Page images
PDF
EPUB

Of Proceedings by and against Attornies.

A■tornits must sue each other by bill, as well of different different courts as of the same. Barnes 43, 44.- '.

But an attorney of C. B. may, for a debt bona fid* paid, sue an attorney of B. R. by attachment, and he shall not be entitled to privilege. Barnes 44.

One attorney of C. B. sued another attorney os C B. by capias; and the desendant moved to stay the proceedings, insisting he ought to be sued by bill. It appeared that the desendant had obtained a judge's order for time to put is bail; but this was held not to be a sufficient waiver of his objection to the plaintiff's method of proceeding against him; and the rule was made absolute to stay proceedings with cojh. Barnes 53.

An attorney having been arrested, was bailed-, and another action beino brought against him in the same court, he pleaded his privilege; and it was adjudged, that putting in bail to the first action did not discharge his privilege. Cartb. 377. .

An attorney of C. B. was arrested at the suit of an attorney os B. R. and gave bail; and then B. delivered a declaration by the by against him, as in custody of the marJhal, to which he pleaded his privilege; and refolved, that though he be in custody of the marjhal, at the suit of A. yet when A. declares against him, he may plead his privilege, because he comes here by coercion, and had no opportunity before to take advantage of it. 2. That although he files bail at the suit of A. and in the same term a declaration is delivered against him at the suit of B. yet the desendant may plead his privilege against B. as well as against A. for it were absurd, that B. who tops his suit upon the action of A. should have more liberty or advantage against the desendant than A. himself had. But if the desendant waives his privilege in the first action, he is then , obnoxious to the suits of every body, notwithstanding his privilege. 3. That if after the desendant has waived his privilege, he shall yet plead it, the plaintiff in his replication must shew the desendant's waiver, and reply upon the estoppel. Li. Raym. 135. Vide mis. Rep. B. R. 306.

Declaration by bill of Middlesex against an attorney of' B. R. as acceptor of a bill of Exchange drawn upon him, according to the custom of merchants; to which desendant pleaded in abatement, that he was, and still is, an attorney of B. R. and ought to have been sued there by bill of privilegt as an attorney, and not by bill of Middlesex. Demurrer

Of Proceedings by and against Attornies.

{nit and joinder. P<r cur. He must have his privilege. Judgment for desendant. Cornsorth v. Price. Hilary, 20 Geo. 3. B.R.

An.attorney has privilege in a ^k/ raw action commenced against him. Barnes 48. Att. Prac. 54. &f/«. 549.

If an attorney sue by original, he has no privilege, and cannot sue in propria persona. Att. Pract. 311, 2 Lev. 39. 2 Stra. 837. Barnes 479.

It is said, that a bill cannot be filed against an attorney in vacation. Att. Pract. 309. 2 Barnes 34, 36. Har. Pract. 360. But it has been done in many cases, to save the statute of limitations;

A motion was made, that an attorney, who was going to Ireland, might put in special bail, and denied. 1 Mod. 10.

If an attorney is arrested, it is a motion of course, to discharge on common bail; I VVils. 292. that is, an attorney of the same court. But if an attorney of C. B. is arrested by process of B. R. he must plead his privilege, and cannot be discharged on common bail. Stra. 864. 1 Wils.

If an attorney of C. B. be r.Elually in the custody of the marshal, he shall only be sued in B. R. 1 Stra. 191. and cannot plead his privilege; 2 Roll. Abr. 232. for there is a great difference between an actual and a supposed custody. I Salk. 1.

In an action against baron and feme, if the husband be an attorney, he cannot appear in person, and put in bail for his wise, but he ought to put in bail for himself and his wise; for he shall not have privilege in an action against him and his wise. 1 Roll. 380. c. 45.

By 12 Geo. 2. c. 13. s. 9. it is enacted, " That no attorney or solicitor, who shall be a prisoner in any gaol or prison, or within the limits, rules, or liberties of any gaol or prison, shall, during his confinement in any gaol or prison, or within the limits, rules, or liberties of any aaol or prison, in his own name, or in the name of any other attorney or solicitor, sue out any writ or process, or commence or prosecute any action or suit, in any courts of Lw or equity,-under pain of being struck off the roll and incapacitated, &c."

This statute only disqualifying attornies who are prisoners, relates only to prosecuting, and not to defending suits. Barnes 263.

/.n

Of Proceedings by and against Attornies.

An attorney, prisoner, commencing an action on a bailbond, assigned after his imprisonment, in an action begun . besore, is not within this statute, it being a continuance of the former suit.

. Attornies, in case of mifbehaviour or mal practice, are subject to the animadversion and censure of the court in which they are admitted by a summary application, by wajr of motion thereto; and will be struck off the rolls, imprisoned, or otherwise punifhed, at the discretion of the court; and the procefs sued out, on such occasions, to bring them into court, is an attachment; and being issued at the suit of the king, for contempt of the court, must be made out by the clerks in the Croum-office.

An attorney cannot be lessee in ejeSiment. Mich. 1654.. Nor bail in any action depending in the court of which he rs an attorney. Ibid. But an attorney house-keeper is often bail, though contrary to the above rule. 8 Mod.

338

Attorney cannot be commissioner to take bail. Stat. + IV.& M. c. 4.

Attorney or not, must be tried by the record. And yet, when an attorney pleads his privilege, he has no occasion to fey, prout patet per recordumt or to produce his writ of privilege. And per Holt ch. just. There are two ways of pleading his privilege so as it cannot be denied, viz.—with a profert of a writ of privilege, or an exemplification of the record of his admission of attorney. But he may plead his privilege only. Vide Ld, Raym, 1173.

Of

Of Proceeding by an Attorney Plaintiff.

AN attorney plaintiffmay sue out by attachment of privilege, which is in the nature of an original writ, and js to the following efsect:

GEORGE the third, b'c. To the sheriff of Middltsex, greeting. We command you, that you attach C. D. and E. F. [any number of desendants may be put in this writ] if they may be. found in your bailiwick, and them sasely keep, so that you may have their bodies before us at IVffhninfter, on next

: after [a day certain in term, and not

a general return day] to answer A. B. gentleman, being one of the attornies of our court, before us, according to the liberties and privileges of such attornies and other ministers of the same court,- from time whereof the memory of man is not to the contrary used and approved in the same court of a plea of trespafs, [or whatever the action is] and have there this writ.

,. Witnefs, &c. . . . .'.

If the attachment requires only a common appearance, * copy must be served, with notice as in other cases.

By the 4th sect- of 13 Car. 2. flat. 2. c. 2. [the statute Which occasioned the insertion of the ac ttiam clause in procefs to arrest and hold to special bail] it is provided, *' That the said act, nor any clause or thing herein before "specified or contained, shall not extend, nor be construed *' or taken to extend, unto any arrests hereafter to be *•' made, upon or by virtue of any writ of capias utlagatum, "attachment upon refcues, or attachment upon any con"tempt, or of any attachment of privilege, at the suit of any *' privileged person, or of any other attachment for con"tempt whatsoever issuing or to be isiuing out of either of '.-. :T - 4 ."" "the

Of Proceeding by an Attorney Plaintiff'. ATA H E the same in this court.

The fame in this court.

An attachment of privilege in C. B. is in the nature of an original writ; and when it is replied to save the statute of limitations, it is sufficient to shew the tejle without continuances, till the declaration. Finch v. Wilsony one, &c. vfC. B. in error. i Wils. 167.

And the court will amend an attachment of privilege, tho* it is in the nature of an original writ, if there are not fifteen days between the teste and return; and so they will a ca. fa. But the court cannot amend an original writ, because it issues out of Chancery.

Note, By the opposite section of the statute 13 Car. 1. it ihould seem, that there is no occasion for an " ac etiam'* clause in a writ of attachment of privilege, to hold desendant to bail, at the suit of an attorney, though such clause is usually inserted in the attachment, if the party is to be held to special bail. Vide 2 Wils. 392.

If the party is to be held to bail, the sum sworn to must be marked on the back of the attachment, and also the-day it |is sued out. '.

Art

« PreviousContinue »