*PLEAS IN ABATEMENT. In the King's Bench. [458] PRIVILEGE. (a) Term, 51 Geo. 3. C. D. gent. one, &c, ats. A. B. } And the said C. D. in his own proper person Plea of privicomes and defends the wrong and injury, when, lege by an attorney of &c. and says, that before and at the time of the exhibiting of the said C. P. to an acbill of the said A. B. he the said C. D. was, and from thence hitherto tion in K. B. (b). hath been, and still is one of the attorneys of the court of our lord the king of the Bench at Westminster, in the county of Middlesex; and that he the said C. D. during all the time aforesaid, hath prosecuted and defended, and still doth prosecute and defend divers suits and [459] pleas in the same court of the Bench, for divers liege subjects of our said lord the king, as their attorney (c); and the said C. D. further saith, that he and all other the attorneys of the said court of the Bench, prosecuting and defending suits and pleas for their clients, in the said court of the Bench, ought, (d) by an ancient and laudable custom, from (a) As to the title of the term, and when an imparlance is necessary, see ante, 453, 4. 2 Saund. 2. n. 2. 2. A plea in abatement must not be intitled of a term subsequent to the declaration without a special imparfance, and if it be the plaintiff, may treat the plea as a nullity and sign judgment. 7 T. R. 447. n. d. but it may be intitled of the preceding term, 1 T. R. 278. or of the subsequent term with a special imparlance, as ante, 453, 4. (b) See ante, Vol. 1. Index, tit. Abatement, and the precedents, 1 Lil. Ent. 3. 9. 1 Wentw. Ind. iv. xviii. 8 T. R. 631. 1 Mod. Ent. 2. 11. Lutw. 639. Sometimes the precedents commence by defending the wrong and injury, when, &c. and that the court ought not to take cognizance, and this will suffice, see 8 T. R. 631. but it seems more correct to omit the "when, &c." and only to conclude the plea, by praying judgment, if the court will take further cognizance of the suit, see 3 T. R. 186. Gilb. C. P. 209. Lutw. 639. Latch. 178. When (c) This allegation is unnecessary, (d) It is more correct thus than in PRIVILEGE. time immemorial used and approved of, according to the laws and customs of this realm, and the liberties and privileges of the said court of the Bench, to be free and exempt from being compelled against their will, and have not, nor hath any or either of them, at any time or times, whatsoever, hitherto been used or accustomed to be compelled to answer any plea or plaint, in any action personal, (pleas of freehold, felony, and appeals only excepted,) before any justice or ministers of our said lord the king, or other judge whomsoever, in any court whatsoever, except before the justices of our the said lord the king of the court of the Bench at Westminster aforesaid, by bill filed in the said court, against such attorney or attorneys as present there in court (e); and this he is ready to verify, wherefore he prays judgment if the said court of our said lord the king, before the king himself now here, will, or ought to take cognizance of the said plea (ƒ). [Add an affidavit of the truth, as below (g)]. · In the K. B. (or C. P.) Affidavit of the truth therefore (g). [460] Plea of privi lege by an attorney of K. B. sued by látitat (i). ----- plaintiff, Between { A. B. ----------- C. D. gent. one, &c. defendant. C. D. of - », gentleman, one of the attorneys of the court of " the defendant in this cause, maketh oath, and saith, that the plea hereunto annexed, is true in substance and fact. Sworn, &c. In the King's Bench. C. D. gent. one, &c. ats. A. B. C. D. (h) Term, 51 Geo. 3. And the said C. D. in his own proper person, comes and defends the wrong and injury, and says, that before and at the time of the exhibiting the bill of the said A. B. he the said C. D. was and from thence hitherto hath been, and still is one of the attorneys of the court of our said lord the king, before the king himself present here in court, in his own person, and 5. the negative, 2 Ld, Raym. 869. 898, 9. person in his own court, 12 East. 544, (e) The plea may be pleaded with a profert of the writ of privilege, and then it cannot be denied that he is an attorney, 2 Salk. 545. Skin. 582. Com. Dig. Abatement, D. 6. (f) This conclusion is proper in this case, where the defendant is sued out of his own court, and it will suffice when he is sued as a common (g) It is doubtful whether a plea of privilege by an attorney need be verified by affidavit, 3 B. & P. 397. Prac. Reg. 5. ante, Vol. 1. Index, tit. Affidavit. (h) As to the title of the term, and when an imparlance is necessary, see ante, 458. n. a. 2 Saund. 2. note 2. (i) Observe the notes to the last precedent, and see 9 East. 424. How privilege is to be stated in C. P. See 1 Wentw. 64. 53. 9 East. 424. that he the said C. D. during all the time aforesaid, hath prosecuted and PRIVILEGE. defended, and still doth prosecute and defend, divers suits and pleas in the same court, for divers liege subjects of our said lord the king, as their attorney; And the said C. D. further saith, that he and all other the attorneys of the said court of our said lord the king before the king himself, prosecuting and defending suits and pleas for their clients in the said court of our said lord the king, before the king himself, ought by an ancient and laudable custom from time immemorial used and approved of according to the laws and customs of this realm, and the liberties and privileges of the said court, have been and ought to be in all personal suits, at the suit of any subjects of our said lord the king, impleaded only by bill exhibited in the said court of our said lord the king, before the king himself, against such attorneys respectively, as being present in the same court, in their own proper persons, and not as being in the custody of the marshal of the Marshalsea of our said lord the king, before the king himself; and this he the said C. D. is ready to verify; wherefore because he the said C. D. is not impleaded in this action as one of the attorneys of the said court of our said lord the king, before the king himself, he the said C. D. prays judgment whether he ought to be compelled to answer the said bill (k), &c. [Add an affidavit of the truth of the plea, as ante, 459.] [461] [The following is the plea in Comerford v. Price, Dougl. 312. which Another plea was holden sufficient on demurrer.]—And the said C. D. in his own of privilege by defendant proper person comes and defends the wrong and injury, and says that as attorney of he ought not to be compelled to answer the said original writ, because K. B. to an action by origihe says that the said C. D. now is, and on the day of suing out the nal. said original writ, and long before, was one of the attorneys of the court of our said lord the king, before the king himself, and that according to the custom of the said court, and the privileges of such attorneys from time whereof the memory of man is not to the contrary, used and approved of in the same court, every attorney of the same court who is sued and impleaded in the same court of our said lord the king, before the king himself, in any personal action at the suit of any subject of this realm, during the time of his remaining and being an attorney of the said court, ought to be sued and impleaded in the said court as a privileged person, that is to say, by bill filed and exhibited in the same court against such attorney as being present in the same court in his own proper person, and that no attorney of the said court ought nor of right hath at any time during all the said time whereof the memory of man is not to the contrary, against his will been compelled to answer any person in any personal action prosecuted in the same court here by original writ sued out against him at the suit of any person. And the said C. D. in fact saith, that he is im (k) As to the conclusion see 12 East. 544, 5. and ante, 459. note f. PRIVILEGE. pleaded by the original writ aforesaid against his will, and against the [462] custom and privileges aforesaid. And this *he is ready to verify, wherefore he prays judgment of the said original writ sued out in this cause, and that the same may be quashed (1). [Add affidavit of truth, as ante, 459.] COVERTURE. In the K. B. (or C. P.) Coverture of C. D. the plaintiff (n). ats. A. B. } (m) Term, 51 Geo. 3. And the said C. D. in his person (or “by G. H. his attorney,”) comes and defends the wrong and injury, when, &c. and prays judgment of the said bill (or “writ”) of the said A.; because he says that the said A. before and at the time of the commencement of this suit, was and still is married to one E. F. then and yet her husband, who is still living, to wit, at, &c. aforesaid; and this he the said C. D. is ready to verify, wherefore because the said E. F. is not named in the said bill (or "writ") of the said A. the said C. D. prays judgment of the bill (or “ writ”) aforesaid, and that the same may be quashed, &c.— [Add affidavit of the truth in substance as ante, 459.] 66 In the K. B. (or C. P.) Coverture of C. F. sued by the name of C, D. the defendant (p). [463] ats. A. B. (0) Term, 5 Geo. 3. And the said C, in her own proper person (9) comes and prays judg ment of the said bill of the said A. B. *because she says that at the time of the exhibiting of the said bill of the said A. B. she was, and still is married to one E. F. who is still living, to wit, at, &c. aforesaid; and this she is ready to verify, wherefore because the said E. F. is not named in the bill aforesaid, she prays judgment of the said bill, and that the same may be quashed, &c. (r) [Add affidavit of the truth, similar in substance to the form, ante, 459.] (1) See 12 East. 544. and ante, 458. n. a.-2 Saund. 2. note 2. 459. f. (m) See the precedents, Ast. Ent. 9. 3 Inst. Cl. 70. id. puis darein Continuance, Thomp. Ent. 1. As to the the title of the term, and when special imparlance is necessary, see Vol. 1. Index, tit. Abatement, ante, 458. n. a. 2 Saund. 2. note 2. (n) See the precedents, 1 Wentw. 47. Id. Index. 1x. Lil. Ent. 123. (0) As to the title of a term, and when an imparlance is necessary, see Vol. 1. Index Abatement, and ante, (2) Coverture can only be pleaded in bar, when the defendant was married at the time when the supposed contract was made. In other cases it must be pleaded in abatement, 3 T. R. 631. evidence in support of it. 2 Campb. 113. (9) In Lutw. 23. coverture was pleaded by attorney, but this is incorrect. See 2 Saund. 209. c. Lil. Ent. 1. 2 Rich. C. P. 1. (r) The conclusion in 1 Lutw. 23. is different. In the K. B. (or C. P.) C. D. ats. (1) 57 Geo. 3. NON-JOINDER. the contracts And the said C. D. by E. F. his attorney, comes (u) and de- Plea in asA. B. fends the wrong and injury, when, &c. and prays judgment sumpsit, that (x) of the said bill, (or by original, or in C. P. " writ and declara- were made tion,") (y) because he says that the said several supposed promises and jointly with another person undertakings in the said declaration mentioned, if any such were made, not joined (s). were made jointly with one E. F. who is still living, (z) to wit, at, (a) &c. and not by the said C. D. alone; and this he the said C. D. is ready to verify, wherefore inasmuch as the said E. F. is not named in the said bill (or *" writ,") together with the said C. D. he the said C. D. prays judgment of the said bill (or by original, or in C. P." writ and declaration (b),") and that the same may be, quashed, &c. [Add affidavit, as ante, 459.] [464] The like to a declaration in debt on bond, To debt on bond, the plea in abatement of non-joinder craves oyer of the bond, and avers that the party omitted sealed and delivered the deed, and that he is still living, see 1 Saund. 291. a. n. 2. b. n. see the &c. precedents Lutw. 696. Lil. Ent. 2. 2 Rich. Prac. K. B. 17. Ast. Ent. 7. See a precedent of a plea in abatement in covenant, Lil. Ent. 7. and 2 Rich. Prac. K. B. 18. (8) See the precedents, 1 Wentw. Index, and pages 16. 33. 44. 68. (t) When a special imparlance is necessary, see vol. 1. Index Abate ment, and ante, 458. n. ș. 2 Saund. 2. n. 2. (u) May be by attorney, Lutw. 696. (x) In Moore. 30. and 1 Lutw. 11. it is said that a plea in abatement on account of matter dehors should not commence with a prayer of judgment but only conclude with it and see ante, 1 vol. 451. but this distinction does not seem attended to in 1 Lil. Ent. 6. Thomp. Ent. 1. (y) When the plea in abatement of nonjoinder is to the whole of the action, it is not necessary to plead in abatement both of the declaration and writ, but it is sufficient to plead to the writ or VOL. II. bill only, but where it is intended to (z) A plea in abatement of nonjoin- (a) No venue is necessary, 2 Hen. Bla. 161. 7 T. R. 243. (¿) As to the introduction or omission of the word "declaration," vide 2 Saund. 209. d. Tidd. Prac. 4th edit. 577.. 2 X |