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MURUCtAPPA CHETTY v. HORSFALL.*
D.C., Colombo. 13.Q48.
Civil Procedure Code, s. 650—Liability of a member of the Ceylon LightMounted Infantry volunteering for service in the South African war tobe arrested for debt before, judgment.
Per La ware. ,T.—A resident of Ceylon, who is a member of the CeylonLight MountedInfantry,volunteeringfor servicein the South African
war. and whois aboutto leave theIsjand temporarily in obedience to
the orders of his Commanding Officer, cannot be said to be " about to quitthe Island " in the sense of the Civil Procedure Code, section 650.
For this reason, as also on the ground that the right of the plain-tiff to enforcepaymentof his debtmust giveway to .the fight of
the Sovereign and the country to the debtor's services in the field, thearrest of the debtor on a warrant of arrest in mesne process should sothare been issued under section 650 of the Civil Procedure Code.
HIS was an action on a promissory note made by the defend-ant in favour of the plaintiff, and on which Rs. 1,191.37 was
said to be due.On- the25th January. 1900,the plaintiff moved
• In this case, in which it has been held that a creditor can be deprived byCrown of the security of his debt in the person of his debtor, if the services ofthe. debtor are required in the field, the applicability of the well-establislud prin-ciple that, if the Crown requires the property of the subject for State purposes,it is bound to give compensation for it, yras neither raised nor considered.Ed.
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1900.the District Court for a warrant of arrest for securing the person of
h'drruary 1. the defendant, under section 660 of the Civil Procedure Code, onthe ground that the plaintiff had no security whatever to satisfythe claim on the promissory note, and that the defendant wasabout to quit the Island, having enlisted as a volunteer in theCeylon Contingent proceeding to South Africa for service in the.war against the Boers.
On the 30th of the same month defendant surrendered andcontended that the warrant issued was void, in that he was asoldier in active service.
On the same day (30th .January, 1900) the Acting AdditionalDistrict Judge (Mr. F. R. Dias) held that the Army Act in force, asrevived by 62 Viet. c. 3, was applicable to Ceylon, but that itnowhere gave immunity to a soldier or other military officer ascontended; that section .144 expressly enacted that such a personmay be taken in execution on account of a debt when the amountexceeds £30, over and above all costs ‘of suit; that the present-case involved a larger amount; that section 177 of. the Army Actprovides that, when a force of volunteers or of militia or anyother force is raised in India or in a colony, any law of India orthe colony may extend to the officers and men belonging to suchforce; that the Civil Procedure Code of Ceylon should governthe case as to the manner of obtaining the warrant of arrest: thatthe decision of Berwick, D.J., in Truscott’s case * to the effectthat, as the interest of the State must be considered paramount,a soldier in active service in defence of the Empire cannot bearrested for a private debt, was not binding on him; and that therewas nothing in the English Army Act or the Ceylon ProcedureCode to exempt from liability to arrest a military officer. Hetherefore ordered the committal of the defendant, unless be gavebail in Rs. 1.350 with one surety, to abide by and perform thejudgment of the District Court.
Layard, A.-Q. (with him Tampler, C. C.), after due notice toplaintiff, moved the Supreme Court- on the 1st February. 1900. torevise the order of committal made, as above, by the AdditionalDistrict Judge.
Layard. A.-G.—The object of the provisions relating to arrestin mesne process was to prevent a suitor from leaving the juris-diction of the Court and so avoiding the course of justice. Neitherthe petition filed in the Court below, nor the affidavit- filed insupport of it, showed that the defendant was leaving the Island
*The case of A bubaker v. Truscott will be found reported at p. 10 of thisvolume. It was not carried in appeal to the Supreme Court.—Ed.
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permanently, or leaving it in order to evade payment. The1900.-
warrant had been issued without due inquiry. Section 507 of the February l.Civil Procedure Code provides,—“ if, in the execution of a decree,
" u warrant of arrest is to be executed within the limits of a“ military station, the officer charged with the execution of such“ warrant shall deliver the same to the commanding officer, who“ shall, if the person named therein is by law liable to arrest, back“ the warrant. ” The words “if the person is by law liable to arrestconserved the privileges of military men. Under the ltoman-Dutch Law it has been clearly established in Truscott’is Case* that asoldier in active service cannot be arrested for a private debt. TheAdditional District Judge ought to have followed that judgment.
It was as binding on him as a judgment of the Supreme Court wasbinding on one of its judges. If the District Judge believed thatthe defendant came under the Army Act, he should have shown rea-sons for that opinion. The District Judge speaks of the defendantas a soldier, but defendant was not a soldier, being only a memberof the Ceylon T.ight Mounted Infantry, who had volunteered forservice inSouthAfrica. Thewarrantofarrest was improperly
issued. If the warrant was good as against defendant, it wouldhave been good as against Lord Roberts. Was it to be supposedthat LordRoberts would notbe allowedto leave this country
because he owed Rs. 1,300 when he was going to fight the nation’*cause inSouthAfrica? Theinterestsofthe State were para-mount insuch acase, and the remedyofarrest for the recovery
of a private debt was in abeyance (Voet, II. 4, 39). If the District;
Judge held that the defendant came under the Army Act, therewas no evidence that the debt in the present- case was over .€30,as required by that. Act; nor could section 144 be taken to applyto this Colony, as our currency was rupees. If applicable, theprocedure enjoined by that Act as to the giving of a memo-randum of the affidavit to defendant without fee was notcomplied with. [Browne, A.J.—Was the warrant backed by theCommanding Officer?] No. Captain Rutherford, after con-ference wi£h his superiors, refused to do so. Section _,177 refers-indeed to a force raised in India or any of the colonies, but thewords “ may extend ” are permissive only. Whether the case beviewed in reference to the Army Act, or with regard to the rightsof the Sovereign and the duties of the person who was sworn toleave—not quit for good—this country for the purpose of servingthe Queen in another country, the order made by the District-Judge was one that could not be upheld in revision.
See infra p.,10.
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1900. Walter Pereira, for the plaintiff, respondent.—The order of theFebruary 7. jyjstTict Judge was appealable, and the motion for revision shouldnot be entertained. But the defendant was clearly liable to bearrested. The District Judge rested almost entirely upon theArmy Act. [Lawkie, J.—Has it anything to do with a warrant inmesne process?] The Army Act applies to Ceylon. By 62 Viet,c. 3, that Act was extended to Ceylon from the 31st January lastyear to the 30th January this year. 28 & 29, Viet. c. 63, § 2, alsobore on this question. The Common Law of the Island, which isthe Roman-Dutch, was subject to the provisions of the Army Act.The reasons of State referred to by the Attorney-General were nodoubt known to the Legislature when it considered and passedthe Act, which says that a soldier is liable to arrest. Whetherthe procedure for arrest is to be under section 1-14 of thatAct, or section 650 of the Ceylon Code, all that is essentiallyrequired is an affidavit, which has been duly served ondefendant.
In niy opinion, a resident of Ceylon who is about to leave theIsland temporarily in obedience to the orders of his CommandingOfficer cannot be said to be about to quit the Island ” in the senseof section 650 of the Civil Procedure Code. But I rest my judgmenton higher grounds.
In time of war the claims of individuals must give way to theparamount right of the Queen to the services of. her subjects. Mr.Horsfall, who is now before the Court, is a volunteer, whoseservices have been accepted by the Governor. He has swornto serve the Queen in South Africa, and he is now under orders tosail to-day ou active service in the war. It would be againstpublic policy to prevent him from obeying the orders to embark.He may be comparatively an unimportant member of the army, butevery man is needed. The country expects that Mr. Horsfallwill do' liis best and will do good service in the field. To mymind it is plain that the rule Solus populi supreme lex applies. Itis obvious to me that it would be illegal to permit the arrest on ajudgment for a civil debt, still less an arrest before judgment, ofa General ordered by the' Queen to command an army, or the arrestof the officers in command of a contingent under orders for thewar. It follows, I think, that if the officer cannot be arrested, theprivate soldiers cannot be. Their arrest and detention wouldlessen the safety of the country and imperil grave publicinterests.
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The right of the plaintiff to enforce payment of a debt due tohim must give way to the right of the Queen and the country tothe debtor’s services in the field.
In revision, I would set aside the order and discharge the defendant.
I agree in the remarks of my brother, and would say that it ispossibly open to question whether the procedure 'of arrest beforejudgment under section 144 would apply in this case, since thereis no reference thereto in chapter 36, which regards action by andagainst military men.
The judgment of Mr. Berwick was oue which was pronouncedin regard to the arrest of a debtor, when there was no necessity forhis services in the field; and I think his arguments apply multnmagis in the present case, when a Volunteer Contingent has beenspecially em-olled for military service.
I am not certain whether the member that has been arrestedcomes under the provision or not of Ordinance No. 16 of 1890.section 12. I believe each of the members has a number as in allregiments, and the numbers are over 300—so my cousin, who isserving, has told me—which, as the number of their body is 150.points out to me they are members of some other larger force,either the Ceylon Light Infantry Volunteers themselves, or theoriginal Ceylon Mounted Infantry. If he so comes under theVolunteer Reserve, the law seems to make it absolutely necessarythat he shall, when called upon, he under the unlimited controlof the Senior Officer in Command in the Colony.
I hesitate for a moment to depart from the strict rules of pro-cedure, such as I sought to enforce myself as District -Judge insuit No. 11,719, by accepting the appearance before the Court ofthe subject of arrest, when the formality of the signature of theCommanding Officer is not attached.
I think that the provision of section 599 ought, to be taken toapply to all cases, that it was meant that the Civil and Militaryauthorities should be always found to be acting in unanimitywith each other, and that the Court ought not to deal with thematter except when the warrant had been endorsed by theCommanding Officer, and there could be no question as to thestrict correctness of the procedure. I understand that it was notso endorsed here, and therefore, at the present minute, Mr. Horsfallis not liable to arrest.
There has been, in fact, by this ’section of the Act provision madefor a dual control in procedure, and,both the Army and the Civil
February 1.Lawjue, J.
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1900.Court must co-operate in giving effect to the process of law, which
February I. would take a military man from his duty and deliver him to his
Bbowe, civil creditor.
I therefore concur in my brother s opinion.
MURUGAPPA CHETTY v. HORSFALL