
    
      Hugh E. Vincent, Jr. vs. Dunham Watson.
    
    A suitor in Chancery is privileged from arrest on bail process, whilst attending a reference before the master during vacation, 
    
    Where a witness or party attending a court of Justice is arrested by process from another court, either the court whose proceedings have been interrupted, or the court under whose process the arrest is made, may interfere for his discharge.
    
      Before Frost, J. at Chambers, Charleston, July, 1844.
    The report of His Honor is as follows:
    “This is an application to discharge from custody Dunham Watson, who has been arrested under bail process at the suit of H. E. Vincent, Jr.
    A suit in Equity was pending in Charleston District, in which the applicant was complainant, and Hugh E. Vincent and son were defendants. By an order in the cause, it had been referred to one of the Masters of that court to take an account between the parties. The applicant came to Charleston to prosecute this account. References were held on the 15th, 16th and 17th days of this month, and it seems they are not yet cloáed. At the reference on the 16th, the applicant was interrogated on oath, respecting several items of set off, claimed by the defendants. Among them was a watch, charged by the defendants to the complainant, which he swore had not been purchased of H. E. Yincent & Son, but of H. E. Yincent, Jr. Whereupon, that and some other items of the set off, it is insisted in behalf of the respondent, were discontinued; and the bail writ in this case issued for the price of the watch, under which the applicant was. arrested on the 16th inst. In the view taken of this case, it is unnecessary to decide whether it is competent for H. E. Yincent <fc Son to discontinue or withdraw, in whole or in part, a claim of set off in due form, put in issue in the suit in Chancery; or whether, if it is competent for Yincent & Son so to discontinue, their acts amount to a discontinuance ; or if the bail writ in this case was improperly issued, as being for a cause of action pending and litigated in the Court of Chancery, whether the Court oí Chancery is not the proper jurisdiction to restrain the irregularity.
    On the ground that a party to a suit in Chancery, attending a reference before one of the Masters, under an order in the cause, is privileged from arrest, the applicant must be discharged from custody. Parties, as well as witnesses, are protected by Courts of Justice, and privileged from arrest during the necessary time consumed by them in going to the place where their attendance is required — in staying there for the purpose of such attendance — and in returning from the place. A reasonable time is allowed to the parties, as to witnesses, for going and returning ; and in making this allowance “ the courts have not been nice in scanning the privilege, but have given it a large and liberal construction.” 1 Tidd’s. Prac. 196. Thus a plaintiff who was attending from day to day at the sittings, in expectation of his cause being tried, was held to be privileged from arrest, whilst waiting at a Coffee House in the vicinity of the court, before the actual day of trial. 11 East, 439.
    “ A witness in the Court of Exchequer, living in the country and coming up to London to be examined, and on other business, in the interval between the day on which he had been examined and that appointed for his further examination, was taken- .by the Sergeant at Arms, on process out of the Court of Chancery. The Lord Chancellor said the Court of Chancery was the proper court to apply for his release, and the prisoner was discharged.” 1 Smith’s Ch. Prac. 389.
    It seems most fit and decorous, in such case of improper arrest of a party or witness, to apply to the court by whose process the “ arrest was made, for the discharge of the prisoner.” The quotation from Smith’s Chancery Practice confirms this view; and in Tidd’s Practice, 1 vol. 197, it will be found that “ if a defendant be arrested by quo minus while protected as a suitor, by the privilege of the Common Pleas, he may be discharged either by that court or the Court of Exchequer.”
    I cannot doubt that a party to a suit in Equity, attending before one of the Masters, under an order of reference in the cause, is protected from arrest, as much as if he was attending the court at the hearing of the cause. Every argument and consideration which would protect a party attending the hearing of his cause in court, would more urgently require his protection before the Master on a reference to take testimony or adjust accounts. In this stage of litigation the decision of the case is most frequently predetermined, and the advice and information of the parties to the suit indispensable. “It has been determined, that the party to a cause is privileged from arrest for debt, during his attendance on an arbitration, under an order of nisi prius, made on rule of court,” “ or on the execution of a writ of inquiry.” 1 Tidd’s Prac. 197; or “ attending the Insolvent Debtors’ Court, or a meeting of Commissioners in Bankruptcy in pursuance of a notice.” 1 Phil. Evid. 5.
    The applicant in this case had come to Charleston to attend the references before one of the Masters, ordered in a suit in Chancery in which he was complainant; and while attending the references, continued from day to day, he was arrested at the suit of H. E. Vincent, Jr. under the process stated in the caption of this case.'
    It is my opinion that the arrest was illegal. It is therefore ordered, that the Sheriff of Charleston District do discharge from custody the applicant, Dunham Watson, under the arrest made in this case.”
    The plaintiff appealed, on the following grounds :
    1. That the privilege of exemption from arrest, does not attach to a suitor attending a reference held during vacation, under a general order of reference from the Court of Chancery.
    2. That if such privilege does exist, it does not extend to the interval between the references, but only to actual attendance on such references, and going to and returning from such references.
    3. That relief in such case can only be applied by the Court of Chancery, and not by a Court of Common Pleas, or at least not by a Judge of that court at Chambers.
    
      Yeadon, for the motion.
    The principle on which courts proceed in ordering suitors and witnesses to be discharged, is the contempt committed against their authority; and one court will not take notice of a contempt to another. (4 T. It. 377; 7 Com. Dig. 113; 1 Brownl. 15; Barnes, 200.) He submitted that a party attending a reference before the Master, is not privileged from arrest.
    
      Hunt, contra.
    Comity requires that one court of Justice should prevent its officers from interfering with suitors attending upon another. In the case exparte Ferris Pell, Ch. Mss. Dec. a party in attendance from another State, in the Court of Appeals, to hear the argument in his case, (Pell vs. Ball) was held to be privileged from arrest.
    
      
       By the Sheriff’s Act of 1839, sec. 10, p. 28, the privilege from arrest seems to be confined to persons attending upon Courts of Record, as parties, witnesses, “ or otherwise by order of court.” For the law in respect to other cases of exemption from arrest, and the consequences of holding to bail privileged persons, see Petersd. on Bail. Ch. 3 ; (10 Law Lib.) Con. U. S. Art. 1 sec. 6 ; Con. S. C. Art. 1, sec. 14; 4M‘C. 152; Acts 1839, p. 28. For the application of .the maxim, “ Every man’s house is his castle,” see Se-ma yne’s case and'notes, 1 Sm. Lead. C. 39, m. p; and the Sheriff’s Act of 1839, sects. 15 and 16, p. 29.
    
   Curia, per

Fbost, J.

It may be proper to notice the objections made in this case to the judgment of the court below, and to confirm it by additional authorities.

The arrest was not illegal, because the exemption was a personal privilege which the sheriff was not bound to notice, nor could he know whether the defendant would claim it. Formerly, it was necessary to plead specially the privilege from arrest; but modern practice gives relief on motion. 2 Blacks, R. 1190, Cameron vs. Lightfoot. The case of Kinder vs. Williams, 4 T. R. 377, does not conflict with this decision. The defendant was attending before Commissioners of Bankruptcy when he was arrested by capias from the Sheriff’s court of London. The case was removed by Habeas Corpus into the King’s Bench, in order to move for his discharge. The court expressed a--doubt whether the defendant was privileged ; which has since been well settled affirmatively. 7 Ves. 312, Exparte King. But the motion was refused, on the ground that the process under which the defendant was arrested was sued out of another court; and it could not vary the case, that the cause was afterwards removed into the court of King’s Bench by the defendant.

The arrest of one attending as a witness, may be a contempt of the court, as if made in the face of the court; 7 Com. Dig. 113 ; against which the court must protect itself. But it is also a violation of the protection afforded by law to the witness. Either the court whose proceedings have been interrupted by the arrest of a witness, or the court under whose process the arrest is made, may interfere for his discharge. In 1 Tidd’s Prac. 81, it is shown that an Attorney of either the King’s Bench or Common Pleas, arrested by process from the other court, is discharged by the court under whose process the arrest is made. The rule most consistent with the courtesy due from the courts to each other, and with a proper care for the liability of the citizen, is expressed in Bours vs. Tuckerman, 7 J. R. 539. The defendant was attending the General Sessions under a recognizance, when he was arrested by a capias from the Supreme Court. The judgment of the court was, “ the defendant is privileged from arrest; and as it appears he had no opportunity to apply to the court below to be discharged ; and as this court ought not to suffer its process to be executed in violation of the privileges of other courts, the defendant must be discharged from the bail bond and arrest.” It is sufficient to refer to 2 Phil. Evid. by Cowen, p. 17, for a collection of American authorities on this subject.

The motion is refused.

Richardson, O’Neall, Evans, Butler, and Ware-law, JJ. concurred.  