1815.

BATSON against M'LEAN.

usual place without the gates of the Tower of London. The Spur Gate is within the precincts. If an ordinary person was there arrested, or in the Tower, perhaps the arrest would be good, though the officer would be punished. But here Col. M'Lean was the commanding officer. [Lord ELLENBOROUGH C. J. That is contending for his personal privilege, every where. It is only the privilege of his office; and can it be considered as protecting the officer when not engaged on duty ?] There are many cases to that extent. In Bartlett v. Hebbs, 5 T. R. 686. the defendant was junior clerk in the King's kitchen at St. James's Palace, and the Court held that he was entitled to be discharged on motion. It is the privilege of the King, and not of the servant. In the case of King v. Foster and another, 2 Taunt. 167, a person who had been appointed coachman in ordinary to his Majesty, was held entitled to be discharged, in respect of his liability to be called upon to perform the duty.

Lord ELLENBOROUGH C. J. Do you contend that the commanders of fortresses, &c. are privileged? If you cannot go to that extent it does not seem to come up to this case. Menial servants attending the King must undoubtedly be privileged.

Parke. The defendant was required to attend the Prince Regent on his Majesty's service.

Lord ELLEN BOROUGH C. J. That is a different ground; it may perhaps be maintainable on that ground, in the same manner as a person who has been called upon to attend a court of justice is privileged redeundo.

Rule Nisi on that ground.

Lord ELLENBOROUGH C. J. If it had been within the Tower there could be no doubt but that the arrest would have been wrong.

WHITTINGHAM against DE LA RIEU.

THIS was an action against the defendant for the recovery of a debt for goods sold and delivered to the defendant. The order for the delivery of the goods was made in London, but the delivery itself was partly in Guernsey and partly in London. The defendant residing in the island of Guernsey, and being embarrassed in his money affairs, made a surrender of his property and goods to his creditors, which in that country amounts to a discharge and release of all his debts. The plaintiff entered and proved his debt there. Under these circumstances Bolland had previously obtained a rule, calling on the plaintiff to shew cause why the defendant should not be discharged out of custody on filing common bail.

Scarlett now shewed cause, and Bolland, in support of his rule, cited the case of Ballantine v. Golding, Cooke's Bank. Laws, 515. (3d ed. 575.) to shew that what is a discharge of a debt in the country where it was contracted, is a discharge of it every where; and he contended that the defendant had contracted the debt in the island of Guernsey, and was accordingly entitled to his discharge here.

SED PER CURIAM. We think it should be pleaded.

(a) It is a rule in the Court of King's Bench, that the Court will not go out of the affidavit, or prejudge the cause, by entering into the merits upon which it is founded. 1 Salk. 100. 1 Tidd, 6th ed. 195; and 7th ed. 213. Sed vide 3 East, 169.

1818.

WHITTINGHAM against DE LA RIEu.

Scarlett. It was so done in a case under circumstances somewhat similar to these, where the defendant was discharged of his debts in Ireland (a).

Bolland. In that case the debt was contracted in England, but here it was in Guernsey.

Scarlett. The goods were ordered in London and sent to Guernsey, and part of the goods were delivered in London.

Lord ELLEN BOROUGH C. J. It is a question of law, whether the cessio bonorum in Guernsey is a discharge of the debt, and therefore it should be put on record, and not be decided on affidavit.

Scarlett. It would be so, even if the defendant had obtained his certificate.

Manning, on the same side with Bolland, cited Ballantine v. Golding, Co. Bankrupt Laws, 3 ed. 575; Potter v. Brown, 5 East, 124, and the cases there collected; and he contended, that as the defendant was absolutely discharged from his debts by the laws of the Island of Guernsey, he might be discharged out of custody on his affidavit of the facts, without being compelled to put them on record.

ABBOTT J. We cannot decide this by affidavit.

HOLROYD J. I should doubt whether the law of Guernsey would permit the discharge of the debt which was contracted in England, as this appears to be. Et per Curiam, it must be put on the record and pleaded.

Rule discharged.

(a) Cooke's Bkpt. Law, 3rd ed. 575.

EARLIER against LANGUISHE.

1814.

27th June.

the defendant

out of custody on filing com

MARRYAT moved for a rule to shew cause why The Court will the defendant should not be discharged out of not discharge custody on filing common bail, on affidavits stating that the defendant had become a bankrupt in Bremen, and had there obtained a discharge of his person from all imprisonment for debts.

Lord ELLENBOROUGH C. J. You had better plead it; we cannot so far pay deference to the law of Bremen as to suffer it to alter the law of England.

BAYLEY J. asked if the debt had been contracted in this country or in Bremen.

mon bail, on his having bethe ground of come bankrupt and obtained his certificate in Bremen,

where the debt was contracted (a).

Marryat. In Bremen.

If we were to plead it,

the defendant must, in the mean time, remain in custody.

PER CURIAM. There are precedents for such pleas. But we cannot grant the present application.

Rule refused.

(a) The Court of King's Bench has refused to discharge a defendant out of custody who was arrested at the suit of a creditor resident here, on the ground that the debt was contracted in a foreign country, in which the defendant had become a bankrupt and obtained his certificate, and the plaintiff might have proved his debt under the commission. The Court observed, that it did not appear that the plaintiff was resident in the foreign country at the time of the bankruptcy; and therefore they would not decide the question in a summary way, but put the defendant to plead that he was discharged by the bankruptcy and certificate. See Pedder v. McMaster, 8 T. R. 609. Quin v. Keeffe, 2 Hen. Bla. 553. The plea suggested by the Court was accordingly filed, but the Court held that it was incorrect in point of form, and the matter never came on again. 1 East, 12. A discharge under a foreign commission of bankruptcy is no bar to an action for a debt arising in this country. Smith v. Buchanan, 1 East, 6. See the form of Plea in Potter v. Brown, 5 East, 124.

ATTACHMENT.

1816.

26th June.

sued out an original against the defendant in his wrong

name, the præcipe being right, and defendant

BOSWELL against ATKINS.

Where plaintiff COMYN, on a previous day, had obtained a rule to shew cause why an attachment issued against the sheriff, for not bringing in the body of the defendant, should not be set aside. The plaintiff sued out an original against the defendant by a wrong name, though the præcipe was right, and the defendant put in bail in his right name. The sheriff being ruled to return the writ, returned cepi corpus. The plaintiff not finding bail in the cause in which the writ was the body, but issued, sued out an attachment against the sheriff for not bringing in the body. The defendant had filed an affidavit in the cause in the wrong name.

put in bail in his right name, Court set aside

attachment ob

tained against

the sheriff for

not bringing in

without costs

on either

side (a).

Gaselee now shewed cause.

PER CURIAM. The defendant has followed the plaintiff in his error; and though the plaintiff was wrong in the first instance, the subsequent accidental error of the defendant seems to have put it so far right, as that the attachment should be set aside, without costs on either side.

Rule absolute, without costs on either side.

(a) If a defendant, sued by a wrong name, appear and perfect bail in his right name, without identifying himself as the person sued by the other name, the plaintiff may treat the bail as a nullity, and attach the sheriff. Rex v. Sheriff of Suffolk, 4 Taunt. 818.