
    
      Sadler & Love vs. A. Ray.
    
    Defendant had been arrested at the suit of plaintiffs, on a writ returnable to the Court of Chester: while on his way to attend to his case in Chester, he was again arrested and held to bail in York for the same cause of action: before the lodgement of the writ in York, the plaintiffs had discontinued their case in Chester, but that was unknown to the defendant: Held, that defendant was privileged from arrest at the time he was arrested and held to bail in York, and an exonentwr was ordered to be entered on the bail bond.
    The privilege of a party attending his case at Court, does not extend beyond the exemption of his person from arrest: if, at the time he is arrested, he is properly served with a copy of the writ, he can only claim an order that he be discharged from custody, or that the bail bond, if one has been given, be can-celled — he has no right to have the service of the writ set aside.
    
      Before Frost, J. at York, Spring Term, 1852.
    The report of his Honor, the- presiding Judge, is as follows.
    “ The defendant having been arrested and held to bail, at the suit of plaintiffs, a motion was made to set aside the service of the process, and to enter an exoneretur on the bail bond. It appeared that the defendant had before been arrested by the plaintiffs, for the same cause of action, on a writ returnable to the Court of Common Pleas for Chester district. On his way to attend to that case at Chester Court, the defendant was again arrested, in Yorkville, and held to bail in this case. Before the lodgement of the writ, the plaintiffs had discontinued the case in Chester, but the defendant was not informed of that fact when he came to Yorkville. It was held, that the defendant was privileged from arrest at the time when he was held to bail; and the service of the process was set aside, and the bail bond, given for his discharge from custody, was set aside.”
    The plaintiffs appealed, on the grounds,
    1. Because, it is respectfully submitted that, his Honor erred in ordering an exoneretur to be entered on the bail bond, given in the last case sued on.
    2. Because, in any point of view, the service should not have been set aside.
    
      Witherspoon, for the motion.
    
      Williams, contra.
   The opinion of the Court was delivered by

Frost, J.

The order made in this case, was signed without attention to that part of it which directed the service of the writ to be set aside. The privilege of a party, attending on his case at Court, does not extend beyond the exemption of his person from arrest. If he is arrested on process, he can only claim to be discharged from custody; or if he has given bail, that the bail bond should be cancelled. (1 Tidd. Pr. 175; Childerston vs. Barrett, 11 East, 439; Randall vs. Gurney, 1 Chitty R. 679). So much of the order as directs an exoneretur to be entered on the bail bond, is affirmed.

The motion was heard just before the Court adjourned, on a verbal statement of the facts. The return of the sheriff was not produced. The service of process in the case had been very irregular. It may be doubtful whether a copy writ was served on the defendant when he was arrested. If this was not done, the defendant was not legally served with process. (A. A. 1736, P. L. 145; A. A. 1839, § 14, 11 Stat. 29; Miller’s Comp. 203). If it should appear, by the return of the sheriff, that the defendant was served with a copy of the writ; or if it does not appear by the return, but in fact the sheriff delivered a copy, let the return be amended according to the fact. On these terms and conditions the motion is granted, as to that part of the order which directs the service of the writ to be set aside; otherwise the motion is dismissed.

O’Neall, Evans, Wardlaw, Withers and Whitner, JJ. concurred.  