Scott v. Van Alstyne — 9 Johns. 216

Majority

p. 216

Scott against Van Alstyne.

ALBANY

August 1812.

Headnote

An attorney, Mnnot“waive lowed for his fe"'" the "sake andthe°ait’ ors_in it.^ it is the plaintiff, that the defendant is an attorney of record, and ifthe attorney wishes to get rid of the privilege,hemust apply to the strikehisname tefthetppiication is made pending ceneourt. of the court.

THIS was an action of assumpsit. The suit was commenced by bill against the defendant, as one of the attorneys of the court, in the usual form. The defendant pleaded that at the time of filing the bill against him, he was not one of the attorneys of the court, acting or practising as such, and is not an acting or practising attorney of the court, but had, for more than three years preceding the filing of the bill of the plaintiff, pursued the business of a farmer, and had not, during all that time, attended the court as an attorney, or practised as such, and was not bound by custom to answer to a bill filed against him as an attorney, &c.

There was a general demurrer to the plea, which was submitted _ , to the court, without argument.

. An attorney, being defendant, cannot, by plea, waive or destroy his privilege, because the privilege is allowed him, not for his own sake, but for the sake of the court, and the suitors jn > If he renounces his privilege by mere absence from court, and business, how is the plaintiff to know that fact beforehand ? He can only judge from the record, and it is sufficient for him, the defendant is an attorney, proutpatet per recordum. This is the amount of the doctrine in the adjudged cases. (Gardner v. Jessop, 2 Wils. 42. Farrill v. Head, Barnes, 41.) If the de

p. 217

fendant wishes to withdraw himself from the privilege, or, as he may choose to consider it, the burden of his office and distinction as an attorney, he must apply to have his name struck off the roll. This he may do at any time, and the court will always grant that leave, unless the application be made to withdraw himself from some impending censure, and then, as Lord Eldon has lately observed, (6 Vesey, 4.) the court will refuse to do it.

Judgment for the plaintiff.