KELLY v BIRCH. [Chancery.]

• Jurisdiction: Ireland
• Judgment Date: 10 February 1854
• Date: 10 February 1854
• Court: Chancery Division (Ireland)

Chancery.

KELLY

and

BIRCH.

Wells v. GurneyENR 8 B. & C. 769.

Birch v. ProdgerUNK 1 N. R. 135.

Barratt v. PriceENR 9 Bing. 566.

Amsinck v. Barklay 8 Ves. 594.

Buckmaster v. Cox 2 Ir. Law Rep. 101.

Goodwin v. Lorden 3 N. & M. 879; S. C. 1 A. & E. 378.

466 CHANCERY REPORTS. 1854. Chanemtg. KELLY v. BIRCH. Feb. 9, 10. A respondent THIS was a motion that the respondent might be discharged from is not entitled to his dis- custody under a writ of ne exeat regno, obtained on the 4th of charge from custody under May 1853. a ne exeat reg no, upon the The petition in this' cause alleged that the respondent, having ground that he was made been entrusted with money and securities for money belonging to amenable to that writ by the petitioner, had fraudulently misapplied them. The respondent means cc-' arrest under a had absconded from Ireland before the writ of ne exeat regno was warrant issued on informs obtained. The petitioner obtained a warrant for the arrest of the tions sworn by respondent, on a charge of feloniously stealing the securities. On the petitioner, in respect of this warrant the respondent was arrested at Southampton, and the same mat ters which brought over to Dublin ; and the writ of ne exeat regno was were in ques tion in the lodged with the officer in whose custody the respondent then was. suit ; even though the Upon investigation of the charge before a magistrate, the respondent prosecution in stituted in pur- was committed for trial, on a charge of embezzlement. A true bill suance of those informations was found on an indictment for that offence; preferred before the be eventually abandoned, if the petitioner appear to have had a bona fide intention of prosecuting the criminal proceedings at the time of procuring the arrest on the warrant. grand jury of the city of Dublin, in the month of August. The respondent procured the removal of the indictment to the Court of Queen's Bench. On the 2nd of December, the trial was called on in the Court of Queen's Bench, when the case was incomplete, in consequence of the absence of witnesses ; and the Counsel for the prosecution having refused to pay the costs of the day, in the event of an adjournment to the following day being granted, the prisoner was acquitted, no evidence having been offered. The other material facts of the case appear in the LORD CHANÂCELLOR'S judgment. Argument. Mr. Martley (with him Mr. S. Ferguson), for the respondent, referred to the law as laid down in Wells v. Gurney (a); Birch (a) 8 B. & C. 769. CHANCERY REPORTS. 467 v. Prodger (a); Barratt v. Price (b); Amsinck v. Barklay. (c); 1854. BUckmaster v. Cox (d). Chancery. KELLY V. Mr. Hughes, (with him Mr. H. Smythe, and Mr. Francis BIRCH. Brady), for the petitioner. Argument. Mr. Ferguson, in reply. The LORD CHANCELLOR. Feb. 10. In this case a very serious question arises. The present appli- Judgment. cation is of a class upon which this Court always looks with favour, as all Courts do upon cases in which a party seeks to recover his liberty, by applying for his discharge from custody, upon the ground of the illegality of the process upon which he has been arrested ; but in deciding it, the Court must be guided by the settled rules of law applicable to the circumstances. The rule of law here applicable has_ not been controverted. It may almost be said to have been admitted by both parties, in the affidavits on one side and the other-that is to say, the facts proÂpounded in the affidavits, on the one side, and negatived in the same way in the affidavits on the other side, would, if sustained, precisely bring the case within the known rule of law. The respondent swears in his affidavit "that the said petitioner formed the design of instituting criminal proceedings against this deponent, not with the belief that such was a bona Ale proceeding, or could be legally taken, or in fact sustained, or with the intention of prosecuting the same to trial, for the purposes of justice or adÂvice,* but as a scheme or device intended for the purpose of arresting deponent, under colour of such criminal proceedings, and of bringing deponent by means of such custody within the jurisdiction of this honourable Court, in order to have deponent detained under the writ of ne exeat regno." That charge is almost in the precise language of the authorities, pointing out the circumstances under which the. (a) 1N. R. 135. (b) 9 Bing. 566. (c) 8 Ves. 594. (d) 21r. Law Rep. 101-- (e) 8 B. & C. 769. * Sic. 468 CHANCERY REPORTS. 18$4. party arrested is entitled to his discharge ; and if the case'made by Chancery. the respondent in those words were sustained, the Court would be KELLY bound to act upon it, and to discharge the respondent from custody. V. BIRCH. The law upon this subject is stated in Wells v. Gurney (a), the facts in which are, in a certain sense, very similar to those which the Judgment. respondent alleges to exist here-because it was a case in which criminal process was used in a manner in which civil process could not have been employed, with the result that the party being placed in custody, by virtue of the criminal proceeding, was made amenÂable to civil process. In that case, the plaintiff had a demand reÂcoverable by civil action-he was unable to arrest the defendant on civil process ; but the defendant was upon Sunday arrested under a warrant for an assault, committed against a third person ; and then, on the day following, he was taken upon the civil process. The Court of Queen's Bench, in that case, considered it plain, that there was an understanding between the parties-the plaintiff in the civil action, and the prosecutor for the assault ; and it was of opiÂnion that the mode of proceeding had been adopted merely for the purpose of giving effect to the civil process. Bayley...