Opinion
JUNE TERM, 1788.
Sergeant and J.B. M`Kean, for the Plaintiff, stated, that the cases of privilege in England, were limited to an attendance upon Parliament, or upon Courts, as a party, juror, witness, or officer; and that all the authorities which had been cited for the Defendants, were fully comprehended within these bounds. They admitted that reasonable privilege had, likewise, been allowed in Pennsylvania; but denied that, in either country, the doctrine had been extended to the object of the present rule. For, they insisted that the Sheriff's attendance upon the Executive Council, was voluntary, in order to solicit an appointment, which, notwithstanding his being on the return, the Council might, at pleasure, grant, or refuse. Neither was he bound to give security 'till he was appointed; and, even then, it was not necessary to be given in the city of Philadelphia. — With respect to the Lieutenant of the county, nothing, they said, could be more evident, than that his visit to Philadelphia was an act of supererogation, to perform what no law required him to do, and what might as well have been performed through the agency of a Post-rider.
If, indeed, the attendance of the Sheriff, or of the Lieutenant of the county had been required by the Executive Council; or, if they had been brought before that Board by any legal process; they might then have claimed the advantage of the general rule of privilege. But there can be no pretence in reason, or law, to exempt from an arrest, either a man, who voluntarily comes to solicit an office; or one, who undertakes a journey merely to oblige his neighbours by bringing them their commissions.
ON a rule to shew cause, why the arrests in these actions, should not be set aside, it appeared, that Eckart, being the Lieutenant of Berks county, came to Philadelphia in order to obtain from the Executive Council the commissions of some Officers of the Militia within his department; that Bower, being one of the Sheriffs elect of the same county, came for the purpose of soliciting his commission, and giving the usual security; and that while here for these respective purposes, they were both arrested at the suit of the Plaintiff.
Tilgbman, in support of the rule, contended, that the Defendants were privileged from arrest, on account of the public nature of the business which brought them to Philadelphia; and stated, as the great principle upon which privilege and protection are founded, that the rights and interest of the Commonwealth must, in many cases, be preferred to those of individuals Vin. tit. Priv. 84 pl. 1. He then classed the cases of privilege under two general positions: — 1 st, That where by law it is a man's duty to attend at a particular place, or Court, he shall be sued there only; and no one shall be compelled to undertake any thing inconsistent with such duty, or with his profession, in particular cases. Vin. tit. Priv. 509. pl. 1. Cro. Car. 585. Sir W. Jones 462. Stra. 1107. 3 Leon. 149. Vin. tit. Priv. 513. pl. 8. Barn. Notes. 200. 378. — And, 2 dly, That where a man is under a legal obligation to attend, or where he goes to demand justice, he shall not be arrested at all. Vin. tit. Priv. 515. pl. 6. Com. 446. 1 Brownl. 15. 2 Black. Rep. 1113. 1 Atk. 54. Stra. 1094. Vin. tit. Priv. 512. pl. 18. ibid, 514. pl. 12. 13. ibid. 515. pl. 6.
In the present instances, he urged, that it was incumbent upon the Sheriff to wait on the Executive Council, as the law required him to give such security, as they should approve: And, with respect to the Lieutenant of the county, he alleged, it the Court now doubted, they would be satisfied upon enquiry, that he, likewise was in the prosecution of his official duty on the above mentioned occasion.
He then adverted to the impolicy of increasing the jealousy, that seemed to subsist already too much, between the city and the remote parts of the State; but this, he predicted as an inevitable and ruinous consequence, if, whenever a countryman came hither upon public business, he was liable to be arrested and detained. The city would soon be likened to the Lion's den, towards which innumerable tracts of feet might be traced, sed nulla vestigia retorsum.
At an adjourned fittings, held on the 6th of September, THE PRESIDENT delivered the clear, and unanimous opinion THE COURT, that the Defendants were not protected from arrests, for any cause that had been shewn. He observed, that they had not been required by the Executive Council to attend them, but evidently came to Philadelphia on their own private business; and that it was the duty of the Court to be careful not to extend the doctrine of privilege to the injury of honest creditors.
The rule discharged.