Opinion
SEPTEMBER TERM, 1788.
Yeates and C. Smith opposed the motion, and contended, that there was a distinction between an arrest on mesne, and on judicial, process; for, though, in the former case, the Court would discharge a suitor, witness, c. from an arrest made during an attendance upon them, yet, in the latter, they would not, because the party would afterwards be remediless. Wood's Inst. 503. 600. 4 Com Dig. 475. 11 Mod. 234. 252. There is, likewise, another reason: the Capias on mesne process might be taken out merely on a suggestion; but in judicial process, the debt is certain, and fixed by the judgment of the Court.
Chambers and Hartley, in reply. The protection of suitorsc. is established to promote an equal administration of justice, and to prevent the oppression of a rich and powerful man, over a poor one who is soliciting justice. There is no express authority that extends the doctrine to this case; but in 4 Cum. 575. tit. Priv. it is laid down, that an execution shall not be discharged, yet, if the party who procured it, will not consent to a discharge, he shall himself be committed. The books cited in Comyns, Crompton, and Wood's Inst. are of little authority
HENRY STARRET, while attending the Court as a suitor, was taken by a Ca. Sa. and Chambers moved that he might be discharged from the arrest, citing 4 Bac. 421. 3 Bl. C. 289. 2 Stra. 1094. 1 Barn. 17.
Wood is a writer of great authority, and frequently cited with respect in Westminster-Hall. In the case before us, the execution has regularly issued, upon a judgment regularly obtained: and although we should certainly protect suitors, witnesses, and jurors, from an arrest on mesne process, during their attendance upon the Court, and for a reasonable time in coming and going, yet no case has been shewn, which will justify our interference to discharge a man taken in execution on the ground of such a protection. It is, indeed, the privilege of the Court that is infringed; and, it is discretionary, to grant it on some occasions, and to refuse it upon others.
BY THE COURT: — The prisoner must be remanded.
Determined at Sunbury. N.P. on the 11th of November, 1782, before the CHIEF JUSTICE, and Mr. Justice RUSH.