Holiday and Pit, and other Plaintiffs in Several Suits against the Same Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1815 |
| Date | 01 January 1815 |
| Court | Court of the King's Bench |
English Reports Citation: 95 E.R. 18
IN THE COURT OF KING'S BENCH, AT WESTMINSTER
holiday and pit, and other plaintiffs in Several Suits against the satm; Defendant. Members of Parliament, after its dissolution, have privilege redeuudo. If arrested, a member may be discharged on motion without filing common bail (3). Com. Hep. 49, pi. 204. Fortesc. Rep. 159, 342. 2 Barnard. B. R. 222, [433, 448]. 2 Stra. 985. [Cunn. 16, S. C. Post, 37.] This question was first argued in B. R. May 17, 1734, and again before eleven of the Judges, Mr. Baron Carter being absent from that argument, in Serjeant's Inn, May 23. [29] The state of the case was as follows: A motion was made in B. R. to discharge the defendant John Pitt out of custody, because he having been member for Camelford in Cornwall in the late Parliament, was arrested by several writs of capias out of the Common Pleas and latitats out of B. R. within three days after the prorogation, and two days after the dissolution of Parliament, before the time of privilege, as he alledged, was out. He was likewise charged in custody with several declarations. The defendant removed himself into B. R. by habeas corpus. (The return was produced in Court to shew that he was a member, and affidavit made that he continued sitting till the end of the Parliament.) The Judges of B. R. having conferred with the rest of the Judges, it was ordered to be argued again before them all. The sum of the arguments made use of was as follows: Serjeant Chappie, Serjeant Darnel, and Mr. Strange, for the defendant. (1) The point as to whether a new trial may be granted on an information in the nature of a quo warranto, after a verdict found for the defendant, seems to have been put at rest by a subsequent decision, viz. 2 T. R. 484; the Court saying, that of late years a quo warranto information had been considered merely in the nature of a civil proceeding, and that there were several instances since the ease in Strange, [Bex v. Bennett, 1 Str. 101], in which a new trial had been granted. See 4 T. R. 753. Also Co. Litt. 155 b. n. 5. (2) Whether the first point here ruled be agreeably to the present practice may reasonably be doubted. See Bar. 278, id. 411. (3) But it seems that it is discretionary with the Court to grant the rule or to proceed by writ of privilege, according to the circumstances of the case. 1 Wils. 278. OA8. T. HABD. SO. EASTER TERM, 7 GEO. II. 19 That there are three principal points in question: 1st, whether the defendant is entitled to any privilege, and what it is 1 2dly, supposing he has a privilege, whether it appears he was taken up within time of privilege1! 3dly, whether he applies to the Court in a proper manner in order to be discharged 1 As to the first point, that members have some privilege redeundi after the dissolution of the Parliament, was never before controverted; the reason that was the foundation of privilege still subsists, since it is but just that persons who have neglected their own private affairs for the public service should be secure from arrests, till they return to their respective habitations, where they may better provide for the settling their affairs. That there is no difference between prorogations and dissolutions, may appear from this, that prorogations are not nigh of the same antiquity as Parliaments; two or three new Parliaments being sometime called within the space of one year; and there were very few prorogations before the time of Hen. VIII. This privilege arises from prescription, and therefore must have been the custom in cases of dissolution, which only is antient enough whereon to found a prescription. Lord Coke, in his Treatise of the Court of Parliament, says, " that prescription has made this privilege manifest to all persons." In Judge Atkin's argument about the power of Parliament, p. 38, it is said, that there is a privilege both for coming to Parliament and returning from it, laid down by prescription. The statute of 6 Hen. VIII. c. 16, which enacts, that no [30] member depart before the end of Parliament without licence, under the penalty of forfeiting hia wages, shews that they must have had a privilege of returning after the dissolution. By 8 Hen. VI. c. 7, it is enacted, that all clergymen called to Convocation, and their servants, shall enjoy the same privilege in coming, tarrying and returning, as members of Parliament do, which shews that members have a privilege for returning. Stat. 35 Hen. VIII. c. 11, enacts, that members shall have wages for coming and returning as well as during the sitting of the House. The Charter de Foresta extends the privilege which nobles, summoned to attend the King, had to kill two deer in the forest upon their first coming, to their return likewise. And 4 Inst. 380, these words in the charter are expounded of the nobles summoned to Parliament. These two statutes seems to bear a Bear analogy to the present case. Eastall's Entries, 664, and the Register, 192, take notice of a writ de feodo militis parl', in which are the words pro...
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