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Of getting an Attorney arrested, discharged.

IF an attorney is sued otherwise than by bill, and arrested, and in custody, by virtue of process, in order to get his discharge, he must sue out hrs writ of privilege from the court wherein he is an attorney ; and to obtain which he must get a certificate from the majler's clerk in B. R. or clerk of the warrants in C. B. that the desendant is an attorney of the court, which certificate is an authority for the signer of the writs in B. R. or prothonotary in C. B. for signing the same, for which nothing is paid, only 7 d. to the sealer, which writ must be allowed by the court or sheriff wherever it is directed, who will thereupon make out a supersedeas for the desendant.

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

^S of the bench, or 7 * rrr a a Lour court 1 / r r at Westminster, hi

t before us. J J J

therto used and approved of in the same; the at

tornies of the same court, \ {- * > whilst

'I before us. i

they are prosecuting or desending suits 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 justices or officers, Or any other secular judges whatsoever, upon any pleas, plaints or demands, which do not particularly belong to us (pleas of freehold selonies and

appeals excepted) save only before J. * 'J~.

tices of our said court of the bench; or thus, % before us by bill exhibited in our said court before us, £

and not by writ. J And whereas we have lately received information, by the complaint of A. B. gentleman, one of the

attornies of our said court, {?, '' c that

I before us J

several ill disposed persons intending to disquiet the

said A. have isi'ued forth and prosecuted out of

eur 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


Of getting an Attorney arrested, discharged.

ble in our said court, before you or one of you,

against the said A. and threaten to arrest and detain

him in your custody thereupon, in suits which do

not relate to us, (or in pleas of freehold, selonies,

or appeals excepted) whereby the said A. B. is

unable to attend his said office as an attorney, upon

several affairs and suits depending in our said court

\ os the bench, or 7 .- , .,. . , .„

\ 1 f which, if it is permitted, will

manisestly take away, and be not only in derogation and diminution of the jurisdiction of our said

court \ If * sand the liberties and

{ before us, I

privileges thereof; but also to the great detriment of the said A. and his clients. And because we are willing that the jurisdictions, privileges, and customs, for so long time used and approved in our

said court J-',.. ' fshould be inviolably

t before us, J'

kept and observed: We command you., and every

of you, that you desist from taking the said A. B.

into your custody, upon any writ or writs, precept

or precepts: and if the said A. B. be detained in

your custody by any writ or writs, precept or

precepts, other than such as particularly concern

us, (pleas of freehold, selony, and appeals, only

excepted) that then you discharge the said A. B.

out of your custody, and suffer 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 prosecute his, her, or

their action or actions, suit or suits,-} *

the bench, or J ^^ be exhibited > our justices of

before us J' (

the said bench, or to us \ . „, „ . a . n . •

J rj V,. r at Westminster, against the

tn our /aid court before us J J J °

said A. B. if he, she, or they, shall think it expedient so to do. Witness, &c.

Of 1*4

Df £>fficer0.

Of Proceeding against Officers of the Courts.

AL L the officers in the court of King's Bench, as well as the attornies, have the privilege of suing by attachment; and.being sued by bill in actions by and against them in their own right, and where they are not joined wish others, except in pleas of land, of which the court of Common Pleas alone has jurisdiction.

But the officers of the Common Pleas, amongst whom are the serjeants, prothonotaries, secondaries, clerks of the prothonotaries, serjeants clerks, clerks of the judges, &c. have not the privilege of being sued there by bill as attornies have, but the privilege of being sued there in every suit [except appeals] by original writ, because they are supposed not to be always present in person in court, as attornies are. Baker v. Swindon. Ld. Raym. 309. 3 Salk. 283. I Barnes 280. Holt 589. Adj. P. 6 W. tf M. C. B. Winford. Rot. 685. Baker v. Duncalf, 3 Lev. 398.

But it was agreed in Serjeant Scroggs' case, that the privilege of C. B. which Serjeants claimed, extended only to inserior courts, apd not to the courts of Wejlminjler-hall; and that he may be sued in either of these, because he is not confined to that court alone; but may practice in any other court.—But it is otherwise as to attornies or filazers, who cannot practice in their own name in any other court but such as they respectively belong to ; and that therefore a serjeant et law is to be sued by original, and not by bill of privilege. a Lev. 129. 3 Ktb. 424. 4 Mod. 226. So of the servant of a serjeant at law. Cro. Car. 84.

Note: The judges have privilege of being sued in their own court. Fide 3 Leon, 149.

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£>f pjMlegeS persons.

Of the Privileges of Peers and Members of Parliament.

PEERS are created, as is said in our law booh, for two reasons: I. Ad consulendum. 2. Ad desendendum regemt for which reasons the law gives them certain great and high. privileges. Vide 7 Rep. 34. 9 Rep. 49. I 2 Rep. 96.

1. At the suit of the subject their bodies shall not be arrejled, neither capias nor exigent lies against them.

2. For the honour and reverence which the law gives to nobility, their bodies are not subject to torture in causa criminis lasts majeflatis.

3. They are not to be sworn in affixes, juries, or other in~ quests.

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

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

6. He shall have day of grace.

7. A lord of parliament shall not be tried in case of treason, felony, or misprision of them, but by those who are noble and peers of the realm.

8. In trial of a peer, the lords of parliament shall not swear, but they may give their judgment super fidem et ligeantiam Domino Regi debitam, so that their faith and allegiance Jlands in equipage with an oath in the case of a common person in trial of lise. And the writs of parliament, directed to the lords of parliament, are sub fide et ligeantia, 13c. And the reason and cause that the king gives them many other privileges, is for this, because all honour and nobility is derived from the king, as the true fountain, and he honours with nobility for two causes. 1. Ad consulendum, and for that reason he gives them a robe. 2. Ad desendendum rrgem et regnum, and for that cause he gives them a sword. 12 Rep. 96.

All peers, without any distinction as to degree or rank, are entitled to the privilege of peerage alike; for they are equally obliged to attend the service of the publick, and are always supposed amenable to justice, and to have sufficient property to aniV/er in suits aud actions brought against 4 'them;

Of the Privileges of Peers and Members of

them; and for these reasons, are not to be arrested or mo-
lested in their persons. Bacon's Abr. tit. Privilege, 4 Vol.

This privilege from arrests extended formerly to abbess, as it does to bijhops, * 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 extensive nature, as may be seen by various resolutions and orders, in the journals of both the houses: but various statutes which parliament has condescended to make, have taken away many privileges which were heretofore claimed. However, there is one standing resolution and order in the journals of both the houses, that no court whatever shall presume to determine concerning the privilege of parliament, as settled by the rules and orders of each house, they themselves claiming to be the sole judges of their respective privileges; of which order, the king's courts accidently take notice.

The privilege ef a peer from arrests extends only to peers of Great Britain, so that a nobleman of any other country, or a lord of Ireland, hath not any other privilege in this kingdom than a common person. Also the son and heir apparent of a nobleman is not entitled to the privilege, which is confined to such persons as are lords of parliament' at the time. But it seems that an infant peer is privileged from arrests, his person being held sacred. Co. Lit. 156. 2 Inst. 48. 3 Inst. 30. pi. 19.

The peers of Scotland had no privilege in this kingdom before the union; but by the twenty-third article of the union, the sixteen elecled peers shall have all the privileges of the peers of the parliament of Great Britain. Also, all the rest of the peers of Scotland shall have all the privileges of the peerage of England, excepting only that of sitting and voting in parliament. Stat. 5 An. c. 8. 2 Stra. 990. Fort. 163. P. Wil. 583. Since which statute, the person of a Scotch peer has been held to be privileged from arrests.

The twenty-third article of the union, upon which this privilege is claimed by a peer of Scotland, not one of the sixteen, says, that the peers of Scotland shall have all the

Eq. Cas. Ab. 349. 3 Chan. Rep. 38.


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