#### Commonwealth *versus*Henry H. Huggeford.

Where an action standing for trial at a *nisiprius*term of this Court was continued for the purpose of procuring evidence, and at the following law term the plaintiff obtained from the clerk a writ of protection, notwithstanding which he was arrested on an execution, and upon a *habeas corpus*being granted, he made affidavit that he was employed about the action, and that he hoped the facts would be agreed on, so as to present to the Court a question of law, for a speedy decision, and it had not been promulgated by the Court that no jury trials would take place during the law term, it was *heldy*that he was entitled to be discharged from the arrest.

William Lovering junior complained that he was restrained of his personal liberty by Henry H. Huggeford, and prayed for a writ of *habeas corpus,*which was granted. Huggeford made return, that as a deputy sheriff he held Lovering in custody upon an arrest made on the 15th of March, by virtue of an execution.

Lovering offered his affidavit, stating that he had pending in this Court an action against the Mercantile Insurance Company ; that it had been delayed, to obtain testimony from abroad, which would probably arrive in a few days; that he proposed to attempt an adjustment by negotiation, and if this were not effected, he hoped the parties would agree on the facts and submit the case to the Court for a speedy decision ; that his personal attention in procuring the testimony and preparing for trial, negotiating an adjustment, or agreeing upon the facts, was important to his interest in the suit; and that for this purpose he had obtained a writ of protection of this Court, and had exhibited it to Huggeford, who nevertheless arrested him.

*H. H. Fuller*contended,

that the writ of protection ought not to avail the petitioner. He stated that the suit against the Mercantile Insurance Company was put upon the trial list at the last November term, and was continued for the procurement of evidence ; that it was not in a condition to present a question of law, and did not require the petitioner’s attendance at Court during the law term. He cited 1 Tidd’s P 174, 175 ; Gilb. C. P. 207 ; Viner, Privilege, *B, pl.*1,8, 11, 16 ; *Smythe*v. *Banks,*4 Dallas, 229 ; *Sidgier*v. *Birch,*9 Ves. 69 *D.*A. *Simmons*and *Gay, contra.*

*Per Curiam.*

After some hesitation we have come to the *262conclusion that the arrest is void. *We*have looked at cases m England, in some of which the protection is carried further than it probably would be in this Commonwealth. In the case before us the petitioner has a suit pending, which is not fictitious, and he obtains a writ of protection from the clerk of the court, who has authority to issue such writs, though his exercise of the power is not conclusive on the rights of the party.* It is known to the Court and the bar, that this term is held for the determination of questions of law, and that probably there will be no jury trials. But a party may not be aware of this ; and it is possible that a jury may be summoned. At the nisi prius term in this county in November, a party is protected until his cause is tried, and yet several weeks may elapse before the trial takes place. The petitioner having stated in his affidavit, that he is employed about his cause, and that it may present a question of law, upon facts to be agreed, and it being possible that it may yet be put upon the law docket of this term, and there having been no promulgation that there would be no jury trials, we think the petitioner is not to be prejudiced by the circumstance of this being a law term. We are aware that writs of protection are subject to abuse, especially in this county, where the terms of the court are of long duration ; and to prevent such abuses, we think proper to order, that all the actions standing for trial by jury be continued. The petitioner must be discharged from the arrest, and he will be protected a reasonable period from this time.

*

 By a rule made at March term 1831, application for a writ of protection for a party or witness in a suit pending in this Court, must be made to the Court or one of the judges.