Attachment for disobedience of. Affidavit for obtaining judge's order, &c. Further proceedings. Rules on sheriff, &c. to return process issued out of courts abolished by ad ministration of justice act, and to bring in the body thereon. Attachment against sheriff, or bail-bond, standing as a security. on; but an attachment shall issue forthwith, for disobedience of such order, whether the bail shall or shall not have been put in and perfected in the meantime. An affidavit of facts is necessary, on the latter rule, for obtaining a judge's order to bring in the body in vacation; and the proceedings thereon are similar to those which have been already stated, on a judge's order to return the writ in vacation. The court, however, will, upon payment of costs, set aside an attachment issued against the sheriff, upon the above rule, bail having been put in and perfected after the contempt, and before the issuing of the attachment. If special bail be put in and perfected, within the time allowed by the rules or orders, to return the writ and bring in the body, the plaintiff declares, and the cause proceeds in the ordinary way. In the Exchequer of Pleas, a rule was made on the administration of justice act, that "in case any process should have issued out of any of the courts abolished by that act, the sheriff, to whom the same might have been issued, might be ruled to return such process into the court of Exchequer, in like manner as if the said process had been returnable in that court; and if such sheriff should have made a return to the said court, so abolished as aforesaid, or should make a return to the said court of Exchequer, of cepi corpus, he might be ruled in like manner, to bring in the body; and process so issued as aforesaid, might be returned to that court, by the sheriffs of the county of Chester, county of the city of Chester, and principality of Wales, in like manner as if the same had been returnable in that court."& Upon staying proceedings, either upon the bail bond, or upon an attachment against the sheriff for not bringing in the body, on perfecting bail above, if the plaintiff has lost a trial, the court or a judge will further require the bail to consent, that the bail-bond shall stand as a security. By losing a trial was formerly meant, that the plaintiff had been prevented, by the neglect of the defendant to put in or perfect bail in due time, from trying his cause in, and obtaining judgment of the same term in which the writ was returnable. This, of a For the form of an affidavit, in support of the rule for an attachment, for not bringing in the body, see Append. to Tidd Sup. 1833, p. 287; and for the rule for an attachment thereon, id. 288. b Rex v. Sheriff of Middlesex, in Watts v. Hamilton, 2 Nev. & M. 674. 2 Dowl. Rep. 432. S. C. 11 Geo. IV. & 1 W. IV. c. 70. § 14. d R. M. 1 W. IV. reg. III. § 6. I Cromp. & J. 285. 1 Tyr. Rep. 165, 6., and see Tidd Prac. 9 Ed. 306. e 1 Chit. R. 270. (a.) 357. (a.) and see Jaques v. Campbell, 1 Dowl. & R. 450. Rex v. Sheriff of Middlesex, in Waterhouse v. Eames, 8 Dowl. & R. 140. Rex v. Sheriff of London, in Lazarus v. Tanner, 9 Moore, 422. 2 Bing. 227. S. C. course, could only happen in town causes, or where the venue was laid in London or Middlesex: In country causes, it was not formerly usual, on staying proceedings against the sheriff, or on the bail-bond, when a trial had been lost, to require the sheriff, or bail, to consent that the bond should stand as a security, though there seems to have been the same reason for it as in town causes a. But now, by a general rule of all the courts", "upon staying proceedings, either upon an attachment against the sheriff for not bringing in the body, or upon the bail-bond, on perfecting bail above, the attachment, or bail-bond, shall stand as a security, if the plaintiff shall have declared de bene esse, and shall have been prevented, for want of special bail being perfected in due time, from entering his cause for trial; in a town cause, in the term next after that in which the writ is returnable, and in a country cause, at the ensuing assizes." Under this rule, the plaintiff must declare conditionally, if he can, in order to entitle him to have the bail bond, or an attachment against the sheriffa, stand as a security. And where an arrest took place on the 5th January, and bail was put in on the 12th, and the body rule expired on the 20th, the court held, that an attachment obtained in Hilary term, might be set aside, without its standing as a security; as the plaintiff had not been prevented from entering his cause for trial, in the term next after the return of the write. a Tidd Prac. 9 Ed. 303, 4. 317. R. H. 2 W. IV. reg. V. 3 Barn. & Ad. 392. 8 Bing. 306, 7. 2 Cromp. & J. 200. Balmont (or Ballmont) v. Morris, 1 Cromp. & M. 661. 3Tyr. Rep. 821. S. C. d Rex v. Sheriff of Middlesex, 1 Dowl. Rep. 454, per Patteson, J. Rex v. She riff of Middlesex, 8 Leg. Obs. 491. per Parke, B. Rex v. Sheriff of Essex, in Alexander v. Barrington, 2 Dowl. Rep. 648. per Parke, B.; and see Rex v. Sheriff of Middlesex, in Watts v. Hamilton, 2 Nev. & M. 674. 2 Dowl. Rep. 432. S. C. Rex v. Sheriff of Middlesex, in Disney v. Anthony, 4 Dowl. Rep. 765. CHAP. XIV. Privileges of attornies, what. Before uniformity of process act. Of the PRIVILEGES of ATTORNIES; and MODE of PRO- THE privileges of attornies, not affected by the uniformity of pro cess act, are first, of suing, and being sued, in their own courts; secondly, of freedom from arrest; and thirdly, of laying the venue in Middlesex. When an attorney of the King's Bench, or Common Pleas, was plaintiff, he was formerly entitled to sue in his own court, by attachment of privilege a; and when he was defendant, he must have been sued in his own court, by bill, even as acceptor of a bill of exchange c In the Exchequer of Pleas, an attorney, side clerk, or other officer, might have sued by venire facias, or capias of privileged; and must How affected by have been sued by bill. The privileges of an attorney, however, to sue in his own court, by attachment of privilege in the King's Bench and Common Pleas, and by capias of privilege in the Exchequer, and to be sued by bill in all the courts, are taken away by the uniformity of process acte; by which it is declared, that "the writs of summons, capias, and "detainer, shall be the only writs for the commencement of personal "actions, in any of the courts therein mentioned, in the cases to which "such writs are applicable:"f An attorney, therefore, must now sue, like other persons, by writ of summons, capias, or detainer; and be sued by writ of summons. But though the mode of commencing actions by and that act. Of suing, and a Seaman v. Ling, 2 Salk. 668. Pope v. Redfearne, 4 Bur. 2027. Pye v. Leigh, 2 Blac. Rep. 1065. Yeardley v. Roe, 3 Durnf. & E. 573. b 3 Blac. Com. 289. Duffy v. Oakes, Comerford v. Price, Doug. 312. Tidd Prac. 9 Ed. 80. 960. Walker v. Rushbury, 9 Price, 16. Tidd Prac. 9 Ed. 81. Append. thereto, Chap. XIV. § 15, 16. e 2 W. IV. c. 39. § 21. Ante, 59. f Wright v. Skinner, 1 Meeson & W. 144. 1 Tyr. & G. 277. 4 Dowl. Rep. 745. S. C. theirown courts. How affected by court of requests' acts. against attornies, is altered by the above act, yet they still, it seems, being sued, in retain their privilege of suing, and being sued, in their own courts". An attorney, when plaintiff, was not formerly obliged to sue for a debt under five pounds, in the court of Requests for London: And where a clerk in court in the Exchequer, with an attorney of the King's Bench, sued an attorney of the latter court, by capias of privilege, and recovered less than five pounds, the court of Exchequer held, that it was not a case within the London court of Requests' act. But where an attorney of the King's Bench sued an attorney of the same court by bill, and recovered less than five pounds, it was holden, that he was not entitled to costs, under the above act . The jurisdiction given to the commissioners, by the late court of Requests' act for London, is a concurrent only, and not an exclusive jurisdiction: and as there is no prohibitory clause therein, as in the court of Requests' acts for Westminster, the Tower Hamlets, and other places", an attorney, or other person, is not bound to proceed in the court of Requests for London; but may bring his action in a superior court, for the recovery of any sum, however trifling, subject to the certificate of a judge, to deprive him of costs, under the statute 43 Eliz. c. 6. where the debt or damages recovered do not amount to forty shillings. But, in the late court of Requests' act for Westminster, there is a clause, that "no action or suit, for any debt not exceeding the sum of forty shillings, " and recoverable by virtue of that act, in the said court of Requests, "shall be brought against any person residing or inhabiting within "the jurisdiction thereof, in any other court whatsoever." An attorney, therefore, would not now be allowed to sue in a superior court, for a debt not exceeding the sum of 40s. recoverable by virtue of the latter act. When an attorney is defendant, he is not subject to the a Chapm. K. B. 2 Addend. 75. ; and see Davidson v. Chilman, (or Watkins,) 1 Scott, 117. 1 Bing. N. R. 297. 3 Dowl. Rep. 129. S. C. Lewis v. Kerr, 13 Leg. Obs. 62. Board v. Parker, 7 East. 47. 3 Smith R. 52. S. C.; and see Johnson v. Bray, 5 Moore, 622. 2 Brod. & B. 698. S. C. Dyer v. Levy, 4 Dowl. Rep. 630. 1 Har. & W. 640. 11 Leg. Obs. 323. S. C. Wright v. Skinner, 1 Meeson & W. 144. 1 Tyr. & G. 277. 4 Dowl. Rep. 745. S. C. Elkins v. Harding, 1 Cromp. & J. 345. 1 Tyr. Rep. 274. S. C. d Burn v. Pasmore, 1 Cromp. & J. 346. (a). 1 Dowl. Rep. 17. 1 Leg. Obs. 158. S. C. e Stat. 5 & 6 W. IV. c. xciv. f 6 & 7 W. IV. c. cxxxvii. § 86.; and see 23 Geo. II. c. 27. § 21. Barney v. Tubb, 2 H. Blac. 352. 8 23 Geo. II. c. 30. § 21. 25 Geo. II. c. 38. Anstee v. Liley, 1 Man. & R. 564. 18 Geo. III. c. 36. § i Wright v. Nuttall, 10 Barn. & C. * 6 & 7 W. IV. c. cxxxvii. § 86. Freedom from arrest. When attornies are of different courts. jurisdiction of the county court of Middlesexa: but in London, Westminster, the Tower Hamlets, Southwark, and the Eastern half of the hundred of Brixtone, he is expressly subjected thereto. Where the plaintiff, however, in an action against an attorney, recovers less than forty shillings damages, in an action for a debt recoverable in the county court, the judge may certify, under the statute 43 Eliz. c. 6. so as to deprive the plaintiff of costs, although the defendant could only be sued in a superior court. 66 66 Attornies also, notwithstanding the uniformity of process act, still retain their privilege of freedom from arrest 8; it being declared by that act, that "nothing therein contained, shall subject any person to arrest, who, by reason of any privilege, usage or otherwise, may now by law be exempt therefrom." An attorney of the King's Bench was formerly allowed to sue an attorney of the Common Pleas, by attachment of privilege; but he could not have been arrested, and holden to special bail: If he were, the court would have set aside the proceedings for irregularity, with costs. So, where an attorney of the Common Pleas had arrested an attorney of the King's Bench, the latter was discharged by the court of Common Pleas, on filing common bail. But, in the Exchequer of Pleas, it was holden that an attorney of the King's Bench, or Common Pleas, might have been arrested and held to bail, at the suit of a sworn or side clerk of the Exchequer, upon a capias of privilege, issuing out of that court 1: and the privileges of the sworn clerks, not being abolished by the administration of justice actm, which opened the court of Exchequer a 23 Geo. II. c. 33. Gardner v. Jes sop, 2 Wils. 43. Wiltshire v. Lloyd, b 5 & 6 W. IV. c. xciv. § 32.; and see € 6 & 7 W. IV. c. cxxxvii. § 49; and see 24 Geo. II. c. 42. § 1. d 23 Geo. II. c. 30. § 21. e 4 Geo. IV. c. cxxiii. § 7. f Wright v. Nuttall, 10 Barn. & C. 492. 5 Man. & R. 454. S. C. the former mode of proceeding, by attachment or capias of privilege, in actions at the suit of attornies, see Tidd Prac. 9 Ed. 319, 20, 21. and by bill, in actions against them, id. 321, &c. h2 W. IV. c. 39. § 19. i Pearson v. Henson, 4 Dowl. & R. 73. Carlon v. Donford, 2 Moore & S. 588.; and see Pitt v. Pocock, 2 Cromp. & M. 146. 4 Tyr. Rep. 85. Keep v. Biggs, 2 Dowl. Rep. 278. S. C. ; but see Adams v. Bugby, 12 Moore, 255. semb. contra. See also Anon. 1 Dowl. Rep. 3. 1 Leg. Obs. 44. S. C. Walker v. Rushbury, 9 Price, 16. Bowyer v. Hoskins, 1 Younge & J. 199, and see Man. Excheq. 142. |