9. Judgment.

360; Evans v. State Bank, 15 Ala. 81. See also Woodward v. May, 4 How. (Miss.) 389; Scott v. Nichols, 27 Miss. 94; Creighton v. Johnson, Litt. Sel. Cas. (Ky.) 240.

1. Alabama. Evans v. State Bank, 15 Ala. 81; Smith v. Branch Bank, 5 Ala. 26; Brown v. Wheeler, 3 Ala. 287; Broughton v. Robinson, 11 Ala. 922; Irwin v. Scruggs, 32 Ala. 516; Barclay v. Barclay, 42 Ala. 345.

Mississippi. -Woodward . May, 4 How. (Miss.) 395.

Tennessee.-Jones v. Read, I Humph. (Tenn.) 335: Voorhies v. Dickson, I Sneed (Tenn.) 348; Wynne v. Taylor, 5 Heisk. (Tenn.) 691; Burt v. Davidson, 5 Humph. (Tenn.) 425; Copass v. Wheelock, I Lea (Tenn.) 381; Allen v. Wood, Head (Tenn.) 436; Cannon v. Wood, 2 Sneed (Tenn.) 177; Ferrel v. Finch, 8 Yerg. (Tenn.) 432.

In Alabama it has been held that the judgment entry should show (1) the pendency of a suit by the common creditor against the surety making the motion; (2) that he notified his cosurety in writing of the pendency of the suit; (3) that judgment has been rendered and its sum in the creditor's suit; (4) in judgment by default, that proof was made at the trial of the creditor's suit, that notice in writing was given to the cosurety, and that the parties were sureties; and (5) where the judgment is for more than an aliquot portion of the debt, that the other cosureties are insolvent to the number necessary to support the particular sum for which judgment is given. Broughton v. Robinson, II Ala. 922.

In Mississippi, on a motion for a judgment by a surety against his principal, the judgment against the surety and the fact that the plaintiff in the motion is a mere surety should appear on the record. Brown v. Oldham, Walk. (Miss.) 493.

Court of Entry of Judgment. In Elliott v. Clements, 5 Ala. 470, it was held that the record must disclose in what court the judgment against the surety was rendered.

Evidence on Which Court Acted. — In Reading v. Holton, Hard. (Ky.) 68, it was held that the record need not show the evidence upon which the court acted.

Insolvency of Principal. If a surety proceed by notice and motion for contribution against his cosurety, the record must show the insolvency of the principal. Batson v. Lasselle, i Blackf. (Ind.) 119.

Amount of Recovery. In a summary proceeding by a surety against a cosurety, a recovery for more than the defendant's aliquot part of the debt cannot be had. Simmons v. Varnum, 36 Ala. 92. See also Young v. Clark, 2 Ala. 264; Riley v. Rhea, 5 Lea (Tenn.) 115.

Joint Judgment. - In Newnan υ. Campbell, Mart. & Y. (Tenn.) 63, it was held that sureties who have not satisfied a judgment rendered against them may have a joint judgment on motion against their principal. also Jones v. Read, 1 Humph. (Tena.) 335; M'Nairy v. Eastland, 10 Ye (Tenn.) 310.

See

2

*

"The only way by which courts of justice could anciently take cognizance of privilege of Parliament was by writ of privilege, in the nature of a supersedeas, to deliver the party out of custody when arrested in a civil suit. * * But since the statute 12 Wm. III., c. 3. which enacts that no privileged person shall be subject to arrest or imprisonment, it has been held that such arrest is irregular ab initio and that the party may be discharged upon motion." 1 Bl. Com. 166.

3. Smith v. Jones, 76 Me. 138; Supreme Ct. Rule XV.. 104 Mass. 560; Parker v. Marco, 136 N. Y. 585; Bridges v. Sheldon, 7 Fed. Rep. 17.

In Smith v. Jones, 76 Me. 138, a witness arrested on civil process while returning home from court, brought an action for damages against the person procuring the arrest. But it was held that such an action could not be main tained, the court saying that he might have procured a writ of protection in advance of starting, if circumstances made it reasonable to ask the mediation of the court for that purpose; that the law does not declare that a witness shall not be arrested, but gives to him the right to free himself from arrest if he desires to, and points out several ways by which it may be accomplished; that it is a right not so much to avoid being arrested as to terminate

and when issued it affords

the arrest; and that though a person might be under such pressure of imprisonment as to be powerless to obtain the action of a court or judge before suffering actual confinement, yet this would not often happen, as a writ of protection would ordinarily prevent such a dilemma.

In Massachusetts the "Rules of Practice at Common Law" provide that" No writ of protection shall issue, except by the order of the court, or a justice thereof; such order to be made upon the application of the person for whom the writ of protection is to be issued, or some person in his behalf; and no order shall be made for granting such writ of protection until it shall be made to appear to the court or justice applied to, by affidavit or other satisfactory evidence, that the application is made in good faith, and for the purpose of enabling such person to attend this court as a party or as a witness in some case pending, such case to be specified; if a party plaintiff, that such suit has not been commenced by him collusively; or, if a defendant, that such suit has not been commenced against him by his request or procurement, collusively, and to enable him to obtain a writ of protection; or, if as a witness, that he has not been required to attend as a witness by his own request or procurement, or collusively, to enable him to obtain the writ of protection prayed for." Supreme Ct. Rule XV., 104 Mass. 560.

When Writ Will Be Refused. A writ of protection will not be given to a suitor or witness to protect him from arrest in any case when, if arrested, he would not be entitled to his discharge without it. Brien v. Brien, 1 Hog. 34.

1. A Writ of Protection Ad Testificandum Suspends All Civil Process against the party procuring it, while coming to and attending upon the court, and for a reasonable time for returning to his home. Exp. Hall, 1 Tyler (Vt.) 274.

Renders Service of Summons Illegal. In Waterman v. Merritt, 7 R. I. 345, the defendant, a nonresident, had been in attendance as a witness at a court in Rhode Island, and was served with a summons while returning to his home. He had previously obtained a writ of protection from the court in which he was a witness, by which writ the several sheriffs and their deputies were commanded that they "let the said William T. Merritt of and from all civil process, whether original or judicial, so long as he shall attend said court and until he shall be discharged from the protection aforesaid by this court at the present term." Upon motion by the defendant it was held that the service of the summons must be set aside and the suit dismissed absolutely. The court said: "The reports show no case of a witness or party arrested, or served with other process, where the court has specially ordered, as in this case, that he should be exempt from all legal process. It ought perhaps to be no matter of surprise that we meet with none. It would be matter of surprise, however, that in such case there should be any serious question as to the validity of a service which the court itself, upon the application of the party, had expressly ordered its officers not to make."

Right of Officer to Discharge. Where an attorney is arrested during his attendance at court he will be discharged from arrest by the court, but the officer making the arrest has no authority to discharge him upon the exhibition of a writ of privilege. Secor v. Bell, 18 Johns. (N. Y.) 52.

Thompson's Case, 122 Mass. 428; Parker v. Marco, 136 N. Y. 585; Bridges 2. Sheldon, 7 Fed. Rep. 17; Ex p. Dakins, 1 Jur. N. S. 378.

Does Not Establish or Enlarge the Privilege. Where a suitor about to attend court is apprehensive that he will be served with a summons while in attendance, he may procure a writ of protection from the court in which his attendance is required. Such a writ is proper, but is not necessary except for convenient and authentic notice to those about to do what would be a violation of the privilege. It neither establishes nor enlarges the privilege, but merely sets it forth and commands due respect to it. Bridges v. Sheldon, 7 Fed. Rep. 17, citing Ex p. M'Neil, 6 Mass. 264.

2. May v. Shumway, 16 Gray (Mass.) 86; M'Neil's Case, 3 Mass. 288;

New York. - Sanford v. Chase, 3 Cow. (N. Y.) 381; Norris v. Beach, 2 Johns. (N. Y.) 294; Secor v. Bell, 18 Johns. (N. Y.) 52; Seaver v. Robinson, 3 Duer (N. Y.) 622; Randall v. Crandall, 6 Hill (N. Y.) 342.

Ohio. Gill v. Miner, 13 Ohio St. 182. Pennsylvania. In re Barton, 44 Leg. Int. (Pa.) 216, 18 Phila. (Pa.) 508; Webb v. Carter, 9 Lanc. Bar (Pa.) 65; Brass v. Vandegrift, 23 W. N. C. (Pa.) 270.

Advantages of the Procedure by Motion. A witness having been arrested in violation of privilege brought an action for damages against his creditor who had procured his arrest, but it was held that the action would not lie, the proper remedy being by motion to discharge the party from custody. The court said: "How can a creditor know that his debtor, who is a witness, will insist upon the privilege, until the debtor asserts it? And how can he know that the court will grant a discharge if asked for? It is to some extent a discretionary matter with a court or judge, whether a witness shall be discharged upon arrest. How can this discretion be anticipated by a creditor? And why should the creditor be required at his peril to correctly settle the question whether the debtor is at court in good faith or not, or whether he has overstayed his privilege, or whether unnecessarily loitering on the way; judicial questions that can be easily and summarily settled by a judge in or out of court, without much expense to parties? It is not at all unreasonable to cast upon the court, and to relieve parties from, the responsibility of such questions.' Smith v. Jones, 76 Me. 138.

Injunction Refused. Where a judgment of condemnation has been obtained against a party as garnishee, equity will not interfere by injunction to restrain the execution of such judgment on the ground that the garnishee was privileged from the service of an attachment because he was a member of a city council. Although thus privileged it does not follow that the party can obtain relief by injunction. The judicial history of the question does not furnish any example of the allowance of this privilege otherwise than by plea or upon motion, tendered or made at the period proper for the consideration thereof by the court whose proceedings are sought to be evaded or

suspended. The proofs of the facts upon which it rests are easy of attainment, because they are few, and may be adduced as well in the absence as in the presence of a party. Peters v. League, 13 Md. 58, citing Prentis v. Com., 5 Rand. (Va.) 697.

Costs of Application. In a case where a solicitor's privilege was violated by his arrest under an attachment while on his way to court, since it appeared that the officer who made the arrest was distinctly warned that it was unlawful, it was held that all parties served with notice of a motion to discharge the solicitor from arrest were liable for the costs attending his release. Dodd z. Holbrook, II Jur. N. S. 969.

Privilege Accruing After Arrest Made. -In Marshall v. Carhart, 20 Ga. 419, it was held that where a person already in custody is subpoenaed as a witness he cannot be discharged on account of privilege.

But on the other hand it has been held in England that a party elected to Parliament is thereby entitled to be discharged from custody, although the arrest was made before he was elected. Phillips . Wellesley, I Dowl. P. C. 9. 1. Georgia. - Thornton v. American Writing Mach. Co., 83 Ga. 288. New Jersey. - Mulhearn Pub. Co., 53 N. J. L. 153. New York. Grafton v. Weeks, 7 Daly (N. Y.) 523; Parker v. Marco, 136 N. Y. 585; Person v. Grier, 66 N. Y. 124.

v. Press

Ohio. Deuber Watch Co. v. Dalzell, 19 Cinc. Wkly. L. Bul. 269.

Pennsylvania. Ruger v. Keller, 12 W. N. C. (Pa.) 371; Bank v. Messenger, 1 Northum. Leg. N. (Pa.) 173; Miles v. McCullough, 1 Binn. (Pa.) 77; Austin v. Brown, 1 T. & H. Pr. (Pa.) 254. United States. - Parker v. Hotchkiss, I Wall. Jr. (C. C.) 269; Lyell v. Goodwin, 4 McLean (U. S.) 29; Plimpton v. Winslow, 9 Fed. Rep. 365.

In

Witnesses Served with Summons. New York the protection extended to witnesses includes immunity from the service of summons as well as from arrest; and where a witness comes into the state from a foreign jurisdiction for