Hopkins v. Coburn — 1 Wend. 292

Majority

p. 292

Hopkins ads. Coburn.

Headnote

A suitor attending court is not privileged from having process served on him in a non-bailable action.

Motion to set aside an arrest, and vacate an appearance indorsed on a capias. Defendant, who is a resident of the county of Onondaga, attended the trial of a cause commenced by him in a justice’s court, in the county of Cortland. Immediately after the termination of the trial, a capias, containing an ac etiam clause for a malicious prosecution, was served upon him. Bail was not demanded of him, but he was required to indorse his appearance, or be committed. He indorsed bis appearance, and now moved to vacate the same.

V. Birdseye, for defendant.

p. 293

Thomas &• Shankland, for plaintiff.

By the Court,

The defendant, as a suitor, was undoubtedly privieged from arrest: but here was not an arrest; for though the capias contained an ac etiam clause, bail was not demanded. Had hail been required, all the relief the party would have been entitled to, would have been to have been discharged on filing common bail. The indorsing of an appearance is equivalent to filing common bail. No more was therefore asked of the defendant, than this court would have required, on application to them, had he been compelled to give bail when the capias was served. This is the uniform practice of this court, (7 Johns. R. 538,) and the only exception is in favor of foreign witnesses attending our courts, in which cases the defendants are discharged absolutely. (2 Johns. R. 294. 3 Cowen, 392.)

Motion denied.