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ABUBAKER v. TRU SCOTT*
D.C., Colombo, 92,164:.
Action for debt—Warrant of arrest after judgment—Liability of an officer ofthe Bntish army to such arrest, when war is imminent. Ordinance No. 4of 1867, e. 32—R and 0, 1833, s. 1, clause 35.
Per Berwick, D.J.—When the military forces of the Sovereign areengagedin operationssuitable tc astate of war existing or imminent,
an officer of the British army in actual service, in. a garrison of a fortifiedplace, like Colombo, is not liable to be taken from his regimental dutiesunder a warrant of arrest in an action for debt.
R. T. Berwick, D.J., disallowed the motion of the plaintifffor a writ of execution against the person of the defend-
ant (wholiad failedto surrenderunclaimed propertyto satisfy
the writ of execution issued against his property) by the followingjudgment pronounced on the 30th August, 1884.
The defendantyis an officer holding Her Majesty’s Commissionin the Regiment of the Royal Dublin Fusileers, and is now servingwith <hbe regiment in the garrison of Colombo. It seems thatseveral writs againsthis person have already issuedfrom this
Court in the ordinary routine business without the attention ofthe Court having been drawn either to the names of the partiesor to the special occupation of the defendant. Lately, however,another motion of the same nature being made against the samedefendant,plaintiff’sadvocate in that case withgreat and
characteristic propriety had it treated as a “ special ” motion anddrew my attention to the position of the defendant, referring meat the same time to arguments and authorities pro and con. Ulti-mately that motion was not pressed, and it became unnecessary forme to give a judicial opinion on the question raised. It is underthese circumstances that the present motion has been broughtforward in this suit, in which my attention has been expresslycalled to the fact that the defendant is described in the libel as a" Lieutenant, Riyal Dublin Fusileers, Fort, Colombo ”. The factthat he is now serving with his regiment in the garrison of theFort has been acknowledged by Mr. Keith. I take judicial notice
•Cited in the argument of Horsfall’s Case (supra p 5) and acquiesced in byLawbib, J.. and Browne, A.J.—Bd.‘
( n )of the fact that Her Majesty’s military forces are now engaged inmilitary operations suitable to a state of war existing or imminent,but not in this Colony. The question I have to decide is whetherunder thesecircumstances anofficer of Her Majesty’sarmyin
actual service in a garrison of a fortified place is liable to betaken by the civil power from his regimental and garrison dutiesunder a warrant of arrest in an action for debt.
The plaintiff’s proctor relies on section 82 of the Fiscal’s Ordi-nance, No. 4 of 1867, which provides that “ in every case of“ executionagainstpropertya Fiscal shallenforcewrits'of
“ executionagainstproperty,”in the mannerthereindirected;
“ in defaultof suchproperty being pointed out,or therebeingno
“ property which the Fiscal could seize, the debtor may be arrested” by process of execution against the person.” And the General Eulesand Orders of 1833, section 1, clause 35, provide that “ if judgment
“ be pronounced for any sum certain, execution may issue
“ against the property movable or immovable of the party against“ whom the writ shall issue, or against his person, or against both.” as the judge shall consider the case may require.”
These provisions, which indeed are more of a “ directory ” naturethan otherwise, must be taken as intended to apply to ordinarycases only with which the Courts have to deal, and to those casesonly in which the Courts have a competent jurisdiction and powerto arrest, and so as being subject to any provisions, whethercreated by Common Law or by Legislative Enactments, whicheither restrict the jurisdiction and power of the Courts or the liabi-lity to arrest. They provide general rules for those cases where thatjurisdiction or that liability to arrest exists, but neither expresslynor, I think, by implication affect those exceptions in cases inwhich the ” substantive ” law governing the Colony has exceptedanything from the general powers and jurisdiction of the Courts,or created special privileges either in behalf of individuals or inbehalf of the State. For example, it would be impossible to con-tend that Ambassadors on a mission from one State' to anotherwere not inviolable from civil arrest, however general and widemight be the terms used in defining the jurisdiction of the Courtor laying down its procedure, and this on grounds entirelyindependent of extra territorial questions. Again, our practice isreplete with instances in which witnesses and others who arejudgment-debtors having business in our Courts of Justice havebeen held not liable to civil arrest in execution,, eundo, morandoet redeundo, to, at, and from these Courts, although there isnothing in our local legislation or general rules creating anyspecial exceptions in their favour. So also those who. plead
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1884.minority, coverture, &c., would undoubtedly be exempt from
Avgust 30. liability to arrest in execution of a judgment, although there isBerwick, nothing said about minors, married women, &c., in the provisionsB.J. above quoted. The Supreme Court has expressly decided that amarried woman is not liable to arrest in execution of a judgmentagainst her. It is therefore very plain that the provisions abovequoted, although expressed in general terms, do not exhaust nornarrow the law on the subject, and that they are controlled by theoverriding substantive law of the country.
There are those whose office and duties are such that any inter-ference with the discharge of these could not occur withoutmanifest injury to the interests of the State; and. if such a casecould be conceived, I have no doubt that I should refuse to grantprocess of this Court against the representative of the Sovereignin this Colony. I make this observation merely to indicate by anobvious illustration that, where the clear and unquestionableinterests of the State are involved, the Courts of the State mustexcept those interests from legislative provisions couched inmerely general terms. Although of course there are other, orrather connected considerations, concerning the dignity andrespect due to Her Majesty which would affect such a case, andwhich probably did actuate the refusal to .issue a subpoena as awitness by the High Court of Madras in the case of His ExcellencyMr. Grant,Duff.
Applying this principle of regard to the dominant State interestto the case before me, I conceive that there cannot be many thingsmore obvious than the demand that every officer actually servingin Her Majesty’s military and naval forces must be ready on themoment to go wherever Her Majesty may require his militaryservice, and this could not be if he were liable to arrest on civilprocess. Plainly, the officer in question • could not be arrested andimprisoned on a judgment debt in England, for the simple, reasonthat imprisonment for debt does not exist in England, the onlyvestige of that barbarous institution now left there being imprison-ment for contumacy in not satisfying a judgment which the debtoris able to pay; and that is quite a different thing from the absoluteimprisonment for debt. I, of course, except imprisonment forfraud and the like. Neither could he be arrested and imprisonedon a judgment like the present one in the Continent of India.The Army Act contains special legislative provision for debtsby officers in India. It is, however, silent as to debts in theColonies.
Failing any express legislative enactment applicable to Ceylonin respect of officers actually serving in the army, I hold, for the
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reasons already given, that the Fiscals’ Ordinance is not exhaus- 18M*tive of the law, and does not exclude the exceptions stated by the Au4mt 30-general Common Law of the country, which is the Roman-Dutch Bbbwick*Law. I am indebted to the learned Advocate, Mr. De Saram, for D‘J'refeiTing me to Voet’a Commentaries (2, 4, 39), where that com-mentator cites a number of authorities in support of the statementthat on the ground of privileges the soldiers “ cannot be arrested ”
(he is treating of civil process and riot of criminal) ‘‘ while proceed-ing either to a fort' or to garrison them,” and that the same ruleapplies to those occupied in transporting military supplies andotherwise serving the public military interest. The reasonv hegives for the rule is the necessities of military discipline and thedefence of the State. Of course these reasons apply multo mayis tosoldiers already out and doing military duty in the fort or garrison,and much more to officers than to men.
I therefore think that the defendant is exempt from liability toarrest in Ceylon in execution of a judgment of the Civil Courtsfor debt, and the only point remaining is whether thisexemption is one of the nature of a personal privilege which he isobliged to claim and can only get the benefit of by claiming, or onewhich is a matter of absolute law independent of an officer s ownwish in the matter. It. is undoubtedly true that in most oases ofexemption of this nature it is a privilege which attaches to theindividual, ” though in his special capacity,” and should bepersonally claimed. That has been determined in England bythe rule in respect of Ambassadors and members of their house-holds, &c., and manifestly holds where the Court would not other-wise be judicially informed of the individual’s capacity and rightto exemption. But I do not think that in all cases it is a rriatter ofmere personal privilege to be claimed or waived as the individualmay desire. In the case of military men, I apprehend that theexemption does not exist in – the slightest degree for their interest,but solely for the public interest. One may conceive, though 1trust the case is not a likely one, a military man contriving to bearrested for debt purposely in order to avoid proceeding onmilitary duty; and looking .to the reason given by Voet. militarydiscipline and the defence’ of the State, I think that, where, as inthe present instance, the Court has judicial knowledge of theposition of the defendant, which it has both from the record andfrom the proctor of the party moving, it is its duty to refuse themotion for arrest. If it were merely a matter of’the defendant’spersonal interest, I might allow the motion, plaintiff givingsecurity for any damages the defendant might recover from himon account of the arrest; but there is no room for such a course
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when it is the public and not the private interest which is thereason for the exemption.
I have only to add that I. believe the point before me is anentirely new one in this country. There is no reported case, andso far as I know the question has never before been decided inany of our Courts.
The motion is disallowed.
[No appeal was taken by the execution creditor.]
ABUBAKER v. TRUSCOTT