Humphrey v. Cumming

By the Court, Sutherland, J. This is a motion (hat (he rule entered on the 61I1 of August last, discharging (he defendant from arrest upon a ca. sa. issued in this cause, be vacated, and (hat the sheriff of Albany county be aulhuorized to retake the defendant upon (he same ca. sa., or if he cannot be arrested (hereon, (hat (he plain!iff*have leave, after (he return day thereof, to issue a new execution either against the person or property of (he defendant. The defendant was properly discharged from arrest. It xvas shewn that he was actually attending court for the purpose of making a non-enumeraled motion, and that his personal attendance was deemed necessary to the interest of his client. The case of Secor v. Bell, 18 Johns. R. 52, shows that it is the established practice of the court to discharge an attorney or counsellor from arrest, upon a ca. sa. under such circumstances, and that a judge at nisi prius has the same authority. The plaintiff’s rights are in no respect prejudiced by the discharge. The deft-ndmit, after his privilege lias terminated, may be retaken upon tlie same writ, or a new execution may lie issued, according as the circumstances of the case may require. The parlies stand precisely in the same situation as though the defendant liad never been arrested. The application for a discharge is necessarily a summary one. If notice were required to be given, the privilege would be of no value either to lire attorney or his client. The rule [91] discharging the defendant from arrest having been properly granted, and the plaintiff having the right to retake the defendant upon the same execution, or to issue a nexv execution at his option, this application was entirely unnecessary, and must be denied with costs.