Wetherill v. Seitzinger

1 Miles 237

Opinion

The opinion of the Court was delivered by

Stroud, J.

There is no doubt that die defendant’s attendance io tbis city, with the view of being present with his counsel at the taking of the deposition of a witness under the rule entered for that purpose in the cause pending in Schuylkill county entitled him to the privileges of a suitor, notwithstanding (he cause was at that time under arbitration. In England, and perhaps in all our sister states, this privilege would not ptofect him from the service of a summons. This question was examined with much care by Judge Washington in Blight v. Fisher, Peters’s C. C. Rep. 4!, and held not to extend beyond an exemption from arrest. But with us the privilege comprehends a summons also. Hays v. Shields, 2 Yeates 222 ; Miles v. M’Cullough, 1 Binney 77,

Although this latter point was contested in some degree by the counsel against the rule, yet he relied mainly upon the ground that the defendant, by declining to take the deposition of the witness, waived the prolection of his privilege. No decision to this effect or bearing any analogy in principle, was cited for this position. And we are unable to discover any good reason for it. It is not denied that the defendant came to the city with the. bona fide intention of taking the deposition; and the reason assigned for not taking it, is a sufficient justification for his change of purpose. If a cause were on trial, and the parties saw fit to compromise it, each, according to the argument of the plaintiff’s counsel, would lose, in an instant, the privilege of a suitor. It might be doubted whether suffering a non suit would not operate in this way against the plaintiff, while the case would be plain in regard to a defendant who should pay the whole debt for which he was sued, when the jury were called into the box.

Rule absolute,

(a)

The case of Hobart v. Wetherill and Seitzinger, was determined the same day, under similar circumstances, and the process was quashed.