On Tuesday, an action brought by Mr. Dicas, a solicitor,
against Lord Chancellor Brougham, for false imprisonment! was tried in this Court. Mr. Platt and three other counsel were retained for the plain- tiff; Sir John Campbell and Mr. Wightman for Lord Brougham. Mr. Platt stated the grounds of the action.
The complaint was, that the defendant had upon two occasions, without any jurisdiction or authority, deprived the plaintiff of his liberty. In March 1831, a commission of bankruptcy was issued against a person of the name of James Kokes; and the Vice .Chancellor afterwards made an order that the plaintiff shoed, within four days after the personal service thereof, pay the assignees a tram of 56/. 13s. 11d., and should also deliver to them all papers of the bankrupt hisicustody. Although this order was moved, neither the money nor the papers were demanded of the plaintiff. Notwithstanding this omission, the plaintiff, whilst he was attending the Court of Common Pleas, n a cause wherein lie was professionally engaged, was taken into custody by the Lord Chancellor's tipstaff, by whom he was permitted to attend the hearing of the cause, but accompanied by, and in custody of, the tipstaff. Upon applying to the Lord Chancellor, who was at the House of Lords, Mr. Dicas was discharged from custody, upon con- dition of appearing in Court the neat day. Subsequently, this was confirmed ; and Lord Brougham, after intimating that the committal was illegal, as no se- cond demand for the money and papers had been made upon him, discharged the order for taking him into custody with costs. It was understood that these costs were meant to include all such costs as the plaintiff had been put to in con- sequence of the arrest ; but the order was not so drawn up, and Sir William Horne afterwards applied to the Lord Chancellor to amend it in that respect. his Lordship said he would take time and give his judgment. The time he did take, but the judgment he never gave, although many were the applications made to him, and it was suggested that the other side should proceed ; to which suggestion the Lord Chancellor said that all proceedings were stayed until he had givers his decision. On the 10th August 1831, the plaintiff wrote to Mr. Vizard, the defendant's secretary, on the subject, and received an answer that there was no order of the Lord Chancellor for staying proceedings. Upon that very day, the plaintiff was taken from his firmily by another warrant of the de- fendant, and immured in a prison, where he remained three months. Mr. Platt was at a loss to imagine any proper and legal cause for this ;. and must question respectfully the authority of his Lordship, whilst sitting in Bankruptcy to issue such a warrant. This was the statement for the plaintiff. The question then was, whether the Lord Chancellor, sitting in Bankruptcy, had the power to commit for a contempt of Court ; and whether, granting that he had such power, it had been legally exercised in the present instance ; as no second demand for the money and papers had been made upon the person committed.
After some witnesses had been examined as to the facts of the plain- till's committal, discharge, &c. the Earl of Eldon was examined by Mr. Platt.
"Your Lordship was for many years Lord High Chancellor of Great Britain, and sat iu Bankruptcy ?"—" I was for near twenty-five years."
" Was it your Lordship's practice to commit a party after a contempt for non-payment of money, or non-delivery of papers without a demand of the money, or of the papers being previously made? "—" I apprehend that that will appear best from the proceedings in the Secretary of Bankrupt's Office. It is impossible for me to say that during twenty-five years there has not been Some mistake in my conduct, but I am not aware of it ; I do not know of any."
"If your Lordship had granted a warrant to commit without a demand and refusal, would it not be a mistake ? "—" I think I must have made a mistake if I did so. If I did make any mistake, they would be able to tell me at the Sec- retary's Office when I did so ; and if I did I ash pardon of God and my country." Ifs Lordship added—" I urn not a willing witness. I thought it my duty to comply when I was summoned by a subpoena ; but at my age, and the distance I was at, I should have hardly been willing to have come, unless I considered it to be a duty between man and man." The Solicitor-General—" Allow me, in the name of the Bar, to express the satisfaction we all have in the honour of seeing your Lordship." Lord Eldon—" It is seven years ago since I ceased to be Chancellor."
The Solicitor-General—" Dining all the time you were Chancellor, did you not, sitting in Bankruptcy, exercise the jurisdiction to commit to the Fleet all those who disobeyed your orders? "—" I believe I did." " Dint you riot frequently make orders that solicitors who had in their hands the property of assignees should pay it over to the assignees ? "—" There is no doubt I did. 'Whilst I was Chancellor, all the assignees were chosen by the cre- ditors; and if any creditor had applied to me for an assignee or a solicitor to king the money into Court, I should have ordered him to do so ; and if the order were disobeyed, I should have committed him."
" Did you not make many such orders? "—" I really cannot tell the particu- lars of any order ; but I should certainly have made such orders." "Did you not exercise that power both before the Bankrupt Act of 6th George IV. c. 16, and after that act."—" I did ; but that will appear by the orders."
"Did your Lordship personally inspect all the affidavits? "—" I cannot give an answer to that question, but my secretary will give a better answer." "After an order to pay money (a four day order) has been served, and a de- mand has been made, is it necessary that there should be a second demand ? "- "I cannot answer that question."
" Your Lordship considers that to be a question of some doubt? " Lord Eldon—" I cannot answer it now."
[Lord Eldon then retired. The Bar rose when he entered, when he stood up to be sworn, and when he retired. lie gave his evidence in a very low tone, and at times was very indistinctly heard.]
Sir William Horne, in reply to a question by Sir John Campbell, said that the Chancellor was constantly in the habit of enforcing the payment of money from solicitors to assignees by commitment. Mr. Pensam, who was Secretary of Bankrupts to Lord Eldon for twelve years, stated his impression to be, that a personal demand was necessary after the expiration of the first or four-day rule. Sir John Campbell addressed the Court for Lord Brougham ; and ar- gued, that even if the cause of complaint had been made out, the action could not be maintained.
The plaintiff was first arrested by a warrant dated the 12th of March 1831 ; his second arrest was upon the warrant of the 10th August 1831. Both of these warrants were demanded of the defendant as Lord Highs Chancellor. The orders on which the warrants were granted had been put in and read ; and the second order showed that there was a regular demand, that there was the order of the Vice-Chancellor (which was what is called the four-day rule); that -that order was served ; and that there was a subsequent demand and refusal, and thereupon the second warrant was granted ; so that it was in every way re- gular, according to any construction of the practice of the Court. Therefore, unless it could be made out that the Lord Chancellor, sitting in Bankruptcy, had no jurisdiction to commit, there was no cause of action at all. As to the Bast order, it was merely put in; and the defendant, on being arrested upon it, was immediately discharged, not on the ground of the irregu'arity of the war- rant, but because lie was arrested in breach of the privilege of attornies whilst he was attending a cause in the Court of Common Pleas. The tipstaff might have been to blame, because he was made acquainted with the ground of the plaintiff's privilege, but it was absurd to hold the Lord Chancellor answerable for his conduct. As to the question of practice, Lord Eldon, one of the greatest lawyers that ever sat upon the woolsack, was not able to say whether a second demand was necessary. There was no irregularity in the granting the warrant ; and until this very case of Dicas—decided by the present Lord Chancellor, the defendant—the general opinion was that a second demand was not necessary. Lord Lyndhurst—" Mr. Pensam said, a second demand after the service of the four-day rule, and an affidavit of that demand were frequently made." The Solicitor-General—" Lord Eldon would not say it was necessary ; but suppose the order and the warrant were both irregular, would the action be sus- tainable? Would an action lie against the Judges of the Court of King's Bench, if an attachment were granted against the Sheriff upon au irregular or defective service upon him of the rule to bring in the body ? "
Lord Lyndhurst expressed his surprise that the evidence as to the custom of the Court was allowed to be gone into. Sir John Campbell did not know that some malicious motive would not have been attributed to Lord Brougham.
After some further argument Lord Lyndhurst said-
" I have hail no doubt from tire commencement that the actions cannot be main- tained. The Lord Chancellor was sitting as Chancellor, and even supposing all the proceedings to have been erroneous, still,no action will lie. I also am of opinion on the second point, that there was no necessity to plead specially. If I am wrong, you will have an opportunity of setting me right. Take a minute now."
Mr. Platt—cc I will not be called ; I will go to the Jury."
The Solicitor.General—" I hope your Lordship will direct a verdict for the defendant."
Lord Lyndhurst—" Certainly, gentlemen. Upon occasions of this kind, when a judge gives his opinion that an action is not maintainable, the counsel for the plaintiff may or may not acquiesce in the opinion so given ; and if he does not acquiesce in it, he need not be nousuited, but has a right to have the verdict of the Jury. My opinion in point of law is that this action cannot be sustained. If I am wrong, the plaintiff may apply to the Court." Mr. Platt said lie should tender a bill of exceptions. The Jury immediately found a verdict for the defendant. Lord Lyndhurst—" If I am wrong, but I do not anticipate it, they may apply to the Court."
(Mr. Charles Epley, Secretary of Bankrupts, has written a letter to the Times, in reference to the cause, in which he says- " I have been forty-eight years in the office, and it has been my constant duty to prepare the warrants which were granted by Lord Eldon and Lord Lyndhurst; and cases have occurred where they have issued sometimes with and sometimes without such second demand ; for in preparing such warrants for their Lordships' signature, I certainly had not considered it necessary (but I speak with the greatest deference to the judgment of my superiors) to ask for an affi- davit of a second demand, being first satisfied by an affidavit that the four-day order had been duly served, and an affidavit that the money had not been paid : but, after argument on both sides, the present Lord Chancellor laid down the rule that the second demand should be made, and at once applied the rule to the plaintiff's case, so as to give him the benefit of it. " I was in Court with the order-books, and could,perhaps, have better ex- plained myself; but no witness was called for the defendant, from the course which the cause took."]