'80
"DBRAL BBPOBTBB.
LARNED
v.
GRIFFIN.
(Circuie Ooure, D. Massachusetts. July 6,lB82.) PRIVILEGE OF SUITORS AND Wn'NEsSEs.
Parties and witnesses attending in good faith any legal tribunal, with or without a writ of protect.ion, are privileged from arrest" on civil process during their attendance, and for a reasonable time in going and returning; and this immunity extends to all kinds of civil process, and affords absolute protection.
CoLT, D. J. In this case it appears that the defendant was arrested while in Boston, Massachusetts, in attendance beforea commissioner acting under a commission issued out of the superior court for Cook county, Illinois, to take the depositions of certain witnesses in a case pending in that court between the same' parties, and for the same cause of action as this suit. ' The defendant submitted to the arrest, and gave bail. The suit was first brought the state court, and afterwards duly removed here. The only question now before the court is whether the plea in abatement, setting up the privilege of the d'6fendant fromarrest,ean be susta.ined. To decide this we must determine-First, whether thedefehdant was privileged from arrest at the time; second; whether his remedy can be enforced by aples. in abatement; third, w,hether submitting to the arrest and giving a bailbond is a waiver of the privilege; fourth, whether answering to the merits is a waiver of the plea -in abatement. It has long been settled that parties and witnesses attending in good faith any legal tribunal,with or without a writ of protection, are privileged from arrest on civil process their attendance, and for a. reasonable time in going and returning. Thompson', Case, 122 Mass. 4:28; In fOe Healey, 58 Vt. 694; S. C. Reporter, April 5, 1882; Huddeson v. Prizer, 9 Phila. 65; Ex parte Hurst, 1 Wash. 186; Juneau Bankv. McSpedan, 5 Biss.64; Bridge, v. Sheldon, 7 FED. REP. 17,43; Personv. Gfie'r. 66 N. Y. 124; Bacon, Abr. "Privilege,B," 2; Meekins v. Smith. 1 H. Bl. 636; 1 Green!. Ev. § 316. And this protection extends to the attendance of parties and witnesses before arbitrators, commissioneril, and examiners. Spence v. Stewart. 3 East. 89; Arding v. Flower, 8 Term Rep. 534; Sanford v. Chaae. 3 Cow. 881; U. S. v. Edine, 9 S. & R.147; Huddeson v. Prizer, .9 Phila. 65; Wetherillv.Seitzinger, 1 Miles, 237; Bridgesv.Sheldon, 7 FED. REP. 17.43; 1 Green!. Ev. § 317.' It is clear, tperefore, that the defendant was privileged ·from arrest at the time it' was made. But whether his remedy is by plea in
in
is less. free from Under the immunity was taken advantage of by writ of privilege.
rulfl, this
"The only way by which courts of justice could anciently take of privilege of parliament was by writ of privilege, in the nature of a aupersedeas, to deliver the party out of custody. when arrested in a civil suit. * * * But since the. statute of 12'Wm. IlL 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." 1Bl. Comm. 166.
, The more modem way in England has been to raise. the question either by motion or by ploo. in abatement. Pitt's Case, 2 Stra.· 98I); Cameron v. Lightfoot, 2 W. 131,,1190; Meekins v. Smith;l II. Bl. 686; Randall v. Gurney, ,8 B. & Ald. 252 ; Com. Dig., "Abatement," D, 6; 1 Chit. PI. 443; pavis v. Rendlesham, 7 Taunt.679. In this country the right ,of Privilege has been brought before the in three ways. By motion: Ex parte Hurst, '1 Wash. ,Lyell v. Goodwin, 4 McLean, 29,41; Juneau, Bank V.,McSpedan,5 Biss. 64; Sanford y. Chase, 8 C9W. 381; v. Robinspn,8 Duer. 622; Harris v. Grantham,Coxe, (N. J.) ],42; Starrett's Case, 1 Dall. 356; Hammerskold' v. ROBe, 7 Jones, (Law,) 629; Hunter v. Cl6'lJ'e: land, 1 Brev. 168; Henegar v. Spanglerj 29 Ga. 217.13y ha1;leas corpus: Ex parte McNeil, 6 Mass. 264;. Wood v. Neale, 5 Gray, 538; May v. Shumway, 16 Gray, 86.; Richards v. Goodson, 2 Va..,Ca:s., 381. ,By plea in abatement: King V,. Coit, 4: Day, 130; Case v. Rorabacher, 15 Mich. 537; Julio v. Balles,: Law. Rep.a54:; v.' Vande·t· .v. Rourttr.ee, 1 Pin. (WifJ.) 115; pool, 15 Jobns.242 ; Chaffee v. Jones, 19 Pick. Hoppin v. Jertck/1s,<8,R. 1. 4:58. It is contended.. by. the plajnti1J thlttthe common-law privilege of 81,1itots and, witnesses nevetextended sof&ras to abate the suit,how" ever different :the rule maybe incase of znembexa of parlilllment, bassadors, -and a t t o r n e y s . , , ' . Anciently,. it· would seem, in 'all. cases· of privilege, tb.Qi 8'Up()rsedeas which was grante(iupon a writ of only, operated to deliver the party out of custody, Itnd he was still held upon common hail. Long's Gase,2 Mod. 181jPitt's Case, 2 Stra. 987;1 £1. Comm. 166. But after the statute of.. 12 Wm. III. c. 8, it was decid'tld in Pitt's Case, 2. StriJ,. 987, that members. of parliament, or those entitled to privilege of parliament, shouldb.e :disGharged absolutely". and not .uponcdmmon bail. See, . v. Steuart,' 4:! Soott, N.. R. 40 Eng. Com. Law, 45{h :, ; j'
592
I'EI'>ERAL
The rwe, however, with respect to suitors and witnessesw&s still maintained that while the arrest would beset aside, common bail must be filed,-the suit did not abate. Camm'on v. Lightfoot, 2 W. Bl. 1190. ' The early decisions in this country are not harmonious. Insoma of the older cases the rule was followed that the privilege of sl,litors and witnesses extends no further than exemption from arrest; that service by summons is legal; and that in cases of arrest common bail must be filed, or a general appearance entered. Blight v. Fisher, Pet. C. C.41; Hunter v. Cleveland, I'Brev. 16 ; Tajt v. Hoppin, Anthon, N. P. 255; Booraem v. Wheeler, 12 Vt. 311; and the more recent c8lse ilf Bishop v. V08e, 27, Conn. 1. In other cases, however, we find, the right extended, and a more complete protection afforded suitors and witnesses, the dischargeft-om arrest being absolute, and service by summons heIdi illegal. Hayes v. Shields, 2Yeate'S, 222; Miles v. McCullough, 1 Binn. 76; U.S. v. Edme, 9 S. & R. 147; Norris v. Beach, 2 Johns. 294;SanjO'1'd ct. Cha8e, 3 Cow. 381; Harri8 v. Grantham, Coxe, (N. J.) 142'. . Whatever may have been the earlier view, we have no doubt that the tendency in this country has been to enlarge the right of so as to afford full protection to suitors andwitnellses from all forms of process of a civil character during their attend8lnce before any judioial tribunal, and for a reasonable time in going and returning. Let 116 pursue the subject a little further. The case of Blight v. Fiaher, Pet. C. C. 41, decided in 1809 by Justice Washington, holding that a service of summons upon a witness is good, is distinctly overruled in the later case of Parker v. Hotchki8s, 1 Wall. Jr. 269, the court stating that the opinion met with the approval of Chief Justice Taney and Justice Grier. See, also, the elaborate opinion in Lyell v. Goodwin, 4 McLean, 29, to the effect that a judge about to start on his circuit is not liable to be served with summons, his privilege being as extensive as that of a. suitor or witness or juror of the court. The same view is expressed in Juneau Bank v. McSpedd,n, 5 Biss. 64; Bridge8 v. Sheldon, 7 FED. REP. 17, 43. In the earlier cases in New York, a distinction was taken between resident and non-resident suitors and witnesses. In the case of nonresidents an absolute discharge was granted. NO'1'risv. Beach, 2 Johns. 294. But in the case of residents common bail had to be given. Boursv. Tuckerman, 7 Johns. 538. Referring to these two decisions in Sanjord v. Chase, 3 Cow. 381, the court observed: "We adopt the first case; the privilege of .. wit-
598
ness should be absolute." In the recent ease of Pe't'Bon v. Grier, 66 N. Y. 124, the court declare that any distinction between residents and non-residents is doubtful, and the broad ground is taken that this immunity is one of the necessities of the administration. of justice, and that courts would often be embarrassed if suitors orwitneases, while attending court, could beroolested with process; Seaver v.Robinson,3 Duer,622; Merrill'v. George, 23 How. Pr.381. The case of Tajt v. Hoppin, (1816,) Anthol1; N. P. 255, which decided that the defendant, a non-resident suitor, should be held upon common bail, was rendered at nisi prius, and in view'of the prior case of Norris v. Beach, 2 Johns. 294, and of the subseqlient decisions in the highest. court of the state, itean ha.rdlybe deemed authority. In Pennsylvania, from an early period, complete immunity seems toha.ve been extended to sultotsaUdwiti1esses; Miles v. McCuUough, 1 Binn. 77; Hayes v. Shields, 2 'Yeates,'222; U. S. v.Edme, 9 8. & R. '147; Holmes v. Nelson, 1 Phila.211. "It is alike the privilege of the person and the privilege <of the court. It renders the administration of justice free and untrammelIed, 8.nd protects from improperintetferenceall who are'concernediti it," say the court in HuddesDn 'v.Prizer, 9 Phila. 65. In New Jersy, a full discharge isgra.nted. Harris v. Grantham, Coxe, (N. J.) 142. In Massachusetts it was held by Judge Morton in Julio v. Bolles, 22 Law Rep. 354, that a foreign .witness was protected from summons. In that case a plea in abatement ha.d been filed, which was demurred to by the plaintiff. Inoverruling the demurrer the learned judge observes: "If this service was illegal, the jurisdiction fails and the writ should be abated." In Vermont, we are referred by plaintiff's counsel to the case of Booraem v. Wheeler, 12 Vt. 311, which holds a plea in abatement bad in the case of a witness arrested while attending court; the court never been held that a man's property may maintaining that it not be attached, or he be served with a summons, while attending court as a witness or suitor. What is wanted is that the suitor or witness may give uninterrupted attendance at court; that this objeci is not secured by abating the writ, for the question may not be heard until long after the court he was attending had closed its session. The legal object can be and always has been better secured by the summary proceeding of a motion to the court to release the person jar tlu time being, or by habeas corpus. v.12,no.7-38
594
JEDEBAL.BEPOBTEB.
Butthe'view8 here ex.pressed olthe extent of the privilElgeOf ors or witnesses are clearly inconsistent with the latter case in Vermont of In 'I'e Healey, (1881,).53 Vt. 694, which declares a service by summons upon a witness to be illegal. The court, citing Person v. Grier, 66 N. Y. 124, and, other cases, remark: "In the case of a nonresident suitor or witness, the weight ·of authority is to the effect that the immunity is absolute from the service of any process, unless the caM is exceptional." And it is furthel' declared that if the writ had been made returnable to that court it would have been dismissed upon motion; the court would not have taken jurisdiction of a party whose rights were thus invaded, for to. do so would be in effect a withdrawal of the shield (l,nd protection which the law uniformly gives to witnesses. Whether this plea. in abatetllent shall be sustained or not, turns upon the view of the e:x:tent a.nd. character of the' privilege ti:> which suitors and witnesses are. entitled. If we adopt the older ana narrower view, that this is wholly the, privilege of the court rather than of the suitor,ap.d therefore a question of judicial discretion rather than of personal right; and further,thltt the offender may be punishable for contempt if the arrest is made in the actual or c9nstructive presence of thecourt,---still the suitor or witness can only ask to have the arrest set aside upon giving common bail, or entering a general appearance; then the suit does not abate, and the present plea is bad. But if we adopt the broader, rule, which it appears to us is clearly warranted by thElmore, recent decisions in the federal and state courts, and,which in our opinion is nec6ssaryto the due immunity extends to all kinds administration of 'justice, that civil process, and affords an absolute protection, then we see no.good ,reason why a plea in ab,atement,iIUlOt proper here,as in othet cases of privilege where an abSolute disqh!lJ1"ge ,is graqted, 4ndwhere tHe plea is helP. .good. See authorities before cited. , The plaintiff contends that the defendant submitted to thea.rrest, made application to lIail, and entered into a bond, and ,that this constitutes a waiver of his, privilege; We do' not, think this sound, though, we are aware that seem to point in this direction: Fletcher v. Bax.ter, 2 Aiken, (yt.) 22*;.. Brown v. Getchell, 11 Mass.
n,11:. Thequeation,. however, :was directly ,;passed upon in Y. S.v. Edllle, 9 S. &R. 147,149, and,it was there decided thaHlae giving of a bailbond 'is so far from waiving the that the court, when they discharge, will order it to be delivered up and cancelled.,
LEHMAN V.
RAILROAD .. BANKING 00.
·· It is not esteemed any good ground for presuming a waiver of privilege from arrest, because the person takes the ordinary and, p10st expeditious mode of freeing himself from arrest." Redfield, J., in Wa8hburn v.Phelp8, 24 Vt. 506. It appears in this case that an answer to the merits was filed with the plea in abatement. It has been decided that in Massachusetts the validity of neither is affected by their being pleaded together, and that the plea in abatement is not thereby waived. Fi8her v.Fraprie, 125 Mass. 472; 0' Loughlin v. Bird, 128 Mass. 600. Upon the whole we are of the opinion that the plea in abatement should be sustained. Action dismissed. See Atchison v. Mom" 11 FED. REP. 582; PUm/nf,nn, v. Winslow,9 FED. REP. 365; Matthews v. Puffer, 10 FED. REP. 606, anu J!ot6.
LEHMAN, DURR
& Co. v. CENTRAL RAILROAD & BANKINCi' Co.
(Cireui' Oowrt, .M. D. Alabama. 1882.) COHM:ON CARRmR-ALTERED BILL
()F
The fact that the shipper was allowed to fill the bill of .Jading in his OWn handwriting, and leave a blank which afforded opportunity for increasing the statement of the number of bales shipped, will not render the common liable for loss occasioned by the 'f()rgery of the shipper in rllising the bill of lading. . .,
Action for Damages. Demurrer to complaint. WOQDS, Justice. The gravamen of the complaint is that the.defen:l. ant so negligently performed its duty in respect to the out of the bills of lading that it was j,n the power of anyone tocomm.it the fraud alleged.· The question is, does the fact that the ,shipper was allowed to fill the bill of lading in his own handwriting, and leave a blank which afforded opportunity fOF increasing the statement of,the number of bales shipped, render the common carrier liable for any loss occasioned by the forgery of. the shipper in raising the bill of lading? We think that upon .theweight of reason and authority the question must be answered in, the negative. most nearly J;'esetllbling are those in which a promThe issory note has been executel1 complete upon its face, in which there blanks left by t}1e maker, in, which, the, of the note, additional words, withpi9-t ,of, the in dra w-