to suits commenced after his imprisonment, at his own suit. Kaye v. Denew, 7 T. R. 671. But entering a plaint, and suing out process, in a county court, was holden to be within the former act upon this subject. Re Flint, 1 B. & C. 254.

An attorney who is in prison for debt, is not entitled to his privilege of not being holden to bail; and may be detained upon mesne process. Byles v. Wilton, 4 B. & A. 88.

Privileges of attornies.] Attornies are privileged from giving (indeed they will not be permitted to give) evidence of any matters confided to them by their client, in their professional capacity, Gill. Ev. 136. Arch. Pl. & Ev. 474. And see Wheatley v. Williams, 1 Mees. & IV. 533. Turquand et al. v. Knight, 2 Id. 98. Gillard v. Bates, 6 Id. 547. Perry et al. v. Smith, 11 Law J., 269, ex. Doe v. Watkins, 3 Bing. N. C. 421, whether a suit be depending or in contemplation at the time, or not. Doe v. Harris, 5 Car. & P. 592. But the communication must have been made to him as the attorney of the party; and therefore where the same attorney was employed by the vendor and purchaser of an estate, an application to him by his client, the purchaser, asking a further time for payment of the purchase money, was holden not to be a privileged communication. Perry et al v. Smith, 9 Mees. & W. 681. And see Shore v. Bedford, 12 Law J., 138, cp. This is rather the privilege of the client than of the attorney. So, he cannot be compelled to produce the deeds or documents of his client in his possession. See Bate v. Kinsey, 1 Cr. M. & R. 38. Davies

v. Waters, 1 Dowl. N. C. 651, 11 Law J., 214, ex. But he may be asked whether such deeds or ducuments are not in his possession, in order that secondary evidence may be given of them, if he refuse to produce the originals. Coates et al v. Birch, 2 Ad. & El. N.C. 252. So, where he is the attesting witness to a deed executed by his client, his privilege does not exempt him from giving evidence of the execution. Doe d. Avery v. Roe, 6 Dowl. 518. In what cases he shall, if required, disclose the residence of his client, see stat. 2 IV. 4, c. 39, s. 17, post, p. 69.

An attorney, if plaintiff, has a right to bring his action in the court of which he is an attorney, Lewis v. Kerr, 2 Mees. &

said, and any attorney or solicitor permitting or empowering any such attorney or solicitor as aforesaid to cominence, prosecute, or defend any action or suit in his name, shall be deemed to be guilty of a contempt of the court in which any such action or suit shall have been commenced or prosecuted, and punishable by the said courts accordingly, upon the application of any person complaining thereof; and such attor

ney or solicitor so commencing, prosecuting, or defending any action or suit as aforesaid shall be incapable of maintaining any action or suit at law or in equity for the recovery of any fee, reward, or disbursement, for or in respect of any business, matter, or thing done by him, whilst such prisoner as aforesaid, in his own name or in the name of any other attorney or solicitor. Id. s. 31.

W. 226, and to lay and retain his venue in Middlesex, no matter where he is resident; Pye v. Leigh, 2 W. Bl. 1065; and it is no ground for changing the venue in such a case, that the witnesses on both sides reside in the county to which the venue is sought to be changed. Pilcher v. Sh. of Monmouth, 2 Marsh. 152. But if he lay the venue in a different county, the court will not afterwards allow him to amend, by changing the venue to Middlesex. Lewis v. Shelley, 7 Taunt. 146. And see Mounsey v. Watson, 7 B. & C. 683. Bradshaw v. Burton, 7 Dowl. 329. So, if he employ another attorney to bring the action for him, he thereby waives the privilege of retaining the venue in Middlesex. Hurrington v. Page, 2 Dowl. 164.

An attorney, when defendant, has no privilege as to venue, and therefore cannot change the venue to Middlesex, Yeardly v. Roe, 3 T. R. 573. Pope v. Redfearne, 4 Burr. 2027, unless the cause of action accrued there. But he is privileged from arrest upon mesne process. Post, p. 134. And see Pitt v. Pocock et al., 2 Cr. & M. 146. He has the privilege also of being sued only in that court of which he is an attorney, Duffy v. Oakes, 3 Taunt. 166, and see Stokes v. Mason, 9 East, 424. Percival v. Cooke, 5 Mees. & W. 293. Prior et al. v. Smith, 6 Doul. 299, even although he be sued as bail; Harper v. Tahourdin, 6 M. & S. 383; if sued in any other court, he may plead his privilege, Hunter v. Neck, 10 Law J., 297, ep., and he may plead it by attorney. Groom v. Wortham, 12 Law J., 88, cp. And the uniformity of process act makes no alteration in the law, in this respect. Lewis v. Ker, 5 Dowl. 447, 327, and see Tomkins v. Chilcote, 2 Dowl. 187. But if the plaintiff also be an attorney, and have the privilege of bringing his action in another court, the defendant in that case cannot plead his privilege; for the privilege of the plaintiff attaches first, and privilege cannot be set up against privilege. Danser v. Berryman, 2 W. Bl. 1325.

An attorney, plaintiff, is not obliged to sue in a court of requests, for a debt, unless his privilege in that respect be taken away by express words in the statute creating or regulating the court. Johnson v. Bray, 2 Brod. & B. 698, and see Board v. Parker, 7 East, 46. And the uniformity of process act has made no difference in this respect. Dyer v. Levi, 1 Har. & W. 640, 4 Dowl. 630. Wright v. Skinner, 1 Mees. & W. 144.

So an attorney, as defendant, cannot be sued in a court of requests, unless his privilege in that respect be taken away by express words in the statute creating or regulating the Gardner v. Jessop, 2 Wils. 42. Wiltshire v. Lloyd, 1

court.

Doug. 381. Another privilege an attorney enjoys is, that when he is party to an action, and obtains a verdict or judgment, he is

entitled not merely to the costs that any other party suing or defending in person should have, but to the same costs as if he were merely attorney in the cause. He is even entitled to the usual fee for his attendance at the trial, Jervis v. Dewes, 4 Dowl. 764, if his attendance there were necessary. See Leaver v. Whalley, 2 Dowl. 80. Parsloe v. Foy, 2 Dowl. 181.

It may be necessary to add here, that an attorney does not lose his privilege, by not taking out his certificate at the expiration of his former one, Skirrow v. Tagg, 5 M. & S. 281, or within the time limited by statute.

Attornies, whilst they continue to practise, cannot be justices of the peace of counties (e); but they may, of cities or towns, being counties of themselves, or of towns, &c., having justices by charter, commission, &c. (f.)

2. Their employment and duties.

Suing and defending by attorney.] All persons may sue or defend by attorney, St. Westm. 2d. (13 Ed. 1,) c. 10, except married women when sued alone, infants and idiots. Infants must sue by their next friend or guardian; they must defend by guardian. Married women, when sued alone, must appear in person. Idiots must appear in person, and then any person who may pray to be admitted to sue or defend for them, shall be allowed to do so; but a lunatic must appear by guardian if within age, or by attorney if of full age. 4 Co. 124, Beverley's case.

Formerly, the authority given to an attorney to sue or defend, was in writing, and called a warrant; and it was always entered of record. These warrants have long ceased to be usual in practice; it is, however, but recently that the entry of them upon the roll has been abolished. R. G. H. 4 W. 4, r. 2, s. 4, and see R. C. P., H. 1 Vict. It is still, however, in some cases prudent to have a written authority from the client, particularly where there is the slightest fear of the

(e) No attorney or solicitor shall be capable to continue or be a justice of the peace for any county within that part of Great Britain called England, or the principality of Wales, during such time as he shall continue in the business and practice of an attorney or solicitor. Id. s. 33.

(f) The prohibition last hereinbefore contained, shall not extend or be construed to extend to any city or town being a county of itself, or to any city, town, cinque

port, or liberty having justices of the peace within their respective limits and precincts by charter, commission, or otherwise, but that in every such city, town, liberty, and place, attornies or solicitors may be capable of being justices of the peace, and in such manner only as they might have been if this act had never been made, any thing herein-before contained to the contrary thereof in anywise notwithstanding. Id.

S. 34.

client afterwards denying the retainer. There is no particular form required; and it may be comprised in a very few words. Where the assignee of a debt, gave his attorney authority to sue for it in the assignor's name, the authority was deemed sufficient. Pickford v. Ewington, 4 Dowl. 453. In affidavits made by attornies for parties to a cause, they always describe themselves as the attornies for such parties, in order to show to the court that they are retained, and that the court may accordingly know how to deal with their statements. See Volet v. Wuters, 3 D. & R. 55. If, however, it turn out that an attorney has sued without authority, the court will not set aside the proceedings, unless it appear that the attorney is insolvent. Stanhope v. Firmin, et al., 3 Bing. N. C. 301. See Hammond v. Thorpe, 1 Cr. M. & R. 64. Carman v. Edwards et al., 9 Car. & P. 596. Anon. 1 Chit. 193 (a.)

By stat. 2 W. 4, c. 39, s. 17, "every attorney whose name shall be indorsed on any writ issued by authority of this act, shall, on demand in writing made by or on behalf of any defendant, declare forthwith whether such writ has been issued by him, or with his authority or privity; and if he shall answer in the affirmative, then he shall also, in case the court or any judge of the same or any other court shall so order and direct, declare in writing, within a time to be allowed by such court or judge, the profession, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of the court from which such writ shall have appeared to have issued; (see Johnson v. Birley, 5 B. & A. 540. Hayes v. Carr. 11 Law J., 111, cp. Smith v. Bond, 11 Mees. & W. 326, 12 Law J., 343. ex.;) and if such attorney shall declare that the writ was not issued by him, or with his authority or privity, the said court, or any judge of the said courts, shall and may, if it shall appear reasonable so to do, make an order for the immediate discharge of any defendant or defendants who may have been arrested on any such writ, on entering a common appearance." This section however extends, not merely to bailable, but to nonbailable writs also. Gilson v. Carr. 4 Dowl. 618. And by R. G. M. 3 W. 4, "if any attorney shall, as required by the said act, declare that any writ of summons or capias, upon which his name is indorsed, was not issued by him, or with his authority or privity, all proceedings upon the same shall be stayed until further notice."

It may be useful to mention here, that although an attorney's undertaking to carry on a suit, is an entire contract to carry it on to its termination, and can be determined by the attorney only upon reasonable notice: see Harris et al. v. Osbourn, 2 Cr. & M. 629: yet an attorney who has undertaken a cause, is not bound to proceed in it without adequate advances from time to time by his client, for expenses out of pocket; and therefore, the court will not compel an attorney, even after no

tice of trial, to carry the cause into court, unless the client supply him with the necessary funds for that purpose. Wadsworth v. Marshall, 2 Cromp. & J. 665. And if the client fail to supply him with such funds, he may decline proceeding any further in the suit, and may maintain an action against his client for the costs already incurred; Vansandau & Tindale v. Brown, 1 Dowl. 715; although after such refusal, he cannot perhaps retain the papers in the cause, upon the ground of having a lien upon them, until the costs are paid. Id. Still, however, an attorney cannot in such a case abandon a suit, without giving a reasonable notice to his client of his intention to do so, nor can he maintain an action for the costs already incurred. Nicholls v. Wilson, 12 Law J., 266 ex, 2 Dowl. N. C. 1031. And therefore, where an attorney, only five days before the commencement of the assizes, gave notice to his client that he would not deliver briefs to counsel, unless he were furnished with funds for the purpose, and such funds not being furnished, counsel were not instructed, and a verdict was given against the client : in an action against the attorney for negligence, the court held that the jury were properly directed to find for the plaintiff, if they thought the attorney had not given reasonable notice to the client of his intention to abandon the cause. Hoby v. Built, 3 B. & Ad. 350.

Change of an attorney.] No person shall change his attorney, without a rule of court or judge's order for that purpose, and notice thereof to the adverse party or his attorney; and the new attorney shall take notice, at his peril, of the rules whereunto the former attorney was liable. R. M. 1654, s. 10, K. B.; R. M. 1654, s. 13, C. P. And the practice is the same in the Exchequer. Dax. 28. May v. Pike, 4 Mees. & W. 197. See Macpherson v. Robinson, 1 Doug. 217. Therefore where a defendant appeared to an action by one attorney, it was holden that he could not afterwards make an application to the court by another, without having obtained an order to change the first. Ginders v. Moore, 1 B. & C. 654. So, if a defendant give notice of bail by one attorney, and then, without any order to change that attorney, give notice of justification by another, this is a good objection to their justifying. Hill v. Roe, 6 Taunt. 532. But where a defendant, upon being arrested, employed an attorney to put in bail, and afterwards employed another to carry on the proceedings generally; and both attornies put in bail; the last set of which the plaintiff treated as a nullity, but to the first set he excepted; and the first set not justifying, he obtained an attachment against the sheriff: the court held that he could not treat either set of bail as a nullity, and they accordingly set aside the attachment. Gilmour v. Brindley, 7 D. & R. 259. Also, where notice of bail was given by the defendant's attorney, and the bail to the sheriff also put in bail above by another attorney, without any order to change this was