Prentiss, J.
pronounced the opinion of the Court. It is a general principle, that parties and witnesses, and, indeed, all *229who have any relation to a cause which calls for their attendance in court, as bail, are privileged from arrest, during their attendance upon court, and in going to and returning, from it, whether they are compelled to attend or not. — Meekins vs. Smith, 1 H. Black. 636. — 1 Tidd’s Pr. 173. And this privilege, it seems, extends to a witness or party, attending, before any tribunal sitting in the nature of a court, in the administration of justice; as before a reference under a rule of court, before a master in chancery, or before commissioners of bankruptcy.— Arding vs. Flower, 8 T. R. 534. — Spence vs. Stewart, 3 East, 89. There is no doubt, then, that Morris, the principal, while attending as a witness before the justice’s court, was privileged from arrest, and that his arrest, while so attending, was a violation of his privilege. But the question is, whether having given bail, and suffered judgment to pass against him in the original suit, without claiming his privilege, his bail can avail himself of it, and plead it in bar to the scire Jadas.
It appears to be well settled, that the arrest of a person, who has a special privilege or exemption, is in no case void, but voidable, merely; and that an action of false imprisonment will not lie against the officer, or the party suing out the process.— Tarlton vs. Fisher, Doug. 671. — Cameron vs. Lightfoot, 2 W. Blac. 1190. — Reynolds vs. Cap, 3 Caines’ R. 267. The cases of Percival vs. Jones, 2 Johns. Cas. 49, and Curry vs. Pringle, 11 Johns. R. 444, which are relied upon as establishing a contrary doctrine, merely decide, that a party may be liable in trespass, who extends the power of a court of special and limited jurisdiction to a case to which it cannot be applied, and do not at all impugn the principle already advanced. In Cameron vs. Lightfoot, where the question was much considered, it was held, that in case of the arrest of a witness attending court, the writ was not void, nor the arrest illegal, but improperly timed only; and the court said, that the privilege of the witness was not considered the privilege of the person attending, but of the court which he attends. The same view seems to have been taken of the subject, in Thinder vs. Williams, 4 T. R. 377, where it is said, that the discharge of the party privileged, is founded on the contempt of the court, by arresting him while giving his necessary attendance upon it. The privilege, in whatever light it may be considered, is merely temporary, and is allowed only on account of the necessity of the party’s attendance, and for the sake of publick justice. In general, when a party or witness is arrested in violation of his privilege, the court will discharge him. The application, however, is to the discretion of the court, and they will allow it or not, under a consideraton of all the circumstances. The party may not have come bona fide, or may have been guilty of negligence,-,in not availing himself of his privilege of returning in due season. These, and other facts, connected with the inquiries involved in the application, are to appear by affidavit; and the oath of the party himself may be often, if not always, necessary, to sat*230isfy the court. The privilege, therefore, is clearly not a matter which can be pleaded and put m issue to the jury, but is only ground for a motion, upon which the court are to decide. In Dannelly vs, Dunn, 1 Boss, and Pull. 45 Buller, J. said, that it was of importance to the publick, and to the profession, to put an end to attempts to introduce upon the record questions of practice, which cannot be considered as legal defences, but which belong rather to what may be called the equity side of the court. No case is to be found in the English books, in which the privilege of a party or witness has ever been the subject of a plea, either to the process on which he was arrested, or to an action against his bail; nor is any intimation any where given, that it might be so pleaded. It has uniformly been treated as the ground of a motion only, and as resting in the discretion of the court, whether to grant it or not. And the application is either to the court under whose protection the party is, or to the court out of which the process issues. If to the former, they can order his discharge ; if to the latter, they may order his discharge, if he is still in custody, or if the arrest was on mesne process, and he has given bail, may order an exon-eretur to be entered as to the bail, as was done in the case of Spence vs. Stewart. In vacation, the remedy in England is by application to one of the judges for an order of discharge ; but here, probably, it is by habeas corpus.
But, admitting that the remedy is not exclusively by motion, and .that the privilege of a party or witness may be pleaded, yet it is the privilege of the party himself, and he may waive it if he pleases. If the arrest is not void, but merely voidable, and the party neglects to avail himself of his privilege, at a proper time, and in a proper manner, it must be considered as waived, and neither he nor his bail can set it up in any collateral action. It is true, that an officer is not bound to arrest a privileged person, if he chooses to notice the privilege; and his neglect to do it will not form a ground of action against him. This-was decided in the case of Arding vs. Flower, and is the whole extent of the decision in Ray vs. Hogeboom, 11 John. R. 433. But although the officer will be justified in not serving the process in such case, yet, if he does serve it, and makes return of the arrest, he cannot set up the privilege of the party in defence to an action for an escape againsi him. In Bull vs. Steward, 1 Wils. 255. — 2 Saund. 101, y. n. 2, it was holden, that, in an action for an escape on mesne process out of an inferiour court, against the bailiff, the defendant could not take advantage of any error in the process, of which the defendant below might have availed himself. And in Cable vs. Cooper, 15 John. R. 152, it was determined, that the exemption of a person from arrest, on the ground of a previous discharge from imprisonment, for the same cause of action, was a privilege which the party might revive, and having omitted to plead it in proper time, it was waived, and was no justification to an action against the sheriff for an escape. In no case, where the matter is such that the *231party might have availed himself of it in the original suit, and has waived it by his neglect to do it, can It be taken advantage of, in an action either against his bail or the sheriff. In Cooke vs. Gibbs, 3 Mass. 193, Parsons, Ch. J. said, that the exemption of the defendant from arrest, in an action of debt upon a judgment, upon which he had been committed to jail, and discharged on taking the poor prisoner’s oath, was an exemption in his favour, which he might waive the benefit of, by neglecting to plead it. But the case of Brown vs. Gitchell, 11 Mass. 11, is more directly in point, and carries the doctrine of waiver farther than it is neceesary to extend it in the present case. That was an action on a bond given for the liberty of the prison yard, and the plea was, that the arrest of the debtor on the execution, was made while he was attending court as a party in a suit pending. The court said, that the protection which the law affords in such case, is a personal privilege, of which the party entitled to rely upon it, may avail himself, to prevent or defeat, an arrest; but if he waives the privilege, and willingly submits himself in custody to the officer, he cannot afterwards object to the imprisonment as unlawful, or as made by a void authority. And the court presumed a waiver and voluntary submission, from the fact of giving the bond. In the present case, the principal not only gave bail, but suffered judgment to pass against him in the original suit, without claiming or setting up his privilege. It must, therefore, be considered as waived, and cannot, in any view of the case, be a defence to an action against the bail.'
Titus Hutchinson, for the plaintiff in error.
Jacob Collamer, for the defendant in error.
Judgment affirmed.
Hutchinson, J, being of counsel, did not sit in the cause.