
    
      Ex parte Hall.
    A writ of' prometió» ad testiKcamium suspends ail civil urocess as againsl tiie subject of it whilst coining to and attending upon Court, with a reasonable time for the witness to return home after the rising of the Court.
    
      HABEAS CORPUS cum causa, returnable corain nobis.
    
    The writ was directed to Nathan Green, constable of St. Albans, commanding him to have forthwith the body of Abijah Hall, said to be a prisoner in his custody, with the cause of his detention or imprisonment.
    The officer brought the body of Hall into Court, and returned as the cause of his detention,
    
      ' That as constable of St. Albans he arrested ahd now detains the body of Hall upon a writ of attachment signed by Hubbard Barlow, one of the Justices Of the Peace of the County of Franklin, (having legal and sufficient authority to sign the same,) and directed to him as constable, to serve and return according to law, which writ was at the suit of Hall, Crane &? Pomroy, merchants, trading in company under that firm, who demanded in the writ of Abijah Hall the sum of six hundred dollars, due on balance of book accounts, and which writ was made returnable to Franklin County Court, next to be holden at St. Al-bans, on the second Monday of November, 1802,
    
      Abijah-Hall now moved for his discharge, stating that he is illegally imprisoned.
    For that he is an inhabitant of Platsburgh, in the State of New- York, beyond the process of this Court, where he hath long resided Under the protection of the laws of said State. That he came into the State of Vermont since the commencement of the present term of the Court, under the protection of the Court, having with him, ready to be shewn in Court, a writ of protection issued by the order, and signed by the Clerk of the Court, dated within the term, and made •conformably to law ; which- writ states, that the personal appearance of the now prisoner is necessary for the furtherance of justice to be had in Court, to give testimony in the cause or action wherein Zerah Willoughby is plaintiff, and Nathan Kinsley, junior, defendant, on the part of the defendant; and commands all civil officers and others to abstain from executing or serving any civil process upon the body of the now prisoner on his way to the Court, during his attendance on Court, and for a reasonable time for him t® return to his domicil after the rising of said Court. That the arrest in the return made, and by which he is now holden in custody, was made during the operation, and in disobedience to said writ of protection,, against law arid in contempt of the Court.
    The officer, confessing the said writ of protection, in reply says, that the said Abijah Hall ought not t& be discharged from his custody, because he says he is not detained contrary to the true intent and meaning of said writ of protection, or the law of the land; for that the cause or action of Willoughby v. Kinsley, to testify concerning which the said writ of protection was granted and issued, was, on the 19th day of June, being the fifth day of this present term of the Court, by order of Court and agreement of the parties, continued to be heard and tried at the next term of the Court; of all which the said Abijah was conusant : and so the business and matters for which the said writ of protection was granted and issued, as they related to the said Abijah Hall, were fully completed and ended: and according to the true intent and meaning of the said writ of protection, the term of this Court, as it related to him the said Abijah, had terminated. And for that the said Abijah Hall, on the said 19th day of June, instead of proceeding directly to his domicil in the reasonable time allowed him by said writ, went in an opposite course from his habitation and home in the State of New-York, twenty miles further from St. Albans, into the interior of this State, to wit, to the town of Cambridge, in the County of Franklin, where he loitered or went about his private business until the 21st day of June, being the seventh day of the term, when he returned to St. Albans, and there loitered or went about his private business until the 22d day of June, when the arrest under which he is now detained was made ; and so he says the said Abijah Hall was not, at the time of said arrest, within the protection of the Court under said writ of protection,-in that he did not depart home in a reasonable time after the said cause was continued, and after the matters and business for him the said Abijah Hall as a witness to do, were fully completed and ended.
    The prisoner rejoins, that at the time of said arrest he was within the protection of the Court under said writ of protection; for, protesting that the continuance of the cause of Willoughby v. Kinsley, according to the true intent and meaning of said writ of protection, was not the rising of the Court, he says, that on the said 19th day of June, being the fifth day of the term, immediately after an imparlance had been granted in the case of Willoughby v. Kinsley,"he proceeded towards his domicil in Pittsburgh aforesaid: but when he came to his boat on the shore of Lake Champlain, he discovered the weather to be so tempestuous it was impossible to cross the same on his way home without manifest jeopardy of his life: that the weather continuing tempestuous, it became necessary for him to seek some shelter from the storm until the wind should abate; and he the prisoner, being without money or other means to sustain and support himself in St. Albans, went to a near relation’s in Cambridge 
      aforesaid, where he might subsist upon the hospitality of his friends. That on the same 19th day of June, he was at said Cambridge arrested at the suit of one Hawley, and brought to St. Albans under such arrest, where he continued under said arrest until the evening of the 21st of June, he procured and gave bail in the suit of Hawley. That on the 22d day of June he again attempted to cross said Lake in his passage home, when he was arrested upon the writ for which he is now in custody. And so he says, that if in any wise he hath departed from the protection of the Court in their writ of protection extended, it has been occasioned by the act of Providence, which the law announceth shall injure no man.
    Upon traverse of this rejoinder by the officer, the following witnesses were sworn:
    ——- JDunkelly, Esquire;
    who testified, that on Friday, the 18th of June, he came from the Grand Isle in a boat with his wife, Nathan Kinsley and Abigail Hall, to St. Albans. Kinsley had engaged to bring Hall over, and to return him home. That on the Saturday following, after the cause of Willoughby v. Kinsley was continued, they all went to the lake shore to embark; but the waters were so, rough and the wind so violent, that it was judged by the party and others present, that the passage to the Grand Isle could not be attempted without risk of lives. That Abijah Hall appeared anxious to venture; and when the witness declined, he consulted him respecting his going to his brother’s in Cambridge, and spending the sabbath, saying he had no money to bear his ex'penses in St. Albans. That he did not see Hall . again until Monday, when he was in custody of a deputy-sheriff at the suit of one Idaxvley. On Monday the lake was calm, but they waited until Hall could procure bail, which he effected late the same evening. On Tuesday, as they were preparing to. embark, Hall was again arrested at the suit of Hall, Crane &? Pomroy.
    
    
      Daniel Kinsley, junior, confirmed the testimony of Dunkelly.
    
    
      Thaddeus Rice, counsel for the officer,
    contended., that the expression in the writ of protection, until a reasonable time after the rising of the Court, must intend until the disposal of the cause for the term in which the prisoner was protected as a witness. That it was so understood by Hall himself, who, upon the termination of the suit for the term, went immediately towards home; but being frightened by the gale, he went directly from his course nearly twenty miles into the interior of the State. That it was his duty, if the wind was high, to have tarried on the lake shore until it was calm. In a word, the writ protected him in his most direct course to the Court, whilst there until the business for which he was sent for was concluded, and then in his direct course to the place from whence he came. If he met with an impediment he should have tarried where he was impeded, and at least looked towards the path of his duty. That the writ of protection goes to abridge the rights of honest creditors, and should be strictly construed.
    
      The Court declined hearing arguments from the' opposing counsel.
   Per Curiam.

Testimony viva voce is so much to be preferred to that received through the medium of a deposition, that the Court are inclined to favour the personal appearance of witnesses.

The writ of protection will therefore always receive a liberal construction in favour of the witness' covered by -it.

An inhabitant of another State has a right to prefer having his controversies settled by the Courts in his own government. He must not be drawn into this State under the ostensible protection of this Court, and be then exposed to be entangled in litigation far from his home, which must ever be attended with augmented expense. For the furtherance of justice and the dignity of the Court, it is better that the plain letter of the writ should be preferred, than any nice construction which the ingenuity of counsel may suggest.

The Court consider, that the writ of protection ad testificandum suspends all civil process against the subject of it, while coming to and attending upon Court, with a reasonable time for the witness to return home after the rising of the Court.

If the doctrine should prevail, that the writ of protection ceases to operate after an imparlance awarded, or even after final judgment, it would promote litigation ; for the termination of the suit might not always be known to the witness. Arrests would follow; and though the failing to prove the knowledge of the termination in the suit would eventually liberate him on habeas corpus, yet the litigating the scienter would involve the witness in the very litigation which was intended to have been avoided by the writ of protection.

Thaddeus Rice, for the officer.

William C. Harrington and Bates Turner, for the -prisoner.

The Court are fully in opinion, that the prisoner must be discharged.

, Let judgment be entered, that the prisoner is discharged, and the constable be in mercy for his com tempt of the Court.  