steward, who was an attorney, to compel him to account before the master, for receipts and payments in respect of a mortgaged estate, and to pay the balance to his employer, and deliver up on oath all deeds, writings, &c., relative to the estate; this being the proper subject of a bill in equity, and not a case for a mandamus, to compel a steward of a manor to deliver up court rolls, &c. So the court would not compel an attorney, upon a summary application, to deliver up, on payment of his demand, a lease put into his hands, for the purpose of making an assignment of it; there being no cause in court, nor any criminal conduct imputed to him in respect of it:(h) Nor will they make an order on an attorney, to deliver up a deed, which he holds as party and trustee.(?) And where an attorney had deeds, &c., in his custody, of two co-defendants, the court of Common Pleas would not refer it to the prothonotary, to ascertain which of them he should deliver over to one defendant, on his paying the attorney's debt and costs.(k) When something, however, is to be done, for which a mandamus would lie, as the giving up of court rolls, &c., the court will entertain a summary jurisdiction over an attorney, in obliging him to deliver them up, on satisfaction of his lien :(1) And if a third person appear to be interested therein, the court will take a security, from the person to whom they are delivered, to produce them on demand, for the inspection of such third person.(1) And where the employment of an attorney is so connected with his professional character, as to afford a presumption that his employment was in consequence of that character, the court will interfere in a summary way, to compel him faithfully to execute the trust reposed in him: Therefore, where an attorney was employed by A. to collect and get in the effects due to him as administrator of another person, the court compelled the attorney to render an account to the executors of A., of the moneys, &c., received by him, although he had never been employed by A. or his executors, to conduct any suit, in law or equity, on his or their behalf.(m) The court [*88] has also, we have seen, (a) a summary jurisdiction over matters in difference between attorneys and their clerks.

For the reformation and punishment of abuses in general, there is an old rule of court, (b) which has, however, fallen into disuse, that a jury of able and credible officers, clerks, and attorneys, shall be impanelled once in three years, and sworn to inquire; 1. Of the points usually inquirable by the writ, viz: falsities, contempts, misprisions, and offences: 2. Of such who have been admitted attorneys or clerks, and are notoriously unfit; their names to be presented to the court, and they to be punished or removed, as the case shall require: 3. Of new or exacted fees, (c) and of those that have taken them, under whatsoever pretence; and to prepare and present a table of the due and just fees, that the same may be fixed and continue in every office; and likewise for the Marshalsea and Fleet prisons: And that some persons

(h) 8 East, 237.

(k) 7 Taunt. 391. 1 Moore, 99. S. C.

(i) 5 Taunt. 364.

(1) 3 Durnf. & East, 275, and see 2 Blac. Rep. 912. 5 Taunt. 206. 6 Taunt. 105. (m) 4 Barn. & Ald. 47, and see 2 Chit. Rep. 68. 7 Moore, 437. 1 Bing. 91, S. C. (a) Ante, 68.

(b) R. M. 1654, 2 3, K. B. & C. P., and see R. E. 9 Eliz. C. P., which contains the writ to summon the jury, and lord chief justice Dyer's charge thereon.

(c) As to the fees of attorneys and officers of the court, see R. T. 35 H. VI. 8 5, 6, 7, 8, R. M. 6 & 7 Eliz. 1, 2. R. M. 15 Eliz. 8 5, 6, 11, 12, 13. R. H. 14 Jac. I. reg. 2, 1. R. M. 17 Jac. I. C. P. See also stat. 3 Geo. IV. c. 69, to enable the judges of the several courts of record at Westminster, to make regulations respecting the fees of the officers, clerks, and ministers of the said courts. 3 Dowl. & Ryl. 602.

be enjoined and sworn to give evidence, viz. some clerks of the courts, and some attorneys in every county, not excluding others.

When an attorney is charged by affidavit, with any fraud or malpractice in his profession, contrary to the obvious rules of justice and common honesty, the court, on motion, will order him to answer the matters of the affidavit ;[A] and, in general, if he positively deny the malpractices imputed to him, they will dismiss the complaint; but otherwise they will grant an attachment.(d) And where an attorney, required to answer the matters of an affidavit, swore in his exculpation to an incredible story, the court of King's Bench granted an attachment against him, though he positively denied the malpractices with which he was charged.(e) And where an attorney had behaved himself in such a manner, as to afford reasonable ground for thinking that he had misconducted himself in his professional character, although it turned out, upon investigation, that there was no sufficient ground for imputing actual misconduct to him, the court would not give him his costs of the application.(f) But the court will not call upon an attorney summarily, to answer the matters of an affidavit, charging him with an indictable offence; but will leave the parties complaining to prosecute for the same.(g) It has been doubted, whether the affirmation of a Quaker is admissible, to call upon an attorney of this court, to answer the matters of an affidavit:(h) and the true distinction, to be collected from all the cases upon the subject, seems to be this; that if the object of the *suit or proceeding be to recover a debt, or to give to a party any [*89 ] legal civil right, the affirmation of a Quaker is admissible; and actions on penal statutes are to be considered as actions for debts; but that where the object is not to give to the party any legal civil right, but to punish a person who has done something wrong, the affirmation of a Quaker is not admissible. (a) In the Common Pleas, if an attorney do any thing wrong, quatenus an attorney, in an inferior court, the court will oblige him to answer the complaint.(6)

When an attorney has been fraudulently admitted, (c) or convicted (after his admission,) of felony, (d) or other offence which renders him unfit to be continued an attorney, (ee) or has knowingly suffered his name to be made use of by an unqualified person,(ff) or acted as agent for such person, (ff) or has signed a fictitious name to a demurrer, as and for the signature of a barris

(d) 1 Chit. Rep. 186, and see Bac. Abr. tit. Attorney, H. Append. Chap. III. & 19.

(e) 6 Durnf. & East, 701.

(9) 1 Bing. 102. 7 Moore, 424, S. C. 1 Bing. 142. (a) 1 Dowl. & Ryl. 124, per Bayley J.

(b) 2 Wils. 382, and see 3 Dowl. & Ryl. 602.

(c) 2 Blac. Rep. 991. Ante, 67.

(ee) 6 East, 143, and see 1 Chit. Rep. 557, in notis.

(f) 3 Dowl. & Ryl. 226. (h) 1 Dowl. & Ryl. 121.

(d) Cowp. 829.
(f) Ante, 73, 4.

[4] Attorneys and solicitors are public officers, and are under the government ot the several courts, in regard to their behaviour to their clients. Merritt v. Lambert, 10 Paige, 352, affirmed, Wallis v. Toulat, 2 Den. 607. And may be punished for uttering slanderous words. King v. Wheeler, 7 Cow. 725. It seems that proceedings on motion against an attorney for money collected, is no bar to a recovery in an action on the case for damages. Corpund v. Balevin, 25 Miss. 129. The removal of a solicitor from his office, as solicitor of the court of chancery, for malpractice, deprives him of the power to practise as solicitor, attorney, or counsel, in any other court. Matter of Peterson, 3 Paige, C. R. 510. And an attorney may be removed from office, or suspended from practice in the Common Pleas by that court, on good cause shown; but it is said that ignorance of the law is not a good cause. Bryant's Case, 4 Foster, 149.

ter,(gg) or otherwise grossly misbehaved himself, (hh) the court will order him to be struck off the roll. If an attorney practise, after he has been convicted of forgery, perjury, subornation of perjury, or common barratry, he is liable to be transported.(i) And where an attorney had been struck off the roll of the court of King's Bench, on the report of the master, for misconduct, the court of Common Pleas on motion, supported by an affidavit of the master's report, struck him off the roll of the latter court.(k) But, in a subsequent case, the rule for striking him off the roll was refused; the contents of the affidavits, on which the court of King's Bench acted, not having been stated, and there being no proof or allegation that the attorney had been struck off for a misdemeanor.(1) And striking an attorney off the roll is not always understood to be a perpetual disability; for the court have in some instances permitted him to be restored, considering the punishment in the light of a suspension only.(m)

An attorney may also be struck off the roll at his own instance, as for the purpose of being called to the bar,(n) &c. and if he be afterwards desirous of being restored, he must, if called to the bar, first apply to the inn of court where he was called, to be debarred :(0) But an attorney cannot be struck off the roll at his own instance, though he has never practised, without an affidavit that no proceedings are pending against him.(p) The mode of re-admitting an attorney, who has been struck off the roll at his own instance, is pretty much the same with that of re-admitting him,

when he has not taken out his certificate, which has been already [ *90 ] *treated of.(a) In general, he must satisfy the court that he ought to be restored;(b) and, on one occasion, (c) they required the like notice to be stuck up, and entered at the judge's chambers, as upon an original admission: The court will also make him consent to take no advantage of his privilege, in any action then depending.(d) But the statute 37 Geo. III. c. 90, § 31, being confined to attorneys who have neglected to take out their certificates, does not apply to those who have been struck off the roll at their own instance; and of course the latter may be re-admitted, without paying any fine or arrears of duty.(e)

(gg) 4 Dowl. & Ryl. 738.

(hh) Potter's case, H. 26 Geo. III. K. B. Priddle's case, E. 27 Geo. III. K. B.

(i) Stat. 12 Geo. I. c. 29, 8 4.

(k) 1 Brod. & Bing. 522. 4 Moore, 319, S. C.

3 Brod. & Bing. 257. 7 Moore, 64, S. C. Ante, 67.

(m) 1 Blac. Rep. 222. The like was done by the court, in Trin. 37 Geo. III. K. B.

Append. Chap. III. ¿ 21, 2.

Doug. 114.

(P) 1 Chit. Rep. 557, in notis, and see id. 692. 6 Ves. 11. 8 Ves. 33. Append. Chap. III. 821.

(a) Ante, 79.

(b) Ex parte Sambridge, T. 25 Geo. III. K. B., and see 1 Chit. Rep. 692. (c) Ex parte Vaughan, E. 45 Geo. III. K. B. Ante, 79.

2 Barn. & Ald. 315, (a).

(d) Doug. 114. Barnes, 42.

*CHAPTER IV.

Of the MEANS of COMMENCING personal ACTIONS, in the KING'S BENCH, COMMON PLEAS, and EXCHEQUER; and the PROSECUTION and DEFENCE of them in PERSON, or by ATTORNEY: and of PAUPERS, and InfantS.

THE means of commencing personal actions, in the court of King's Bench, conformable to its jurisdiction, (aa) are

I. By ORIGINAL WRIT;

1. Against common Persons.

2. Against Peers of the Realm, and Members of the House of Commons.

3. Against Corporations, and Hundredors.

II. By BILL OF MIDDLESEX, or LATITAT.

III. By ATTACHMENT of PRIVILEGE, at the suit of Attorneys, and Officers of the Court.

IV. By BILL;

1. Against Members of the House of Commons.

2. Against Attorneys, and Officers of the Court.

3. Against Prisoners, in custody of the Marshal, or Sheriff, &c.

In the Common Pleas, the means of commencing personal actions, are first, by original writ, issuing out of Chancery; which is either a special original, adapted to the nature of the action, or a common original, in trespass quare clausum fregit: The former, though it may be had in any case, is only necessary in the first instance against peers, corporations, and hundredors; the latter, not requiring personal service, is sometimes used, when the defendant keeps out of the way, so that he cannot be arrested, or personally served with process: Secondly, by capias quare clausum fregit, founded on a supposed original, which is the common mode of commencing actions in this court, and answers to the bill of Middlesex or latitat in the King's Bench: Thirdly, by attachment of privilege, at the suit of attorneys and officers of the court: Fourthly, by bill, which is twofold; first, against attorneys and officers; and secondly, against members of the house of commons.(b) It has been said, that if a man be in the Fleet, a plaintiff may have a bill of debt against him, in the same manner as, in *the King's Bench, against a man [ *92 ] in custody of the marshal; (a) though Fitzherbert adds, that it was not usual. In practice, actions against prisoners in custody of the warden of the Fleet, are commenced in the same manner as those against other persons, by original writ.

In the Exchequer, the means of commencing personal actions are first, by venire facias ad respondendum,(bb) which is in nature of an original

(aa) Ante, 37.

(b) 2 Ld. Raym. 1442, per Strange, arg., and see the case of Dawkins v. Burridge, id. ibid. 2 Str. 734, S. C. Ante, 38.

(a) Fitz. Abr. tit. Bill, 18, 3 H. 6, 26, and see 3 Bos. & Pul. 12, (a). (bb) Append. Chap. VIII. 76, &c.

writ; and was the process used at common law, against persons having privilege of parliament :(c) Secondly, by subpoena ad respondendum, (d) which is a process directed to the defendant, anologous to the subpæna in Chancery, or on the equity side of the Exchequer: Thirdly, by quo minus capias, (e) which answers to the bill of Middlesex or latitat in the King's Bench, and capias quare clausum fregit in the Common Pleas : Fourthly, by venire facias,(f) or capias of privilege, (g) at the suit of attorneys and officers of the court: and lastly, by bill, which is threefold; first, against attorneys and officers; (h) secondly, against members of the house of commons, (2) on the statute 12 & 13 W. III. c. 3, § 2; and thirdly, against prisoners,(k) in custody of the sheriff, &c., or warden of the Fleet.(1) In an inferior court, it is no ground of error, upon a judgment after verdict, that the plaint was levied before the cause of action accrued :(m) But it seems that a custom to issue a summons and attachment at the same time, is bad in law.(n)

In the prosecution and defence of personal actions, the parties must appear in person, or by attorney: or, in case of infancy, by prochein amy or guardian.

At common law, the plaintiff and defendant must, in general, have appeared in person: and could not have appeared by attorney, without the king's special warrant, by writ or letters patent.(o) But a corporation aggregate, not being capable of a personal appearance, could only have appeared by attorney, appointed under their common seal.(p) And now, by the statute of Westm. 2, (13 Edw. I.) c. 10, a general liberty is given

to the parties, of appearing by attorney.(q) Yet there are cer[*93]tain persons, such as feme coverts, (a) and idiots,(b) who, for

want of legal discretion, are incapable of appointing an attorney; and must therefore appear in person: And any one else, if he think proper, may still appear and prosecute or defend his suit, in the same manner; (cc) which is usually done by attorneys and prisoners. A plaintiff

(c) Man. Ex. Pr. 32.

(d) Append. Chap. VIII. & 93, &c.

(e) Id. 110, 11. And, for the entry of a quo minus, with the sheriff's return of non est inventus, and award of alias, see id. § 112.

(f) Append. Chap. XIV. 15.

(h) Id. q 29, 30.

(k) Append. Chap. XV. ¿ 23, 4.

(g) Id. 16.

(i) Post, Chap. VI., and see Man. Ex. Pr. Chap. V.

(7) See further, as to the means of commencing personal actions in the Exchequer, Steph. Pl. 53, 4; 59, 60.

(m) 3 Barn. & Ald. 605, but see Doug. 61.

(n) 3 Barn. & Cres. 772. 5 Dowl. & Ryl. 719, S. C.

(0) Co. Lit. 128, a. 2 Inst. 249, 378. F. N. B. 25. 1 Mod. 244. 2 Mod. 83, S. C., and see Steph. Pl. Append. ix. x.

1

(p) Bro. Abr. tit. Corporation, 28. Co. Lit. 66, b. Com. Dig. tit. Pleader, 2 B. 2. But see the Mayor of Thetford's case, 1 Salk. 192, wherein it was laid down by Holt, Ch. J., that though a corporation cannot do an act in pais, without their common seal, yet they may do an act upon record: and that is the case of the city of London, every year, who make an attorney by warrant of attorney in the King's Bench, without either sealing or signing: the reason is, because they are estopped by the record, to say it is not their act. And see Man. Ex. Pr. 3.

(9) Gilb. C. P. 32, 3. 2 Inst. 376, F. N. B. 25. Ante, 60.

(a) 3 Taunt. 261.

(b) Co. Lit. 135, 6, 2 Inst. 390, F. N. B. 27, but see 2 Wms. Saund. 5 Ed, 335, where an idiot appeared by her friend, and assigned for error, that being an idiot, she had previously appeared and defended the action by attorney: And note, in Co. Lit. 135, b, it is said, that the suit by idiots, &c., must be in their name, but shall be followed by others. Lunatics, it is said, if under age, must appear by guardian: if of full age, by attorney. 4 Co. 124, 6, and see Bac. Abr. tit. Idiots and Lunatics, G. 2 Wms. Saund. 5 Ed. 333, (4).

(cc) Say. Rep. 217.