Stokes against Mason
| Jurisdiction | England & Wales |
| Judgment Date | 17 May 1808 |
| Date | 17 May 1808 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 635
IN THE COURT OF KING'S BENCH.
stokes against mason. Tuesday, May 17th, 1808. An attorney of B. E., in pleading his privilege against being sued by original, improperly stated the custom of this Court to be not to compel its attornies to answer an original writ, unless first forejudged from their office, &e. (which is the custom in C. B. but not in this Court:) but held that enough appearing to sustain the plea, the custom which had no foundation here, might be rejected as surplusage. The plaintiff sued the defendant as a common person by original, and declared upon a bill of exchange accepted by the defendant and afterwards indorsed to the plaintiff. The defendant pleaded in abatement, that he ought not to be compelled to answer the said original writ, because he is and was on the day, &c. an attorney of B. E.; and that in the same Court there now is and from time immemorial hath been a custom that no attorney of the said Court hath against his will been compelled to answer any person in any personal action prosecuted here by original writ sued out, which hath riot concerned the King, unless he hath been first forejudged from his office of an attorney of this Court, upon a bill exhibited here to the justices of our lord the King before the King himself, against such attorney, and filed in the same Court. And then the defendant averred that he hath not been forejudged from his office, &c, and that he is impleaded by the original writ aforesaid against his will, and against the custom aforesaid : and this he is ready to verify ; [425] wherefore as the defendant is and was on the day, &c. an attorney of the said Court, &c. he prays his privilege aforesaid to be allowed and adjudged him, &c. To this the plaintiff demurred specially, because the defendant by his plea had alleged an immemorial custom in this Court, that no attorney of the Court had against his will been sued by original in any personal action, &c. unless he had been first forejudged from his office, &c.: whereas an attorney of this Court was not by the practice of the Court in that behalf to be forejudged from his office of an attorney of this Court in manner and form as the defendant had alleged: and whereas the defendant should have pleaded that he ought not contrary to his will to be compelled to answer in any manner whatever except by bill to be exhibited against him as an attorney of this Court. Best, in support of the demurrer...
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