The Vice-Chajícel lor.
The supreme court, in 1809, decided that, according to the rule prescribed by our statute [Bev. p. §80 § 15), a wit[213]*213ness was not entitled to immunity from arrest while attending court, unless his attendance was in obedience to process of subpoena. Rogers v. Bullock, 2 Pen. 517. The witness who claimed immunity in that case was, undoubtedly, I think, a citizen of this state, and, as such, amenable to the process of our courts. If the fact had been otherwise, it was quite too important to have escaped mention by the learned reporter, who was a member of the court which decided the case. I think it may, therefore, well be doubted whether, in a case like the present, where the witness is not bound to obey the process of the courts of this state, and whose attendance cannot be compelled by compulsory means, and, if procured at all, must be voluntary, it would be held that attendance in obedience to process is necessary to immunity. An absurd purpose should not be imputed to the legislature. They certainly did not intend to deprive the suitors of this state of the testimony of witnesses residing in foreign jurisdictions; nor can it be supposed that [214]*214they intended to send the writs of our courts into jurisdictions where they would be entitled to no more force than so much blank paper. In my view, it is much more reasonable to conclude they simply meant that process should be used within our own jurisdiction, where it is entitled to command respect and obedience. Much the same view has already been expressed by Mr. Justice Depue, in Dungan ads. Miller, 8 Vr. 182.
As to what constitutes an attendance: Merely being a suitor at the time of arrest is not sufficient (Gray v. Ayres, Tappan I64,); a party while dining in the evening, after attending his cause all day in court, is exempt (Dightfoot v. Cameron, 2 W. Bl. 1118; Newland v. Harland, 8 Scott 70; Atty-Gen. v. Skinners Co., 8 Sim. 877); a plaintiff waiting in the vicinity of the court for his cause to be called (Childerston v. Barrett, 11 East 1)89; Walker v. Webb, 8 Anst. 91yl; Ex parte Hurst, 1 Wash. C. C. 186); waiting redeundo, in a picture-shop on the way, not an unreasonable time (Huntley v.-, 1 Cr. & M. 579); going into a tailor-shop on his way home (Pitt v. Coombs, 8 Nev. é M. 212); during a detention of a month as a witness before a master (Brown v. McDermott, 2 Ir. Eq. 338 ; Burke v. Higgins, 2 Hogan 110 ; Gibbs v. Phillipson, 1 Buss. & M. 19) ; during an adjournment of the examination by the master (Ex parte Temple, 2 Ves. & B. 395; Spencer v. Newton, 6 Ad. & El. 628; Ex parte Bussell, 1 Bose 278); a party going into another county to attend the taking of a deposition, in a suit pending, although he afterwards determine not to have it taken (Wetherill v. Seitzinger, 1 Miles 237); coming into town several days before his cause was likely to be heard [Ex parte Tillotson, 2 Stark. 470; Persse v. Persse, 6 H. of L. Gas. 671).
The following are instances where a plea of privilege was overruled: Where the witness’s attendance was voluntary [Hardenbrook’s Case, 8 Abb. Pr. 41S); on service of a summons merely, without an arrest [Hopkins ads. Coburn, 1 Wend. 292; Pollard v. Union Pac. B. B., 7 Abb. Pr. [H. S.) 70; Legrand v. Bedinger, 4 Mon. 689 ; Hunter v. Cleveland, 1 Brev. 167; Huntington v. Shultz, Harp. 1¡S2; Wilder v. Welsh, 1 McArthur 666); where the defendant was in attendance as a suitor .before United States land commissioners [Page v. Bandall, 6 Cal. 82).
A common informer is not protected [Ex parte Cobbett, 7 El. & Bl. 966); nor a party attending court to assist his solicitor about duties properly the business of the solicitor [Flattery v. Anderson, 6 Ir. Eq. 618) ; nor attending a court of bankruptcy on his own petition [Plomer v. MacDonough, 1 DeQ. & Sm. 232); as to a creditor' attending to prove his claim [Ex parte King, 7 Ves. 812; Ex parte Bryant, 1 Madd. 49; Ex parte Kerney, 1 Atk. 66; Ex parte Dick, 2 W. Bl. 1U¡,2; Kinder v. Williams, 4 D. & IS. 877); aliter, where the bankrupt is attending to be examined, although the previous examination had been adjourned sine die [Ex parte Boss, 1 Bose 260 ; Kimball's Case, 2 Ben. 88); where a witness voluntarily leaves the place of trial, during a recess from Friday until Monday [Bex v, Piatt, 8 W. H. C. 187).
The privilege does not extend to criminal cases, as where the defendant had been brought into the state as a fugitive from justice [Williams V. Bacon, 10 Wend. 686; Com. v. Daniel, 4 Clark [Pa.) 49); after a discharge on a recognizance on a criminal charge (Moore v. Green, 78 N. C. 394; Key v. Jetto, 1 Pittsb. 117; Scott v. Curtis, 37 Vt. 763; Hare v. Hyde, 16 Q. B. 394; Jacobs v. Jacobs, 3 Bowl. P. C. 675; Rex v. Douglas, 7 Jur. 39; Anon., 1 Dowl. P. C. 157); or after a trial and acquittal (Goodivin v. Lordon, 1 Ad. & El. 378; Addicks v. Bush, 1 Philá. 19); 'or trial and conviction [Lucas v. Albee, 1 Den. 666); but see Bows v. Tuckerman, 7 Johns. 538; Rex v. Wigley, 7 Gar. & P. 4; Gallans v. Sherry, Al. & Nap. 135; Gilpin v. Cohen, L. R. [4 Exch.) 131; Benninghoff v. Oswell, 87 How. Pr. 335).
[214]*214But this case presents a much more important question than a question of privilege to the witness. Was not the arrest an invasion of the prerogative of this court? It is the undoubted right of every tribunal entrusted with the determination of questions of fact, to compel the attendance of witnesses, and to hold and control them until the purposes of their attendance are fully accomplished. This power is absolutely indispensable to the discharge of their functions. The witness in this case had not been discharged, and, although his examination had been com[215]*215pleted, Ms further attendance had not been dispensed with. His further examination might have become necessary for the correction of his testimony, or to supply an omission arising from the inadvertence of counsel. Until discharged by the court he was subject to its order, and his arrest withdrew him from the power of the court at a time when it had a right to his presence, and while his actual attendance before the court might have been necessary for the due administration of justice. The fact that the court was not actually in session when the arrest was made, is quite immaterial; the decisive fact is, the witness was arrested while he was in attendance before the court, and while he was subject to its power and entitled to its protection. In the interim between the adjournment from one day until the next, the court does not lose its power over those who have attended before it as witnesses and have not been discharged; nor does an adjournment so far withdraw the protection of the court that, in the interval, an unscrupulous [216]*216suitor may punish them, hy arrest, for giving evidence against him, or prevent them, hy the same means, from giving evidence which he fears may prejudice him.
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The Vice-Chajícel lor.
The supreme court, in 1809, decided that, according to the rule prescribed by our statute [Bev. p. §80 § 15), a wit[213]*213ness was not entitled to immunity from arrest while attending court, unless his attendance was in obedience to process of subpoena. Rogers v. Bullock, 2 Pen. 517. The witness who claimed immunity in that case was, undoubtedly, I think, a citizen of this state, and, as such, amenable to the process of our courts. If the fact had been otherwise, it was quite too important to have escaped mention by the learned reporter, who was a member of the court which decided the case. I think it may, therefore, well be doubted whether, in a case like the present, where the witness is not bound to obey the process of the courts of this state, and whose attendance cannot be compelled by compulsory means, and, if procured at all, must be voluntary, it would be held that attendance in obedience to process is necessary to immunity. An absurd purpose should not be imputed to the legislature. They certainly did not intend to deprive the suitors of this state of the testimony of witnesses residing in foreign jurisdictions; nor can it be supposed that [214]*214they intended to send the writs of our courts into jurisdictions where they would be entitled to no more force than so much blank paper. In my view, it is much more reasonable to conclude they simply meant that process should be used within our own jurisdiction, where it is entitled to command respect and obedience. Much the same view has already been expressed by Mr. Justice Depue, in Dungan ads. Miller, 8 Vr. 182.
As to what constitutes an attendance: Merely being a suitor at the time of arrest is not sufficient (Gray v. Ayres, Tappan I64,); a party while dining in the evening, after attending his cause all day in court, is exempt (Dightfoot v. Cameron, 2 W. Bl. 1118; Newland v. Harland, 8 Scott 70; Atty-Gen. v. Skinners Co., 8 Sim. 877); a plaintiff waiting in the vicinity of the court for his cause to be called (Childerston v. Barrett, 11 East 1)89; Walker v. Webb, 8 Anst. 91yl; Ex parte Hurst, 1 Wash. C. C. 186); waiting redeundo, in a picture-shop on the way, not an unreasonable time (Huntley v.-, 1 Cr. & M. 579); going into a tailor-shop on his way home (Pitt v. Coombs, 8 Nev. é M. 212); during a detention of a month as a witness before a master (Brown v. McDermott, 2 Ir. Eq. 338 ; Burke v. Higgins, 2 Hogan 110 ; Gibbs v. Phillipson, 1 Buss. & M. 19) ; during an adjournment of the examination by the master (Ex parte Temple, 2 Ves. & B. 395; Spencer v. Newton, 6 Ad. & El. 628; Ex parte Bussell, 1 Bose 278); a party going into another county to attend the taking of a deposition, in a suit pending, although he afterwards determine not to have it taken (Wetherill v. Seitzinger, 1 Miles 237); coming into town several days before his cause was likely to be heard [Ex parte Tillotson, 2 Stark. 470; Persse v. Persse, 6 H. of L. Gas. 671).
The following are instances where a plea of privilege was overruled: Where the witness’s attendance was voluntary [Hardenbrook’s Case, 8 Abb. Pr. 41S); on service of a summons merely, without an arrest [Hopkins ads. Coburn, 1 Wend. 292; Pollard v. Union Pac. B. B., 7 Abb. Pr. [H. S.) 70; Legrand v. Bedinger, 4 Mon. 689 ; Hunter v. Cleveland, 1 Brev. 167; Huntington v. Shultz, Harp. 1¡S2; Wilder v. Welsh, 1 McArthur 666); where the defendant was in attendance as a suitor .before United States land commissioners [Page v. Bandall, 6 Cal. 82).
A common informer is not protected [Ex parte Cobbett, 7 El. & Bl. 966); nor a party attending court to assist his solicitor about duties properly the business of the solicitor [Flattery v. Anderson, 6 Ir. Eq. 618) ; nor attending a court of bankruptcy on his own petition [Plomer v. MacDonough, 1 DeQ. & Sm. 232); as to a creditor' attending to prove his claim [Ex parte King, 7 Ves. 812; Ex parte Bryant, 1 Madd. 49; Ex parte Kerney, 1 Atk. 66; Ex parte Dick, 2 W. Bl. 1U¡,2; Kinder v. Williams, 4 D. & IS. 877); aliter, where the bankrupt is attending to be examined, although the previous examination had been adjourned sine die [Ex parte Boss, 1 Bose 260 ; Kimball's Case, 2 Ben. 88); where a witness voluntarily leaves the place of trial, during a recess from Friday until Monday [Bex v, Piatt, 8 W. H. C. 187).
The privilege does not extend to criminal cases, as where the defendant had been brought into the state as a fugitive from justice [Williams V. Bacon, 10 Wend. 686; Com. v. Daniel, 4 Clark [Pa.) 49); after a discharge on a recognizance on a criminal charge (Moore v. Green, 78 N. C. 394; Key v. Jetto, 1 Pittsb. 117; Scott v. Curtis, 37 Vt. 763; Hare v. Hyde, 16 Q. B. 394; Jacobs v. Jacobs, 3 Bowl. P. C. 675; Rex v. Douglas, 7 Jur. 39; Anon., 1 Dowl. P. C. 157); or after a trial and acquittal (Goodivin v. Lordon, 1 Ad. & El. 378; Addicks v. Bush, 1 Philá. 19); 'or trial and conviction [Lucas v. Albee, 1 Den. 666); but see Bows v. Tuckerman, 7 Johns. 538; Rex v. Wigley, 7 Gar. & P. 4; Gallans v. Sherry, Al. & Nap. 135; Gilpin v. Cohen, L. R. [4 Exch.) 131; Benninghoff v. Oswell, 87 How. Pr. 335).
[214]*214But this case presents a much more important question than a question of privilege to the witness. Was not the arrest an invasion of the prerogative of this court? It is the undoubted right of every tribunal entrusted with the determination of questions of fact, to compel the attendance of witnesses, and to hold and control them until the purposes of their attendance are fully accomplished. This power is absolutely indispensable to the discharge of their functions. The witness in this case had not been discharged, and, although his examination had been com[215]*215pleted, Ms further attendance had not been dispensed with. His further examination might have become necessary for the correction of his testimony, or to supply an omission arising from the inadvertence of counsel. Until discharged by the court he was subject to its order, and his arrest withdrew him from the power of the court at a time when it had a right to his presence, and while his actual attendance before the court might have been necessary for the due administration of justice. The fact that the court was not actually in session when the arrest was made, is quite immaterial; the decisive fact is, the witness was arrested while he was in attendance before the court, and while he was subject to its power and entitled to its protection. In the interim between the adjournment from one day until the next, the court does not lose its power over those who have attended before it as witnesses and have not been discharged; nor does an adjournment so far withdraw the protection of the court that, in the interval, an unscrupulous [216]*216suitor may punish them, hy arrest, for giving evidence against him, or prevent them, hy the same means, from giving evidence which he fears may prejudice him. If such obstructions to the course of justice were tolerated, because the court was impotent to remove them, its administration would soon he impossible.
Such an illegal arrest is no cause of abating the writ [Booraem v. Wheeler, 13 Vt. 311; see Hubbard v. Sanborn, 3 N. H. 468) ; a prior illegal arrest from which defendant was discharged, will not prevent a subsequent legal one [Petrie v. Fitzgerald, 1 Daly 451; Van Wezel v. Van Wezel, 1 Edw. Ch. 113; Barrack v. Newton, 1 Q. B. 535; Andrews v. Walton, 1 McN. & G. 38Ó; Towers v. Newton, 1 Q. B. 319; Cartwright v. Keely, 7 Taunt. 193; Shults v. Andrews, 54 How. Pr. 880; Lagrave's Case, 14 Abb. Pr. [N. S.) 333; Humphrey v. Gumming, 5 Wend. 90; Hart v. Kennedy, 15 Abb. Pr. 390).
As to what constitutes a deviation sufficient to forfeit the privilege, see [Chaffee v. Jones, 19 Pick. 360; Salhinger v. Adler, 3 Robt. [N, !F.) 704; Clark v. Grant, 3 Wend. 357; Shults v. Andrews, 54 How. Pr. 380 ; Wilbur v. Boyer, 1 W. N. G. 154; Selby v. Hills, 8 Bing. 166; Persse v. Persse, 5 H. of L. Cas. 671; Pitt v. Coombs, 5 B. & Ad. 1078; Herron v. Stokes, 6 Ir. Eg. 135; Strong v. Dickenson, 1 M. & W. 488; Jones v. Rose, 11 Jur. 879; Hatch v. Blissett, 3 Sir. 983; Ricketts v. Gurney, 7 Price 699; Sidgier v. Birch, 9 Ves. 69; Ex parte GlarJce, 2 Dea. & Ch. 99; Mahon v. Mahon, 2 Ir. Eq. 449 ; Atty-Gen. v. Leather Sellers Co., 7 Beav. 157).
What amounts to a waiver of the privilege (Stewart v. Howard, 15 Barb. 26; Bandall v. Crandall, 6 Hill 342; Farmers. Bobbins, Jfl How. Pr. 413; Green v. Bonaffon, 2 Miles 219 ; Woods v. Davis, 34 N. H. 328 ; Washburn.v. Phelps, 24 Vt. 506; Geyer v. Irwin, 4 Dali. 107; Tipton v. Harris, Peck 414)-
As to the proper court in which to apply for a discharge, and the proceedings thereon (Kimpton v.L. & N. W. Co., 9 Exch. 766; Pitt v. Evans, 2 Dowl. P. C. 223; Walker v. Webb, 3 Ansí. 941; Bump’s Bankruptcy (9th ed.) 692; Com. v. Hambright, 4 8. & B. 149; United States v. Edme, 9 S. & B. 149; Kinsman v. Beinex, 2 Miles 200; Evert’s Case, 1 Disn. S3; Lyell v. Goodwin, 4 McLean 29; Humphrey v. Gumming, 5 Wend. 90; Grover v. Green, 1 Caines 116; Taft v. Hoppin, Anih. N. P. 255; Kim-ball’s Case, 2 Ben. 554, 6 Blatch. 292; Valk’s Case, 3 Ben. 431.
That the officer making such arrest is not liable (Cooley on Torts, 192; also, Moore v. Chapman, 3 Hen, & M. 260; Wood v. Kinsman, 5 Vt. 588; Carle v. Delesdernier, IS Me. 363; Nowell v. Tripp, 61 Me. 426; see Thurs-ton v. Martin, 5 Mason 497; Kerr v. Mount, 28 N. Y. 659 ; Green v. Morsef 5 Me. 291; Sperry v. Willard, 1 Wend. 32; Gill v. Miner, 14 Ohio St. 182). — Bep.
Unless the courts can give immunity from arrest to those who appear before them to testify, and free them, at least while assisting in the administration of justice, from everything like terror and intimidation, their power is not adequate to the full discharge of the duties with which they are charged. This prerogative was said, hy Judge Kane, to he founded in the necessities of judicial administration, and he held, even the service of a summons on a person who had attended before him, as an invasion of it, and set the writ aside. His judgment was approved by Chief Justice Taney and Justice Grier. Parker v. Hotchkiss, 1 Wall. Jr. 269. Many cases might be cited in support of the power. I refer to those only which are almost precisely analogous : Norris v. Beach, 2 Johns. 294; Dixon v. Ely, 4 Edw. Ch. 557; Seaver v. Robinson, 3 Duer 622.
[217]*217The petitioner was examined under an order opening the testimony in this case, and giving the defendant leave to examine the petitioner and one other witness, for the purpose of proving certain newly-discovered facts. The order directed the witnesses to be examined in open court. The nature of the evidence proposed to be offered rendered it highly important that its production should be controlled by the court. Had the petitioner been aware that he was liable to arrest, and for that reason had refused to come here without an order giving him safe conduct, there can be no doubt it would have been granted. The power and duty of the court in this respect, I think, are clear. It is true, such protection was neither solicited nor extended in advance of his coming; but will it be consistent with the dignity and justice which should always characterize judicial conduct, to refuse to give him now, because we have his testimony, the protection we would have extended to him to get his testimony if it had been asked for in advance ? I am very decidedly of opinion it will not.
The question presented by this motion was one of such great practical importance, in view of the nisi prius character of hearings before the vice-chancellor, that I thought it ought not to be decided without consultation with the chancellor, and I accordingly laid it before him. I am gratified to be able to state that he fully concurs in the opinion that the arrest of the petitioner-was unlawful, and that he must, therefore, be discharged.