The defendant is not within the rule by which suitors and witnesses are privileged from arrest whilst going to, attending at, or returning from court. (Williams v. Bacon, 10 Wend. 636.) And there is no ground to sustain the allegation that the criminal proceeding was resorted to, to bring him within the jurisdiction of this court for the purpose of proceeding against him civiliter. When arrested under the warrant the defendant was within the jurisdiction of this
It is insisted, however, that the appeal from that order should not be heard, on the ground that the defendant was regularly discharged from the arrest by the under sheriff pursuant to the order of the commissioner, before the order made by the recorder was operative on him. Strictly, an order staying proceedings with a view to the making a non-enumerated motion in a cause is not operative,, unless accompanied'with notice of a motion by the party obtaining it. (Roosevelt v. Fulton, 5 Cowen, 438.) But in this case the order staying proceedings with the affidavit on which it was founded, in which it was set out that the plaintiff had appealed from the last order made by the commissioner, ' was served on the under sheriff who had the custody of the defendant before he discharged him, followed with a formal notice of motion upon the under sheriff on the same day, as also a like' notice with the papers on which the motion is founded upon the defendant’s attorney, subsequently retained in the cause, on the following day. The sheriff would have been justified, and I think it was his duty to regard the order of the recorder staying the proceedings under the circumstances. He chose to receive indemnity and disregard it. The plaintiff was guilty of no laches in obtaining and serving the order to stay proceedings or in giving notice of motion.
The motion to vacate the order of the commissioner made the 24th of June last, vacating the order to hold to bail, must ha granted.
Ordered accordingly.