Diamond v. Earle

Rugg, C. J.

The question presented by this case is whether a non-resident of Massachusetts actually attending court in this Commonwealth for the purpose of testifying as a witness in several cases, in one of which he is a plaintiff and in others a defendant, lawfully can be served with civil process issuing from our courts in an action against him as a defendant. The point is raised by an interlocutory decision of a judge of the Superior Court who, being of opinion that it should be determined by this court before further proceedings were had, reported it under St. 1910, c. 555, § 5. Hetherington & Sons v. William Firth Co. 212 Mass. 257 .

It has been held that under such circumstances a non-resident is free from arrest on mesne process. Thompson’s Case, 122 Mass. 428 , and cases there cited. But neither this nor any of our cases reaches the point now presented.

The rule has been stated generally that suitors and witnesses from a foreign jurisdiction are exempt from service on civil process while attending court and for such reasonable time before and after as may enable them to come from and return to their homes. This statement is broad enough to include the parties plaintiff as well *501 as defendants and witnesses. The rule is an ancient one. The reason upon which it rests is that justice requires the attendance of witnesses cognizant of material facts, and hence that no unreasonable obstacles ought to be thrown in the way of their freely coming into court to give oral testimony. Non-residents cannot be compelled to come within the jurisdiction to testify. As such-testimony may be essential in the due administration of justice, they ought to be protected in coming voluntarily into our courts to aid in the ascertainment of truth and in the accomplishment of right results by the courts. It is not merely a privilege of the person; it is a prerogative exerted by the sovereign power through the courts for the furtherance of the ends of justice. Every party has a right to testify in his own behalf. He cannot do this freely, if hampered by the hazard that he may become entangled in other litigation in foreign courts. The rule is applied almost universally in behalf of witnesses coming from a foreign State. It is extended generally to defendants living outside the State where the litigation is pending. See cases collected in 32 Cyc. 492, 494; 25 L. R A. 721.

There appears to be no sound distinction for placing a party plaintiff on any different basis in this respect from other parties and witnesses. The reason on which the rule rests is broad and ■inclusive of plaintiffs as well as defendants. It is as important to the administration of justice that foreign plaintiffs should be protected in making a full presentation of their cases as it is that parties defendant should be given this protection. The weight of authority supports this conclusion, although there are contrary decisions. In re Healey, 53 Vt. 694 . Hale v. Wharton, 73 Fed. Rep. 739. Peet v. Fowler, 170 Fed. Rep. 618. Fisk v. Westover, 4 So. Dak. 233. Roberts v. Thompson, 149 App. Div. (N. Y.) 437. Cooper v. Wyman, 122 N. C. 784 . Letherby v. Shaver, 73 Mich. 500 . Richardson v. Smith, 45 Vroom, 111 ; 42 L. R. A. (N. S.) 1101, and cases there collected. There is nothing inconsistent with this in Ginn v. Almy, 212 Mass. 486 , for there the court had acquired jurisdiction of the defendant and the proceedings were in the same cause.

Ruling sustaining defendants plea in abatement affirmed.