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Of getting an Attorney arrested, discharged.

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F an attorney is fued otherwife than by bill, and arrested, and in cuftody, by virtue of procefs, in order to get his difcharge, he muft fue out his writ of privilege from the court wherein he is an attorney; and to obtain which he must get a certificate from the mafter's clerk in B. R. or clerk of the warrants in C. B. that the defendant is an attorney of the court, which certificate is an authority for the figner of the writs in B. R. or prothonotary in C. B. for figning the fame, for which nothing is paid, only 7 d. to the fealer, which writ must be allowed by the court or fheriff wherever it is directed, who will thereupon make out a fuperfedeas for the defendant.

A writ of privilege is to the following effect:

GEORGE the third, &c. To the judges of our court of our palace at Westminster, and to every of them greeting: Whereas, according to the custom of

our court

{ of the bench, or
before us. or }

at Westminster, hi

therto used and approved of in the fame; the at

} whilft

tornies of the fame court, {of the bench, or
before us.
they are profecuting or defending fuits and actions
therein for their clients, ought not, nor have they,
from time immemorial, been used to be compelled
to answer before any of our juftices or officers,
or any other fecular judges whatfoever, upon any
pleas, plaints or demands, which do not particu-
larly belong to us (pleas of freehold felonies and
appeals excepted) save only before {our faid jus-.
tices of our faid court of the bench; or thus,
before us by bill exhibited in our faid court before us,
and not by writ.
And whereas we have lately received information,
by the complaint of A. B. gentleman, one of the
attornies of our faid court,
of the bench, or that
before us

feveral ill difpofed perfons intending to difquiet the
faid A. have iffued forth and profecuted out of
our court of our palace of Westminster, one or more
writ or writs, returnable before you in the same
court, or one or more precept or precepts returna-

againft

Of getting an Attorney arrefted, discharged.

ble in our faid court, before you or one of you,
against the said A. and threaten to arreft and detain
him in your cuftody thereupon, in fuits which do
not relate to us, (or in pleas of freehold, felonies,
or appeals excepted) whereby the faid A. B. is
unable to attend his faid office as an attorney, upon
feveral affairs and fuits depending in our faid court
of the bench, or which, if it is permitted, will
before us.
manifeftly take away, and be not only in deroga-
tion and diminution of the jurifdiction of our faid
of the bench, or and the liberties and
before us,

{{of

court

{ of the

}

privileges thereof; but alfo to the great detriment of the faid A. and his clients. And because we are willing that the jurifdictions, privileges, and cuftoms, for fo long time used and approved in our of the bench, or fhould be inviolably

faid court { of before us,

kept and obferved: We command you, and every of you, that you defift from taking the faid A. B. into your custody, upon any writ or writs, precept or precepts and if the faid A. B. be detained in your cuftody by any writ or writs, precept or precepts, other than fuch as particularly concern us, (pleas of freehold, felony, and appeals, only excepted) that then you discharge the faid A. B. out of your cuftody, and fuffer him to go at large, as you will answer the contrary at your peril; and, that you inform the party or parties, plaintiff or plaintiffs, in the plaint or plaints, that he, she, or they, may profecute his, her, or their action or actions, fuit or fuits, in our court of to our juftices of

the bench, or by bill to be exhibited.

before us

the faid bench, or to us

}

in our faid court before us at Westminster, against the faid A. B. if he, she, or they, fhall think it expedient fo to do. Witness, &c.

Of

124

Of Officers.

Of Proceeding against Officers of the Courts.

A

LL the officers in the court of King's Bench, as well as the attornies, have the privilege of tuing by attachment; and being fued by bill in actions by and against them in their own right, and where they are not joined with others, except in pleas of land, of which the court of Common Pleas alone has jurifdiction.

But the officers of the Common Pleas, amongst whom are the ferjeants, prothonotaries, fecondaries, clerks of the prothonotaries, ferjeants clerks, clerks of the judges, &c. have not the privilege of being fued there by bill as attornies have, but the privilege of being fued there in every fuit [except appeals] by original writ, because they are fuppofed not to be always prefent in perfon in court, as attornies are. Baker v. Swindon. Ld. Raym. 309. 3 Salk, 283. 1 Barnes 280. Holt 589. Adj. P. 6 W. & M. C. B. Winford. Rot. 685. Baker v. Duncalf, 3 Lev. 398.

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But it was agreed in Serjeant. Scroggs' cafe, that the privilege of C. B. which Serjeants claimed, extended only to inferior courts, and not to the courts of Westminster-hall; and that he may be fued in either of thefe, because he is not confined to that court alone; but may practice in any other court. But it is otherwife as to attornies or filazers, who cannot practice in their own name in any other court but such as they refpectively belong to, and that therefore a ferjeant at law is to be fued by original, and not by bill of privilege. 2 Lev. 129. 3 3 Keb. 424. 4 Mod. 226. So of the fervant of a ferjeant at law. Cro. Car. 84.

Note: The judges have privilege of being fued in their own court. Vide 3 Leon. 149.

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Of privileged Perfons.

Of the Privileges of Peers and Members of Parliament.

PEER

EERS are created, as is faid in our law books, for two reafons: 1. Ad confulendum. 2. Ad defendendum regem, for which reafons the law gives them certain great and high privileges. Vide 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.

1. At the fuit of the subject their bodies fhall not be arrefted, neither capias nor exigent lies against them.

2. For the honour and reverence which the law gives to nobility, their bodies are not fubject to torture in caufâ criminis læfæ majeftatis.

3. They are not to be fworn in afizes, juries, or other inquests.

4. If any fervant of the king, named in the cheque-roll, compafs or intend to kill any lord of parliament, or other lord of the king's council, this is felony.

5. In the Common Pleas, a lord of parliament shall have knights returned on his jury. [This privilege is taken away by flat. 24 Geo. 2. c. 18. f. 4.]

6. He fhall have day of grace.

7. A lord of parliament fhall not be tried in cafe of treafen, felony, or misprifion of them, but by thofe who are noble peers of the realm.

and

8. In trial of a peer, the lords of parliament fhall not fwear, but they may give their judgment fuper fidem et ligeantiam Domino Regi debitam, fo that their faith_and_allegiance ftands in equipage with an oath in the cafe of a common perfon in trial of life. And the writs of parliament, directed to the lords of parliament, are fub fide et ligeantia, &c. And the reafon and caufe that the king gives them many other privileges, is for this, becaufe all honour and nobility is derived from the king, as the true fountain, and he honours with nobility for two caufes. 1. Ad confulendum, and for that reafon he gives them a robe. 2. Ad defendendum regem et regnum, and for that cause he gives them a fword. 12 Rep. 96.1

All peers, without any diftin&tion as to degree or rank, are entitled to the privilege of peerage alike; for they are equally obliged to attend the fervice of the publick, and are always fuppofed amenable to juftice, and to have fufficient property to anfwer in fuits and actions brought against

4

them;

Of the Privileges of Peers and Members of Parliament.

them; and for these reasons, are not to be arrested or molefted in their perfons. Bacon's Abr. tit. Privilege, 4 Vol. 228.

This privilege from arrefts extended formerly to abbots, as it does to bishops, members of the convocation, and members of the House of Commons at this day.

The privilege of parliament, according to the law of parliament, is of a very extenfive nature, as may be seen by various refolutions and orders, in the journals of both the houses but various statutes which parliament has condefcended to make, have taken away many privileges which were heretofore claimed. However, there is one standing refolution and order in the journals of both the houses, that no court whatever fhall prefume to determine concerning the privilege of parliament, as fettled by the rules and orders of each house, they themselves claiming to be the fole judges of their respective privileges; of which order, the king's courts accidently take notice.

The privilege of a peer from arrefts extends only to peers of Great Britain, fo that a nobleman of any other country, or a lord of Ireland, hath not any other privilege in this kingdom than a common perfon. Alfo the fon and heir apparent of a nobleman is not entitled to the privilege, which is confined to fuch perfons as are lords of parliament at the time. But it seems that an infant peer is privileged from arrefts, his perfon being held facred. Co. Lit. 156. 2 Inft. 48. 3 Inft. 30. pl. 19.

The peers of Scotland had no privilege in this kingdom before the union; but by the twenty-third article of the union, the fixteen elected peers fhall have all the privileges of the peers of the parliament of Great Britain. Alfo, all the reft of the peers of Scotland shall have all the privileges of the peerage of England, excepting only that of fitting and voting in parliament. Stat. 5 An. c. 8. 2 Stra. 990. Fort. 163. P. Wil. 583. Since which ftatute, the perfon of a Scotch peer has been held to be privileged from arrefts. The twenty-third article of the union, upon which this privilege is claimed by a peer of Scotland, not one of the fixteen, fays, that the peers of Scotland fhall have all the

* Eq. Caf. Ab. 349. 3 Chan. Rep. 38.

privileges

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