This defendant, although not arrested in the original action, is under the statute a party to a certain extent, and consequently entitled to the privilege of a suitor. . This, however, is an application to the discretion of the court, and, as on the one hand, the defendant being a stranger, may not be able to procure bail, the bail bond must be cancelled, the plaintiff, however, is entitled to have his action tried here, and the defendant, therefore, ought to be held to common bail.
*257Griffin, for defendant, contended that the discharge ought to be absolute, and requested time to produce authorities, which was allowed him. and on the succeeding day. Cited Str. 1094.
Anthon, cited 7 Johns. 538; Long's case, 2 Mod. 181; Barnard v. Mordaunt, Barns. 110.
Thompson, C. J. Let the defendant’s bail bond be cancelled, upon his indorsing his appearance on the cajOTOS.(1)
On this subject the books are not sufficiently precise. The privilege of the suitor or (more correctly speaking) of the court, is indeed every where recognized, but the reported cases seldom disclose how the privilege was enforced. The cases cited by the plaintiff’s counsel, are, in this particular, the most strongly marked perhaps of any in the books, and are consistent with the course pursued by the court in the principal case.
In Long's case, (2 Mod. 181,) the defendant was arrested in the palace-yard, not far distant from the hall gate, the court being then sitting, and he being an attorney of this court, (0. B.) he, together with the officer, was brought into court, and the officer was committed to the fleet. The plaintiff, however, being an attorney of the K. B., the court ordered another of the sheriff’s bailiffs to go with the prisoner to the K. B., and that court, when informed how the case was, discharged the defendant, after filing common bail. In the case of Barnard v. Mordaunt, the defendant was a member of Parliament, and was arrested and held to bail; before the expiration of the forty days next after the dissolution, (this being the privilege claimed by the commons,) he moved to have the bail bond delivered up, and by consent, a rule absolute was granted, to deliver up the bail bond on entering a common appearance. These, it is admitted, are not cases of'suitors arrested, but it is submitted that the principle is the same.
In the case of Bours v. Tuckerman, (7 Johns. 538,) a suitor was arrested, and the same course pursued. There, the defendant appeared at the sessions in Madison county, by virtue of a recognizance, under which he was bound to appear, and while attending, and before he was discharged from his recognizance, he was arrested by the sheriff of Madison, on a capias ad respondandvm, issued out of the supreme court, at the suit of the plaintiff, and al*258though he claimed privilege, in consequence of his attendance at the sessions, the sheriff carried him to his place of residence, where he was admitted to hail; after this, the defendant moved the supreme court to discharge him from the arrest, and to set aside the capias and proceedings, on an affidavit stating the above facts. The court, however, decided that the defendant was privileged from arrest, and as it appeared that he had no opportunity to apply to the court below to be discharged, and as the supreme court ought not to suffer its process to be executed in violation of the privileges of other courts, the court ordered the defendant to be discharged from his bail bond, and the arrest¡ on filing common bail, unless the plaintiff should elect, as he might, to waive the arrest altogether, and issue new process,