
    John Davis and Richard Maris against James Cummins.
    Privilege of a suitor does not hold, when he has been surrendered by his bail in another cause, and is in actual custody at the time of arrest.
    Motion to discharge the defendant from an arrest on the following affidavit by him made :
    That he came to Philadelphia on the 14th March instant from Northumberland county, for the purpose of attending the Supreme Court as a suitor, in a cause against him by Cochran and Thursby, now pending in the said court; that on the next day he was taken on a bail piece in a suit wherein J ohn Plankinhorn is plaintiff, and on the day following, being in custody, a capias was served on him at the suit of Smith and Maris, and held to bail in 2500 dollars, in consequence of which he is deprived of the means and opportunities of attending to the cause of Cochran and Thursby, the decision whereof will be of great consequence to him.
    It appeared that the cause of Cochran and Thursby had not been put on the trial list, and that the special bail had informed the defendant, unless he came down on the day fixed for that purpose, his appearance would be compelled, in order to discharge the bail from his recognizance.
    Mr. M'Kean for the plaintiffs
    objected that the defendant’s appearance was voluntary in discharge of his bail, and besides there was no necessity for his attendance at the court, when the suit of Cochran v. Thursby had not been put on the trial list. The privilege of suitors only holds where there is bona fide attendance on the trial of the issue. Besides, it is a general rule, that there can be no privilege against privilege. 1 Tidd’s Pract. 76. An attorney has no privilege where he is in the actual custody of the marshal. Ib. 77. Carth. 377. 1 Salk. 1, 2. 1 Ld. Raym. 135. 12 Mod. 102, 112, 535. 1 Stra. 191.
    It was answered by Messrs. D. Smith and Cooper for the defendant, that the law did not enjoin that the cases of the privileges of suitors should depend on their attendance on the cause alone, though it is agreed that the attendance must be bona fide *and not colourable. Here the party could not know r* 00 that his action was not marked for trial, but had reason ^ ^ to believe it was, and attended accordingly. His exemption from process is the privilege of the court. 2 Bl. Rep. 1193. Annal. 41. The case of Bands v. Bodinner, cited by Mr. Tidd from several books, went on the ground of waving the privilege of the attorney in C. B. 5 Mod. 310. But a privileged person may plead his privilege, notwithstanding that he is in custody of the marshal, and declared against as in custody. Per Ld. Holt, i Ld. Raym. 93.
   By the Court.

This does not appear to us to be such a case as entitles the party to a privilege from arrest in the present cáse. He was lawfully in custody tin the surrender of his special bail, and of course could not attend his cause with Cochran and Thursby, even if the trial was going on. In this state of incapacity the plaintiffs might well arrest him. He was already in actual custody.

Motion denied.

Vid. 2 Bl. Rep. 823. Even where a defendant is illegally in custody at the suit of one plaintiff, he is not privileged from arrest at the suit of another, unless there be some collision.  