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form contained in the schedule to this act annexed, and shall bear date on the day on which the same shall be issued." The minimum Amount of arrestable amount is 201., be the arrest in England, Wales, or County Palatine.a "The Absconding Debtors Arrest Act, 1851," (14 & 15 Vict. c. 52,) confers on the Commissioners of the Court of Bankruptcy, acting for any district in the country, and upon the judges of District County Courts (except the County Court Judges acting in Middlesex and Surrey), the power of granting a warrant as auxiliary to such writ of capias. But of this more hereafter.b
The claim may be for a debt or money demand, or, in some cases, for unliquidated damages. A cause of action, for which an action at law will lie, must appear on the face of the affidavit. Where goods have been sold, but not delivered, a capias would not be granted; for it is not reasonable that the plaintiff should have the security of the defendant's body under arrest, and also retain the security of the goods in his own hands. So, it would not be granted against a surety in an action on a bail bond (for this would lead to bail ad infinitum): but when judgment is obtained in such an action, and a second action is brought upon the judgment, there is then no objection to the writ; for there is included a new cause of action, viz. the costs. In an action on a penal statute, not being remedial, and the writ not being expressly given by the Act, this writ will not be granted, even for a sum certain; as it is a maxim that every man is presumed to be innocent, until the contrary be proved. Before The Common Law Procedure Act, 1852, (which virtually abolished the forms of actions,) it was allowed to issue in case, trover, trespass, and in detinue, as well as in debt, assumpsit and covenant. As a general rule the writ will only be granted where the claim is certain, or capable of being made so by calculation; but this is not universally so; for it has often been granted in actions for unliquidated damages. The rule may be stated more correctly thus: when the claim is for a debt, for which an action at law will lie, or for damages, when it is apparent that they amount at least to 207., a judge has the power to grant it. The defendant may appeal to a Court, or to another judge, against the arrest order; and the whole matter is then so left at large, that the merits of the case, or his intention to go abroad, may be tried on affidavit.h
Nature of claim.
General rule of granting it.
Appeal against order.
Privilege But there are persons privileged from arrest on civil process. from arrest. This privilege is of two kinds, viz. permanent and temporary. The former prevents the issuing of the writ, the latter suspends its execution. The following persons are permanently privileged.i
a Brown v. M'Millan, 7 M. & W. 196. 14 & 15 Vict. c. 52, s. 1.
b And see Masters v. Johnson, 8 Exch. 63.
c Gadsden v. Mc Lean, 9 C. B. 287. d Hopkins v. Vaughan, 12 East, 398; Pontifex v. De Maltzoff, 1 Exch. 436.
e Brander v. Robson, 6 T. R. 336; Prendergast v. Davis, 8 Ib. 85.
f Sutton v. Oswald, 1 Dowl. P. C. 348; 1 Tidd's Pr. 172.
Lear v. Heath, 5 Taunt. 201; Waters v. Joyce, 1 D. & R. 150.
h 1 & 2 Vict. c. 110, s. 6; Pegler v. Hislop, 1 Exch. 438; Graham v. Sandrinelli, 4 D. & L. 317.
i Impey's Office of Sheriff, arrest.
The Sovereign; the Lord Chancellor; the Lord Keeper; Peers, temporal and spiritual, English, Scotch, or Irish; Peeresses by birth, marriage, or creation; the widows of peers; members of the House of Commons; a Bishops, and it seems members of Convocation; Ambassadors and their domestic servants; Judges and their necessary servants; Masters in Chancery, cursitors, ministers, and known clerks of the Court of Chancery, and the menial servants of the Chancellor or Keeper, or of their ministers and officers; assistant officers of both Houses of Parliament who are summoned, and continually attend there; the serjeant at arms, doorkeepers, clerks, &c.; persons who are the servants of the Sovereign, and liable to be called on as such, to perform services; auditor of the Exchequer and other officers, a certificated bankrupt for any demand provable under the bankruptcy;d persons discharged under the insolvent act for debts scheduled.e Executors, administrators, heirs (for the debts of the deceased); f corporators, hundredors; all petty officers and seamen g (for debts contracted subsequently to their having entered the service or for a debt previously contracted less than 30l. over and above all costs of suit); soldiers, marines (except when the debt amounts to 30%., over and above all costs of suit); bail; and married women. The persons temporarily privileged from arrest are Persons a bankrupt, in coming to surrender, and after such surrender, temporarily during the time by "The Bankrupt Law Consolidation Act, 1849," privileged. limited for such surrender, and for such further time as shall be allowed him for finishing his examination, and for such time after finishing his examination, until his certificate be allowed, as the Court shall from time to time by endorsement upon the summons of such bankrupt think fit to appoint k: a barrister eundo, morando et redeundo from the Courts at Westminster and of Circuit;1 an
a See Goudy v. Duncombe, 1 Exch. 435, as to duration of privilege.
b 7 Anne, c. 12, s. 3. Forrester's Ca., Temp. Ld. Talbot, 281; a consul has not the privilege, Viveash v. Becker, 3 M. & S. 284.
See Dyer v. Disney, 16 M. & W. 312; Harvey v. Dakin, 3 Exch. 266.
d 12 & 13 Vict. c. 106, s. 205; see Wearing v. Smith, 9 Q. B. 1025; Woolley v. Smith, 3 C. B. 624; Clark V. Smith, Ib. 991.
e See Francis v. Dodsworth, 4 C. B. 208.
f 3 Bl. Comm. 292; but if an executor or administrator be guilty of a devastavit, he may be arrested by a creditor upon a judgment suggesting such devastavit; 1 Salk. 98; Leonard v. Simpson, 2 Bing. N. C. 176; or on a
Distinction important to Sheriff.
attorney and parliamentary agent: parties to a cause; jurors, witnesses eundo, morando et redeundo from any of the Superior Courts, Committees of either House of Parliament, Bankruptcy Court,f Insolvent Debtors' Court, Courts Martial,h the County Court, i and all Inferior Courts of law k When a cause has been referred under an order of nisi prius, or by submission containing a clause to make it a rule of court, parties and witnesses are privileged as if the same were still before the court.1 So on writs of inquiry." Clergymen eundo, morando et redeundo from performing divine service are privileged from arrest." A party taken under an irregular writ is privileged, in returning from the chambers of the judge who has discharged him; although the attendance there be of his own seeking, as by habeas corpus. Aliens are not as such privileged from arrest. One foreigner may arrest another in this country for a debt which accrued in a foreign country while both resided there, and he may do so, although the law of the foreign country does not allow of arrest for debt.P An attorney when going abroad may be arrested.a An attorney's clerk going to or returning from judges' chambers on business, having reference to a pending suit, is not privileged from arrest. An acquitted prisoner has no privilege redeundo.s In many of the cases above named, it is not the privilege of the individual, but a protection thrown over him by the law of nations, or by the municipal law for the benefit of others, whose privilege it really is. Being so, there seems to be no sound reason against the privilege being waived by the person who is invested with it, as for instance, by the Lord Chamberlain, ambassadors, and the like.
A permanent privilege, as before stated, prevents the issuing of a capias; a temporary privilege prevents the execution only durante privilegio. The distinction is important to the Sheriff, for he would, in some cases of permanent privilege, by executing a capias incur a fine, imprisonment, and even corporal punishment;
a Clutterbuck v. Hulls, 4 D. & L. 80.
c Cameron v. Lightfoot, 2 Wm. Bl.
d Whether compelled by subpoena to attend, or not; Meekins v. Smith, 1 H. Bl. 636. See also Newton v. Harland, 8 Sc. 70. In re Douglas, 3 Q. B. 836; 1 Tidd's Pr. 198. 213; Strong v. Dickenson, 1 M. & W. 490.
f Selby v. Hills, 8 Bing. 166; 1 Dowl. 257, S. C.
8 Willingham v. Matthews, 6 Taunt. 356.
53 Geo. c. 17, s. 27.
i Clutterbuck v. Hulls, 4 D. & L. 82. Phill. on Ev.; Com. Dig. Privilege (A.); 2 Q. B. 166.
1 Randall v. Gurney, 3 B. & A. 252; Webb v. Taylor, 1 D. & L. 676.
m Walters v. Rees, 4 B. Moore, 34; Newton v. Constable, 2 Q. B. 160.
To arrest him is a misdemeanor by 9 Geo. 4, c. 31, s. 28; and see Goddard v. Harris, 7 Bing. 320.
Rex v. Blake, 4 B. & Ad. 355.
P De la Vega v. Vianna, 1 B. & Ad. 284, overruling Melan v. Duke de Fitzjames, 1 B. & P. 138: see also Trimbey v. Vignier, 1 Bing. N. C. 151.
Thomson v. Moore, 1 Dowl. N. C. 283; Flight v. Cook, 1 D. & L. 715. As to an attorney's privilege, see Gilb. C. B. 209; Turbill's Ca., 1 Saund. 67; 8 T. R. 417.
* Phillips v. Pound, 7 Exch. 880. Hare v. Hyde, 16 Q. B. 394.
if, for instance, he were to execute a capias on a peer, peeress, or a member of the House of Commons, he might be committed by the House of Lords or Commons for a breach of privilege. So for arresting an ambassador or his domestic, not only the Sheriff and his officer, but also the plaintiff, at whose suit the process issued, and his attorney, would be subject to fine, imprisonment, and corporal punishment, provided the name of such servant has been properly registered, at the office of the Secretary of State, and thence transmitted to the office of the Sheriffs of London and Middlesex. So by the 9 Geo. 4, c. 31, s. 23, a party arresting a clergyman durante privilegio, with knowledge, is guilty of a misdemeanor. The Sheriff is not liable in damages for executing a capias upon an individual so privileged; even though influenced by malicious motives in executing it upon a person whom he knew to be so privileged. He may therefore in general arrest, but he is not obliged to arrest a privileged person. If he choose to Whether he take the truth of the facts upon himself and refuse to execute should arthe writ, he may do so, and the facts constituting the privilege will rest or not. be a good return. The proper remedy, for the person arrested, is an application for discharge."
In the Q. B.
A. B. the above-named plaintiff maketh oath and saith that C. D. before and at the time of the commencement of this suit was and still is justly and truly indebted
a If a peer be arrested, the Court or a judge will discharge him upon application for that purpose; and they will not, upon such application, enter into the right to his title. The privilege of an Irish peer is prima facie established. Story v. Birmingham, 3 D. & R. 488; sed vide Davis v. Rendlesham, 7 Taunt. 679. As to a Scotch peer, see Digby v. Stirling, 1 M. & Sc. 116; 1 Dowl. P. C. 248, S. C.; his being a peer, and having acted as such, is sufficient.
b Tarlton v. Fisher, 2 Dougl. Rep. 676; Cameron v. Lightfoot, 2 Wm. Bl. 1190; Newton v. Constable, 2 Q. B. 157; Magnay v. Burt, 5 Q. B. 393; Norton v. Walker, 3 Exch. 480: as to the liability of the party and his attorney, see Yearsley v. Heane, 14 M. & W. 322; Ewart v. Jones, Ib. 787; West v. Smallwood, 3 Ib. 418. Action for maliciously obtaining order for a capias, Daniels v. Fielding, 4 D. & L. 329.
C Graham v. Sandrinelli, 4 D.& L.317. d If made after writ of summons issued it should be entitled in the cause. The true place of abode and addition of any person making an affidavit must be inserted therein. An affidavit sworn before a judge of any of the Courts shall be received in the Court to which such judge
belongs, though not entitled of that Court,
The captain of a steamer between an English port and Hamburgh, and about to depart on one of his regular voyages, is not a person about to quit England, within the meaning of 1 & 2 Vict. c. 110, Atkinson v. Blake, 1 Dowl. N. C. 849; and see Larchin v. Willan, 4 M. & W. 351: but it extends to a case where a man is domiciled in Ireland, and is about to quit England for the purpose of going there, Lamond v. Eiffe,3 G. & D.258.
An affidavit of circumstances showing
to this deponent in £ for goods before then sold and delivered by this deponent to the said C. D. at his request [or whatever else may be the cause of action] and this deponent further saith that the said C. D. now is a captain actually serving in her Majesty's regiment of the line and did on the 18
day of receive orders to proceed without delay along with his regiment to parts beyond the jurisdiction of this Court namely to Quebec in North America: and this deponent further saith that for the reason aforesaid he verily believes that unless the said C. D. be forthwith apprehended he will quit England.
Victoria &c. to &c. greeting: We command you that you omit not by reason of any liberty in your bailiwick but that you enter the same and take C. D. if he shall be found in your bailiwick and him safely keep until he shall have given you bail or made deposit with you according to law in an action on contract [or "of tort"] at the suit of A. B. or until the said C. D. shall by other lawful means be discharged from your custody. And we do further command you that on execution hereof you do deliver a copy hereof to the said C. D. And we hereby require the said C. D. to take notice that within eight days after the execution hereof on him inclusive of the day of such execution he should cause special bail to be put in for
a mere case of suspicion, that a man is
sum, and that be an arrestable amount, this will do, unless it appears that process was issued for the whole amount, and not for the former sum only, Caunce v. Rigby, 3 M. & W. 67. Where the sum sworn to consists partly of interest, it must appear that the sum is due on a contract of payment of interest, or that a sum of 201. is due independent of interest, Neale v. Snoulten, 2 C. B. 320.
a 1 & 2 Vict. c. 110, sch. As to direction of, see Edwards v. Robertson, 5 M. & W. 520; Copley v. Medeiros, 2 D. & L. 74. When it was directed to the Sheriffs of Middlesex he was discharged, Moore v. Magan, 16 M. & W. 98. It may be amended, Plock v. Pacheco, 9 M. & W. 344, 474; Rennie v. Bruce, 2 D. & L. 951. See effect of discrepancy between affidavit and capias, 1 Dowl. N. C. 384, 386; 9 M. & W. 474.
A party arrested by order of a judge may apply, for his discharge, either to the Court, or to another judge; and may, on such application, use affidavits to contradict or explain that on which the order was granted; and he may appeal to the Court against the decision of such latter judge. The Court will not revoke the order nor set aside the capias; but simply discharge the defendant out of custody. Graham v. Sandrinelli, 4 D. & L. 317; Burness v. Guiranovich, 4 Exch. 520. The application should be made promptly; semble, within the time allowed for putting in bail, Sugars v. Concanen, 5 M. & W. 30; Brashour v. Russell, 4 Bing. N. C. 31.