Schlesinger v. Foxwell

Parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process, during their attendance and for a reasonable time, in going and returning; and this immunity extends to all kinds of civil process, and affords an absolute protection (Larned v. Griffin, 12 Fed. Rep. 590 ; Mackay Lewis, 7 Hun, 83; 6 Id. 477). The defendant herein was a party to an action pending in the superior court, the case was upon the day calendar, it was not reached and had gone over until next day, at which time the defendant was required to attend. In the meantime he was arrested on the order of arrest granted herein. *462The defendant, under the circumstances, was under the protection of the superior court, and was privileged from arrest. The fact that he did not assert this privilege exempts the officer who made the arrest from liability, but does not justify me in withholding from the defendant a right which he has now legally established. The rule which I have followed renders the administration of justice free and untrammeled, and protects from improper interference all who are concerned in it (Huddeson v. Page, 9 Phila. 65).

The service of the order at the time and under the circumstances stated was irregular, and must be set aside. Such irregularity affects only the service, however, and does not invalidate the order of arrest, which will be retained, to the end that it may be executed at a time and in a manner not inhibited by law. The case cited by the plaintiff (21 Hun, 154) is not in conflict with these views. No costs.