G. B. K. Cassidy v R Steuart
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1841 |
| Date | 12 January 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 817
IN THE COURT OF COMMON PLEAS
S. C. 2 Scott, N. R. 432; 9 D. P. C. 366; 10 L. J. C. P. 57; 5 Jur. 25. See Ex parte Morris, 1869-70, L. R. 5 Ch. 173; L. R. 4 H. L. 661.
[437] G. B. K. cassidy v. B. steuart. Jan. 12,1841. [S. C. 2 Scott, N. E. 432; 9 D. P. C. 366; 10 L. J. C. P. 57; 5 Jur. 25. See Ex.parte Morris, 1869-70, L. E. 5 Ch. 173; L. E. 4 H. L. 661.] A capias ad satisfaciendum issued against a member of parliament in an action of assumpsit, is irregular; although delivered to the sheriff, with a direction to be returned "non est inventus," in order to ground proceedings to outlawry (a). On the 31st of March 1840, final judgment was signed against the defendant for 2681. 5s., being the debt and costs in an action of assumpsit upon a promissory note for 2401. made by the defendant. A testatum ca. sa. was delivered to the sheriff of London, with instructions to return non est inventus, and the writ was so returned on the 1st of June; whereupon an exigi facias issued, and the sheriff caused the defendant to be once demanded. Before any further steps were taken on the part of the plaintiff, the defendant obtained a summons to set aside the proceedings for irregularity, with costs, the - defendant being a member of the House of Commons. The summons was attended before Erskine J., at chambers by counsel, Humfrey appearing for the plaintiff, and Archbold for the defendant, when, after much discussion and after time taken for consideration, the following order was made :- Cassidy v. Steuart.-Upon reading the affidavit of E. K. Lane, gentleman, the affidavit of Frederick William Fisher, and the paper-writings thereunto annexed, marked A. and B., and upon hearing counsel on both sides, I do order that all pro ceedings to outlawry against the defendant in this cause be set aside for irregularity, with costs to be taxed and paid by the plaintiff, the defendant being a member of parliament. Dated, the 29th day of June 1840. (Signed) T. erskine. At the time of pronouncing the judgment upon the [438] summons, the learned judge stated in writing the grounds of his decision, as follows:- "The provisions of the statute of the 10 G-. 4, c. 50, do not, in my opinion, at all affect the question in this case. That statute was passed, not for the purpose of altering the process in suits against peers or members of the House of Commons, but, simply, to remove altogether those impediments to the progress of those suits which had been before partially relaxed by the statutes 12 & 13 W. 3, c. 3, and 11 G. 2, c. 24; and by reference to the terms of the former of these statutes, it was obviously no part of the intention of the legislature to authorise the issuing of a capias against either a peer or any person having privilege of parliament. The question, therefore, appears to me to be left untouched by those statutes. By the express provisions of the statute 2 & 3 W, 4, c. 39, s. 19, no person is subject to outlawry under that act who was before that act exempt therefrom by reason of his privilege. Now a capias ad satisfaciendum could only be issued in cases where a capias might have been issued on the original process in the suit. But a capias could not have been issued at the commencement of the suit against a person having privilege of parliament. So neither can it be, in execution; and the process of outlawry after judgment being founded upon the ca. sa., and being itself the foundation of the capias utlagatum, could not regularly be had against a member of parliament. " I am, therefore, of opinion that the proceedings should be set aside. " 29th June 1840. " T. erskine." (a) But after judgment upon a statute-staple, or statute-merchant, or upon the statute of Acton Burnell, a capias ad satisfaciendum lies even against peers of the realm, Bac. Abr. tit. Privilege (C), 7, 5th and 6th ed, vol. v. 645; Anon. 4 Leon. 6. For the .reason see post, 464. CASSIDY V. STEUAET 2 MAN. & G. 439. This order was subsequently made a rule of court. Nov. 13, 1840.-Upon an affidavit stating the same facts which were before Erskine J. at chambers, Spankie Serjt. moved for a rule, calling upon the defendant to shew cause, why the order of Mr. Justice [439] Erskine should not be set aside (a)1, and why the defendant should not pay to the plaintiff the costs of the application. It is submitted that it was competent to the plaintiff to arm himself for future hostilities, by proceeding in the usual way to outlawry, and that a serious mistake has been made in interrupting that proceeding. The personal liberty of the defendant has been subjected to no attack; and the circumstance of his being entitled to privilege from arrest, forms, therefore, no objection to the regularity of the proceedings. It is said in the books that a capias will not lie against a member of parliament; but the true meaning of that dictum is, that he cannot be taken upon a capias. [Tindal C. J. There seems to be an anomaly in asking the court to issue a writ which, it is known, cannot be enforced.] It is submitted, that the court cannot know that the writ will not be enforced, until something is done upon it. When the writ issues the court is not apprized that the defendant is a member of parliament. Whether the party against whom process has been awarded is privileged from arrest, is a matter to be ascertained by the sheriff when the writ shall come to his hands (6)1. Here, the writ was issued for the purpose of being returned non est inventus (c). Though [440] it would have been culpable to execute the writ according to the mandate it contains, it is submitted that the writ itself, was regular. [Coltman J. But the return of non est inventus would be false (a)2.] It might be so; but that would be the result of subsequent inquiry. At an early period of our history, strenuous efforts were made on the part of the Commons to protect their members from even the service of any process at law or in equity during the time of privilege; and the court will remember the case of Mr. Serjt. Pemberton, who was seized, vi et armis, by order of the Speaker of the House of Commons (J)2. Such proceedings being at length con-[441]-sidered gross and out- (a)1 The rule, as drawn up, appears to have been irregular in praying that an order, which had been made a rule of court, should be set aside, without also praying that the rule might be discharged. It may be observed further, that the making of the present rule absolute in the form prayed, would have left the former rule, and the order for setting aside the proceedings as embodied in that rule, untouched. (b)1 The sheriff is not bound to take notice of the privilege of an attorney : Duncombe v. Church, 1 Salk. 1; and see Co. Litt. 131. In Tarlton v. Fisher, 2 Dougl. 677, Buller J. says, "If he arrest a peer, the writ is erroneous, but he is not a trespasser for executing it." And see Cameron v. Lightfoot, 2 W. Bla. 1190. (c) This return in its English form, ' the defendant is not found ;" has introduced some confusion. It has been supposed to mean that upon search being made "the defendant is not to be found." Watson on Sheriffs, Appendix, c. 6, s. 3, p. 370; Hex v. The Sheriff of Kent, 2 M. & W. 316, 5 Dowl. P. C. 451. Inveniri appears to be merely the French " se trouver " ; transformed into what may be called a Latin middle verb. This form of expression was, no doubt, introduced into the former language by the Franks, from their own Teutonic "sich befinden." Both, like the Spanish " estar," mean simply-to be, at the time predicated, in the locality, or the circumstances, predicated. (a)2 Vide Fwsyth v. Marriott, 1 N. R. 251; Bwks v. Mayne, 16 East, 2 ; Ward v. Brwmfit, 2 M. & S. 238; Johnson v. Driver, 1 Dowl. P. C. 127; James v. Jenkins, 9 Moore, 589; Jenkins v. Biddidph, 4 Bingh. 160, 12 Moore, 390; Sillitoe v. Wallace, Tidd's Practice, 1147, 9th ed. In 6 Edward 1 several outlawries were revoked (as for error in fact), because the defendants had lands in the county, though the sheriff fraudulently returned quod non sunt inventi, nee aliquod habuerunt, 1 Eoll. Abr. 804, 805; 22 Vin. Abr. 322, pi. 7. Vide post, 452 (b). (i)2 Jay v. Topham, 12 Howell's State Tri. 822; 8 Hargr. St. Tr. 1; 10 Commons' Journ. 164, 209, 210, 213, 227. The offence for which Sir Francis Pemberton was proceeded against, was, overruling the plea of the Serjeant-at-arms to the jurisdiction, in Jay v. Topham; as to which, Lord Ellenborough in Bwrdett v. Abbott, 14 East, 104, is reported to have said, 2 MAN. & G. 442. CASSIDY V. STEUABT 819 rageous, a stop was put to them by an act passed in the reign of William III., which, whilst [442] it (12 & 13 W. 3, c. 3) secured (b) the persons of members from being subjected to any arrest or .imprisonment, at the same time, provided that actions, &c. might at any time be brought against any peer or member of parliament, their servants, or any other person entitled to privilege of parliament; which actions, &c. were not to be impeached or delayed by pretence of any such privilege. The first section of that act empowered certain courts, after a dissolution, prorogation, or adjournment, to proceed to give judgment, &c., " any privilege of parliament to the contrary notwithstanding." " It is surprising, upon looking at the record in that case, how a judge should have been questioned, and committed to prison by the House of Commons, for having given a judgment, which no judge, who ever sat in his place, could differ from. The plea there began as a plea in bar, and concluded in abatement. There was a special demurrer, too, alleging for cause, that the plea did not answer the whole matter of the declaration. I do not see how any judge, sitting in judgment upon a record so framed, could possibly have given any other judgment than the court gave in that case." Notwithstanding the strong language here used, it will be seen, upon referring to the record in Jay v...
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