CHAPTER XXXIII. PRIVILEGE FROM ARREST. A PERSON who is served with a subpena ad. test. in London, and is at the time resident there, is not protected from arrest in the interval between the service of the subpœna and the day appointed for his examination; but a witness who comes to London in order to be examined, is protected from arrest during the whole time he remains in London, bona fide, for the purpose of giving evidence. A witness is not protected in going three days before the day appointed by the examiner, for his examination, to the solicitor's office to look at the interrogatories, with a view to prepare himself to give his evidence.(1) The protection extends during an interval of adjournment to another period of the same day, at the same place.(2) A witness in the Court of Exchequer, living in the country, and coming up to London to be examined, and on other business, in the interval between the day on which he had been examined and that appointed for his further examination, was taken by the Serjeant-at-Arms on process out of the Court of Chancery. The Lord Chancellor said the Court of Chancery was the proper court to apply for his release; the prisoner was sworn by the Registrar, and [ *390] examined by the Lord Chancellor, *and discharged. The Deputy Serjeant-at-Arms applied for his fees, but was refused, as the arrest was improper.(3) Witnesses, as well as the parties in a suit, are protected by courts of justice, and privileged from arrest, during the necessary time consumed by them in going to the place where their attendance is required, in staying there for the purpose of such attendance, and in returning from the place.[a] A reasonable time is allowed to the witness for (1) Gibbs v. Phillipson, 1 R. & M. 19. (3) Ex parte Thomas, 19th December, 1834. (2) Ex parte Temple, 2 V. & B. 395. [a] 1 Chit. Archb. 7th ed. 526; Gra. Prac. 2d ed. 129. And it seems, that an arrest on an attachment to compel payment of costs, is an arrest within the meaning of this Eng. Chan. Reps. iv. 308. going and returning ;[6] and, in making this allowance, the Courts are disposed to be liberal.[c] This privilege has been extended to a party in the suit attending on an arbitration under an order of nisi prius,[d] or on the execution of a writ of inquiry,[e] and to persons attending the Insol rule. But whether an arrest on an attachment where the Court might fine and imprison, be so; quære? Snelling v. Watrous, 2 Paige, 314. Serving process not bailable, is not, however, an arrest within the rule. Legrand v. Bedinger, 4 Monroe, 539; Wheeler v. Bartlett, 1 Edw. 323; Corlies v. Holmes, 20 Wend. 681; Hopkins v. Coburn, 1 Wend. 293. [6] Ex parte Hall, 1 Tyl. 274; Brooks v. Chesley, 4 Har. & M'H. 295; Norris v. Beach, 2 Johns. Rep. 294; Hurst's case, 4 Dall. 487; Smyth v. Bank, 4 Dall. 329; Bours v. Tuckerman, 7 Johns. 538; Ex parte M'Neil, 3 Mass. 288; Sanford v. Chase, 3 Cowen, 381. And this though he be not subpoenaed, provided he be attending bona fide. Meekins v. Smith, 1 H. Bl. 626; United States v. Edmi, 9 Serg. & R. 147; Norris v. Beach, 2 Johns. Rep. 294; Sanford v. Chase, 3 Cowen, 381. It is otherwise, in Massachusetts. M'Niel's case, 6 Mass. 264. [c] And a slight deviation will not deprive the party of this privilege. Pitt v. Coombs, 3 Nev. & Man. 212; Luntley v. Nathaniel, 2 Dowl. P. C. 51. Nor is a party bound to go the nearest way home, if he do not abuse his privilege, for the purpose of going about other business of his own. Willingham v. Matthews, 6 Taunt. 356, (1 Eng. Com. Law Rep. 412;) Smyth v. Banks, 4 Dall. 329. As where a defendant, after the rising of the Court, went with his attorney and witnesses to dinner at a tavern, and was arrested whilst at dinner: the Court held, that this privilege redeundo had not expired, and accordingly discharged him. Lightfoot v. Cameron, 2 W. Bl. 1113. But where the party unreasonably delays his return, he is not protected. As where a plaintiff came from Yorkshire to London, to attend a meeting before an arbitrator on the 6th of January, which took place on the 7th, when it was objected that he had obtained the judge's order surreptitiously, and that the opposite party would apply to the Court to set it aside; and thereupon the arbitrator adjourned the meeting until the 15th of February to allow the motion to be made; and the party then went to his inn in the city, and remained until the 16th of January, not having means sooner to return to his home, and waiting to see if any motion were made in the Court; and no motion having been made within the first four days of the term, he was proceeding to take his place on the 16th to return to Yorkshire, when he was arrested; it was held, that he was not privileged. Spencer v. Newton, 6 Adol. & Ell. 623, (33 Eng. Com. Law Rep. 157;) S. C. 1 Nev. & Per. 818; S. C. 6 Law Journ. N. S. 119; S. C. 1 Lond. Jurist, 52. See also Ex parte Russell, 1 Rose, 278. But where the party, who resided at Beckenham in Kent, attended in London, and lingered two hours after he left Court, and after he had called at several places in Westminster, in a direction opposite to his residence, but, when arrested, he had just crossed London bridge in a direction towards home; the Court said, the delay might, for aught that appeared, have been devoted to refreshment, and it was not sworn by the plaintiff, on whom the onus lay, positively, that the calls, at which he was not present, might not have been before the party attended the Court. Selby v. Hills, 8 Bing. 166, (21 Eng. Com. Law Rep. 257 ;) S. C. 1 Moore & Scott, 253; S. C. 1 Dowl. P. C. 257. But if a witness be once lawfully under arrest, as where he has been surrendered in discharge of his bail, he cannot claim exemption from a subsequent arrest unless there be some collusion. Davis v. Cummins, 3 Yeates, 388; In re Southwell, Jebb's Irish Cr. Cas. Res. 164. This rule applies also to a witness from another state. Norris v. Beach, 2 Johns. Rep. 294. And in such case, the Court will discharge the writ, as well as the party, inasmuch as under such an arrest, he ought not to be subjected to a judgment. Ibid; Sanford v. Chase, 3 Cowen, 381. But in the case of a domestic witness, the order will be to discharge him from arrest, on filing common bail. Bours v. Tuckerman, 7 Johns. 538; Hopkins v. Coburn, 1 Wend. 293. [d] Spence v. Stuart, 3 East, 89; Arding v. Flower, 8 T. R. 536; Randall v. Gurney, 3 B. & Ald. 252, (5 Eng. Com. Law Rep. 271;) S. C. 1 Chit. Rep. 679, (18 Eng. Com. Law Rep. 201;) Ricketts v. Gurney, 1 Chit. Rep. 682, (18 Eng. Com. Law Rep. 203.) [e] Walters v. Rees, 4 Moore, 34, (16 Eng. Com. Law Rep. 360.) vent Debtors' Court.[f] A bankrupt, also, attending a meeting of commissioners in pursuance of a notice, and witnesses attending upon summons, are protected from arrest at the suit of a creditor.[g] And, by the mutiny act, witnesses are privileged from arrest during their necessary attendance on courts martial, in the same manner as witnesses attending a court of law.[h] A witness is not privileged from being arrested by his bail; the bail may take him, after he has finished his evidence, for the purpose of surrendering him.(1)[i] A party attending an arbitrator under an order of court to be examined, is privileged from arrest.(2) A plaintiff, in returning from attending a motion against him, was arrested, and a detainer lodged against him in another action, he was discharged from both, the Court examining the attorney and officer personally, and not by affidavit.(3) A solicitor arrested on his return direct from attending his client's business at Lincoln's Inn Hall, [ *391 ] was discharged.(4) A solicitor, returning on his way without deviation, from attending a bankrupt petition, being arrested was discharged, on personal examination by the Chancellor. The oath was administered by the Registrar.(5)[a] If a person going to make an affidavit before a Master is arrested, this court will discharge him, but a Judge will not, as the application must be to that court of which his arrest is a contempt.(6)[b] A defen (1) Phill. Evid. 4 & 5. (3) Bromley v. Holland, 5 Ves. 2. (5) Castle's case, 16 Ves. 412. (2) Moore v. Booth, 3 Ves. 349, a. [f] Willingham v. Matthews, 2 Marsh. 57; S. C. 6 Taunt. 356, (1 Eng. Com. Law Rep. 412.) [g] Selby v. Hills, 8 Bing. 166, (21 Eng. Coin. Law Rep. 257 ;) S. C. 1 Moore & Scott, 253; S. C. 1 Dowl. P. C. 257. [h] So in regard to witnesses attending before referees; Grover v. Green, 1 Caines, 116; Clark v. Grant, 2 Wend. 257; or before arbitrators, under the statute. Sanford v. Chase, 3 Cowen, 381. [i] And they may even take him on a Sunday. Anonymous, 6 Mod. 231 ; Nicolls ▼. Ingersoll, 7 Johns. 155. [a] The rules which are above stated in respect to witnesses apply to partics, and their attorneys, solicitors and counsel. Graham's Prac. 2d ed. 129, 130; 1 Chit. Archb. 7th ed. 526-528. [b] In analogy to the practice at law, if a party privileged by reason of his attendance in this Court, be arrested on process out of an inferior Court, or if he be arrested by process out of this Court in violation of the privileges of other Courts, in either case, this Court will discharge him, on common bail, unless in the case before referred to of a foreign witness, in which he will be absolutely discharged. Norris v. Beach, 2 Johns. Rep. 294; Bours v. Tuckerman, 7 Johns. 538. In one case, however, where a person was arrested, whilst attending before the com dant who had been attending a warrant before the Master, to produce papers, and was arrested on leaving the Master's office, was discharged from the arrest.(1) A person, although not attending professionally, is protected from arrest, if within the outer door of the Court while sitting. A person having been taken in execution, upon a ca. sa., within the outer door of the Vice Chancellor's Court, in Lincoln's Inn, while the Court was sitting, the Lord Chancellor ordered the officer to attend with his prisoner forthwith, and, having examined the officer, discharged the prisoner immediately. From the officer's statement, it appeared that the prisoner, having observed him in Chancery Lane, ran with all the speed he possibly could, and got within the outer door of the Vice Chancellor's Court before he could overtake him.(2)[c] (1) Franklyn v. Colqhoun, 1 Madd. 580. (2) Orchard's case, 5 Russ. 159. missioners of bankruptcy, to prove a debt, the Court of Queen's Bench refused to discharge him; Kinder v. Williams, 4 T. R. 377; and it was decided, that he should, in such a case, have applied to the Court of Chancery. See Ex parte Kerney, 1 Atk. 54; List's 's case, 2 V. & B. 373. In a later case, however, the Court of Common Pleas discharged a defendant out of custody, when he was arrested whilst returning from the Court of Commissioners of bankrupts, where he had been acting as a petitioning creditor. Selby v. Hills, 8 Bing. 166, (21 Eng. Com. Law Rep. 257;) S. C. 1 Moore & Scott, 253; S. C. 1 Dowl. P. C. 257. Where another Court had refused to discharge one of its own suitors from arrest, on the ground of privilege, the Supreme Court of Pennsylvania refused to relieve on habeas corpus. Commonwealth v. Hambright, 4 Serg. & Rawle, 149. [c] See I Chit. Archb. 7th ed. 532; 3 Bl. Com. 289; Cowen & Hill's notes to Phill. Ev. 15; Blight v. Fisher, 1 Pet. C. C. Rep. 41. CHAPTER XXXIV. SUPPRESSION OF DEPOSITIONS. DEPOSITIONS may be suppressed, amongst other causes, on the ground of objection to the commissioners; for irregularity in executing or returning the commission; or for irregularity in the interrogatories or in the depositions themselves; or for want of due notice to the opposite party.[a] If the interrogatories are leading, the depositions will be suppressed, but liberty is sometimes given to exhibit new interrogatories to be settled by the Master.(1) A witness cannot give as his evidence, answers in writing prepared before the examination, and if the fact comes to the knowledge of the Court, the depositions will be suppressed without attending to the particular circumstances of the case. In Shaw v. Lindsey, (2) the Lord Chancellor referred to a case in which depositions were suppressed, on the ground that the commissioners employed the clerk of one of the parties as their clerk. Where the deposition was written down in the exact form by the attorney, before it was taken it was suppressed.(3) Mr. Blunt, in his note to the second edition of Ambler's Reports, says, " According to the note of the last case in Lord Kenyon's report, [ *393] it appears *that the motion was made on the certificate of the commissioner, before whom the depositions were taken, stating the facts, and that as publication had not passed, leave was given to re-examine the witness."[a] (1) Lord Arundel v. Pitt, 2 Amb. 585. (3) Anon. 1 Amb. 252. [a] Honore v. Colmesnil, 1 J. J. Marsh. 525. (2) 15 Ves. 380. [a] Depositions taken by commission were suppressed, it appearing that the evidence had been taken by the clerk to the commissioners, and that the effect of some of the depositions had been communicated to the agent on the other side. Lennox v. Mannings, 2 You. & Jerv. 483. A deposition was rejected, because the witness refused to answer a proper question; also because it was in the handwriting of the complainant's attorney. Mosely v. Mosely, Cam. & Norw. 522. But the refusal of a witness to be cross-examined is no reason for suppressing his |