Sperry v. Willard

1 Wend. 32

• Court: New York Supreme Court
• Decided: May 15, 1828
• Status: Published

Opinion

By the Court,

Savage, C. J.

The defendant, as a counsellor of this court, was privileged from arrest during the sitting of the court. (1 R. L. 418.) It was the duty of the officer to serve the process, notwithstanding the claim of privilege. (18 Johns. R. 52.) The defendant would have been relieved from arrest on application to the court, but he would have been required to file common bail, as the object of the statute is only to prevent the arrest of attornies and counsellors during term, where their attendance may be necessary for the benefit of suitors. This has been done by the plaintiff ; the defendant cannot, therefore, complain of the arrest. As a counsellor, the defendant was not entitled to the service of papers and notices, as an attorney would have been, whether sued by bill or capias; that practice, applies only to attornies. (See 17 Johns. R. 1. 4 Cowen, 127.) As, however, the defendant has misapprehended his rights, and swears to a defence on the merits, a stay of proceedings is ordered, and leave given to plead, on payment of all costs subsequent to the declaration, including the costs of opposing this motion.