Opinion
DECEMBER TERM, 1798.
Ingersoll and Dallas contended, that both the rules ought to be made absolute. 1st. The Defendant would be entitled to his privilege, even if he were in execution; and his being surrendered by his bail, places him in custody at the suit of the Plaintiff. Had the Defendant been arrested before he was entitled to privilege, he could not have been held in custody after his privilege; but, in the present case, he was never in custody till the session of Congress had actually commenced. The following authorities were cited on this point. Const. Art. 1. S. 6. 1. Bl. C. 64. 6. 11. Vin. Abr. 36. 12. and 13. W. 3. c. 3. 11. Geo. 2. c. 24. 10. Geo. 3. c. 50. 3. Com. Dig. 310, 5. T. Rep. 686. 1. Jac. 1. c. 13. 4. Com. Dig. 336.
2d. An exoneretur ought to be entered on the bail piece. Indulgence is always shewn to bail, where no injury is produced to the Plaintiff. If the Defendant had been taken on the Ca. Sa. or if he had been surrendered before Congress assembled, he would now have been entitled to his privilege; so that the Plaintiff has suffered nothing by the delay. The general rule is, that the bail may surrender within the first four days of the term, to which the scire facias is returnable. Sherid. Pr. 377, 381. 4 Burr. 2134. And if the bail is prevented from making a surrender by any legal bar, even arising from matter ex post facto, he shall be entitled to an exoneretur. 1 Burr. 339, 340. Sell. 180. Str. 1217. 1 Burr. 339, 340. Doug. 45. Sell. 183. Whether, therefore, the bail could, or could not, surrender the Defendant after the time that privilege had occurred, the present application is equally well sounded. But to place the case on the fairest footing, the bail will consent on the principles recognized in 1 Str. 419 to remain responsible for surrendering the Defendant, within four days after the sessions of Congress, provided that time is allowed to make the surrender.
E. Tilghman and Ross, the Plaintiff's counsel, having considered the proposition, for allowing further time to make the surrender, agreed to it; and THE COURT declared their approbation of the compromise, as affording a good precedent for future cases of a similar kind.
Tilghman then acknowledged, that he thought the privilege of Congress extended to arrests on judicial, as well as mesne, process; but controverted the doctrine, that a person arrested before he had privilege, was entitled to be discharged, in consequence of privilege afterwards acquired.
JUDGMENT having been obtained against M'Clenachan, a Ca. Sa. issued to September Term last, and was returned non est inventus. The Plaintiff then issued a scire facias against Huston, the special bail, which was returnable to the present term; and within the first four days of the term M'Clenachan was surrendered in discharge of his bail, when a motion was made for leave to enter an exoneretur. But the Defendant, being a member of the Congress, which was in session at the time of his surrender, presented a memorial to the Court, demanding, as his privilege, to be discharged from the custody of the Sheriff; and it was agreed, that the motion for an exoneretur on behalf of the bail, as well as the motion for a discharge on behalf of the Defendant, should be argued together, upon rules to shew cause.