereof, he, the said deft., then and there became, and still is, liable to pay the said sum of £, in the said promissory note mentioned, according to the tenor and effect of the said note. And this, &c. (Conclude as usual, post, " Assumpsit.") |