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ABUBAKER v. TRUSCOTT
NLR5V10
ABUBAKER v. TRUSCOTT.
D.C., Colombo, 92,164.
Action for debt-Warrant of arrest after judgment-Liability of an officer of the British army to such arrest, when war is imminent. Ordinance No. 4 of 1867, s. 32-R and O, 1833, s. 1, clause 35.
Per Berwick, D. J.-When the military forces of the Sovereign are engaged in operations suitable to a state of war existing or imminent, an officer of the British army in actual service in a garrison of a fortified place, like Colombo, is not liable to be taken from his regimental duties under a warrant of arrest in an action for debt.
MR. T. Berwick, D. J., disallowed the motion of the plaintiff for a writ of execution against the person of the defendant (who had failed to surrender unclaimed property to satisfy the writ of execution issued against his property) by the following judgment pronounced on the 30th August, 1884.
The defendant is an officer holding Her Majesty's Commission in the Regiment of the Royal Dublin Fusileers, and is now serving with the regiment in the garrison of Colombo. It seems that several writs against his person have already issued from this Court in the ordinary routine business without the attention of the Court having been drawn either to the names of the parties or to the special occupation of the defendant. Lately, however, another motion of the same nature being made against the same defendant, plaintiff's advocate in that case with great and characteristic propriety had it treated as a " special " motion and drew my attention to the position of the defendant, referring me at the same time to arguments and authorities pro and con. Ultimately that motion was not pressed, and it became unnecessary for me to give a judicial opinion on the question raised. It is under these circumstances that the present motion has been brought forward in this suit, in which my attention has been expressly called to the fact that the defendant is described in the libel as a " Lieutenant, Royal Dublin Fusileers, Fort, Colombo ". The fact that he is now serving with his regiment in the garrison of the Fort has been acknowledged by Mr. Keith. I take judicial notice
Cited in the argument of Horsfall's Case (supra p 5) and acquiesced in by Lawrie, J.. and Browne, A.J.-ED.
of the fact that Her Majesty's military forces are now engaged in military operations suitable to a state of war existing or imminent, but not in this Colony. The question I have to decide is whether under these circumstances an officer of Her Majesty's army in actual service in a garrison of a fortified place is liable to be taken by the civil power from his regimental and garrison duties under a warrant of arrest in an action for debt.
The plaintiff's proctor relies on section 32 of the Fiscal's Ordinance, No. 4 of 1867, which provides that " in every case of " execution against property a Fiscal shall enforce writs of " execution against property," in the manner therein directed; " in default of such property being pointed out, or there being no " property which the Fiscal could seize, the debtor may be arrested " by process of execution against the person." And the General Rules and Orders of 1833, section 1, clause 35, provide that " if judgment " be pronounced for any sum certain, execution may issue " against the property movable or immovable of the party against " whom the writ shall issue, or against his person, or against both, " as the judge shall consider the case may require."
These provisions, which indeed are more of a " directory " nature than otherwise, must be taken as intended to apply to ordinary cases only with which the Courts have to deal, and to those cases only in which the Courts have a competent jurisdiction and power to arrest, and so as being subject to any provisions, whether created by Common Law or by Legislative Enactments, which either restrict the jurisdiction and power of the Courts or the liability to arrest. They provide
