State had no connection with, and no agency in, the wrong committed by the sheriff: "The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence criminating the defendant is not within the scope of the remedy." 2. "That the court cannot take notice of how the evidence is obtained." What a saving grace there is in the fact that the law provides a remedy for civil action-with what satisfaction and comfort could a convicted person, in a capital case, upon such evidence, contemplate a civil action for damages. Another verity of caselaw is "The rule which excludes evidence of the confessions of persons charged with crime, where such confessions have been made under the influence of threats or promises, has never been held to exclude evidence of any facts which were ascertained in consequence of such confessions." But the court of that State has decided the law in the case of People v. McCoy12 as follows: A woman indicted for the murder of an illegitimate child at birth, the coroner had directed two physicians to go the jail and examine her private parts to determine whether she had been recently delivered of a child. She objected to the examination but being threatened with force, yielded, and examination was had. Their evidence was offered at the trial and ruled out. The court said the proceeding was in violation of the spirit and meaning of the constitution. "They might as well have sworn the prisoner and compelled her by threats to testify that she had been pregnant and had been delivered of a child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and had been recently delivered of a child." In Boyd v. U. S., supra, an information was filed by the district attorney for the southern district of New York against 35 cases of plate glass. The charge was that the goods were imported into the United States without payment of duty. On the trial the district attorney offered in evidence, for the purpose of showing value, an order of the district judge, requiring the defendant to produce the invoice. The claimant in obedience to the notice but objecting to its validity and the constitutionality of the law, produced the invoice. The

12 45 How. Pr. 216.

court held: "The clauses of the constitution, to which it is contended the laws are repugnant, are the fourth and fifth." It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers, are wanting, and to this extent the proceeding under the act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the fourth amendment to the constitution in all cases in which a search and seizure would be; because it is a material ingredient, and affects the sole object and purpose of search and seizure." The Supreme Court of the United States, in the case last cited, quote at length from Lord Camden in Entick v. Carrington as follows: "The case of searching for stolen goods crept into the law by imperceptible practice. No less a person than Lord Coke denied its legality (4 Inst. 176); and, therefore, if the two cases resembled each other more than they do we have no right, without an act of Parliament, to adopt a new practice in the criminal law, which was never yet allowed from all antiquity. Observe, too, the caution with which the law proceeds in this singular case. There must be a full charge, upon oath, of theft committed. The owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant, to show them to the officer, who must see that they answer the description." should be said that the same law which has with so much circumspection guarded the case of stolen goods from mischief, would likewise in this case protect the subject by adding proper checks; would require proofs beforehand; would call up the servant to stand by and overlook; would require him to take an exact inventory, and deliver a copy; my answer is, that all these precautions would have been long since established by law if the power itself had been legal, and that the want of them is an undeniable argument against the legality of the thing." Then, after showing that these general warrants for search and seizure of the papers originated

"If it

with the Star Chamber, and never had any advocates in Westminster Hall except Justice Scroggs, Lord Camden proceeds: "Lastly it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence." "I wish some cases had been shown where the law forceth evidence out of the owner's custody by process. In a criminal law such a proceeding was never heard of; and yet there are some crimes, such for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our laws provide no paper search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself, because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty." The Supreme Court of the United States concludes: "Can we doubt that when the fourth and fifth amendments were penned and adopted, the language of Lord Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and the 'unreasonable' seizures. It seems to us that the question' cannot admit of a doubt. They never would have approved of them. The struggles against arbitrary power in which they had been engaged for more than twenty years would have been too deeply engraved in their memories to have allowed them to approve of such insidious disguises of the old grievance which they had so deeply abhorred." "We have already noticed the intimate relation between the two amendments. They throw great light upon each other. For the 'unreasonable searches and seizures' condemned in the fifth, throws light on the question as to what is an unreasonable search and seizure' within the meaning of the fourth, amendment. And we have been unable to perceive that the seizure of a man's

private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is clearly within the intent and meaning of those terms." In the case of Ah Chuey, 18 the court held that it was not error for the court to compel the defendant to unbare his arm to the jury. This case stands alone except for the favorable comment made upon it by the Indiana court.14 But as the case of Ah Chuey has been heretofore commented upon in the CENTRAL LAW JOURNAL, it is necessary only to add

two additional cases to those cited in the article referred to. Lord Mansfield observed,15 "that in civil causes the court will force the parties to produce evidence which may prove against themselves, or leave the refusal to do it (after proper notice) as a strong presumption to the jury. The court will do it in many cases, under particular circumstances, by rule before trial; especially if the party from whom the production is wanted applies for a favor. But in a criminal or penal cause the defendant is never forced to produce any evidence, though he should hold it in his hands in court." Justice Grey, of United States Supreme Court,16 said: "No right is held more sacred than the right of every individual to the possession and control of his own persor, free from all restraint or interference by others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, "the right to one's person may be said to be a right of complete immunity; to be let alone." Cooley Torts, 29. "The inviolability of the person is as much invaded by a compulsory stripping as a blow." The courts of North Carolina, Texas, Indiana and Nevada, with one case in New York, based their opinions upon what they termed fact or real evidence, while Illinois and Alabama followed the false premise of the Massachusetts court. However laboriously the courts may file away, with judicial subtleties at the ancient mere-stones, they will stand forever as a protection to personal rights and personal security. Tacoma, Wash. J. F. RAMAGE.

13 State v. Ah Chuey, 14 Nev. 79.
14 O'Brien v. State, 125 Ind. 38.
15 Roe v. Harvey, 4 Burrows, 2489.

16 U. P. R. R. Co. v. Botsford, 141 U. S. 250.

VENUE IN CIVIL CASES-JURISDICTION BY SERVICE OF SUMMONS-PRIVILEGE OF LITIGANT.

POWERS V. ARKADELPHIA LUMBER CO.

Supreme Court of Arkansas, January 18, 1896.

Under Sand. & H. Dig. § 5696, permitting certain actions to be "brought in any county in which the de. fendant, or one of several defendants, resides or is summoned," jurisdiction cannot be obtained of a defendant, in a county other than that of his residence, by service of summons on him while in such county in attendance on the taking of depositions in a pending action to which he is a party.

By

BUNN, C. J.: A suit in chancery was pending in the Clark circuit court, wherein the appellant, Powers, was plaintiff, and the Arkadelphia College was defendant, for a balance of $700 or $800 claimed by Powers to be still due him on his contract for erecting the college buildings. agreement of counsel representing the respective parties, they met at Arkadelphia, and took depositions in the case on the 17th day of August, 1893. On the same day the complaint in this cause was filed by counsel for plaintiff herein, who were also counsel for defendant in the chancery cause in which the depositions were being taken, as stated; and summons at once issued, and was served upon appellant, to be and appear in the Clark circuit court to defend herein. At the following term of said circuit court defendant, Powers, appeared for the sole purpose of moving the court to quash the summons served upon him, as aforesaid, showing by affidavit that he was, at the time of the service of said summons, and continued to be, a resident of the city of Little Rock, in Pulaski county, as he had been for a long time previously, and that he was present in Arkadelphia on the 17th day of August, 1893, for the sole purpose of attending the taking of the depositions aforesaid, and that the same was necessary, and that advantage of attendance was taken to compel him to defend his said suit in another jurisdiction than that of his residence. He therefore prayed that the summons be quashed. His motion to that effect, however, was overruled, he saved exceptions, judgment was rendered against him, and he appealed.

There is really no controversy as to the facts-at least none that could affect the issue. We think the judgment ought to be reversed. After several sections immediately preceding, designating where civil actions are to be brought, according to the nature of the subject-matter and the relative situation of the parties, Section 5696. Sand. & H. Dig., reads thus: "Every other action may be brought in any county in which the defendant, or one of several defendants, resides or is summoned." Similar statutes are found in all, or nearly all, the States. The appellee contends that the privilege of defendant should be restricted to the rule held by some of the courts, as in Illinois, for example-that is, to cases of arrest on

civil process-and that the exemption does not extend to a non-resident suitor in ordinary cases, temporarily present in the State and county, or in the county, for the mere purpose of attending a suit to which he is a party, unless his presence has been procured by some artifice, trick or fraud of plaintiff or of his counsel; citing Greer v. Young, 120 Ill. 184, 11 N. E. Rep. 167. We think, however, that the weight of authority is against that view of the subject. See Works, Jur. pp. 258-260. One line of authorities rests the privilege solely on the familiar constitutional ground of freedom from arrest on civil process, but we prefer to rest it also on the ground of a sound public policy, so aptly expressed by the Supreme Court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 41, 18 N. E. Rep. 483, thus: "The question is one which profoundly concerns the free and unhampered administration of justice in the courts. That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer to some other adverse judicial proceeding against them, is so far a rule of public policy that it has received almost universal recognition wherever the common law is known and administered," citing many authorities. And, continuing, say that court: "The contention that the application of this principle should be or is confined to cases where the suitor is served with process while attending upon judicial proceedings without his State is not supported by sufficient force of reason to justify the distinction." The statute of that State is similar to ours. In Lamkin v. Starkey, 7 Hun, 479, the Supreme Court of New York said: "The court has power, independently of the statute, to protect its suitors, officers, and witnesses." And the same is substantially said by the same court in Matthews v. Tufts, 87 N. Y. 568. And it further appears, from the great weight of authorities, that the privilege is not only assured while one is attending upon strictly judicial proceedings but upon any tribunal whose business has reference to or is intended to affect judicial proceedings. In Larned v. Griffin, 12 Fed. Rep. 590, the court said: "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 during attendance, and for a reasonable time in going and coming," and further, "that this protection extends to attendance of parties and witnesses before arbitrators, commissioners, and examiners." That was a case of arrest, it is true, but it is cited to show the nature of the tribunal an attendance upon which will come under the rule. In the case of Mulhearn v. Publishing Co., 21 Atl. Rep. 186, the Supreme Court of New Jersey said that the vice-president of a foreign corporation, attending as a witness before a commissioner of that court, which testimony is to be used in a

cause therein pending, is privileged from service of summons to appear in another action against said corporation. The weight of authority is decidedly with the appellant, and the judgment is reversed, and the case is dismissed, without prejudice.

NOTE.-Immunity from Process.-The privilege of exemption from service of process which a suitor or witness has while necessarily without the jurisdiction of his residence, either for the purpose of attending any trial of a cause wherein he is a party, or in which he is a witness, is a very ancient one. Vin. Abr. "Privilege." It is uniformly sustained by the modern authorities: Massey v. Colville, 45 N. J. L. 119; May v. Shumway, 16 Gray (Mass.), 86; Henegar v. Spangler, 29 Ga. 217; In re Healey, 53 Vt. 694; Mitchel v. Huron, Ct. Judge, 53 Mich. 541, 19 N. W. Rep. 176; In re Cannon, 47 Mich. 481, 11 N. W. Rep. 280; Bridges v. Sheldon, 7 Fed. Rep. 36, 42-45; Larned v. Griffin, 12 Fed. Rep. 590; Person v. Grier, 66 N. Y. 124; Kinne v. Lant, 68 Fed. Rep. 436; Brooks v. Farwell, 4 Fed. Rep. 166; 1 Greenl. Ev., sec. 316; Fisk v. Westover, 4 S. D. 233, 55 N. W. Rep. 961; People v. Judge, 40 Mich. 729; Palmer v. Rowan, 21 Neb. 452, 32 N. W. Rep. 210. And the better reason and the decided trend of the authorities is to the effect that the rule governing the immunity is the same where the parties are nonresidents of the State where the process is served, and where they simply live in a county of the same State other than where served. Person v. Grier, 66 N. Y. 124; People v. inman, 74 Hun, 130; Miles v. McCullough, 1 Bin. (Pa.) 77; Mitchell v. Huron, 53 Mich. 541, 19 N. W. Rep. 176; Shaver v. Letherby, 73 Mich. 500, 41 N. W. Rep. 677; Sherman v. Grendloch, 37 Minn. 118; Kinne v. Lant, 68 Fed. Rep. 436; Brooks v. Farwell, 4 Fed. Rep. 166; Atchinson v. Morris, 11 Fed. Rep. 582; Fisk v. Westover, 4 S. D. 233, 55 N. W. Rep. 961; Small v. Montgomery, 23 Fed. Rep. 706; First Natl. Bank v. Ames, 39 Minn. 179, 39 N. W. Rep. 308; Walpole v. Alexander, 3 Doug. (Mich.) 45; Mallory v. Brewer (S. D.), 64 N. W. Rep. 1120; Wilson v. Donaldson, 117 Ind. 356, 20 N. E. Rep. 250; Bolgiano v. Gilbert Lock Co., 73 Md. 132, 20 Atl. Rep. 788; Kaufman v. Kennedy, 25 Fed. Rep. 785; Parker v. Marco, 136 N. Y. 585, 32 N. E. Rep. 989. Nor is it simply a present privilege of the party or witness, but it is that of the court itself, as well, and one deemed necessary from the experience of the ages for the upholding of the dignity and authority of the court, and to promote the due and unhampered administration of justice. Person v. Grier, 66 N. Y. 124. And at common law a writ of protection would issue to the party or witness by the court in which the action was pending, which would be respected by the other tribunals. And this power doubtless exists to this day in courts of common law jurisdiction, though the occasion for the exercise of it does not often present itself. But the granting of the writ of privilege, which, while proper, is not at all necessary to the security of the person from process, it only furnishes a convenient and authoritative notice to those who disregard it. Bridges v. Sheldon, 7 Fed. Rep. 44; Parker v. Marco, 136 N. Y. 585, 32 N. E. Rep. 989.

The immunity extends to every case where the attandance is a duty or is necessary in conducting any proceeding of a judicial nature. Bac. Abr. “Privilege" B. 2; People v. Judge, 40 Mich. 729; Palmer v. Rowan, 21 Neb. 452, 32 N. W. Rep. 210. It applies to plaintiffs and defendants in a cause without distinc

tion (Fisk v. Westover, 4 S. D. 233, 55 N. W. Rep. 961), nor is there any difference in the application of the rule between parties and witnesses. Palmer v. Rowan, 21 Neb. 452, 32 N. W. Rep. 210. And it is not necessary that the party be served with process. He may waive this and attend out of his jurisdiction, either as a suitor or witness, if he do so in good faith, and the immunity will still attend him. Ballinger v. Elliott, 72 N. C. 596; Arding v. Flower, 8 Tr. 534; Palmer v. Rowan, 21 Neb. 452, 32 N. W. Rep. 210; 1 Greenl. Ev. sec. 316; Dungan v. Miller, 36 N. J. L. 182; May v. Shumway, 16 Gray (Mass.), 86. And the privilege extends to cases civil as well as criminal proceedings. Atchinson v. Morris, 11 Fed. Rep. 582; Cameron v. Roberts, 87 Wis. 291, 58 N. W. Rep. 376; Person v. Grier, 66 N. Y. 124; Miles v. McCullough, 1 Bin. (Pa.) 77. "The privilege of parties to judicial proceedings, as well as others required to at tend upon them, of going to the place where they are held, and remaining so long as is necessary, and returning wholly free from the restraint of process in other civil proceedings, has always been well settled and favorably enforced. It is mentioned in the Year Book, 20 Henry VI, 10, and enforced to protect not only the body of the suitor from arrest, but his horse and other things necessary for his journey which would otherwise be attachable." Brodie v. Sheldon, 7 Fed. Rep. 34, 43. Nor have the courts ever been inclined to restrict this privilege; on the contrary, it has always been the rule to allow every reasonable indulgence to persons claiming it. 1 Sell. Pr. 123. The privilege extends to every case where attendance is a duty in conducting any proceeding of a judicial nature. 1 Greenl. Ev., sec. 317; Bridges v. Sheldon, 7 Fed. Rep. 34, 43.

In Bours v. Tuckerman, 7 Johns. 538, one Williams was under recognizance to appear at the General Sessions of the Peace, and, appearing in obedience thereto, and before his discharge, was arrested upon a capias ad respondendum. He claimed his privilege in due form, and the Supreme Court of New York ordered his discharge on filing bail. But such a condition of the granting of the privilege is practically withholding it, as the party would, after all, have to respond to the bail bond or suffer the consequences, which, it is reasonable to presume, ordinarily, are tantamount to answering the proceedings in response to a summons or an indictment. The manifest error of this ruling was so palpable as to impress the court, in a later case, the necessity of repudiating it entirely and holding as was held in Norris v. Beach, 2 Johns. 294, that the immunity was absolute and unconditional, and could not be hampered by requiring the party concerned to give bail. Sanford v. Chase, 3 Cow. (N. Y.) 381. The reason for, and nature of, the privilege is thus clearly stated in Person v. Grier, 66 N. Y. 124. "It is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle, as well as upon authority, their immunity from the service of process for the commencement of civil actions is absolute eundo morando et redeundo. ・・・ This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process. Witnesses might be deterred and parties prevented from attending, and delays might ensue or injustice be done." Some instances in which the privilege has been upheld will be mentioned. Where one attends an arbitration to be examined under a rule of court, the privilege attaches.