BOOK 111. PART IL Process to compel Appearance. Appearance. Declaration. Plea, &c. Amendment. Process to compel Appearance.] Formerly, the mode of proceeding to compel an appearance in this action was by original attachment and distringas, in the same manner as it used to be against corporations (h). Now, however, by the 2 W. 4, c. 39, ss. 21, 1, 3, the process against hundredors to enforce their appearance is the same as in ordinary cases, viz. by summons, or summons and distringas. The writ must be against "the men inhabiting within the hundred of in the county of," or other like district generally, and not against any of them by name; otherwise, if the mistake be carried into the declaration, it would be bad even in arrest of judgment (¿). Where the word "hundred" was inserted in the writ and proceedings instead of "borough," the court allowed an amendment by substituting the one for the other (k). But it seems this cannot be done since 2 W. 4, c. 39(1). The writ must be served upon the high constable, or one of the high constables of the hundred or like district (m) in which the offence happened; who should, within seven days after such service, give notice thereof to two justices residing in and acting for the hundred, &c. (n). If the writ be against the inhabitants of a county of a city or town, or the inhabitants of a franchise, liberty, city, town, or place not being part of a hundred or other like district, it may be served on any peace officer thereof (0). Appearance.] The high constable, upon being served with the summons, must enter an appearance, and defend the action for and on behalf of the inhabitants of the hundred or other like district, &c., as he may be advised (p). If he do not, however, the plaintiff may proceed as in other cases, and enter it for them. This appearance must be entered with one of the masters on or before the expiration of eight days after the service of the writ, inclusive of such service, as directed Vol. I. 121. The Declaration.] As to the form of the declaration, see 2 Saund. 376, 376 b, e, f, 377 ƒ, 379; 2 Chit. Pleading, 827 a. plaintiff cannot declare until the defendants have appeared, and then of course it is absolutely; the declaration is then delivered or filed as in ordinary cases. Plea, &c.] The constable may allow judgment to go by default, with the consent and approbation of the two justices (q). The defendant might formerly plead "not guilty," and give all defences in evidence (r); but now, by the recent rules of H. T., 4 W. 4, such defences must be pleaded specially, as in other cases. Amendment.] As this is not a penal action, it is within the (h) See ante, 841. (i) See 2 Saund. 376 f; Id. 375: Johnson v. Jackson, 2 D. & R. 439; 1 B. & C. 304. See the form, Chit. Forms, 498. (k) Horton v. Inhabitants of Stamford, 2 Dowl. 96; 1 C. & M. 773; 3 Tyr. 869, S. C. (1) Roberts v. Bate, 6 Ad. & El. 778. (m) 2 W. 4, c. 39, s. 13, ante, Vol. I. 115. (n) 7 & 8 G. 4, c. 31, s. 4. (0) 2 W. 4, c. 39, s. 13, ante, Vol. I. 115. (p) 7 & 8 G. 4, c. 31, s. 4. (r) See Vid. Ent. 211: Lil. Ent. 296: Hans. Ent. 4: 1 And. 158. statutes of jeofails, and is also amendable even after issue joined, in the same manner as any other civil action (s). CHAP. II. SECT. 2. Evidence.] Hundredors are made cómpetent witnesses by Evidence. the 7 & 8 G. 4, c. 31, s. 5. Damages.] The plaintiff cannot proceed by action, unless Damages. his loss exceed 301.; for a loss amounting to that sum or under, his remedy is by summary proceedings before justices at a special petty session (t). As to the mode of assessing damages, &c., see Duke of Newcastle v. Hundred of Broxtowe, 4 B. & Ad. 273. Costs.] The plaintiff in this action is entitled to costs if he Costs. recover (u). So the hundred will, it seems, be entitled to costs if the plaintiff be nonsuit, &c., as in other cases (x). Execution.] The execution is by fieri facias against the Execution. inhabitants of the hundred, &c., generally, directed to the sheriff of the county in which such hundred, &c., is situate, and indorsed thus: "The within damages are to be levied according to the statute 7 & 8 G. 4, c. 31," adding the attorney's name and residence, and the day of the month and year (y). The 13th section of the act makes provision for executing writs in certain places. When this writ is delivered to the sheriff, instead of levying the amount on any of the inhabitants of the hundred, &c., he must proceed as directed by the 6th section of the act. The 7th section of the act points out the mode of reimbursing the high constable for his expenses in defending the action. The 14th and 15th sections point out the mode of reimbursments in towns, &c., not in a hundred, but contributing to the county rate, and vice versa. (8) Bearecroft v. Hundreds of Burnham and Stone, 3 Lev. 347: Merrick v. Hundred of Ossulston, Hardw. 409; Andr. 115, S. C. (f) See the 7 & 8 G. 4, c. 31, ss. 8, 9. Cowp. 485: Witham v. Hill, 2 Wils. 91. (y) See the form of writ, Chit. Forms, CHAPTER III. ACTIONS BY AND AGAINST ATTORNIES AND OFFICERS OF THE COURT, AND AGAINST THE MARSHAL OR WARDEN. SECT. 1. Actions by Attornies and Officers, 846, 847. 2. Actions against Attornies and Officers, 847 to 849. BOOK III. Process in Privileges not 2 W. 4, c. 39. SECT. 1. Actions by Attornies and Officers. FORMERLY, an attorney or officer of the Courts of Queen's Bench or Common Pleas had in most cases the right of suing in the court of which he was an attorney or officer by attachment of privilege; and, having brought the defendant before the court by that writ, he might have declared against him, and proceeded in the action as in ordinary cases. Now, however, the right of suing by this attachment of privilege is abolished by the 2 W. 4, c. 39, ss. 21, 1, 3, 4, and an attorney must, in all cases, sue in the same way as any other person must. Inasmuch as this statute thus abolishes the writ of attachabolished by ment of privilege, so as to leave an attorney no option as to whether he will sue by it or not, his other privileges are not in anywise affected by the statute, and those privileges still exist to the same extent as they did before the statute, when he sued by attachment of privilege (a). As to what privileges an attorney plaintiff has, and how they may be lost or waived, see ante, Vol. I. 47 to 49. Delivery of Venue. Where the action is for costs for business done in a court of law or equity, a bill must, in general, be furnished to the client a month previously to the writ being sued out, as fully pointed out, Vol. I. 69; and a duplicate of the bill should be kept, in order to be given in evidence at the trial (b). The plaintiff, in transitory actions, suing by himself as an attorney (c), may lay the venue in Middlesex; and it cannot afterwards be changed upon the usual application by the de (a) Meggison v. Cole, MS., K. B., 11th June, 1833: Lewis v. Kerr, 2 M. & W. 226; 5 Dowl. 447, S. C.: and see Dyer v. Long, 4 Dowl. 630. (b) Vol. I. 85. (c) Harrington v. Page, 2 Dowl. 164: Lowless v. Timms, 3 Dow. 707. SECT. 1. fendant, as in ordinary cases (d); and this although he has CHAP. II. not entered his certificate (e). The other proceedings are, in general, the same as in proceedings against ordinary persons. SECT. 2. Actions against Attornies and Officers. FORMERLY, an attorney or officer of the Courts of Queen's Process Bench or Common Pleas must have been sued in the court of against. which he was an attorney or officer, by bill. Now, however, this privilege of being sued by bill is abolished by the 2 W. 4, c. 39, ss. 21, 1, 3, 4, and an attorney must in all cases be sued as any other person. Although this enactment abolishes the former mode of proceeding in an action against an attorney, his other privileges still continue. Therefore, when a sole defendant, and not sued en autre droit (f), he must as formerly be sued in the court of which he is an attorney; and if sued in another court, he might plead his privilege in abatement (g). As to the privileges of attornies when defendants, see ante, Vol. I. 47. Conscience. Attornies, unless expressly mentioned, are not affected by Being sued in Court of Conscience acts, either as plaintiffs (h) or defend- Courts of ants (i); in some instances, however, attornies, as defendants, are subject to the jurisdiction of courts of conscience, by the express provision of the statutes regulating such courts; as in Westminster, (6 & 7 W. 4, c. cxxxvii. 8. 49; and see 24 G. 2, c. 42, s. 1) (j), London, (5 & 6 W. 4, c. xciv. s. 22; and see 39 & 40 G. 3, c. civ. s. 10), the Tower Hamlets, (19 G. 3, c. 68, s. 24), Southwark, (4 G. 4, c. exxiii. s. 7), and the eastern half of the hundred of Brixton, (Ib.), when they reside within such jurisdictions respectively. Therefore, for debts within the cognizance of these courts, attornies residing within their jurisdiction must be sued there, and not in the superior courts. But in an action against an attorney, where there is a verdict for less than 408. damages, the judge at Nisi Prius may, it seems, as in other cases, certify under the 43 Eliz. c. 6, to prevent the plaintiff from recovering his costs (k). An attorney or officer of the court, as we have already seen, Discharge (Vol. I. 468), cannot in general be holden to bail; but in some (d) Partington v. Woodcock, 2 Dowl. 550: Meggison v. Cole, MS., K. B., 11th June, 1833: Pope v. Redfearne, 4 Burr. 2027: Yeardley v. Roe, 3 T. R. 573: see Lewis v. Shelley, 7 Taunt. 146: Mounsey v. Watson, 7 B. & C. 683. (e) Partington v. Woodcock, 2 Dowl. 550. Newton v. Rowland, Í Ld. Raym. 533; 1 Salk. 2, S. C. g) Lewis v. Kerr, 2 M. & W. 226: 5 Dowl. 447, S. C.: Percival v. Cook, 7 Dowl. 500: and see Dyer v. Levy, 4 Dowl. 630: Davidson v. Chilman, 1 Bing. N. C. 297; 1 Scott, 117, 8. C. Before the 2 W. 4, c. 39, in all cases where an attorney was not expressly made subject to the jurisdiction of a court of conscience, he must have been sued in the court of (h) Johnson v. Bray, 2 B. & B. 698: (i) Wiltshire v. Lloyd, Doug. 366, 381: Hodding v. Warrand, 7 East, 50. He is not subject to the jurisdiction of the county court of Middlesex. (23 G. 2, c. 33: Gardner v. Jessop, 2 Wils. 43: Wiltshire v. Lloyd, 1 Doug. 380: but see Silk v. Bennett, 3 Burr. 1583: Parker v. Vaughan, 2 B. & P. 29). (k) Wright v. Nuttall, 10 B. & C. 492; 5 M. & Ry. 454, S. C. from and Remedy for BOOK III. Arrest on cess. Appearance. Declaration. Plea, &c. cases already pointed out (ante, 847, 848) he loses this privilege. If he be improperly arrested upon mesne process issuing out of the court of which he is an attorney the court, or a judge at chambers, will discharge him, upon entering a common appearance; but, if he be an attorney or officer of another court, his only remedy is by suing out a writ of privilege, and pleading it in abatement (1). Trespass is not maintainable for holding an attorney to bail, notwithstanding his privilege (m); the only form of remedy would be by action in the case, and then it would lie only where the arrest was with knowledge of the defendant's being an attorney (n). The application for the discharge should be made without delay (6). As to the mode of suing out a writ of privilege, and obtaining a supersedeas thereon, where the arrest is under process from an inferior court, see Vol. I. 469. An appearance is entered, &c., as in ordinary cases. (Vol. I. 121). The time for declaring and mode of declaring are the same as in ordinary cases (p). An attorney or officer, when a defendant, has not the privilege of changing the venue to Westminster, when laid in any other county (9), unless upon the usual affidavit, as in ordinary cases(r). Formerly, when the proceedings in the Queen's Bench were by bill, if the copy of the bill were delivered on or before the last day of the term, the defendant must have pleaded within the four days, whatever might be the distance of his residence from London (s), or wherever the renue was laid (t); but if the copy was not delivered within that time, the defendant might plead at any time within the four first days of the following term (t); and the notice must have been indorsed on the copy of the bill accordingly. In accordance with this practice, it should seem, that, notwithstanding the new mode of proceeding against an attorney introduced by the 2 W. 4, c. 39, he must plead to the declaration within four days, whatever may be his distance from London, or wherever the venue is laid (u), and this in either of the courts. All the remaining proceedings in the action are the same as in ordinary cases. (1) Vol. I. 468: see Hopkins v. Squibb, (q) Yeardley v. Roe, 3 T. R. 573: Pope v. Redfearne, 4 Burr. 2027: Pye v, Leigh, 2 BL. Rep. 1065. (r) See Book IV. Part I. Ch. 6: see Wigley v. Morgan, 2 Str. 1049. (s) Mann v. Fletcher, 5 T. R. 309: Pasmore v. Goodwin, 2 Salk. 517. (t) R. E., 5 A. r. 3 a. (u) See Lowder v. Lander, 5 Dowl. 694: Brenton v. Lawrence, 5 Dowl. 306: and Mann v. Fletcher, 5 T. R. 369. |