Jenkins v. Smith

57 How. Pr. 171

• Court: New York Supreme Court
• Decided: July 15, 1878
• Status: Published

Opinion

Noxon, J.

The practice seems to be well settled that a non-resident witness in onr courts can neither be arrested nor served with summons; his privilege protects him.

It is also well settled that a resident witness is privileged from arrest, hut not from the service of a summons. With the exception of the case referred to in 66 New York, 124, I can find no case where the privilege of a suitor has protected him from the ordinary service of civil process. In a number of cases where the party was arrested, upon motion to set aside the order of - arrest the motion has been granted upon the entry of common bail, thus leaving the party as effectually served with process as if served with the ordinary summons. The case in 66 New York only presented the question so often adjudicated upon in relation to witnesses; as to suitors there was no question before the court, and the opinion of justice Allen was wholly outside of the question before the court, and is not" an authority to be considered in this ease. The long list of authorities upon this question, so repeatedly concurred in, have not been overruled in the case in 66 New York. When that court shall have presented before it the question arising in this case, and shall determine the law in opposition to the law as it has been promulgated and sanctioned for many years, it will be time to follow its decision.

Under my present view of the law the defendant is not entitled to the order asked for in the motion, and the same should be denied, with costs.