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Of Proceeding against an Attorney Defendant.

AN attorney of the King's Bench must be fued by bill, and

cannot be arrested; and the method of fuing him is this, The plaintiff files a bill against him, [which is a direct copy of a declaration engroffed on a flip of parchment stamped with a treble penny ftamp] with the clerk of the declarations in the King's Bench office, and then makes a copy thereof on treble penny ftampt paper, for the declaration, which muft le delivered to him with notice thereon to plead; and then the plaintiff proceeds as in other cafes.

A bill against an attorney is in the following form:

Middlefex to wit. A. B. complains againft C. D. gent. one

of the attornies of the court of our lord the king, before the king himself, prefent here in court in his own proper perfon; for that Whereas, &c. [as in other cafes] and therefore he prays relief, &c.

O. P. for the plaintiff.
The defendant in perfon.

John Doe, Pledges of profecuting. Richard Roe.

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and

Upon delivery of this declaration, and a rule given to plead thereto, [either a four or eight day rule] and the fame being expired, the plaintiff may fign judgment; fo that in the King's Bench the remedy against attornies is fpeedier than in the Common Pleas, which vide the next page; and alfo fpeedithan against other indifferent perfons, as the bill and declaration are one and the fame thing, and the first commencement of the fuit.

In B. R. if the action be laid in London or Middlefex; and the defendant attorney lives within twenty miles of London, upon a rule given to plead, he has four days time to plead; and if he refides above twenty miles from London, or the action be laid in any other county than Middlefex or Londen, he has eight days time to plead.

Of Proceeding against an Attorney Defendant.

A bill, and cannot be arrested; but the bill and declaraN attorney of the Common Pleas alfo must be fued by

tion against an attorney are different in this court; for by Reg. Trin. 21 Car. 2. "No bill fhall be filed against an officer, attorney, clerk or minifter of the court, in order to a forejudger, until the bill be actually entered on record, and a number-roll actually put to the bill.”

The above rule however is in a great measure disused, and the method of proceeding at this day against an attorney defendant is as follows:

The plaintiff engroffes his bill on a flip of parchment ftamped with a double penny stamp, and carries it to the prothonotary, who marks it as entered, on being paid for the entry, and it is thereby fuppofed to be entered, though no number-roll is put on the bill; which being done, the bill must be carried to Westminster-hall, and given to one of the criers of the court, who calls the defendant in court, for which he is paid 1 s. and by 2 vol. Rules and Orders, he muft be called three times in court. After which the plaintiff gives a rule on the bill, with the fecondary, for the defendant to appear, for which is paid I s. 4 d. viz. I s. duty, and 4 d. the rule; and then the bill is filed in the prothonotary's office, for which is paid 4 d. upon filing which bill, notice thereof must be given to the defendant, in writing, by Reg. Hil. 11 Geo. 2. whereby it is ordered, that

"Where a bill fhall be filed against an attorney of the court, no forejudger fhall be entered for want of appearance, if the action be laid in London or Middlefex, and the attorney refides within twenty miles of London, until four days after notice in writing of filing fuch bill be given to fuch attorney, or his agent, or left at his ufual place of abode, and a rule given for fuch appearance as ufual; and if fuch attorney refides above twenty miles from London, or the action be in any other county than London or Middlefex, no forejudger fhall be entered till eight days after such notice fhall be given. in manner as aforefaid; and a rule to appear the faid days, to be exclufive of the days of giving such notice."

The

Of Proceeding against an Attorney Defendant.

The notice of a bill being filed.

Common Pleas.

A. B.

against

C. D. gentleman, one of the attornies, &c.

Take notice, that a bill was this day filed in the prothonotary's office of his majefty's court of Common Pleas at Westminster, against you the defendant C. D. at the fuit of the plaintiff A. B. in an action of trefpafs upon the cafe upon feveral promises [or whatever it is] and unless you appear to the said bill on Wednesday the twenty-fixth day of January instant, you will be forejudged the court.

23d January 1780.

To C. D. the defendant.

O. P. attorney for the plaintiff.

The above is the notice given by the fecondary's rule of the bill being filed, the notice to plead is as follows:

Common Pleas.

A. B. against C. D.

Take notice, that there is left in the prothonotary's office, in the Inner Temple, London, a declaration against you the defendant, at the suit of the plaintiff A. B. in an action upon the cafe upon feveral promises [whatever the cafe is] which the plaintiff lays to his damage of 100l. and unless you plead to the faid declaration within four days next after the first day of next Hilary term, judgment will be entered against you by default.

To C. D. defendant.

O. P. attorney for the plaintiff.

Before the above rule for giving the defendant notice, the plaintiff did nothing more than have him called by the cryer in court, which was then thought fufficient, as all attornies were fuppofed to be perfonally prefent during the fitting of the court; but many of the attornies having been

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Of Proceeding against an Attorney Defendant.

ftruck off the roll on forejudgers, for want of other notice; and many living at a diftance, fo that it was impoffible to give orders for an appearance in time before the expiration. of the rules to appear, the above rule became neceffary.

If the defendant appears in time, you deliver a declaration, and proceed as in other cafes; but if he does not appear, he must be forejudged, that is, ftruck off the roll, to effect which the plaintiff enters his bill, and a forejudger, on the roll, in the following form, beginning with a memorandum, as in fuits by bill in B. R.

Middlefex, to wit. day of in this fame term, A. B. came here into court by O. P. his attorney, and exhibited to the justices of our lord the now king of the bench here, his bill againft C. D. gentleman, one of the attornies of the court of our faid lord the now king, of the bench here prefent, here in court in his proper perfon, in a plea of trespass on the cafe; the tenor of which faid bill followeth in thefe words, (to wit) To the juftices of our lord the king, of the bench. Middlefex, to wit. A. B. by O. P. his attorney, complaineth of C. D. gentleman, &c. [the whole bill to] and thereupon he prayeth relief, &c.

Be it remembered, that on the

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S John Doe

Pledges for profecuting, and

Richard Roe.

Whereupon the faid C. D. being folemnly called came not, therefore he ftandeth forejudged from exercifing his office of attorney of this court for his contumacy, &c.

You pay the prothonotary 2 s. for figning the forejudger, and the clerk of the warrants 1 s. 4 d. for ftriking the defendant off the roll, and then you may proceed against him as against a common person.

When once an attorney is forejudged, the fuit by bill is at an end, and the plaintiff, if he proceeds, muft proceed as against an indifferent perfon, by original and capias, in the common way. Barnes 43. and fo muft every other perfon who fues him.`

When

Of Proceeding against an Attorney Defendant.

When an attorney defendant has appeared to a bill filed against him in court, the fubfequent proceedings throughout the cause are the fame, as in caufes against indifferent perfons, only the writs, fuch as the venire, habeas corpora, diAringas, &c. are made returnable on a day certain in term, and not on a general return day.

But it feems, that process of execution against an attorney' has no occafion to be made out returnable on a day certain, for execution begins when the cause is ended.

The plaintiff, an attorney, having fued by his attachment of privilege, was non-fuited, and afterwards taken upon a ca. fa. for the cofts, upon the judgment of non-fuit returnable on a general return day, and the court held it well enough. For though all procefs, both for and against an attorney, is made returnable on a day certain, because of his daily attendance in court; yet when an attorney is out of court, as in the cafe above, and in cuftody in execution, he has no day in court, fo cannot attend; and therefore in fuch cafe he loses his privilege to have his process against him returnable on a day certain.

Of

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