Majority
p. 538Bours against Tuckerman. ALBANY, Feb. 1811.
Headnote
A person tinder appelr’atacourt síons^of a'theS” tendmg^thatt_ rested on&a ca" pids out of this court, and held . to bail; and this court ordered him to be discharged, on ling common bail, unless the plaintiff elected to waive the arrest, and take out new process.N. WILLIAMS, for the defendant, moved to discharge the defendant from the arrest, and to set aside the capias and proceedings in this cause. He read an affidavit, statin8>t that on the gth of October last the defendant was un(ier recognisance to appear at the next general sessions of the peace, to be held in Madison county, on the r first Tuesday of January last. He appeared at the ses- . ' n , sions, and while he was attending, and betore he was
p. 539
discharged from his recognisance, he was arrested by the sheriff of Madi~on, on a cap ~as ad respondendurn, issued out of this court, at the suit of the plaintiff; and though he claimed to 1?e privileged, in consequence of his attendance at the sessions, the sheriff carried him to his place of residence, where he was admitted to bail, in the sum of 3,200 dollars.
Clark, contra.
The defendant was privileged from arrest, as it appears that he had no opportunity to apply to the court below to be discharged, and as this court ought not to suffer its process to be executed in violation of the privileges of other courts, the defendant must be discharged from the bail-bond, and the arrest, on filing common bail, unless the plaintiff should elect, as he may, to waive the arrest altogether, and issue new process.
Motion granted.