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Of the Privilege of Peers and Members of Parliament.

cumftances, to order; and the furplus to be retained until the defendant fhall have appeared, or other purpose of the writ be answered."

4. Provided always, when the purpose of the writ is anfwered, that then the faid iffues fhall be returned; or if fold, what shall remain of the money arifing by fuch fale, fhall be repaid to the party diftrained upon.

5. And it is further enacted, "That obedience may be enforced to any rule of his majefty's courts of King's Bench, Common Pleas, or Exchequer, against any perfon entitled to privilege of parliament, by diftrefs infinite, in case any perfon or perfons, entitled to the benefit of such rule, shall chufe to proceed in that way: and the laft clause extends them to Scotland.

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Of Proceeding againft Peers and Members of Parliament.

BY this laft ftatute, the privilege is wholly taken away

from the fervants of peers and members of parliament, fo that they may be proceeded against as other indifferent per fons and fuits may now alfo, fince the above ftatute, be commenced at any time, whether the parliament is fitting or not fitting, against any peer or member thereof.

Peers and members of parliament may be proceeded against two ways, viz. by original writ, and by original bill, in either court, except that they cannot be proceeded against by original writ in B. R. in all actions; but in those actions only, fuch as cafe, trespass, ejectment, replevin, and debt, which the King's Bench can hold plea of by original writ.

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If the plaintiff proceeds by original, against a peer, or commoner, the plaintiff makes out a præcipe for an orginal writ, which writ must be made out by the curfitor of the proper county, and filed with the filazer in B. R. and cuftos brevium in C. B. upon which, a fummons is made out to the Sheriff, for the defendant's appearance, which is in the following form:

GEORGE the third, by the grace of God, of Great
Britain, France, and Ireland, king, defender of the
faith, c. To the fheriff of Middlefex, greeting.
We command you, that you caufe to be fummon-
ed, A. B. efq. [or if a peer, the right honourable Henry
earl of
or whatever his title is] he having
privilege of parliament, that he be before us [or if in
C. B. before our juftices] at Westminster, on [a general
return day] to anfwer C. D. in a plea of, &c. re-
citing the whole caufe as in the original, to the
damage of the faid C. of one hundred pounds, and
have there then this writ.

Witness, &c.

Upon the return of which, if the defendant appears, the proceedings are the fame as in other cafes; but if he does not appear, and fhould caft an effoin, which it seems he may do any time before the return of the original writ, but not afterwards, the plaintiff is delayed a whole term, as the defendant has till the first return of the next term to appear; and then, should the defendant not enter an appearance, the effoin must be adjourned to a further day

Of Proceeding against Peers and Members of Parliament.

by the plaintiff; upon which day, and the like default, the plaintiff may then fue out a diftringas. However, the cafting an effoign is feldom done at this day, as the courts fet themselves against fuch obfolete practice, and confider it nothing more than a trick, calculated for the purpose of delay, and a great abufe of the law; and fhould the practice of effoins be revived, there is no doubt but that the courts would inftantly make fuch new rules and orders, as would effectually prevent their occafioning that unneceffary delay of juftice which they formerly did.. Vide the cafes of Anfon v. Jefferson, C. B. 2 Wilf. 164.And Barclay v. Earle. Stra 1194.

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Should no appearance be entered upon the return of the fummons, or effoin caft, the plaintiff's attorney makes out a præcipe for a diftringas, and carries it to the proper filazer, to draw out the fame, which must be fealed; and is in the following form:

GEORGE the third, by the grace of God, of Great
Britain, France, and Ireland, king, defender of the
faith, &c. To the fheriff of Middlefex, greeting.
We command you, that you diftrain A. B. efq.
having privilege of parliament, by all his lands
and chattels in your bailiwick, fo that neither he,
nor any one for him, do intermeddle therewith,
until you fhall have other command in that behalf
from us; and that you answer us for the iffues of
he fame, fo that you have his body before us [or if
n C. B. before our juftices at Westminster, on-
a general return day] to anfwer C. D. in a plea of,
&c. [reciting the original as before] to the damage of
the faid C. of one hundred pounds; and have you
there then this writ.

Witness, &c. this

twentieth year of our reign.

day of

in the

If the defendant does not appear at the return of the diftringas, the plaintiff's attorney must call upon the sheriff to return the writ, whereupon he may fue out an alias; and, upon the return of that, a pluries diftringas. But inftead of proceeding as formerly, by the writ of diftringas ad infinitum, the plaintiff may now move the court out of which

the

Of Proceeding against Peers and Members of Parliament.

the writ iffues, by virtue of the 10 Geo. 3. c. 50. S. 3. for the fheriff to enlarge the iffues, which the court will accordingly order to be encreased, to the amount of the plaintiff's demand.

This motion, is a common motion, and requires neither notice nor affidavit.

The plaintiff, in an action against a member of parliament, had proceeded agreeable to the act of 10 Geo. 3. 50. and had obtained rules for felling the iffues levied upon a diftringas, alias, and pluries; and alfo a rule for an attachment against the fheriff: but no iffues had been actually levied, and at length defendant appeared; whereupon it was moved, that these rules fhould all be difcharged. For as no iffues had been levied, they could not be fold; [vide fect. 3. of the ftatute 10 Geo. 3. c. 50.] and as the defendant in the action had now appeared, the end and purpose of the writs were anfwered. On the other fide, the plaintiff infifted on the costs of iffuing the writs, before the rules fhould be difcharged. And the court thought that reasonable; and directed, that on payment of costs the rules fhould be discharged. They were of opinion, that these cofts were not to attend the event of the fuit, but were to be paid to the plaintiff at all events, whether he should finally fucceed in his fuit or not. Martin v. Townfend and Sawbridge. Burr. 4 pt. 2725.

If the plaintiff proceeds by bill against a peer, or member. of parliament, he must then file his original bill, containing the whole cause of action against him, with the clerk of the declarations in B. R. or prothonotary in C. B. and take out a fummons thereon, which need not have fifteen days between the tefte and return, as the process has when by original writ; and which must be made returnable together with the di Aringas, &c. in cafe of non-appearance thereto, on a day cer-: tain in term, and not on a general return day.

The fummons, attachment, diftringas, &c. when by bill in B. R. do not state the cause of action at large, as when the proceedings are by original writ, but generally; but in both cafes, the fummons, attachment, &c. in C. B. ftate the whole caufe as in the original writ.

In declaring against a peer, or member of parliament, when the fuit is by original, the declaration begins thus:

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Of Proceeding against Peers and Members of Parliament.

Middlefex. A. B. efq. [or whatever his title is] having privilege of parliament, was fummoned to answer C. D. in a plea, &c.

And if by bill,

Middlefex, to wit, C. D. complains against A. B. efq. having privilege of parliament, &c."—and though the fuit is in the King's Bench by bill, the defendant must not be declared againft, "as being in the cuftody of the marshal of the Marfhalfea." Sayer Rep. 63, 64.

If the declaration fhould be in an action of affumpfit against a peer, the plaintiff must take care, in affigning the breach, not to use the following words, as is usual against a common perfon; "but contriving, and fraudulently intend"ing, craftily and fubtily, to deceive and defraud the faid C. D. in this behalf;" for the House of Lords have adjudged it a very high contempt and misdemeanour in any perfon, to charge their noble body with any fpecies of fraud or deceit. But in fuch cafe, against a member of the House of Commons, those words may be inferted, as there is no ftanding order to the contrary; the refentment of the members of that honourable houfe having never yet been irritated at the charge.

In Trinity term, 18 George 3. in the King's Bench, in the cafe of Gofling and wife, against lord viscount Weymouth, it was argued, whether a peer could be fued there by bill of privilege. And adjudged that he might. The cafe was

this:

The plaintiffs commenced an action against the lord Weymouth, by bill of privilege, to which he pleaded in abatement, that he ought to have been sued by original writ, and not by bill of privilege; and thereupon, there was a demurrer and joinder. On the argument of which, the court relied on the cafe of Say against lord Byron in that court, a few years before, and awarded a refpondeas oufter.

The cafe of Say and lord Byron came on before B. R. on a motion to fet afide a diftringas iffued against lord Byron by bill, and the court, having directed precedents to be fearched, found that it had been the uniform practice and usage to proceed against peers in that court by bill of privilege before

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