Coxe versus M'Clenachan; Coxe versus Huston, Special Bail

Coxe versus M’Clenachan. Coxe versus Huston, Special Bail. JUDGMENT having been obtained acrainft-M' Clenachan, a Ca. Sa. iflued to September Term laft, and was returned non efl inventus. The Plaintiff then iffued a fcire facias agahift ..H'ttfim, the fpecial bail, which was returnable to the prefeiit term ; and within the fi. ft four days of the term M’Dlenachan was furrendered in difeharge of his bail, when a morion was made for leave to enter an exonevetur. ’But the Defendant, being a member of the Congrefs, which was in feiiion at- the time of his furrender, preíented a memorial to the Court, demanding, as his privilege, to be difeharged from the cuftody of-the Sheriff; and it Was agreed, that the motion for an exonere-tur on behalf of the bail, as well as the motion.for a difeharge err behalf of the Defendant, ihould be argued together, upon rules to ihew esufe. lngerfoll and Dallas contended, that both the rules ought to be made, abfoiute. ift. The Defendant would be entitled to his p:ivi!ege, even if he were in execution ; and his being fur-•rend-re-d by his bail, -pitees,him in cuftody, at the fuit of the Plaintiff, Had the Defendant been arrefted before he w?s eriti-tled to.pri vilege, he could not have bcen’held in cuftodyafterhis privilege-; but, in the pi efene-cafc-, hewasnéverin cuftody till the .feffon of Congrefs had acftudly commenced, • The fallowing authorities were cited on this point, Confl. Art. 1. & 6. 1, 2?.’. C. 64.. 6. ii. Fin. Mr. 36. 12. and 13, W. 3. c. 3, 11. Geo. a. C. 24. 10, Geo. 3. c. 50. ■ 3. Com. Dig. 316, 5. T. Rep. 686. 1. Jac. i.-c. 43. .4. Com. Dig. 336. 2d. ' An exoneretur .night to be entered on the bail piece. Incuitíence isul ways fti --wn to bail, where no injury rsiproduced 'to the Plaintiff . If the Defendant had been taken on the Ca. . Sa. or if he had been furrendered before -Congrefs aiiembled, he would now have been entitled to his privilege ; fo that the Plaintiff has -fuffared nothing by-the-delay. The general rule is, that the bail may furrender within the firft four days of the term, to which the fcire facias is returnable. Sherid. Pr. 377, 381. 4 Burr. 2134. And if the bail is prevented from maniug u furrender by any legll bar, even a-rifing from matter ex poflfaffo, he ilnll be entitled to an exo-neretur. 1 Burr. 339, 340. Sell. 180. Sir. 12 '.7. 1 Purr. 339', 340. Doug. 45. Silt. 183. Whether, therefore, the bail could, or could not, furrender the Defendant after the time that privilege bad occured, the preieiit application is equally well founded. But to place the cafe on the fairefl footing, the bail will confent on the principles recognized in 1 Sir. 419. to remain refponfible for furrendering the Defendant, within four days after the feffions of Congt efs, provided that time is allowed to make the furrender. E. Tilghman -¿.nil Rtfs, the PLintifPs counfel, having con-fidered the' proportion, for allowing further time to make the furrender, agreed to it; and THE Court- declared their approbation Of the compromife, as affording a good precedent for future cafes of a fimilar kind. Tilghman then ¿cknowledged, that he thought the privilege of Congrefs extended to arrefts on judicial; as well as mefne, procefs ;'but controverted the dodlnne, that a perlón arrefted before he had privilege, was entitled to be difeharged, incon-fequenceof privilege afterwards acquired.