MURUGAPPA CHETTY v. HORSFALL.

MURUGAPPA CHETTY v. HORSFALL.

D.C., Colombo, 13,248.

Civil Procedure Code,. 1. CM-Liability of a member of the Ceylon Light. Mounted Infantry volunteering for service in the South African war to be arrested for debt before judgment.

Per Lawrie. J.-A resident of Ceylon, who is a member of the Ceylon Light Mounted Infantry, volunteering for service in the South African war, and who is about to leave the Island temporarily in obedience to the orders of his Commanding Officer, cannot be said to be " about to quit the Island " in the sense of the Civil Procedure Code, section 650.

For this reason, as also on the ground that the right of the plaintiff to enforce payment of his debt must give way to the right of the Sovereign and the country to the debtor's services in the field. the arrest of the debtor on a warrant of arrest in mesne process should not have been issued under section 650 of the Civil Procedure Code.

THIS 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 the 25th January. 1900, the plaintiff moved

* In this case, in which it has been held that a creditor can be deprived by the Crown of the security of his debt in the person of his debtor, if the services of the debtor are required in the field, the applicability of the well-established principle that, if the Crown requires the property of the subject for State purposes. it is bound to give compensation for it, was neither raised nor considered.-Ed.

the District Court for a warrant of arrest for securing the person of the defendant, under section 650 of the Civil Procedure Code, on the ground that the plaintiff had no security whatever to satisfy the claim on the promissory note, and that the defendant was about to quit the Island, having enlisted as a volunteer in the Ceylon Contingent proceeding to South Africa for service in the war against the Boers.

On the 30th of the same month defendant surrendered and contended that the warrant issued was void, in that he was a soldier in active service.

On the same day (80th January, 1900) the Acting Additional District Judge (Mr. F. R. Dias) held that the Army Act in force, as revived by 62 Vict. c. 3, was applicable to Ceylon, but that it nowhere gave immunity to a soldier or other military officer as contended; that section 144 expressly enacted that such a person may be taken in execution on account of a debt when the amount ' exceeds £30, over and above all costs of suit; that the present case involved a larger amount; that section 177 of the Army Act provides that, when a force of volunteers or of militia or any other force is raised in India or in a colony, any law of India or the colony may extend to the officers and men belonging to such force; that the Civil Procedure Code of Ceylon should govern the case as to the manner of obtaining the warrant of arrest; that the decision of Berwick, D. J., in Truscott's case to the effect that, as the interest of the State must be considered paramount, a soldier in active service in defence of the Empire cannot be arrested for a private debt, was not binding on him; and that there was nothing in the English Army Act or the Ceylon Procedure Code to exempt from liability to arrest a military officer. He therefore ordered the committal of the defendant, unless he gave bail in Rs. 1,350 with one surety, to abide by and perform the judgment of the District Court.

Layard, A.-G. (with him Templer, C. C.), after due notice to plaintiff, moved the Supreme Court on the 1st February. 1900, to revise the order of committal made, as above, by the Additional District Judge.

Layard. A.-G.-The object of the provisions relating to arrest in mesne process was to prevent a suitor from leaving the jurisdiction of the Court and so avoiding the course of justice. Neither the petition filed in the Court below, nor the affidavit filed in support of

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