ABATEMEN T. Α ND the faid defendant comes and (a) defends the wrong and Plea of privi. injury, &c. and fays, that he the faid defendant is, and at the lege of defendant time of exhibiting the faid bill of the said plaintiff, and long before, as clerk of the erwas one of the officers of his majefty's court of the Bench at Weft-rors to the chief juftice of the minster, in the county of Middlefex, that is to fay, clerk of the court of C. B. errors to Sir John Willes knight; and during all that time was, pleaded to an and is duly and perfonally attending the business of the faid office action in B. R. in the fame court of the Bench; and that by the ufage and cuftom of that court of the Bench from time whereof the memory of man is not to the contrary, used and approved of in the fame court, no officer of that court, whilft he attends his business in the fame court, hath been drawn into plea and compelled against his will, nor at any time past hath been used or accustomed, nor ought to be drawn into plea or compelled against his will, to acknowledge any juftices or minifters of the faid lord the king, or any other fecular judges whatsoever, but only before the justices of the lord the king of the Bench aforefaid, upon any pleas, plaints, or demands, which do not touch the perfon of our lord the king (ples of freeholds, felonies, and appeals only excepted); and he the faid defendant further faith, that he is drawn into plea in this court here, by the exhibiting the faid bill againft him as aforefaid, against his will, and againit the cuftom aforefaid; and this, &c. and he brings into court here his writ of our faid lord the king, iffuing out of the faid court of the Bench, and directed to the fheriff of Middlefex, the tenor of which faid writ follows in these words, to wit, George the Second, &c. [go through the writ,] indorfed J. Willes; wherefore the faid defendant doth not conceive that the said court of our faid lord the king here, will or ought to have cognizance of the faid plea against him, &c. R. DRAPER. (<) Qu. if half defence fhould not be made in such plea. Gilb. C. P. 187. Co. Litt, 127. AND (a) Charles Lewis Moreffault, against whom the faid Plea of misnomer plaintiff by his bill exhibited complains by the name of Lewis of the defendant Moffalt (b), by B. H. his attorney, comes and defends the wrong and furname. and injury, &c. and prays judgment of the bill aforefaid, becaufe (a) 5. T. R. 487. (6) A plea of mifnomer must be without VOL. I. B defence. Vide Bl. Com. 290.; but vide he in the chriftian Replication of nolle profequi to the above plea. he fays that (a) he was baptized by the name of Charles Lewis, to wit, at, &c. and that he is named and called by the name of C. L. Moreffault, and by the faid name from the time of his baptifm hitherto hath been called and known; without this, that he the faid Charles Lewis Morellault now is or ever was called or known by the name of Lewis Moffalt, as by the faid bill is above fuppofed; and this, &c. (b) wherefore he prays judgment of the faid bill, and that the fame may be quafhed, &c. ELLIOT BISHOP. (a) This averment feems proper, (6) 3. T. R. B. R. 185. Hixon v. though the plea would have been good Binns. without it. And thereupon the faid plaintiff (who impleaded the abovenamed C. L. M. by the name of L. M.) fays, that he cannot deny the exception aforefaid, made by the faid C. L. M. to the faid bill, but confeffes the fame to be true, and prays leave to exhibit a better bill against him, and it is granted to him, &c. Therefore it is confidered that the faid plaintiff fhould take nothing by his faid bill fo exhibited as aforefaid, but that the faid bill may be quafhed, and the faid plaintiff fhall be in mercy for his falfe claim thereof, and the faid defendant fhall go thereof without day, &c. (6) Plea, mifno- In the County Court mer of defendant's furname in the County Court. AND thereupon William Frohock, of the against whom the faid William KidCounty of Cambridge. man hath levied his plaint by the name of William Frog, comes in his proper perfon and defends the wrong and injury, &c. and (a)prays judgment of the faid plaint, because he fays, that he is named and called by the name of William Frohock, and by the name of William Frohock hath always hitherto been called and known; without this, that he now is, or at the time of levying of the aforefaid plaint of the faid plaintiff was, or ever before had been called or known by the name of William Frog, as in and by the faid plaint is above fupposed; and this he the faid William Frohock is ready to verify; wherefore he prays judgment of the plaint aforefaid, and that the fame may be quashed, &c. William Frohock, of, &c. impleaded in this fuit by the name of William Frog, maketh oath and faith, that the plea hereto annexed is true in fubftance and matter of fact (a). (Sworn, &c.) WM. FROHOCK. (a) An affidavit of the truth of the plea must always be annexed. 4.& 5.Ann. c. 16.f. 1. AND fendant is of an broker. AND W. H. of London, merchant, against whom the faid Plea that deplaintiff hath obtained his original writ in this caufe by the name other addit on of W. H. late of London, broker, in his own perfon comes and (a) than that by defends the wrong and injury, &c. and prays judgment of the afore whichhe is fued, faid writ of the faid plaintiff, because he faith that the faid W. H. namely, meron the day of obtaining the aforefaid original writ and long before chant instead of was, and from thence hitherto hath been, and still is, a merchant; and that he the faid defendant, on the faid day of obtaining the faid original writ, was not, or at any time either before or afterwards hitherto has been, a broker, as by the faid writ is above suppofed; and this, &c. wherefore, inafmuch as the faid W. H. is not named of the very mystery of which he really is, according to the form of the (6) ftatute of additions of furnames and names, in writs in which procefs of outlawry lies (6), lately made and provided, the faid defendant prays judgment, and that, &c. S. URLIN. (a) As to the neceffity of this half defence, fee Com. Dig ut. Abatement, I. 16. Co. Lit. 127. b. (b) 1. H. 5. c. 5. (4) Hixon v. Binns, 3. Term Rep. 185. ante. was a broker And the faid plaintiff faith, that for the occafion before al- Replication to ledged, the faid original writ of the faid plaintiff ought not to be the above plea, quafhed, because he faith that the faid defendant, on the day of that defendant obtaining the faid original writ, was, and before then had been a broker, as by the said writ is above fuppofed, to wit, at, &c. aforefaid; and this he prays may be inquired of by the country, &c. as, &c. fheriff and not AND the faid defendant, by A. B. his attorney, comes and de- Plea that defends the wrong and injury, when, &c. and prays judgment of the fendant is in faid bill, because he faith that he the faid defendant, before and at cuftody of the the time of exhibiting of the bill of the faid plaintiff against him of the marshal. the said defendant, was, and from thence hitherto hath been and fill is, in the cuftody of the fheriff of the county of M.; without this, that he the said defendant at the time of exhibiting the faid bill was, or at any time fince hath been, in the cuftody of the marthal of the Marshalfea of our faid lord the now king, before the king himself; as in and by the faid bill is above fuppofed; and this he is ready to verify; wherefore he prays judgment of the faid bill, and that the faid bill may be quafhed, &c. AND the faid plaintiff fays, that he the faid defendant, not- Replication (to withftanding any thing by the faid defendant in his faid plea al- a plea of priviledged, ought to answer to the faid bill of the faid plaintiff in the lege by an attor ney of the C. B. court here, because he faith that he the faid plaintiff, long before, in an action and at the time of fuing out the writ of attachment of privilege brought in B.R.) hereinafter mentioned, was, and continually fince hath been, and that plaintiff is yet is, one of the attornies of the court of our lord the king, attorney of before the king himself here, to wit, at Westminster aforefaid; fuch impleaded B. R. and as and being fo an attorney as aforefaid, he the faid plaintiff, before defendant in K. the day of exhibiting his faid bill against the faid defendant, to B. by attach wit, ment of privi B 2 an lege. wit, on the 28th day of November, in the 20th year of the reigit of our fovereign lord the now king, according to the liberties and privileges for fuch attornies of the fame court from time immemorial used and approved in the fame court, fued and profecuted out of the court of our faid lord the king, before the king himself here, to wit, at Westminster, a certain writ of our faid lord the king of attachment of privilege against the faid defendant, directed to the then sheriff of Middiefex, by which faid writ the faid lord the king commanded the then fheriff of Middlefex aforefaid, that he fhould attach the faid defendant and John Doe, if they might be found in his bailiwick, and fafely keep them, so that he might have their bodies before our faid lord the king here, to wit, on, &c. next after, &c. then next following, to anfwer to the faid plaintiff, one of the attornies of the court of the faid lord the king, before the king himself here, to wit, at Westminster aforefaid, according to the liberties and privileges of the fame court for such attornies, time out of mind ufed and approved of in the fame court, in a plea of trefpafs, and alfo to a bill of the faid plaintiff against the faid defendant for 401. upon promifes, according to the custom of the faid court of the faid lord the king, before the king himself to be exhibited, and that he should have there then that writ: at which day, before our lord the king at Westminster, came the faid plaintiff in his proper perfon, and the faid defendant in his proper perfon alfo appeared in the fame court here, to answer to the faid plaintiff according to the exigency of the faid writ, and the then fheriff, to wit, J. W. efquire, and R. A. efquire, returned to the faid court of our faid lord the king, before the king himself here, to wit, at Westminster aforefaid, that by virtue of the faid writ he had taken the body of the faid defendant, and had his body ready before the faid lord the king at Westminster at that day, as by the faid writ the faid fheriff was required, as by the record thereof, remaining in the faid court of our faid lord the king, before the king himself here, to wit, at Westminster aforefaid, manifeftly ap pears: and the faid plaintiff further faith, that the faid writ of attachment of privilege, profecuted as aforefaid by the faid plaintiff, was profecuted by him the faid plaintiff, as to the faid defendant, with intent to implead the faid defendant for the causes of action in the faid declaration above specified, and to cause him to appear in the faid court here, and upon his faid appearance to declare against him for the feveral caufes of action above mentioned, according to the courfe and cuftom of the faid court; and the faid plaintiff, according to fuch his intention, afterwards, to wit, in Hilary Term, in the 20th year aforefaid, declared by bill against the faid defendant in manner and form aforefaid; and this, &c. ; (a) wherefore, &c. and that the faid defendant may answer to the faid bill of the faid plaintiff, &c. (a) A replication to fuch a plea should conclude to the record and not to the country, for no one can be an attorney but by the act of the court, which must be entered on record, and the court will AND diction of the AND the faid defendant in his own perfon comes and defends the Plea to the jurifwrong and injury (a) (b) and says, that this court here ought not to take, nor will take, cognizance of the plea aforefaid, becaufe he court of C. B. of privilege by a faith, that as well from royal dignity as from ancient cuftom in forn clerk in the confequence thereof, from time immemorial ufed and approved of lord treasurer's re within this kingdom, "the Barons of the Exchequer, the clerk membrancer's of "refiding there, and all others, officers and minifters officiating fice in the Exche"there, whether of the clergy or others, belonging to the king's que fued here. "court, who should affift there by command," (c) ought not to be impleaded elsewhere than in the Exchequer "(d) fo long as the "Exchequer fhould be open :" and the faid defendant further faith, that he the faid defendant long before, and at the time of fuing forth the original writ of the faid plaintiff against the said defendant, was, and from thence hitherto hath been, and ftill is, one of the officers and minifters refiding and officiating in the faid court of Exchequer, to wit, one of the worn clerks in the lord treasurer's remembrancer's office there, and as fuch entitled to the privilege aforefaid, to wit, at Weftminfter aforefaid; and this he is ready to verify, "and he brings here into court the writ of our "lord the now king," (e) iffuing out of the court of Exchequer aforefaid, closed in these words, to wit, George the Third [here fet out the whole of the writ of privilege verbatim]; which faid writ being read and heard, the faid defendant faith, that the faid court here ought not to take, nor will take, cognizance of the faid plea against him in this court here, &c. (ƒ). J. MINGAY. (a) Vide Bl. Com. 3. vol. 298. Co. Lit. 127. Salk. 217. Ld. Raym. 282. with respect to making full defence in the pleas to the jur.fdiction of the court. (b) For the mode of imparling when the defendant means to plead his privilege, fee Hard. 365. pl. 2. 1. Lutw. 43. Morg. V. M. 230. and 9. E. 4. 53. pl. 18. Bro. Priv. 25. (c) Vide Barrington's cafe, Hard. 164. and note (d). (d) Should it not appear that the Exchequer was open at the time when this plea was pleaded? (e) For the reafon, vide 6. Mod. 305, Morg. V. M. 24 (f) The privilege may be allowed on producing the Liber Rubricus of the Exchequer, 10. Jones, 288. or by fuperfedeas, Salk. 546. For the legal privilege of the Exchequer, vide Hard. 365. 1. Lutw. 46. 6. Mod. 305. Salk. 511. 550. 31. H. 6. 10. 22. H. 6. 19. 6 Vin. Abr. 17th vol. 515. Morg. V. M. 24. Mr. BULLER'S Opinion on this plea. If the facts ftated in the plea are true, I think the plea is good in form and fubstance, and the plaintiff cannot proceed further in this action; therefore he should Mr. DAVENPORT'S Ofinicu. I obferve true. Mr.RUNNINGTON's Opinion. Though I am fatisfied in my own mind, that the privilege which defendant has pleaded ought not to be allowed, and perhaps on fer.ous argument would not be admitted; yet I think it will be most prudent in the plaintiff to admit this plea, and enter up the judgment by quafetur. There are two cafes, one in the time of Eliz Sav. 20. the other in the time of James, Hob. 177. which feem ftrongly to fupport the privilege contended for, though there are other cafes which seem strongly to deny it on fimilar points. On thefe Opinions judgment for the defendant was entered as follows afterwards, AND B 3 |