Ex parte Hurst

¶1It is clear from the cases cited that the applicant was privileged from this arrest and that it is our duty to discharge him, that the proceedings of this court may not be impeded, or justice defeated. If the privilege in such a case does not extend to the party at his lodgings, as well as coming to and returning from court; the protection which the law affords him, would be a mere mockery. His lodgings are as much a sanctuary for him as the court house; but when his business is done, he must return, so as not to be guilty of a material deviation. As to the danger to the sheriff, this is merely imaginary. For, though the supreme court should differ from us upon the point, and adhere to the opinion of the chief justice, at nisi prius; yet, after Hurst was discharged by a court, having competent jurisdiction of the case, it would discharge the sheriff, though we should decide incorrectly. It would be a strange situation to place the sheriff in, who, if he refused to obey our order, would be subject to be committed for a contempt, and if he obeyed, should subject himself to an action for an escape.