The opinion of the court was delivered by
Collamer, J.
— Much has been said to show that the privilege of suitors and witnesses attending court is merely the priv*580ilege of the court, and to be enforced by the same court. If this be so holden, it is difficult to perceive how it could be asserted by a justice of the peace, to release his suitors and witnesses from arrests on the precepts of other courts, as he cannot sustain a habeas corpus. Neither is it apparent how this doctrine can be reconciled with the principle, acknowledged in argument, that the officer may recognize this privilege and refuse to arrest. Courts have jurisdiction by having the subject matter and the parties within their jurisdiction, and the jurisdiction to give judgment against a defendant cannot exist in a court in this state, unless either the body or attachable property of the defendant be within the state. If the defendant was only in this state in a condition to be privileged from arrest, it is quite doubtful, unless he waives that privilege, whether any jurisdiction could be taken over him. These are grave questions, especially in relation to our justice courts and their suitors, and the intercourse and comity of the states.
It appears in this case the officer regarded the defendant as privileged and discharged him from arrest. He in effect undid whatever he had done, and the whole return,so farfrom amounting to a service, is but an excuse for not serving the writ. It cannot amount to a summons, as there was no copy delivered.
Judgment affirmed.