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Of Proceedings by and against Attornies.

Attornies muft fue each other by bill, as well of different different courts as of the fame. Barnes 43, 44.

But an attorney of C. B. may, for a debt bona fide paid, fue an attorney of B. R. by attachment, and he fhall not be entitled to privilege. Barnes 44.

One attorney of C. B. fued another attorney of C: B. by capias; and the defendant moved to stay the proceedings, infifting he ought to be fued by bill. It appeared that the defendant had obtained a judge's order for time to put in bail; but this was held not to be a fufficient waiver of his objection to the plaintiff's method of proceeding against him; and the rule was made abfolute to stay proceedings with cofls. Barnes 53.

An attorney having been arrefted, was bailed; and ane other action being brought against him in the fame court, he pleaded his privilege; and it was adjudged, that putting in bail to the first action did not discharge his privilege. Carth. 377..

An attorney of C. B. was arrested at the fuit of an attorney of B. R. and gave bail; and then B. delivered a declaration by the by against him, as in cuftody of the marfhal, to which he pleaded his privilege; and resolved, that though he be in cuftody of the marshal, at the fuit 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 fuit of A. and in the fame term a declaration is delivered against him at the fuit of B. yet the defendant may plead his privilege against B. as well as against A. for it were abfurd, that B. who tops his suit upon the action of A. fhould have more liberty or advantage against the defendant than A. himself had. But if the defendant waives his privilege in the first action, he is then obnoxious to the fuits of every body, notwithstanding his privilege. 3. That if after the defendant has waived his privilege, he fhall yet plead it, the plaintiff in his replication must fhew the defendant's waiver, and reply upon the eftoppel. Ld. Raym. 135. Vide Wilf. Rep. B. R. 306.

Declaration by bill of Middlefex against an attorney of B. R. as acceptor of a bill of Exchange drawn upon him, according to the cuftom of merchants; to which defendant pleaded in abatement, that he was, and ftill is, an attorney of B. R. and ought to have been fued there by bill of privilege as an attorney, and not by bill of Middlefex. Demurrer

Of Proceedings by and against Attornies.

inde and joinder. Per cur. He must have his privilege. Judgment for defendant. Cornforth v. Price. Hilary, 20 Geo. 3. B. R.

An attorney has privilege in a qui tam action commenced against him. Barnes 48. Att. Prac. 54. Skin. 549. If an attorney fue by original, he has no privilege, and cannot fue in propria perfona. Att. Pract. 311. 2 Lev. 39. 2 Stra. 837. Barnes 479.

It is faid, 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 cafes, to fave the ftatute of limitations.

A motion was made, that an attorney, who was going to Ireland, might put in fpecial bail, and denied. I Mod. 10. If an attorney is arrefted, it is a motion of course, to difcharge on common bail; 1 Wilf. 292. that is, an attorney of the fame 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. 306.

I Wilf.

If an attorney of C. B. be actually in the cuftody of the mar fhal, he fhall only be fued 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 fuppofed cuftody. I Salk. 1.

In an action against baron and feme, if the hufband be an attorney, he cannot appear in perfon, and put in bail for his wife, but he ought to put in bail for himself and his wife; for he fhall not have privilege in an action against him and his wife. I Roll. 380. c. 45.

By 12 Geo. 2. c. 13. f. 9. it is enacted, "That no attorney or folicitor, who fhall be a prifoner in any gaol or prifon, or within the limits, rules, or liberties of any gaol or prifon, fhall, during his confinement in any gaol or prifon, or within the limits, rules, or liberties of any gaol or prifon, in his own name, or in the name of any other attorney or folicitor, fue out any writ or procefs, or commence or profecute any action or fuit, in any courts of law or equity, under pain of being ftruck off the roll and incapacitated, &c."

This ftatute only difqualifying attornies who are prifoners, relates only to profecuting, and not to defending. fuits. Barnes 263.

Of Proceedings by and against Attornies.

An attorney, prifoner, commencing an action on a bail-. bond, affigned after his imprifonment, in an action begun before, is not within this ftatute, it being a continuance of the former fuit.

. Attornies, in cafe of mifbehaviour or mal practice, are fubject to the animadverfion and cenfure of the court in which they are admitted by a fummary application, by way of motion thereto; and will be ftruck off the rolls, imprifoned, or otherwife punished, at the difcretion of the court; and the process fued out, on fuch occafions, to bring them into court, is an attachment; and being iffued at the fuit of the king, for contempt of the court, must be made out by the clerks in the Crown-office.

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An attorney cannot be leffee in ejectment. Mich. 1654. Nor bail in any action depending in the court of which he is an attorney. Ibid. But an attorney house-keeper is often bail, though contrary to the above rule. 8 Mod. 338.

Attorney cannot be commiffioner to take bail. Stat. 4 W. & M. c. 4.

Attorney or not, muft be tried by the record. And yet, when an attorney pleads his privilege, he has no occafion to ay, prout patet per recordum, or to produce his writ of privilege. And per Holt ch. juft. There are two ways of pleading his privilege fo as it cannot be denied, viz.—with a profert of a writ of privilege, or an exemplification of the record of his admiffion of attorney. But he may plead his privilege only. Vide Ld. Raym, 1173.

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Of Proceeding by an Attorney Plaintiff.

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N attorney plaintiff may fue out by attachment of privilege, which is in the nature of an original writ, and is to the following effect:

GEORGE the third, &c. To the fheriff of Middlesex, greeting. We command you, that you attach C. D. and E. F. [any number of defendants may be put in this writ] if they may be found in your bailiwick, and them fafely keep, fo that you may have their bodies before us at Westminster, on

after

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[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 fuch attornies and other minifters of the fame court, from time whereof the memory of man is not to the contrary ufed and approved in the fame court of a plea of trefpafs, [or whatever the action is] and have there this writ.

Witness, &c.

If the attachment requires only a common appearance, a copy must be ferved, with notice as in other cafes.

By the 4th fect. of 13 Car. 2. flat. 2. c. 2. [the ftatute which occafioned the insertion of the ac etiam claufe in procefs to arrest and hold to special bail] it is provided, "That the faid act, nor any claufe or thing herein before "fpecified or contained, fhall not extend, nor be conftrued ❝or taken to extend, unto any arrefts 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 fuit of any " privileged perfon, or of any other attachment for con"tempt whatfoever iffuing or to be ifiuing out of either of

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Of Proceeding by an Attorney Plaintiff.

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the fame 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 fave the statute of limitations, it is fufficient to fhew the tefte without continuances, till the declaration. Finch v. Wilfon, one, &c. of C. B. in error. I Wilf. 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 tefte and return; and fo they will a ca. fa. But the court cannot amend an original writ, becaufe it iffues out of Chancery.

Note, By the oppofite fection of the ftatute 13 Car. 2. it fhould feem, that there is no occafion for an ་ ac etiam" claufe in a writ of attachment of privilege, to hold defendant to bail, at the fuit of an attorney, though fuch clause is ufually inferted in the attachment, if the party is to be held to special bail. Vide 2 Wilf. 392.

If the party is to be held to bail, the fum fworn to must be marked on the back of the attachment, and alfo the day it is fued out.

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