Cole v. M'Clellan — 4 Hill & Den. 59

Majority

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Cole vs. M’Clellan.

Headnote

A person attending before a court or officer is not entitled to a witness’ privilege from_arrest, unless he attend as a witness; and this, though he be sworn and examined after the arrest.

The privilege of an attorney or counsellor from arrest, while attending court, may be waived by him.

Accordingly, where a counsellor, on being served with a capias authorizing him to be held to bail, omitted to claim any exemption, but rather invited the arrest, telling the officer to prepare a bail bond, which he afterwards executed; held, that this amounted to a Waiver of the privilege.

A counsellor is not privileged from arrest while attending before an examiner, master, or a judge out of court.

Motion to be discharged from arrest on the ground of privilege. The defendant swore that he resided at New Rochelle, in the county of Westchester, and was a counsellor of the court of chancery. That on the 27th of October last, while attending an examination of witnesses at White Plains in that county before an examiner in chancery, as counsel for the defendant in a chancery suit, he was arrested and held to bail on a capias ad respondendum for an alleged assault and battery upon the plaintiff in this action. He further stated, that on the day following he was examined as a witness on the part of the complainants in the chancery suit; but it appeared that he was not attending before the examiner as a witness, and was only called to give some explanations in relation to the testimony of other witnesses. The deputy sheriff who made the arrest did not know that the defendant was attending the examiner as counsel, and the defendant did not claim any privilege from arrest. When the deputy made the arrest in the morning, the defendant said he should remain in town through the day, and told the deputy to prepare a bail bond, naming the person who would be his bail, and he would sign it. The deputy called again in the evening at the hotel where the defendant stopped and presented the bail bond. The defendant then mentioned that he was attending the examiner as counsel. The

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deputy enquired if any advantage could be taken on that ground, intending, as he swore, to abandon the arrest if it was incorrect. The defendant replied that it would make no difference 5 that his name was not spelled right, and he could set aside the proceedings on that ground. The defendant did not object, but appeared desirous to sign the bail bond, and did sign it. The deputy swore that he should not have made the arrest if the defendant had denied his authority to make it.

J. L. Tillinghast, for the defendant.

W. W. Frothingham, for the plaintiff.

By the Court,

Although the defendant was examined as a witness the day after the arrest was made, he had not been served with a subpoena, and was not attending the examiner as a witness. He is therefore not entitled to a discharge on that ground.^[1]

If the defendant was privileged from arrest as a counsellor, I see no reason why the privilege could not be waived. In Scott v. Van Alstine, (9 John. R. 216,) it was said that an attorney could not waive his privilege ; but that was where the defendant had been sued by bill as an attorney, and he pleaded that he had left the profession and become a farmer, and thus attempted.to defeat the suit by renouncing his privilege. But

(a) (a) At common law, it was not necessary for the protection of a witness that he should be in attendance under a subpoma or summons, if, upon application to him, he consented to attend without one; (Lord Kenyon, Ch. J., in Arding v. Flower, 8 T. R. 534, 536 ; 1 Phil. Fv. 4, 7th Lond. ed.; see also Meekins v. Smith, 1 H. Bl. 636, 7;) and hence, it has been held that a witness attending upon request from another state or country, though not summoned or subpoenaed, is privileged. (Norris v. Beach, 2 John. Rep. 294 ; Walpole v. Alexander, cited 1 Tidd’s Pr. 195, 6, 3d Am. from 9th Lond ed.) For the statute on this subject, see 2 R. S. 402, § 51 et seq. As to the general doctrine, see Cowen & Hill’s Notes to Phil. Ev. 15 to 17, -and the cases there cited. •

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it was held that the plaintiff had a right to treat him as an attorney so long as his name remained on the roll. Here the defendant not only omitted to claim any exemption, but he rather invited the arrest; and after having thus waived his privilege, I think he ought not to be heard in making this complaint. Honesty and fair dealing forbid it.

But there was no privilege. The statute has expressly subjected all officers of courts to arrest in the same manner as other persons, except during the actual sitting of the court; and no attorney, counsellor or solicitor is exempt from arrest while the court is sitting, unless he is employed in some cause pending and then to be heard in such court. (2 R. S. 290, § 86.) Jt does not appear that the court of chancery, of which the defendant is an officer, was actually sitting at the time the arrest was made. And besides, the counsel must be employed in some cause to be heard in court. The exemption does not extend to an attendance before an examiner, master, or judge out of court.

Motion denied.