Seamen. How discharged. Bail of seamen, how discharged from liability. How creditors to proceed against sea men.. Soldiers, when privileged from arrest. petty officer, seamen, &c. be arrested contrary thereto, any of the judges of the Court out of which the process or execution shall have issued, upon complaint either of the defendant, or of one of his superior officers, may examine into the same by the oath of the parties, or otherwise, and by warrant under his hand and seal, may discharge such petty officer, seaman, &c. without payment of any fees upon due proof that such petty officer, seaman, &c. was belonging to one of his majesty's ships or vessels, and arrested contrary to the intent of the acts, and may also award to the defendant such costs as he shall think reasonable." And where the defendant a seaman, (being out upon bail for a debt under twenty pounds) was bona fide impressed into the king's service, the Court upon the application of the bail ordered an exoneretur to be entered in the first instance, to avoid the circuity of a habeas corpus, and render. (1) Yet, if the plaintiff have proceeded against the bail to judgment, the Court will not, it appears, in that case relieve them. (m) In order, however, that creditors may not be defrauded of their just debts, the statute (n) then goes on to shew the manner in which the plaintiff must proceed against petty officers, seamen, &c. privileged thereby, that upon notice first given in writing, of the cause of action to such petty officer, seaman, &c. or left at his last place of residence before his entering into his Majesty's service, the plaintiff may file a common appearance in any action brought for any debt whatsoever, so as to entitle him to proceed to judgment, and to have execution, other than against the person of such petty officer, seaman, &c. Similar privileges to those enjoyed by seamen are conferred by the annual mutiny acts, (o) on enlisted volunteer soldiers; (p) within the meaning of which, is a serjeant in the guards, (q) a drummer, (r) and a (1) 7 East, 405. 3 Smith, (n) 1 Geo. 2. stat. 2. c. 14. 5 Geo. 4. c. 13. (p) 8 East, 104. per Lord Ellenborough. See I Str. 2. 7. (9) 1 Wils. 216. 1 Blac. Rep. 29. S. C. (r) 1 Blac. Rep. 30, per Dennison, J. gunner, (s) in a train of artillery, as well as a common Soldiers. soldier, and a private in the troops of life guards; (t) When not notwithstanding such enlisted soldier may have per- from arprivileged formed no actual duty at the time of the arrest. (u) But rest. volunteer drill serjeants, though subject to the regulations of the mutiny act for trial and punishment by volunteer courts martial, according to the statute 44 Geo. 3. c. 54, s. 21. are not privileged from arrest for debts under twenty pounds as regular soldiers; (x) nor does this exemption extend to an out-pensioner of Chelsea Hospital; (y) or to soldiers arrested for any thing of a criminal nature; therefore if a soldier be committed to prison till he find sureties for performing an order of bastardy, he is not entitled to be discharged; (~) and Bail of if a non-commissioned officer, who has been arrested, soldiers give bail, the Court will not after judgment recovered how discharged against the bail, set aside the proceedings, and cancel the bail bond. (a) Before this, however, he may be bility. surrendered by his bail in their own discharge. (b) from lia Aliens also are privileged from being held to special Aliens. bail, under certain restrictions by 38 Geo. 3. c. 50. s. 9. whereby it is "declared that aliens abiding in this kingdom, who have quitted their respective countries by reason of any revolutions or troubles in France, or in countries conquered by the arms of France, (c) and all such persons who were born in any of the countries subject to the late king of France, or who.. having been born within this kingdom, passed into the dominions of the said late king under the age of fifteen years, and who had bona fide resided in such countries as subjects of the said late king, although born of parents subjects of his Majesty or his predecessors, (d) shall not be liable to be arrested or held to bail, or to find any caution for their forthcoming, or paying any debt, nor to be taken in execution on any judgment, nor by any caption, for, or by reason of any debt or (s) 1 Stra. 7. 10 Mod. 346. S. C. (t) Say. Rep. 107. 1 Stra. 2. (u) 1 Stra. 2. (x) 8 East, 104, 5. (y) Barnes, 432. (a) 2 T.R, 270. 5 T. R. 156. (a) 4 Taunt. 556, 7. and see 7 East, 405. (b) 1 Burr. 339. 1 D. and Ry. N.P.C. 20. and see 7 East, 405. (e) And see 43 Geo. 3. c. 155. s. 28. 41 Geo. 3. c. 106, 42 Geo. 3. c. 92. s. 1. 55 Geo.3. c. 54. s. 1. (d) 41 Geo. 3. c. 106. Aliens. How dis and when. other cause of action, contracted, or arising in any parts beyond the seas, other than the dominions of his Majesty, while such aliens were not within the said dominions of his Majesty; and in case any such alien shall be arrested or held to bail, or taken in execution on a judgment, or by any caption contrary to the intent charged, thereof, such alien shall be discharged therefrom by order of any of his Majesty's courts in Westminster or Dublin; (e) or of the court of session in Scotland, or of any judge of such courts in vacation time.” (ƒ) Therefore when a defendant was held to bail in this country, on an instrument entered into in France, and by which instrument his property only, and not his person, was made liable according to the law of France; the Court on motion discharged him upon entering a common appearance. (g) The determination in this case has, however, since been dissented from. (h) And where the defendant, an alien, entered into an agreement with the plaintiff in a foreign country, in pursuance of which agreement the latter laid out money in England, after which the parties came to an adjustment in England, and the defendant acknowledged the debt, upon which account stated the defendant was arrested; the Court discharged him on filing common bail. (¿) Clergymen. Witnesses courts martial. Clergymen, likewise, are protected from arrest by statute, during the performance of divine service, and in going to, and returning from church, provided they do not remain there with the intent of fraudulently eluding justice. (k) Witnesses attending courts martial are also priviattending leged from arrest by statute, (1) it being enacted "that all witnesses duly summoned by the judge advocate, or person officiating as such, shall during their necessary attendance on courts martial, and in going to, and returning from the same, be privileged from arrest, in like manner as witnesses attending any of his Majesty's Courts of law are privileged; and if any such witness shall be unduly arrested, he shall be discharged from (e) 43 Geo. 3. c. 155. s. 28. 38 Geo. 3. c. 50. s. 9. (i) 2 B. and Pul. 363. (k) 50 Edw. 3. c. 5. 1 Rich. 2. c. 15. (1) 53 Geo. 3. c. 17. s, 27. 55 Geo. 3. c. 108. s. 28. 1 & 2 Geo. 4. c. 9. s. 28. 3 Geo. 4. c. 13. s. 28. 5 Geo. 4. c. 13. courts martial. such arrest by the Court out of which the writ or Witnesses process issued, by which such witness was arrested; or attending if the Court be not sitting, then by any judge of the Court of King's Bench, &c. as the case shall require, How disupon its being made appear to such Court or judge, by charged. affidavit in a summary way, that such witness was arrested in going to or returning from attending upon, such court martial." It may be necessary also to mention, that no original arrest on mesne process can be made by the sheriff, or his officer on a Sunday, in consequence of the prohibition contained in 29 Car. 2. c. 7. s. 6. whereby the process is declared void, and the party executing it made liable to an action of trespass. (m) A party arrested on Sunday. With respect to the mode of discharge when a party How disis arrested on Sunday, it seems that the Courts will charged. relieve on motion, and a defendant is also entitled to his action. (n) (m) 1 Salk. 78. 3 East, 155. (n) 1 Salk. 78. 3 East, 155. and see 3 Salk. 148. 2 Lord 30 For a debt of 15%. Qu. see note (a). For a debt of 10l. on bill of exchange or promissory note. For a debt of 20%. in Wales or countypalatine. CHAPTER II. For what cause of action a party may be arrested, und held to special bail. To consider for what amount a party might have been arrested, before the passing of the 12 Geo. 1. c. 29. would be immaterial for the present purpose, as it is now governed by that and subsequent statutes; (a) the two last of which enact, "that no person shall be held to special bail, upon any process issuing out of any Court, where the cause of action shall not have originally amounted to the sum of fifteen pounds or upwards, exclusive of any costs incurred in suing for the same, (b) except where the cause of such action shall arise upon a bill of exchange, or promissory note, in which case a party may be held to special bail for the sum of ten pounds or upwards, (c) in such manner as if the said acts had not passed; upon an affidavit being made and filed of the cause of action according to the above statutes." And by the 11 and 12 W. 3. c. 9. s. 2. no sheriffs shall hold any person to special bail in Wales, or in the counties palatine, upon any process issuing out of the Courts at Westminster, unless an affidavit be first made and filed of the cause of action, and that the same is twenty pounds and upwards, which enactment remains unaltered by 12 Geo. 3. c. 29. (d) (a) 12 Geo. 1. c. 29. 5 Geo. 2. c. 27. 21 Geo. 2. c. 3. 19 Geo. 3. c. 70. 51 Geo. 3. c. 124. continued by 57 Geo. 3. c. 101. But these two last statutes appear now to have expired, as the 57 Geo. 3. c. 101. continued the 51 Geo. 3. c. 124. only until the 1st day of Nov. 1823, and from thenceforth to the end of the next session of parliament; and no provision having been made during the last session, the amount is at present regulated by 21 Geo. 2. c. 3. which makes perpetual the preceding acts, regulating the amount for which a party may be arrested at ten pounds. (b) 51 Geo. 3. c. 124. 57 Geo. 3. c. 101. (c) 12 Geo. 1. c. 29. |