Secor v. Bell

18 Johns. 52

• Court: New York Supreme Court
• Decided: May 15, 1820
• Status: Published

Opinion

Spencer, Ch. J,

delivered the opinion of the Court. Tidd (p. 171.) lays down.the rule to be, that the sheriff cannot take notice of the privilege of an attorney; nor Í3 he bound to discharge him, even upon producing a writ of privilege, except where the arrest was by process issuing out of an inferior Court; in which case, he says, their writs of privilege ought to be allowed to them, mstanter; and that if an attorney or other officer of the K. B. be arrested, by process issuing out of the same Court, he may move to be discharged on common bail.

By the 12th section of the statute concerning counsellors, attorneys, and solicitors, (1 N. Y. R. L. 418.) every officer of the several Courts of Record are liable to arrest on mesne process, and to be held to bail as other persons. Attornyes, and other officers, were always subject to be taken in execution on a ca. sa. in this state. Our practice has been conformable to that of the Court of K. B. They are relievable from arrest only on motion, and under the circumstances of the case. If an attorney be taken on a ca. sa. during his attendance in Court, he having business to transact, the Court, on an affidavit of the facts, and on motion, Will discharge him from arrest; and this may, also, be done at the Circuit or Sittings.

The sheriff having no authority to discharge the attorney, on a writ of privilege, from the arrest on process out of this Court, he is fixed with the debt, which will be the amount of the judgment, and the interest thereon at the time of the escape, but no interest since; and the poundage, if it has been paid to the sheriff, otherwise not.

Judgment for the plaintiffs