Durham, being held by grant of the bishop of Durham for the time being, during the pleasure of the same bishop, became vacant upon his decease: But now, by that statute,(c) "no grant or appointment of or to any office or employment, concerning the administration of justice in the said county palatine, shall cease, determine or be void, by reason of the death of any such bishop; but every such grant and appointment shall continue in full force, for the term of six calendar months after any such death, unless in the mean time determined by any succeeding bishop of the said see.

The attachment(d) is a criminal process, directed to the coroner, when it issues against the present sheriff; or when against the late one, to his successor: and, in the King's Bench, it must be made returnable on a general return, though the original process was at a day certain.(e) The attachment may be moved for on the last day of term ;(f) and until it be granted, the proceedings, in the King's Bench, are on the plea side of the court, and must be entitled with the names of the parties: But as soon as the attachment is granted, the proceedings are on the crown side, and from that time the king is to be named as the prosecutor.(g) If the coroner or sheriff, being called upon by rule, (hh) neglect to return the attachment, he may be attached himself; and the attachment against the coroner should be directed to elisors, named by the master in the King's Bench, or prothonotaries in the Common Pleas.(i) If cepi corpora be returned to the attachment, the mode of proceeding, for obtaining payment of the debt and costs, is by moving the court for writs of habeas corpora,(k) to bring up the bodies of the sheriffs, before one of the judges at chambers, to answer to such matters as shall be there alleged against them;(7) which is

a motion of course, and may be made without an affidavit.(?) [ *315 ] *When the sheriff is fixed for a contempt, he is liable, in like manner as his bail upon the bail bond, to the payment of what is really due to the plaintiff, though beyond the sum sworn to and costs, to the full extent of the penalty of the bond:(a) And he cannot relieve himself, by payment of the debt sworn to and indorsed on the writ, since the statute 43 Geo. III. c. 46, § 2, having neglected to take the money at the time of the arrest, as directed by that act; but must pay the whole debt and costs:(b) neither can he be relieved on the ground of the defendant's death, after the contempt was incurred, and before the attachment issued.(cc) But he is not liable beyond the penalty of the bond:(dd) And where an attachment issues in an action against the acceptor of a bill of exchange, the sheriff is not liable thereon, to pay the costs in actions against the drawer or indorsers.(ee)

If a party has a right to enforce payment of his debt against the sheriff, he (c) & 2.

(e) 1 Str. 624.

(d) Append. Chap. XIII. 234, &c.
(ƒ) 1 Bur. 651. Ante, 312.

(g) 3 Durnf. & East, 133, 253. 7 Durnf. & East, 439, 528. 2 East, 182. 12 East, 165; and see 5 Barn. & Cres. 389. 8 Dowl. & Ryl. 149, S. C. 2 Bos. & Pul. 517, (a), C. P. (hh) Append. Chap. XIII. 2 37, 8.

(i) 2 Blac. Rep. 911, 1218. Append. Chap. XIII. & 42. (k) Append. Chap. XIII. 43, 4.

(a) 7 Durnf. & East, 370. 8 Durnf. & East, 28. (b) 9 East, 316.

(7) 1 Chit. Rep. 249.

1 H. Blac. 233, 543, C. P.

(cc) 3 Durnf. & East, 133.

Poole, E. 25 Geo. III. K. B. Eyrev. Bull, 2 H. Blac. 36, 547. 1 Taunt. 218.

3

(dd) 3 East, 604; and see Doug. 464. Starkey v. same term, K. B. See also, 4 Durnf. & East, 433. Stark. Ni. Pri. 168. 8 Moore, 27. 3 Bing. 56. 10 Moore 324, S. C. 1 Younge & J. 285, as to the liability of the sheriff, in an action on the case, for taking insufficient pledges in replevin.

(ee) 2 Barn. & Ald. 192.

must pursue it within a reasonable time, and not lay by so long as that by his laches the sheriff shall be deprived of his remedy over against the debtor: Therefore, where the rule for an attachment against the sheriff, for not bringing in the body, was obtained on the 11th of February, which attachment was returnable on the 4th of May, and the plaintiff did not issue the attachment till the 3d of May, and in the mean time the defendant became bankrupt on the 19th of March, by which means the sheriff lost his opportunity of paying the debt, and proving it under the commission, the attachment was set aside for such laches:(f) And on a similar ground, it is holden that a cognovit, for payment of the debt and costs by instalments, discharges the sheriff: although it was agreed that the right of moving for an attachment against him should remain with the plaintiff as a security, in case any of the instalments should not be paid.(g) But where the plaintiff, at the desire of the sheriff's officer, forbore to enforce an attachment in the first instance, and two days afterwards applied to the sheriff for the debt and costs; the court of Common Pleas held, that the sheriff was not discharged by the indulgence given to the officer. (h) So, where the rule to bring in the body, served on the 5th July, expired on the second day of Michaelmas term, two judges of that court held that the sheriff was not discharged, by the plaintiff's having, on the 7th July preceding, and previously to the justification of bail, consented to an order to stay proceedings, on payment of debt and costs within a month.(2) And in general, [ *316] the court will not set aside an attachment against the sheriff on the ground of delay, unless there have been gross laches on the part of the plaintiff, to the prejudice of the sheriff. (a)

If the proceedings against the sheriff are irregular, they may be set aside, with costs; (b) or, if regular, may be set aside or stayed upon terms, by the favour and indulgence of the court, in order to let in a trial of the merits, for the benefit of the sheriff, (c) or of the defendant, or his bail.(d) But, in the King's Bench, by a late rule of court, (e) " no rule can be drawn up for setting aside an attachment regularly obtained against a sheriff, for not bringing in the body, unless the application for such rule, if made on the part of the original defendant, be grounded upon an affidavit of merits;(ff) or, if made on the part of the sheriff or bail,(gg) or any officer of the sheriff,(g) be grounded upon an affidavit, showing that such application is really and truly made on the part of the sheriff or bail, or officer of the sheriff, (as the case may be,) at his or their own expense, and for his or their only indemnity, and without collusion with the original defendant;" which rule was adopted, in a late case, by the court of Common Pleas. 1 Moore & P. 177, 4 Bing. 427, S. C. This rule applies only to motions

(f) 9 East, 467. 3 Bos. & Pul. 151. 1 Taunt. 111, accord. and vide ante, 310.

(g) 1 Taunt. 159; and see 4 Taunt. 456. 5 Taunt. 319. 1 Marsh. 59, S. C. Wightw. 4 Barn. & Ald. 91. 1 Dowl. & Ryl. 163. 9 Moore, 695. 2 Bing. 366, S. C. Ante, 295, 301, 305.

121.

(h) 1 Taunt. 489; and see 1 Dowl. & Ryl. 388.

(i) Per Best, Ch. J. & Gaselee, J. dissentientibus Park & Burrough, Justices, 2 Bing. 366. But on a subsequent day, it appears, Best, C. J. said, that upon payment of costs, the court would consent to make the rule absolute, for setting aside the proceedings. Id. 369. (a) 2 Chit. Rep. 58. (c) 2 H. Blac. 235. (d) Goodwin v. Montague, E. 23 Geo. III. K. B. 1 Chit. Rep. 237; and see 2 Wms. Saund. 5 Ed. 61, f.

(b) Ante, 257, 310, 312, 315.

(e) R. M. 59 Geo. III. K. B. 2 Barn. & Ald. 240. 1 Chit. Rep. 348, (a), 572, 3, (a). 2 Chit. Rep. 373, 4; and see 7 Durnf. & East, 239. 3 Maule & Sel. 299. 1 New Rep. C. P. 123. (f) Append. Chap. XIII. 45.

(99) Id. ¿ 46.

for setting aside attachments regularly obtained:(h) And if the affidavit be made on behalf of the sheriff or bail, it must comply with the terms of the rule: Therefore, an affidavit which did not state that the application was made at the expense of the bail, and for their only indemnity, was deemed insufficient.() The affidavit in such case should regularly be made by the defendant himself.(k) And, the court will not set aside an attachment against the sheriff, for not bringing in the body, on payment of costs, upon an affidavit that the plaintiff purposely prevented the defendant's being retaken after a rescue, and that the application was by the sheriff himself, without negativing the fact of his having an indemnity.(1) If an affidavit of merits however be produced, it is not necessary to state on whose behalf the motion is made. (m)

The practice, when the sheriff has been fixed, is to move for a rule to show cause why, on putting in bail, the proceedings against him should not be set aside; and to have the bail ready to justify, when the rule is disposed of.(n) If the plaintiff has not lost a trial, the court will set aside

the proceedings, upon putting in and perfecting bail above, and [ *317 ] payment *of costs:(aa) But if a trial has been lost, the court will further require, that the attachment shall remain in the office, and stand as a security to the plaintiff for the sum recovered:(bb) And it seems, that the attachment shall stand as a security, as well as the bail bond, where a trial has been lost, although the defendant has been surrendered in discharge of his bail.(cc) On setting aside a regular atta.`ment, on payment of costs, the question whether or not the attachment shall stand as a security, depending upon the fact whether a trial has been lost, it is for the plaintiff, who seeks to qualify the rule, to show by his affidavit the necessary facts, such as the day of the delivery of the declaration, &c. which may entitle him so to do:(d) And where the court ordered an attachment against the sheriff, of which he had regular notice, to stand as a security to the plaintiff for the debt and costs, and the sheriff, in the next term, applied to discharge that part of the rule which related to the attachment standing as a security, urging that he was no party to the rule, the court held the application to be too late.(e)

When the sheriff has been guilty of a breach of duty, in discharging the defendant out of custody, without the plaintiff's assent, upon his own undertaking to appear and put in bail, or by taking money from him, instead of a bail bond, the court will not assist the sheriff, by staying the proceedings in an action for an escape, or by setting aside the attachment upon an affidavit of merits, and payment of costs; (f) and it is now decided,

(h) 1 Chit. Rep. 446. Ante, 302.
(k) Id. 722.

(m) 1 Chit. Rep. 572; and see id. 720, 21.
(n) 1 Bos. & Pul. 334, per Buller, J.
(aa) 4 Durnf. & East, 352. 2 H. Blac. 235.

(i) 1 Chit. Rep, 347.
() 1 Barn. & Ald. 192.

Ante, 302.

Ante, 303.

(bb) Gravett v. Williams, T. 15 Geo. III. K. B., cited in 4 Durnf. & East, 352. 1 Chit. Rep. 237, 270, 357.

(cc) 1 Chit. Rep. 270, (a). Nias v. Gray, M. 57 Geo. III. K. B. there cited, contra: and see 8 Dowl. & Ryl. 137.

(d) 5 Taunt. 606. 1 Chit. Rep. 271, in notis. Ante, 304. And for what is meant by losing a trial, see id. ibid.

(e) 1 Chit. Rep. 180.

(f) 7 Durnf. & East, 109, 239.

Barn. & Ald. 354. 1 Chit. Rep. 68, S. C.; and see 1 Chit. Rep. 567, (a), 721. 2 Chit. Rep. 93. 4 Dowl. & Ryl. 155. 1 Bos. & Pul. 225. 1 Taunt. 119. 6 Taunt. 554. 2 Marsh. 261, S. C. 6 Moore, 111. 7 Moore, 552. 1 Bing. 156, S. C.; but see 1 Price, 103. 5 Barn. & Cres. 244, contra. Ante, 236, 282, 3.

that he cannot, after paying the debt and costs, maintain an action against the defendant, for money paid.(g) But, if he has taken a bail bond, he may resort to the defendant or his bail, by putting it in suit against them: though, in general, the money is paid by the officer, on issuing the attachment, and he brings the action on the bail bond, in the sheriff's name.(h) In an action on a bail bond, if the issue depend on the date of the appearance, the court of Common Pleas, upon an application by the plaintiff, will order the day of the appearance, to be entered in the filacer's book; although, before the application to the court, issue has been joined on the plea of comperuit ad diem :(i) And where bail above were put in but not justified, and the sheriff being fixed, brought an action on the bail bond, *to which the defendant pleaded comperuit ad diem, that court, [*318 ] on motion by the sheriff, ordered the recognizance of bail in the

original action to be taken off the file; though the defendant alleged, that the sheriff was fixed through his own negligence: for that should have been the subject of a motion to stay proceedings on the bail bond.(a)

Of the PROCEEDINGS in ACTIONS, by and against ATTORNEYS and OFFICERS, in the COURTS of KING'S BENCH, COMMON PLEAS and EXCHEQUER; and of the RECOVERY and TAXATION of their COSTS.

THE proceedings in actions against defendants when at large, and mode of bringing them into court, in ordinary cases, having already been considered; I shall next proceed to show whatever is peculiar to the proceedings in actions by and against attorneys, who are supposed to be already in court, and against prisoners in the actual custody of the sheriff, &c. or of the marshal of the King's Bench, or warden of the Fleet prison.

Attorneys, we have seen, may sue by attachment of privilege, and must be sued by bill.(aa) [A] In the King's Bench, the attachment of privilege,

(g) 8 East, 171.

(h) 2 Wms. Saund. 61, f. And see Petersd. Part I. Chap. XV. as to the right of the bail against their principal, and against each other; and a surety's right against the bail. (i) 1 Taunt. 23. Ante, 236; and see 9 Price, 406.

(a) 6 Taunt. 167. 1 Marsh. 520, S. C.

(aa) Ante, 80.

[A] By the common law, attorneys are privileged from arrest on mesne process, and are entitled to be proceeded against by bill. Scott v. Alstyne, 9 Johns. 216. And this privilege continues, unless it be taken away by rule, though the attorney do not show that he has acted as such within a year. Ogden v. Hughes, 2 South. 718. If an attorney or counsellor be taken on a ca. sa. during his attendance in court, having business to transact there, he may be discharged on motion and affidavit, &c. Secor v. Bell, 18 Johns. 52. A judge, at the circuit, may also discharge him, under the like circumstances. Ib. So also a counsellor of the Supreme Court is privileged from arrest during the sitting of the court, though not in actual attendance. Sperry v. Willard, 1 Wend. 32. Commonwealth v. Ronald, 4 Call, 97. But a counsellor is not privileged from arrest while attending a master, examiner, or judge, out of court. Cole v. M Lellan, 4 Hill, 59; nor while he remains at home, though such arrest prevents his contemplated attendance at court. Corey v. Russell, 4 Wend. 204. Where an attorney on being arrested, does not mention his privilege, but requests the officer to obtain a bail bond, and executes it, he waives his privilege. Cole v. M'Lellan,

at the suit of an attorney, is in nature of a latitat:(b) therefore, in replying it to a plea of the statute of limitations, the plaintiff must set forth the continuances. (c) And an attachment of privilege is not a continuance of a bill of Middlesex, so as to avoid the statute of limitations.(d) In the King's Bench, it is a rule, that "every attorney shall leave a præcipe(e) with the signer of the writs, containing the defendant's names, not exceedfour in each writ,with the return, and day of signing such writ, and the agent's or attorney's name who sued out the same: and that all such præcipes shall be entered on the roll, where the præcipes of latitats, and all other writs issuing out of this court, are entered; and the officer that signs the writs in this court, shall not sign such attachment, till a præcipe be left with him for that purpose."(f) But when an attorney sues by attachment of privilege, his name need not be indorsed on the writ: for the 2 Geo. II. c. 23, § 22, which requires the name of the plaintiff's attorney to be indorsed on the writ, only extends to cases where the attorney sues for another person.(g) And an attorney, plaintiff, may sue by com

mon process, and indorse his own name on the copy as the [*320] *attorney, and may afterwards declare by another attorney.(aa) If an attorney sue by attachment of privilege, for words spoken in Wales, and the venue be laid there, and the plaintiff do not recover a verdict for ten pounds, it may be suggested on the roll, that the defendant was resident in Wales, &c. in order to entitle the defendant to enter a nonsuit, under the statute 13 Geo. III. c. 51, § 1, 2:(66) but if the venue had been laid in Middlesex, it might have made a difference.(bb)

In the Common Pleas, an attachment of privilege is in nature of an original writ; (cc) and must have fifteen days between the teste and return.(dd) This writ should regularly be returnable on a day certain, in full term:(ee) But where it was made returnable after the essoin day, and before the quarto die post, the court allowed it to be amended, on payment of costs.(ee) And, being in nature of an original writ, it is sufficient, when replied to a plea of the statute of limitations, to show the teste of it, without the continuances. (f) It is a rule in this court, (gg) that "no

(b) 1 Show, 367; and see Append. Chap. XIV. & 2, 4, 6. (c) Carth. 144. 1 Show. 366, 7. 2 Salk. 430, S. C.

(d) 3 Durnf. & East, 662; but see Willes, 259, (a). And for the entry of an attachment of privilege on the roll, to save the statute, in K. B., see Append. Chap. XIV. 8 7.

(e) Append. Chap. XIV. & 1, 3.

(f) R. H. 20 Geo. II. K. B.; and see 1 Ken. 394.

(g) 4 Durnf. & East, 275.

(bb) 6 Durnf. & East, 500. This determination was

(aa) 7 Durnf. & East, 35.
before the stat. 5 Geo. IV. c. 106,

19, 20, by which the above act of parliament was repealed, and other provisions substi tuted in lieu thereof.

(cc) Append. Chap. XIV. ? 10.

(dd) Barnes, 410. Cas. Pr. C. P. 149, S. C.
(f) 1 Wils. 167.

(ee) 6 Moore, 113. 3 Brod. & Bing. 25, S. C.
(99) R. T. 9 W. III. C. P.; and see R. T. 29 Car. II. reg. 3, C. P.

Hill, 59. The sheriff cannot take notice of his privilege, nor can he discharge him from his custody under process of the court, on his producing a writ of privilege; and if he do so, he is liable, as for an escape for the amount of the debt, and interest, and also for the poundage, if the plaintiff has paid any. Secor v. Bell, 18 Johns. 52. Sperry v. Willard, 1

Wend. 33.

Since the passing of the statute of New York, of April, 1813, all officers of the Supreme Court, courts of Common Pleas and Chancery, are liable (except during the actual sitting of such courts,) to arrest on mesne process, and may be held to bail like other persons. Secor v. Bell, 18 Johns. 52. And they now stand on the same ground as other persons, with respect to costs; and if sued by bill during term, and less than fifty dollars is recovered, they are not liable for costs. Foster v. Gurnsey, 13 Johns. 465.