If this was an attachment' for the non-payment of costs merely, or a precept to commit the defendant for the non-payment of a sum of money, under an order of the court, the proceeding, although in form in the name of the people, would in substance be a civil proceed*315ing; and the defendant would be protected from arrest thereon during his attendance before the recorder, and until he had a reasonable time to return home. (Ex parte Parker, 3 Ves. 554. United States v. Edme, 9 Serg. & Rawl. 150. Ex parte Eicke, 1 Glyn. & Jan. 261.) Whether the protection extends -to those cases in which the court is authorized to. punish the party by fine and imprisonment, on an attachment to enforce a civil right or remedy, admits of some doubt.
But under the circumstances of this particular case, the defendant must be discharged from the arrest. Where the party has not in fact been guilty of a crime, this court will not permit the complainant to resort to any unfair and inequtable method to enforce the process of attachment. It is very evident that the proceeding before the recorder to procure the personal attendance of the insolvent was a mere device to enable the complainants to arrest him on this attachment. I cannot allow a party thus to abuse the process or the remedial power of any court. In Wells v. Gurney, (8 Barn. & Cress. 679,) where by the contrivance of the plaintiff’s attorney the defendant was arrested on Sunday for an assault actually committed, but for the real purpose of detaining him until Monday, so that he might be'arrested in a civil suit, the court of king’s bench discharged the defendant from the last arrest.
The defendant Watrous must be discharged from the arrest on this attachment; but on condition that no action for false imprisonment be brought by him.