CHAP. XIV. Of the PROCEEDINGS in ACTIONS, by and against Ar- actions by and against attor nies. THE proceedings in actions against defendants when at large, and mode Proceedings in of bringing them into court, in ordinary cases, having already been considered; I shall next proceed to shew whatever is peculiar to the proceedings in actions by and against attornies, who are supposed to be already in court, and against prisoners in the actual custody of the sheriff, &c. or of the marshal of the King's Bench, or warden of the Fleet prison. e By attachment of privilege, or bill. Attachment of privilege, in K. B. what. Attornies, we have seen, may sue by attachment of privilege, and must be sued by bill. In the King's Bench, the attachment of privilege, at the suit of an attorney, is in nature of a latitat: therefore, in replying it to a plea of the statute of limitations, the plaintiff must set forth the continuances. And an attachment of privilege is not a continuance of a bill of Middlesex, so as to avoid the statute of limitations 4. In the King's Præcipe for. Bench, it is a rule, that "every attorney shall leave a præcipe with the "signer of the writs, containing the defendant's names, not exceeding "four in each writ, with the return, and day of signing such writ, and "the agent's or attorney's name who sued out the same: and that all “such præcipes shall be entered on the roll, where the præcipes of latitats, " and all other writs issuing out of this court, are entered; and the of- Signing. "ficer that signs the writs in this court, shall not sign such attachment, "till a præcipe be left with him for that purpose f." But when an attorney sues by attachment of privilege, his name need not be indorsed on the writ for the 2 Geo. II. c. 23. § 22. which requires the name of the plaintiff's attorney to be indorsed on the writ, only extends to cases where the attorney sues for another person 8. And an attorney, plaintiff, may sue by common process, and indorse his own name on the copy as the at Indorsement of attorney's name on. Attachment of privilege in C. P. what. of. Præcipe for. torney, and may afterwards declare by another attorney. If an attorney sue by attachment of privilege, for words spoken in Wales, and the venue be laid there, and the plaintiff do not recover a verdict for ten pounds, it may be suggested on the roll, that the defendant was resident in Wales, &c. in order to entitle the defendant to enter a nonsuit, under the statute 13 Geo. III. c. 51. § 1, 2. b: but if the venue had been laid in Middlesex, it might have made a difference b. In the Common Pleas, an attachment of privilege is in nature of an original writ©; and must have fifteen days between the teste and return d. Teste and return This writ should regularly be returnable on a day certain, in full terme : But where it was made returnable after the essoin day, and before the quarto die post, the court allowed it to be amended, on payment of costs. And, being in nature of an original writ, it is sufficient, when replied to a plea of the statute of limitations, to shew the teste of it, without the continuances. It is a rule in this court 8, that "no attorney shall sue out an attachment of privilege at his own suit, nor shall the same be sealed, unless it be first stamped or signed by the clerk of the warrants or his deputy, for which no fee is to be paid, to the intent to shew that such person is an attorney of this court, duly entered and continued on the roll of attornies." And there is another rule h, similar to that in the King's Bench, that "every attorney, who shall sue out a writ of privilege against any defendant, shall leave a præcipe i at the prothonotaries' office, with the defendant's names, not exceeding four in the whole, and the return day thereto, and the day of signing the same, together with the agent's or attorney's name who sues out the same; and that such præcipe shall be entered by the prothonotaries upon a remembrance roll, in their respective offices, to be kept for that purpose, without fee or reward; and that the prothonotaries do not sign any attachment of privilege, without such præcipe be left in the office, at the time of signing thereof." The practice therefore, as governed by these rules, is to take the præcipe and writ to the prothonotaries' clerk, who will sign the writ gratis, keeping the præcipe; after which the writ is marked by the clerk of the warrants, and then sealed. Signing. Arrest on. An attorney was formerly permitted to hold the defendant to special bail, upon an attachment of privilege, for fees or disbursements, however trifling. But now, since the statutes for preventing frivolous and vexatious arrests, the defendant cannot be arrested and holden to special bail, upon an attachment of privilege, or any other process, unless the cause of action amount to twenty pounds or upwards. Where it is under that amount, the defendant must be served with a copy of the process, and notice to appear, as in other cases. Time for de claring, and pleading, in K. B. Beginning of declaration, in Exchequer. In the King's Bench, the time allowed for declaring upon an attachment of privilege, is the same as upon a bill of Middlesex or latitat, &c. And if an attorney sue out an attachment of privilege, and deliver or file his declaration, and give notice thereof, four days exclusive before the end of the term wherein the attachment is returnable, the defendant must plead as of that term; the plaintiff having entered a rule to plead, and demanded a plea: but if he do not declare within that time, the defendant may imparl to the next term; and if he do not declare before the essoin day, the defendant will have an imparlance to the term following b. In Appearance, and the Common Pleas, if the attachment of privilege require only a common in C. P. putting in bail, appearance, it must be entered, on a proper præcipe, with the prothonotaries; and if it require special bail, the clerk of the dockets prepares the bail-piece, and attends the court or a judge when the recognizance is entered into, as the filacer does in other cases, and the bail justify, or fresh bail is added, in the same manner. In the Exchequer, the declaration, at the suit of an attorney or side clerk, begins by stating the character in which he sues; and omits the quo minus clause, in the conclusion . In proceeding against attornies and officers of the court, the bill, which is the foundation of the action, is a complaint in writing, describing the defendant as being present in court; and generally concludes with a prayer of relief, though the declaration upon the bill is not demurrable for want of ith. In the King's Bench, the bill against an attorney could May be filed in formerly have been filed in term time only, sedente curiâ, and not in vacation. But now it may be filed in vacation, as well as in term time: And where the cause of action arises after term, there should be a special memorandum, stating the day of bringing the bill into the office of the clerk of the declarations. If a bill however, filed against an attorney of that court in vacation, be entitled of the preceding term, and the defendant plead the statute of limitations, he may shew when it was in fact filed m. The filing of a bill is considered as the commencement of an action against Considered as an attorney, without notice being served upon him. And where, in an action against an attorney for goods sold, the plaintiff proved that he filed his bill at a certain time in the forenoon, and the defendant gave in evi h Andr. 247. i 2 Salk. 544. 12 Mod. 163. Gilb. K. B. 346. * Doug. 313. Law, administrator, v. Wheat, M. 23 Geo. III. K. B. 5 Durnf. & East, 173. and see 8 Durnf. & East, 643, 4. 2 H. Blac. 608. 1 Taunt. 126. 2 Wms. Saund. 5 Ed. 1. (1.) 15 Durnf. & East, 325. Append. Chap. XIV. § 21. Peake's Cas. Ni. Pri. 3 Ed. 275. Bill against attorney, in K. B. what, and how concluded. vacation. commencement of suit. VOL. I. Y dence a receipt for the sum demanded, dated the same day; the judge at nisi prius held that this was no answer to the action, without proof that Amendment of the payment was made before the filing of the bill. Where the bill against an attorney was entitled of the term generally, being before the cause of action accrued, the court of King's Bench on motion allowed it to be amended, after a writ of error brought, by inserting a special memorandum of the day of filing the same; and gave the plaintiff leave to carry in a new roll, agreeably to the amended bill, and to make the transcript conformable to such new roll, on payment of costs". But such an amendment cannot be made, after the proceedings are entered on record, without leave of the court: and, in one case, they gave the defendant leave to plead de novo, upon terms d. Filing. Copy of, to whom delivered. In the King's Bench, it is usual in practice to file the bill with the clerk of the declarations, in the King's Bench office; and to deliver a copy of it, to the defendant, or his known agent, with notice thereon to plead in four days; which notice has been deemed sufficient, though he reside more than twenty miles from London h: Or, if the defendant's name and place of abode be not entered in the master's book kept for that purpose, a copy of the bill may be stuck up in the office; although his name and place of abode be entered in the book containing a list of cerTime for plead- tificates. And if the bill be filed, and a copy thereof delivered, four ing to. Sticking up in office. Copy of, how written. days exclusive before the end of the term, including Sunday, the defendant must plead as of that term; the plaintiff having entered a rule to plead, and demanded a plea: but if the bill be not filed, and copy delivered, within that time, the defendant is entitled to an imparlance: And where the defendant was served with a copy of the bill, before the bill itself was filed, the proceedings were set aside for irregularity. The bill and copy were required, by the general stamp acts m, to be written in the usual and accustomed manner: and therefore, the copy of a bill filed against an attorney, partly printed and partly written, on one sheet of paper, stamped with a four-penny stamp, which contained several printed counts, two of them being struck out, and was otherwise obliterated, and exceeded seventeen common law folios, was held to be irregular; and it appearing that the bill was framed in the same manner, with the same obliterations, a 3 Campb. 331. b7 Durnf. & East, 474. 1 Id. ibid. 1 Chit. Rep. 336. but see 1 This officer is appointed to receive and f Imp. K. B. 10 Ed. 501. But such agent is not bound to accept it. Per Cur. E. 39 Geo. III. K. B. ceedings. the court set aside the proceedings altogether. The rest of the pro- Subsequent proceedings, by and against attornies of the King's Bench, are the same as in other cases. Bill against attorney of C. P. in vacation. Proceedings on. ant. In the Common Pleas, a bill may it seems be filed against an attorney, to avoid the statute of limitations, in vacation, as well as in term time b: And after it is filed, if the defendant do not, on being publicly called in court, appear thereto, judgment is given against him, that he stand forejudged from exercising his office of attorney, for his contumacy: upon which he is struck off the roll of attornies; and being no longer entitled to his privilege, he may be proceeded against as a common person. Formerly, no bill could have been filed against an attorney or officer of the Common Pleas, to be called in court, in order to a forejudger, until the bill was actually entered upon record, and a number roll put thereon. This rule however appears to be disused: and at present, the practice is to prepare a billf against the defendant, which is delivered to one of the criers, by whom the defendant is to be thrice called in open court, with an Calling defendintimation that he will be forejudged, if he do not appear; after which, the bill is entered with the prothonotaries: and a rule being given thereon by the secondaries, for the defendant's appearance, the bill should be filed in the prothonotaries' office till the rule is out, and afterwards with the custos brevium 8. And it is a rule, that "where any bill shall be filed against an attorney of this court, no forejudger shall be entered against him upon such bill, for want of appearance, if the action be laid in London or Middlesex, and such attorney reside within twenty miles of London, until four days after notice in writing, of filing such bill, be given to such attorney or his agent, or left at his usual place of abode, and a rule given for such appearance; and if such attorney reside above twenty miles from London, or the action be laid in any other county than London or Middlesex, then no forejudger shall be entered, till eight days after such notice shall be given, in such manner as aforesaid, and a rule to appear as aforesaid: the said days to be exclusive of the day of giving such notice h." The notice of filing the bill ought to be given four days exclusive before the end of the term, or the defendant will be entitled to an imparlance, and need not plead till the first four days of the next term1. If the de- Appearance. fendant appear, on being called in court, he enters his appearance with the prothonotaries; and the proceedings against him are the same as in com h R. H. 11 Geo. II. reg. 3. C. P. And Morgan v. Betts, one, &c. T. 33 Geo. For the beginning of a declaration Notice of, and rule for appearance. |