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Of the Privilege of Peers and Members of Parliament.

cumstances, to order; and the surplus to be retained until the desendant shall have appeared, or other purpose of the writ be answered."

4. Provided always, when the purpose of the writ is answered, that then the said issues shall be returned; or is sold, what shall remain of the money arising by such sale, shall be repaid to the party distrained upon.

5. And it it surther enacted, " That obedience may be enforced to any rule of his majesty's courts of King's Bench, Common Pleas, or Exchequer, against any person entitled to privilege of parliament, by distrefs infinite, in case any person or persons, entitled to the benesit of such rule, shall chuse to proceed in that way: and the last clause extends them to Scotland.

Of

Os Proceeding against Peers and Members of Parliament.

BY this last statute, the privilege is wholly taken away from the servants of peers and members of parliament, Co that they may be proceeded against as other indifferent persons—and suits may now also, since the above statute, b(; commenced at any time, whether the parliament is sitting or not sitting, 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, such as casse, trespass, ejectment, replevin, and debt, which the King's Bench can hold plea of by original writ.

If the plaintiff proceeds by original, against a peer, or commoner, the plaintiff makes out a pracipe for an erginal writ, which writ must be made out by the curfitor of the proper county, and filed with the flaze? in B. R. and cujlos brevium in C. B. upon which, a summons is made out 19 the Jkeriff, for the desendant's appearance, which is in the following form:

GEORGE the third, by the grace of God, of Great Britain, France, and Ireland, king, desender of the saith, jfk. To the sheriff of Middlesex, greeting. We command you, that you cause to be summoned, A- B. esq. [or isa 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 justices] at Wejlminster, on [a general return day] to answer C. D. in a plea of, &c. reciting the whole cause as in the original, to the damage of the said C. of one hundred pounds, and have there then this writ.

Witnefs, is'c.

Upon the return of which, if the desendant appears, th« proceedings are the same as in other cases; but if he does not appear, and should cast an esfoin, 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 desendant has till the first return of the next term to appear; and then, should the desendant not enter an appearance, the esfoin must be adjourned to a surther day e

Of Proceeding against Peers and Members of Parliament.

by the plaintiff; upon which day, and the like default, the plaintiff may then sue out a dijlringas. However, the casting an ejfcign is seldom done at this day, as the courts set themselves against such obsolete practice, and consider it nothing more than a trick, calculated for the purpose of delay, and a great abuse of the law; and should the practice of esfoins be revived, there is no doubt but that the courts would instantly make such new rules and orders, as would effectually prevent their occafioning that unnecessary delay of justice which they formerly did. Vide the cafes of Anson v. Jefferson, C. B. 2 Wils. 164.— And Barclay v. Earle. Stra 1194.

Should no appearance be entered upon the return of the summons, or ejjoin cast, the plaintiff's attorney makes out a pracipe for a djlringas, and carries it to the proper filazer, •to draw out the same, which must be sealed; and is in the following form: •; .

. GEORGE the third, by the grace of God, of Great Britain, France, and Ireland, king, desender of the saith, &c. To the sheriff of Middlesex, greeting. We command you, that you distrain A. B. esq. having privilege of parliament, by all his lands and chattels in your bailiwick, so that neither he, nor any one for him, do intermeddle therewith, until you shall have other command in that behalf from us; and that you answer us for the issues of he same, {0 that you have his body before us [or if n C. B. before-our justices at Wejlminjler, on———a general return day] to answer C. D. in a plea of, iffc. [reciting the original as before] to the damage of the said C. of one hundred pounds; and have you there then this writ.

Witnefs, &c. this day of in the

twentieth year of our reign.

If the desendant does not appear at the return of the dijlringas, the plaintiff's attorney must call upon the sheriff to return the writ, whereupon he may sue out an alias; aud, upon the return of that, a pluries dijiringas. But init-'ad of proceeding as formerly, by the writ of dijiringas ad i^siniium, the plaintiff may now move the court out of which

the

Of Proceeding against Peers and Members of
Parliament.

the writ issues, by virtue of the 10 Geo. 3. c. 50. s. 3. for
the sheriff to enlarge the ijjues, which the court will ac-
cordingly order to be encrcased, to the amount of the plain-
tiff's demand.

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

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 selling the issues levied upon a dijlringas, alias, and pluries; and also a rule for an attachment against the sheriff: but no issues had. been actually levied, and at length desendant appeared; whereupon it was moved, that these rules should all be discharged; For as no issues had been levied, they could not be fold j [vide sect. 3. of the statute 10 Geo. 3. c. 50.] and as the desendant in the action had now appeared, the end and purpose of the writs were answered. On the other fide, the plaintiff insisted on the costs of issuing the writs, before the rules should be discharged. And the court thought that reasonable; and directed, that on payment of cojls the rules should be discharged. They were of opinion, that these costs were not to attend the event of the suit, but were to be paid to the plaintiff at all events, whether he should finally succeed in his suit or not. Martin v. Town/end 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 summons 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 diJiringas, &c. in case of non-appearance thereto, on a day certain in term, and not on a general return day.

The summons, attachment, dijlringas, &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 cases, the summons, attachment, &c. in C. B. state the whole cause as in the original writ.

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

K 4 Middlesex.

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Of Proceeding against Peers and Members Parliament.

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Middlesex. A. B. esq. [or whatever his title is] having privilege of parliament, was summoned to answer C. D. in a pica, &c.

And if by bill,

Middlesex, to wit, C. D. complains against A. B. esq. having privilege ot parliament, Use."—and though the suit is in the King's Bench by bill, the desendant must not be declared against, "as being in the custody of the marjhal of the Marjhalsea." Say er Rep. 63, 64.

If the declaration should be in an action of ajfumpstt against a peer, the plaintiff must take care, in assigning the breach, not to use the following words, as is usual against a common person; "but contriving, and fraudulently intend*' ing, crastily andsubtily, to deceive and defraud the faidC. D. in this behalf;" for the House of Lords have adjudged it a very high contempt and misdemeanour in any person, to charge their noble body with any species of fraud or deceit. But in such cafe, against a member of the House of Commons, those words may be inserted, as there is no standing order to the contrary; the refentment of the members of that honourable house having never yet been irritated at the charge.

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

The plaintiffs commenced an action against the lord IVeymouth, 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 case of Say against lord Byron in that court, a few years before, and awarded a respondeas ouster.

The case of Say and lord Byron came on before B. R. on a motion to set afide a dijlringas issued against lord Byron by bill, and the court, having directed precedents to be searched, found that it had been the uniform practice and usage to ir^tced against pars in that court by bill of privilege before

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