H. T. 1860. Common Pleas. RUBENSTEIN v. Jan, 29. A practising THIS was an application to discharge from custody the defendant, barrister, who a practising barrister, on the ground of privilege. The motion had been attending in the Hall of the Four-courts, and had there in a case, set was founded upon the affidavit of the defendant, which contained the following statements:-That on or about the hour of received a brief half-past four, P.M., on the 25th of January 1860, he was arrested down for hear- on Ormond-quay, while he was returning from the Four-courts, ing upon that day, but where he had been attending his professional duties; that he was which, prior to his receiving the brief, had been post poned till the next day, was returning homewards by the most direct course; that in the early part of the day upon which he was arrested, he had received from a solicitor a brief in a cause which was in Master Litton's list for hearing arrested, while for that day, but which previously to the defendant's getting his brief, returning on the same was entitled to had been postponed until the following day, the respondent not appearing, and the petitioner not wishing to proceed in his absence; that the cause was adjudicated upon on the following day; that the solicitor gave him, and he received, the brief, without any collusion be discharged or intention to avoid arrest, as he did not, at the time, apprehend from arrest, on the ground of such arrest. privilege. Golding, in support of the application, submitted that, as a barrister, when going to or while on Circuit, was privileged from arrest, he was equally privileged when attending the Superior Courts, there being no distinction, that could be suggested, between the Circuit and the Superior Courts; and that barristers, while on Circuit, are privileged from arrest, was clearly established by the cases referred to in Hippesley's case (a); The Case of The Sheriff of Oxfordshire (b); The Case of The Sheriff of Kent (c); Reynolds v. Newton (d). In Dubois v. Wise (e), the Chief Baron was clearly (a) 1 H. Bl. 636. (c) Ibid, 198. (b) 2 Car. & Kir. 200. (d) 1 G. & D. 154. (e) 8 Ir. Jur. 160. Common Pleas. RUBENSTEIN v. of opinion that the privilege extended to the Superior Courts. In H. T. 1860. Newton v. Constable (a), it was decided that the privilege did not apply to the case of a barrister returning from attendance at Sessions; but throughout the case the privilege seems to have been admitted, when a barrister attended the Superior Courts; and the observations of Lord Denman in that case must be taken secundum subjectam materiem. Counsel also referred to 1 Arch. Prac., p. 735. J. Murphy, contra. It is necessary that a barrister, claiming the privilege of freedom from arrest, should be under an actual professional engagement at the time. It is not sufficient that he be merely on the look out for business. [CHRISTIAN, J. Is any distinction drawn in the cases, between Nisi Prius and the Superior Courts, as to this privilege?] -It is admitted that no such distinction has been laid down. He cited Ex parte Cobbett (b); Philips v. Pound (c). Golding was heard in reply. Cur. ad. vult. MONAHAN, C. J. This is an application made to us, exercising the summary jurisdiction of the Court, to discharge from custody a barrister who has been arrested, and who alleges that he is entitled to be discharged from arrest, on the ground of privilege. It appears that the plaintiff in this case obtained a judgment against him for £30 or £40, and issued execution. The defendant states, in his affidavit, that upon the day on which the arrest took place, he left his home, to attend the Hall of the Four-courts, in the ordinary discharge of his professional duty as a barrister. It appears that when he left home, he had no actual brief for the purpose of attending professionally in any case; but in the course of the day, he was instructed by a solicitor to appear in one of the Masters' offices, in a case (b) 26 Law Jour., Q. B., 293. (c) 21 Law Jour., Exch., 277. (a) 2 Q. B. 157. Jan. 31. RUBENSTEIN บ. H. T. 1860. then pending in that office; but before he received the brief, the Common Pleas. case had been adjourned to the following day, and he was proceeding homeward when he was arrested. The question therefore is, whether we can discharge this gentleman from arrest, he not having left home to attend in any particular case then pending? in other words, are we bound to discharge a gentleman of the Bar, attending in the Hall of the Four-courts, bona fide, for the discharge of his professional duties, and there arrested, although, at the time of his attendance or arrest, he was not employed, or even retained, in any case then pending? Several cases have been referred to as bearing on this question; one of the earliest authorities is Meekins v. Smith (a). That was not the case of a barrister, but raised the question of the privilege of a person attending to give bail; and it was proved in that case, that the applicant was not in attendance for the purpose of giving bail, and that the giving of bail was a mere sham; but it was distinctly laid down, that if he had been bona fide attending although voluntarily, for the purpose of giving bail, he would have been entitled to his discharge. It is stated, in the report of this case, that several cases were mentioned, of barristers having been discharged from custody, who were arrested on Circuit; and in a case in 1 Mau. & Sel., p. 638, this privilege is stated to have existed by prescription-the meaning of which is, that it was a privilege of early date, and established by the Common Law. Two cases have been referred to in 2 Car. & Kir.-one of them, The Sheriff of Oxford's case, an old case before Mr. Justice Abbott and Baron Richards, p. 200, decided in the year 1816; and The Sheriff of Kent's case, p. 198, before Lord Denman, in which he recognised the authority of the preceding case. Without going at length into the facts of those cases, it is sufficient to say, that very eminent Judges have decided that a barrister, attending Circuit, for the purpose of rendering his professional services to those who may require them, is protected from arrest, from the beginning to the end of the Circuit, although he may have left the Assize town and returned to his private residence. Lord Tenterden, a very high authority, subsequently laid down the law as such, in the case of (a) 1 H. Bl. 636. Common Pleas. RUBENSTEIN v. barristers going Circuit, although no retainer existed at the time H. T. 1860. of the arrest. These authorities show that the privilege is not confined to the cases of barristers actually retained or employed in business. It was decided in Newton v. Constable (a), that such a privilege did not exist in the case of a barrister attending Sessions for the purpose of rendering his professional services. Such a distinction between the Superior Courts and the Sessions Courts may probably be founded on this, that in the former barristers alone can practise, whereas solicitors can practise in the other. But the only question in the present case is, whether there is any distinction, as regards privilege, between barristers practising in the Four-courts and on Circuit? Cases have been decided by so many Judges, as to the privilege of a barrister on Circuit, that we cannot take it on ourselves to overrule them; and, therefore, we called upon the Counsel who resisted this application to point out the distinction, if any, between the Four-courts and Circuit, in this respect; but, although Counsel on both sides have referred to all the cases on the subject, no distinction has been suggested. Under these circumstances, upon such an application as the present, when our decision is final, we do not think that we would be justified in refusing this gentleman his discharge, though I confess I entertain some doubts if the question arose in a more solemn way, namely, in an action, as it did in the case of Newton v. Constable, whether the final result would be the same. But though we discharge the defendant, it must be on the terms of his bringing no action. BALL, J. I do not dissent from the rule pronounced by the LORD CHIEF JUSTICE; but, nevertheless, I confess that I entertain very grave doubts as to whether the Court should discharge this gentleman upon the ground of privilege. As to the discharge of a barrister, when arrested while attending upon Circuit, there can be no doubt that such is his privilege. In practice, we are all aware that it is constantly done; and, although the cases cited at the Bar are deci (a) 2 Q. B. 157. Common Pleas. RUBENSTEIN บ. H. T. 1860. sions by single Judges on the Circuit, and, as far as I know, have never been established by any judicial confirmation of the Courts above, they are uniform in favour of the privilege. But no case has been adduced of the discharge of a barrister from arrest while attending the Courts in Dublin or at Westminster, and not engaged in business, but only hoping for it, on the single ground of privilege. Neither has any legal principle been relied on, warranting the Court to deprive the execution creditor of his remedy against the person of his debtor, being a barrister, save in the excepted case of his attending on Circuit. I am not satisfied that a barrister's attendance on Circuit, and in the Courts in Dublin or Westminster, is in principle the same, in reference to this question of privilege from arrest. I can conceive that the inconvenience and loss to be experienced by suitors, by reason of the arrest of their Counsel, who may have come on Circuit fully prepared in their case, and whose services could not at that moment be adequately replaced by others, may have led to the introduction of the privilege of barristers from arrest on Circuit; the reasons for which would not apply to the Courts in Dublin or Westminster. I am not satisfied either that further distinctions in principle might not be pointed out between the two cases; and, upon the whole, though I am not sufficiently clear upon the point to feel warranted in dissenting from the rule of the Court, I cannot say that I feel satisfaction in abiding by it. KEOGH, J. I fully concur in the judgment of the LORD CHIEF JUSTICE, and I cannot say that I entertain any doubts, such as have been expressed by my Brother BALL. It is clearly decided that a barrister attending Nisi Prius upon, or, if I may use the expression, off Circuit, and whether engaged professionally or not, is entitled to his discharge from custody upon the ground of privilege. That was decided, by Lord Tenterden (then Mr. Justice Abbott), in the year 1816; and it was followed by Lord Denman, in The case of The Sheriff of Kent (a), in the year 1846. That was a remarkable case. The (a) 2 Car. & Kir. 197. |