sufficient value to have satisfied the said alleged rent, and the cos's and charges of and attending such distress, and the sale of such goods under the distress and incidental thereto, to wit, at, &c.: That the defendants having taken and distrained such goods, &c. retained possession of the same under such distress for five days then following, and afterwards and at the expiration of that space of time, at, &c. the defendants voluntarily quitted and abandoned the possession and the said goods, &c. and the said distress thereupon: That although the defendants under the said distress, and by virtue thereof, could and might have satisfied the alleged arrears of rent and all reasonable and lawful charges in that behalf, nevertheless the defendants well knowing the premises, but contriving, &c. afterwards, to wit, on 7th September, 1831, at, &c. wrongfully, injuriously and vexatiously made a second and another distress upon the said goods and chattels of the plaintiff for the same identical alleged arrears of rent for and in respect whereof the said distress in this count first mentioned was made as aforesaid, and then and there again took and distrained the said goods, &c. as and for the same rent so pretended to have been due and payable as aforesaid, and not for any more or other or different rent or cause whatever, and then and there wrongfully and injuriously refused to return the same goods, &c. to and withheld them from the plaintiff, under the second distress in this count mentioned, for a long time, to wit, six days then following, and then and there converted and disposed of the same to their own use, although the plaintiff then and there requested the said defendants to deliver the said goods, &c. to the plaintiff, to wit, at, &c. whereby the plaintiff was and is greatly exposed and injured in his credit and circumstances, to wit, in the county aforesaid. At the trial before Denman C. J. at the sittings at Westminster after last Michaelmas term, a verdict was found for the plaintiff, damages 107. In Hilary term following Coltman obtained a rule nisi for arresting the judgment, (see 1 Nev. & Man. 374); against which Platt now showed cause. That which appears upon the face of the count amounts to nothing more than this, that an illegal mode of distraining is resorted to; but it is unnecessary in this case to resort to the principles of pleading, for it has been already decided in Branscomb v. Bridges, 2 D. & R. 256; 1 B. & C. 145, that under circumstances such as are stated in this declaration case will lie. There is no vi et armis upon the face of the count. Coltman contra, cited Wallis v. Saville, 2 Lutw. 1532; Etherton v. Popplewell, 1 East, 139. Platt in reply. DENMAN C. J.-There is a difference between the cases where the action may be brought in trespass and those where it must be in that form. I certainly think that trespass might have been brought in this case, but I do not think it follows that it must be so brought. Branscomb v. Bridges appears to me to be very much in point, and I am not satisfied with the arguments of Mr. Coltman upon that case. The decision goes upon very reasonable grounds. It was said, that it had been frequently decided, that trover will lie after a wrongful taking, and that that was a stronger case, for there the goods were by the pleadings stated to have come lawfully into the defendant's possession. I think that in this case the plaintiff was at liberty to waive the force and arms, and bring his action in case, as the court there held. This count is a count in case and not in trespass, and therefore there is no misjoinder. LITTLEDALE J.-The count says that the defendants made a sufficient distress and abandoned it; and afterwards wrongfully, injuriously, and vexatiously made a second distress upon the plaintiff's goods for the same rent, and wrongfully and injuriously refused to return the goods, and withheld them from the plaintiff for six days, and then disposed of and converted them to their own use, whereby the plaintiff was injured in his credit and circumstances. This, I think, is a count in case. At the same time I think, that VOL. XXVIII.—37 upon the facts disclosed in it an action of trespass would lie under the statute of 2 Geo. 2. By that statute, where a lawful distress is originally made, which is followed by a trespass, the action may be brought in case; so by analogy to the cases under that statute, case may be brought here. In cases of maliciously conspiring case may be maintained, although the overt acts charged as done in pursuance of the conspiracy might have been made the subject of several actions of trespass. PARKE J.-It seems to me also that the count may be supported as a count in case, though I had some doubt upon this part of the case. If the action had been brought in trespass it would have been maintainable, as in this count there is an allegation of matters for which trespass would lie. I would decide upon the ground of the principle, that a party may waive trespass and bring trover; for this is essentially a count in trover, stating the circumstances specially. PATTESON J.-I think that the ground upon which my brother Parke rests his opinion is correct. The end of the count is in a manner in trover. There is at the conclusion a statement of a conversion which may maintain the count as a count in case, which in form it is. I for some time thought the count was bad, but now I am clearly of opinion that it is not so. Rule discharged. (a) (a) And see 1 Wms. Saund. 201, s. The KING v. The GOVERNOR of The House of Correction for The power of the commissioners under the first Tower Hamlets' Court of Requests Act, CLUTTERBUCK, Assignee of GINGEL, v. COOMBS. p. 209. The court will not grant a rule for the taxation of an attorney's bill of costs at the instance of a third party, who makes the application simply for the collateral purpose of reducing the bill so low as to make him a bad petitioning creditor. CASES ARGUED AND DETERMINED IN THE COURT OF KING'S OF KING'S BENCH, IN Michaelmas Term, IN THE FOURTH YEAR OF THE REIGN OF WILLIAM IV.-1833. RIPON, Gent., one, &c., v. DAVIES.—p. 310. An attorney is bound to give evidence of a statement made by himself to the adverse party by the direction of his client. ASSUMPSIT for work and labour done as an attorney. At the trial at the London sittings after Trinity term, before Denman C. J., a verdict was found for the plaintiff, damages 107. 38. Heaton now moved for a new trial, on the ground that evidence had been improperly received. In order to show the work done, the plaintiff called a person who had been the attorney of the defendant to prove certain admissions made by the defendant, and by the witness as his attorney, in the course of a conversation had between them and the plaintiff subsequently to the commencement of the action. This evidence ought not to have been received, inasmuch as it was of matters which had come to the knowledge of the witness whilst acting in a confidential capacity. Gainsford v. Grammar, 2 Campb. 9, is a case in all respects precisely similar to the present. [DENMAN C. J. Did you take this objection at the trial?] An objection was taken to the witness being called [DENMAN C. J. That was not the proper objection, for this party was a perfectly good witness. There is no objection whatever to his admissibility. Your objection should have been to his giving evidence of the particular communication.] DENMAN C. J.-I cannot conceive that this objection was made at the trial, for if it had been so, I certainly should have had a note of it. The objection to the admissibility of the witness could not be valid. But, supposing the other objection to have been made, it does not appear to me that this falls within the nature of a privileged communication. PARKE J.-There is no pretence for saying that this was a communication which falls within the rule respecting privileged communications. This was an open communication made by one party to a suit to the other, and not a private communication made by the client to his attorney. In the case of Gainsford v. Grammar, Lord Ellenborough refused to receive evidence of what the client had directed his attorney to do. TAUNTON J. concurred. PATTESON J.-I certainly do not understand the case of Gainsford v. Grammar as reported; because it seems that there the witness was not allowed to give evidence of what he himself had stated to the plaintiff, which I cannot conceive to be law. I cannot help thinking that there must be some error in the report. Rule refused. The KING v. BLAKE, Esq.-p. 312. A party taken under an irregular writ is privileged from arrest in returning from the chambers of the judge who has discharged him. So, although his attendance before the judge be voluntary; as where he is brought up under a habeas corpus obtained by himself. It is competent to the Court of Chancery to issue several concurrent writs de contumace capiendo. A contumace capiendo may be returnable on or after the essoin day of the term. A WRIT de contumace capiendo(a) issuing out of the Court of Chancery directed to the sheriff of Middlesex against Blake, on the prosecution of Hugh Smith, clerk, tested 18th January, 1832, returnable 16th April, was delivered of record(b) to the sheriff. On the 19th of January Blake was arrested on another contumace capiendo, issued at the instance of the said prosecutor, tested the 11th and returnable on the 23d of January, 1832; he was brought up by habeas corpus by the sheriff of Surrey, in whose custody he was, before Patteson J. who discharged Blake, on the ground of irregularity. A few minutes after his discharge, and before he had had time to return to his residence, Blake was again arrested on a third contumace capiendo issued into Middlesex, tested 30th April, and returnable 23d May, for the same matter as the two preceding writs. Another application was made to Patteson J. to discharge the defendant, but he refused to decide the question finally, permitting the defendant, however, to go at large until the ensuing term upon entering into a recognizance. In Trinity term last Follett obtained a rule to show cause why the third writ de contumace capiendo should not be quashed, and the defendant discharged out of the custody of the sheriff and from the recognizance entered into by him. Sir J. Scarlett and Hoggins now showed cause. This rule was obtained upon three grounds: First, that the defendant, at the time he was taken under the third writ, was protected from arrest: Secondly, that under 5 Eliz. c. 23, & 53 Geo. 3, c. 127, only one writ de contumace capiendo can issue out of Chancery: Thirdly, that the third writ was not returnable in term. It has always been understood that a defendant is protected from arrest only when his attendance before the court is involuntary, as when a witness is subpoenaed. It has never been held that where a party of his own accord attends a court of justice he shall be privileged from arrest. In the present case the habeas corpus was obtained by the defendant himself, and consequently his attendance must be regarded as altogether voluntary. Rex v. Delaval, 2 W. Bla. 410, 439, and 3 Burr. 1434, is a case differing from the present, as there an illegal restraint was imposed upon the party, and the court had to determine what person should have the custody of a minor. We have affidavits made by the cursitors, stating, that it is the common practice to issue more than one writ de contumace capiendo out of chancery in the same matter at the same time; and this, no doubt, is the proper course; for where one of the writs is not acted upon it is immaterial, and is the same as if it had not issued at all. Ex parte Little, 2 Atk. 480, may be quoted on the other side; but the true meaning of Lord Hardwicke's words in that case is, that if this court is once seised of the cause, the Court of Chancery cannot interfere. The court has no jurisdiction to issue a capias until the sheriff has returned non est inventus or cepi corpus, which had not been done in the present The Queen v. Ball, 6 Mod. 79. case. This writ was returnable on the 23d of May, and by 11 Geo. 4, and 1 W. As to the preliminary steps, vide Rex v. Blake, 2 Barn. & Adol. 139. (b) Vide post. 4 c. 70, the 22d day of May is the essoin day of Trinity term. The essoin day is to be considered as the first day of term. Bolton v. Eyles, 2 Brod. & Bingh. 51; 4 B. Moore, 425; Bell v. Broadbent et ux. 3 T. R. 123; Struttford v. Cooper, Cro. Car. 103. Trinity term, in 1832, commenced on the 26th of May. By 1 Will. 4, c. 3, s. 2, the writ may be returnable three days before the commencement of the term. Follett in support of the rule. The defendant was privileged from arrest. It has been contended that such persons only as involuntarily attend courts of justice are protected from arrest. This is not so. The rule is, that all parties. who have any relation to a cause which calls for their attendance in court, or before a judge, and who attend bona fide though not compellable so to do, are protected from arrest. This is virtually a civil proceeding. The cases on this subject are collected in Tidd's Practice. (1 Tidd, 9th ed. 197.) In Wills v. Gurney, 8 Barn. & Cress. 769, the plaintiff's attorney contrived that the defendant should be charged with, and be arrested for an assault on a Sunday, in order that on the following day he might be arrested on civil process. The court ordered him to be discharged out of custody. There is another ground for quashing the writ. By the habeas corpus act, 31 Car. 2, c. 2, s. 6, it is enacted, that no person who has been set at large upon any habeas corpus, shall be again imprisoned for the same offence and the same rule applies to civil proceedings; Blackburn v. Stupart, 2 East, 243. Yet the party in this case was arrested for the same offence after he had been discharged by habeas corpus. By 53 Geo. 3, c. 127, (sec. 1,) the judge of the Ecclesiastical Court is authorised to send a significavit to the Court of Chancery, whereupon a contumace capiendo issues. That writ is to be returnable in the same manner as the writ de excommunicato capiendo was formerly under the 5 Eliz. c. 23. By the latter statute the excommunicato capiendo was to be brought into this court, and opened and delivered of record to the sheriff. From this it appears, that as soon as the Court of Chancery has issued the writ, it ceases to have jurisdiction, and cannot issue a second writ. Rex v. Blake, 2 Barn. & Adol. 139; Rex v. Theed, 1 Stra. 43; Rex v. Dugger, 1 Dowl. & Ryl. 460; Rex v. Fowler, 1 Salk. 293. [PARKE J. The statute gives jurisdiction expressly when the sheriff returns to the writ non est inventus.'] The court has jurisdiction previously; for the court can oblige the sheriff to return the writ. All ulterior process must consequently issue from this court. As to the practice in the cursitor's office, the affidavit only states that it has been the practice to issue several writs at the same time during the last twenty years, and they speak only of the practice with respect to the contumace capiendo, and not of the old writ de excom. cap. [By the court. The practice should be the same with respect to both writs.] It should be so, but it may have been otherwise. Assuming that this is the practice, it cannot control the words and purview of the act of parliament. [DENMAN C. J. In Rex v. Eyre, 2 Stra. 1189, the decision was, that when the first writ is quashed. application must be made to the Court of Chancery, for another.] În that case the proceedings were not the same as here. [PARKE J. There is no doubt on this point, it has always been the practice to issue several writs.] The 23d of May is not in term. The 1 W. 4, c. 3, s. 2, has no reference to original writs of this description, it relates only to mesne process; the statute speaks of an appearance to the writs, and applies only to such writs as require an appearance. Cur. adv. vult. DENMAN C. J. now delivered the judgment of the court.-In this case all the questions were disposed of but one, and that was, whether the defendant was privileged from being taken under a writ de contumace capiendo. He had been in custody under a former writ of the like nature, and had sued out a writ of habeas corpus, and the learned judge before whom it was returnable, being of opinion that the process was void for want of a proper interval of |