DE Term. Sancti Hil. ANNO REGNI REGIS CAR. II. 21 & 22. THE SECOND PART. Derbyshire, to wit. Mellor versus Walker. Hil. 21 & 22 Car. II. Regis Rot. 1284. BE Case 1. See 1 Saund. MELLOR v. E it remembered, that heretofore, to wit, in Easter term last past, before our lord the king at Westminster, came Henry Mellor, gent., by Alured Motteram, his attorney, and brought here into the court of our said lord the king, then there, his certain bill against Edward Memorandum. Walker, of Derby, in the county of Derby, gent., in the custody of the marshal, &c. of a plea of trespass, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words (1): that is to say," Der (1) The original design and establishment of the court of K. B. was to determine criminal matters, frauds, and breaches of the peace. If, however, any one had a cause of action against an attorney or officer of the court, or against a person in the actual custody of the marshal, for some matter within its jurisdiction, he could not sue him elsewhere, but was obliged to proceed in that court by exhibiting a bill against him, Bro. Bille 6. 31. 4 Inst. 71, 72. The bill was the commencement of the action, being considered as an original writ, Cowp. 455. Foster v. Bonner: and VOL. II. PART I. contained the cause of complaint. And as such proceeding was only the occasional business of the court, it was prefaced with a memorandum, or note, for the purpose of reminding the court that a civil action was depending. But in the court of C. B. which was instituted for the decision of civil suits, and whose jurisdiction is in ordinary cases founded upon an original writ issued out of Chancery, the proceedings are not entered under a memorandum, but the form is, to begin with a recital of the writ on which the action is founded, and proceed with the declaration and B WALKER. MELLOR v. byshire, to wit, Henry Mellor, gent., complains of Edward Walker, of Derby, in the county of Derby, gent., being in the custody of the marshal of the Marshalsea of our lord the king, before the king himself, for that he, on the 1st day of April, Declaration in trespass clausum fregit. other pleadings to the issue, in this manner: "Hilary Term in the 38th year of the reign, &c. Middlesex, to "wit, A. B. was attached to answer C. "D. of a plea of trespass upon the 66 case. And whereupon, &c." and the form is the same in the K. B. when the suit is by original. See 1 Saund. 339. However the attornies and officers of the court of C. B., or to speak more correctly, the court on their behalf, claimed a privilege that they too should be sued only in their own court by bill, and not by original. And this proceeding, being the occasional, and not the ordinary, business of that court, was also headed by a memorandum in like manner, and for the same reason, as in the proceeding by bill in the court of K. B. At first, it seems, a bill could not be filed except in term time; afterwards it was allowed to be filed in vacation, intitled as of the preceding term, against any who was in the supposed custody of the marshal, that is, against all persons but prisoners and attornies; for in process of time the court of K. B. acquired a jurisdiction over all civil actions, by supposing the defendant to be in the custody of the marshall, and stating him in the bill to be so. With respect to prisoners in the actual custody of the [a] Acc. Chitty's Rep. 390. Williams v. Scudamore. But in order to detain the prisoner, an affidavit to hold to bail, as in ordinary cases of arrests, must be made and filed with the clerk of the rules; and the sum sworn to must be indorsed by him on the copy of the declaration, before it is delivered to marshal, it continued to be a rule of the court of K. B. for a long time, that no bill could be filed or declaration delivered against them in vacation. East. 17 Geo. 2. Holloway v. Cross, cited per Denison Justice, in 2 Burr. 1051, 1052: and so it had been held before in 6 Mod. 254, 255. Tilsden v. Parfriman, S. C. 1 Salk. 213, 345., where it is said, that there was no way to charge a defendant in custody in vacation, but by making an entry in the marshal's book in the king's bench office, that he should remain in custody at the suit of the intended plaintiff; which was sufficient to charge him, provided he were then in actual custody; for if he were at liberty, he might be arrested. But in the case of Hutchins v. Kenrick, 2 Burr. 1048. 1052., where this matter was fully considered, the court held, that the right method of charging a person in custody with a new suit in vacation, is to file a bill as of the preceding term, and to deliver to, or leave for, the defendant being in custody, a copy of the declaration as of the preceding term, and to make an affidavit thereof. However, it does not seem necessary, nor is it the present practice, to make an affidavit of the delivery of the declaration when the defendant is in actual custody. [a] And a declaration may be or left for the prisoner. The mode of proceeding to detain a prisoner in the custody of the sheriff, &c. is nearly the same, except that in this case an affidavit of the delivery of a copy of the declaration must be filed. See Tidd's Practice, ch. 14. in the 21st year of the reign of our lord Charles the 2d, now king of England, &c. with force and arms, broke and entered the close of him the said Henry, called Littlefield, at Derby, in MELLOR V. WALKER. that a bill may in all cases be filed in vacation against an attorney, as well as any other person. Doug. 312. 3d edit. Comerford v. Price. Ibid. 313. note 84. Lane v. Wheat. 5 Term Rep. 173. Waghorne v. Fields. And without doubt the same rule holds in the court of C. B. [b] But still the bill must be intitled as of the preceding term, and of course appears to be filed of the preceding term. Therefore if the cause of action arose in the vacation, and appears upon the record to have accrued subsequent to the filing of the bill, it would be bad. As where a bill was filed in the vacation after Michaelmas term against an attorney, as acceptor of a bill of exchange payable on the 13th of December, intitled of Michaelmas term preceding; the defendant demurred, showing for cause that the bill was filed before the action accrued, and the court held the demurrer good, but gave the plaintiff leave to amend his bill. The amendment was dictated by the court, and was as follows: " Michaelmas term, in the 33d "year of the reign of King George the "Third, (Middlesex, to wit) Be it re"membered, that on the 14th day of "December, (a day after the cause of "action accrued,) A. D. brought into "the office of the clerk of the declara"tions of the court, according to the "course and practice of the court, his "certain bill against W. B. gent, one, "&c. and filed the same bill as of "Michaelmas term in the 33d year of "the reign, &c. which said bill follows "in these words." [c] This form will be delivered against a prisoner in vacation, by the same plaintiff who had arrested the defendant. 8 Term Rep. 643. Heron v. Edwards. So with respect to attornies, it was a rule of the court of K. B. that a bill could not be filed against an attorney or officer of the court in vacation. The reason assigned was, because a bill could only be filed against a privileged person when present in court, which is in term time, and not in vacation. 12 Mod. 163. Broadwaite v. Blackerby. S. C. 2 Salk. 544. Comb. 465. and Holloway v. Cross above cited; and certainly the form of the bill is so. 1 Saund. 28. 202. post, 415. This rule continued to exist much longer than the other respecting prisoners; at length the inconveniences and mischiefs which attended it induced the court to put an end to it. For in many cases an attorney could not be sued at all, and the debt would be unpaid, unless a bill could be filed against him in vacation; as where the statute of limitations would attach before the commencement of the term. So where in penal statutes the action must be brought within three months, it might happen that the time would begin and expire before the term. So if an attorney were an acceptor of a bill of exchange payable the day after the end of Trinity term, the holder of the bill had no remedy, but was obliged to wait four months before he could compel payment of the money. The rule seems first to have been relaxed, to prevent an attorney from taking advantage of the statute of limitations; and at last it was fully settled, [b] The point seems to be admitted in 6 Taunt. 347. Crook v. Eyles; and see ante, vol. i. 35 a, note (ƒ). [c] Where the bill was entitled as of Michaelmas term generally, but the memorandum shewed that it was filed on MELLOR V. the county of Derby, and with his feet in walking, and with his certain cattle, to wit, horses, bulls, oxen, cows, swine and sheep, eat up, trod down, and consumed his grass to the value found adapted to other cases; as where a prisoner is charged in vacation upon a cause of action which arose after the last term; the bill, we have above seen, must be filed of the preceding term, and therefore there must be a special memorandum similar to this. The memorandum alleges the bill to be exhibited of the term in which the declaration is entitled, and the form of it varies according to the fact of the case. It is necessary to observe, that in both courts the record is entitled of the term in which the issue, whether of law or fact, is joined, without regarding the term which the declaration and plea, &c. may be of. If the cause of action has arisen within the term, the memorandum, which when general, relates to the first day of the term, and would in this instance shew the bill to be exhibited defore the cause of action, must be special, stating it to have been filed on some particular day in term after the cause of action, 1 Saund. 40.; and the declaration must also be entitled of the same day. And if the issue be of the same term, instead of a particular day in some preceding term last past, the memorandum must describe it to be in this same term. If the issue be of a term subsequent to the cause of action, but of the same term with the declaration, the memorandum must shew the bill to have been exhibited on the first particular return day of the term, in which the the 28th of November, it was held, that evidence was admissible to prove that the bill was actually filed on the 24th of December. 5 B. & A. 847. Wilton v. Girdlestone. [d] This will frequently be the case declaration was delivered, and describe it to be in this same term; as on Saturday next, after the morrow of All Souls, in this same term. Post, 108. Where the issue is of a term subsequent to the declaration, and within four terms after, the memorandum is in the form of this entry. And where the issue is of a term which is more than four terms after the declaration, the memorandum differs from the present in substituting the year of the king's reign, instead of the words last past. Post, 51. When it is material to shew the true time of the commencement of the suit, the evidence of it will in some measure depend upon the form of the record. As where a penal action must be brought within a limited time, the memorandum itself without more will often prove the action to have been commenced within the allowed period, though the record be intitled of a term long subsequent to the delivery of the declaration. But a record of the C. B. does under similar circumstances shew the contrary; and therefore the plaintiff must be prepared with the writ to prove the time of the commencement of the action. sometimes happens that a record of the So it C. B. will be primâ facie evidence of an action having been brought in due time, when the term in the memorandum in the K. B. record would perhaps be fatal. [d] As where in an action by an attorney for his fees, which by statute where the action is really commenced too soon; but it can never be the case where the action is really brought in due time, and care is taken to draw up the memorandum properly. Thus, if the time before which the action is pro |