courts.75

The federal constitution provides that senators and representatives shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same. This privilege is held not to be lost by a slight deviation from the most direct route to the capital.76 One brought into a jurisdiction outside of that of his residence, by a subpoena, to testify, is generally exempt from service of process in another proceeding.77 This exemption ap plies even though a witness voluntarily attends without the service of process.78 The general rule that parties, witnesses, and jurors are privileged from service of legal process in a legal action, while in good faith they are in attendance upon the hearing of a cause in court, is well recognized by the authorities, and in the case of parties and witnesses this exemption from process extends to the taking of testimony before a master or commissioner preparatory to the final submission of the cause to the court. In point of time, the privilege extends during the time fairly occupied in going to and returning from the place of trial or hearing, as well as during the time when the party is in actual attendance at the place of trial.79 A federal court

75 Lyell v. Goodwin, 4 McLean, 44, Fed. Cas. No. 8,617; Breitenbach v. Bush, 44 Pa. 313, 84 Am. Dec. 442.

76 Foster, Fed. Pr. (3d Ed.) § 98, citing Miner v. Markham, 28 Fed. 387.

77 Murfree, Sher. (2d Ed.) § 122a; Kauffman v. Kennedy, 25 Fed. 785; Sherman v. Gundlach, 37 Minn. 118.

78 Massey v. Colville, 45 N. J. Law, 119, 46 Am. Rep. 754.

79 Nichols v. Horton, 14 Fed. 327; Greer v. Youngs, 17 Ill. App. 106; Parker v. Marco, 136 N. Y. 585, 32 N. E. 989; United States v. Edme, 9 Serg. & R. (Pa.) 147; Holmes v. Morgan, 1 Phila. (Pa.) 217; Plimpton v. Winslow, 9 Fed. 365; Ex parte King, 7 Ves. 312; Randall v. Gurney, 1 Chitty, 679; Small v. Montgomery, 23 Fed. 707. The supreme court of Illinois has held that the rule at common law which extends to parties and witnesses in a law suit the privilege of exemption from arrest on civil process, while going to, attending upon, and returning from the court has no application in the case of mere service of process Greer v. Young, 120 Ill. 184, 11 N. E. 167. The weight of authorseems to be clearly in favor of the proposition that, as regards

will not punish as a contempt the arrest of, or service of process by a state court upon, a foreign witness in attendance before it, though it might, perhaps, on habeas corpus, discharge the witness from such arrest, or punish the party who arrested the witness by a stay of proceedings in a case pending between him and the witness in the federal court.80 A citizen of another state, who is brought into the state on criminal process, is exempt from liability to civil process during the time he is necessarily within the jurisdiction of the court under such criminal process.81 If a person is fraudulently decoyed into the jurisdiction, and then served with process, such service will be set aside on motion.82

§ 138. Processes to compel appearance.

As, in a court of equity, the nature of the relief to be granted frequently depended upon the discovery to be elicited from the defendant by his answer, courts of equity adopted stringent means of compelling a defendant to appear and answer the bill of complaint. A party failing to enter his appearance at the

this privilege, there is no difference between writs of capias and writs of summons, but that the exemption extends to both alike. Greer v. Youngs, 17 Ill. App. 106; Bolton v. Martin, 1 Dall. (Pa.) 296; Dungan v. Miller, 37 N. J. Law, 182; Hale v. Wharton, 73 Fed. 739; First Nat. Bank of St. Paul v. Ames, 39 Minn. 179, 39 N. W. 308; Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N. W. 176; Andrews v. Lembeck, 46 Ohio St. 38, 18 N. E. 483; Hayes v. Shields, 2 Yeates (Pa.) 222.

80 Foster, Fed. Pr. (3d Ed.) § 98; Ex parte Hurst, 1 Wash. C. C. 186, Fed. Cas. No. 6,924; Bridges v. Sheldon, 7 Fed. 17. But see Ex parte Schulenburg, 25 Fcd. 211. For exemption from service of process, see 1 Tidd, Pr. (1st Am. Ed.) 174; 1 Greenleaf, Ev. §§ 316-318; Atchison v. Morris, 11 Biss. 191, 11 Fed. 582; Ex parte Schulenburg, 25 Fed. 211; Christian v. Williams, 111 Mo. 429, 20 S. W. 96.

81 United States v. Bridgman, 9 Biss. 221, Fed. Cas. No. 14,645; Jacobson v. Hosmer, 76 Mich. 234, 42 N. W. 1110.

82 Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98; Steiger v. Bonn, 4 Fed. 17; Blair v. Turtle, 5 Fed. 394. See, for decoying into jurisdiction, Heston v. Heston, 52 N. J. Eq. 91, 28 Atl. 8; Chubbuck v. Cleveland, 37 Minn. 466, 5 Am. St. Rep. 864; Wood v. Wood, 78 Ky. 624; Steele v. Bates, 2 Aik. (Vt.) 338.

The pro

required time was deemed to be guilty of contempt.* cesses of contempt to compel an appearance were originally five: (1) A writ of attachment, directed to the sheriff, commanding that the defendant's person should be attached. To this writ the sheriff might return that he had taken the defendant in custody, or that he had taken him, but had accepted bail, or that he could not find him within his bailiwick. On the first of these returns being made, the defendant was brought up by habeas corpus; on the second, by the messenger of the court or the sergeant at arms,—and in either case was committed to prison; on the third return, of non est inventus, the next process of contempt issued. (2) A writ of attachment, with proclamations, on which the same returns might be made, and the same results would follow. (3) A writ of rebellion, directed to commissioners appointed by the court, and extending into all the counties of England. On this process no bail could be taken, but the commissioners either brought the defendant up in custody, on which he was committed to prison, or made a return of non est inventus, upon which followed: (4) An order that the sergeant at arms, as an immediate officer of the court, should effect the arrest. If an arrest was made under this process, it was followed, like other arrests, by a committal to prison; but if the return were non est inventus, there was no further process against the person. (5) A writ of sequestration, issuable only on the return non est inventus by the sergeant at arms, or on a defendant in custody being committed to prison. This writ was issued, not against the person, but against the property, of the defendant, and authorized the sequestrators to take his goods and personal estate, and to enter on his real estate, and to sequester the rents and profits. If the sequestration proved ineffectual, there was no further process, and in the reign of Elizabeth even the right to sequester was disputed, and it was said by the judges that the court had no authority beyond personal commitment, and that, if a sequestrator were killed in the 831 Hoffman, Ch. Pr. 115-139; 1 Barbour, Ch. Pr. 54-62, 90; Adams, Eq. 324.

execution of process, it was not murder. In the case of a person having privilege of peerage or parliament, and exempt, therefore, from committal for civil contempt, a sequestration nisi was substituted for an attachment, which, if no cause were shown, was afterwards made absolute.84 Assuming an appearance to be entered, an answer was next required, and, if this were refused, the process of contempt was again enforced, but, if extended to a sequestration, the complainant was not restricted to that remedy, but, on issuing the writ, might apply to the court to take his bill pro confesso, and to decrce against the defendant on the assumption of its truth. It is obvious, from the nature of the processes of contempt, that if a defendant absconded, so as to avoid its operation, or if, when arrested, he perversely refused to submit, there were no means of compelling obedience; and on the other hand, if a defendant in custody under process were incapable of doing the required act, his committal was practically imprisonment for life. Several attempts were made by parliament to remedy these evils. The statute of 1 Wm. IV. c. 36, afterwards amended by the statute of 2 Wm. IV. c. 58, and generally known as "Sir Edward Sugden's Act," provided for the making of an order for an absconding defendant's appearance, and, on due publication of such order, for dispensing with both service and appearance, and proceeding at once to take the bill for confessed, and, in case of privileged defendants, and defendants in custody under process, for the entering of an appearance for them, and taking the bill pro confesso. By the statute of 2 Wm. IV. c. 33, and 5 Wm. IV. c. 82, provi

84 Adams, Eq. 324-326, from which the foregoing is taken bodily. On account of the fact that these processes of contempt have fallen into disuse, owing to the practice of taking the bill for confessed, the precise nature of the steps involved in the various processes of contempt will not be considered. A full discussion thereof will be found in 1 Barbour, Ch. Pr. 54-77; 1 Hoffman, Ch. Pr. 115-166; Hinchliffe v. Gracie, McClel. & Y. 277; Williams v. Corwin, Hopk. Ch. (N. Y.) 471; Rowley v. Ridley, 2 Dickens, 622; 3 Bl. Comm. 284; Vaughan v. Williams, 1 Dickens, 354; Hawkins v. Crook, 2 P. Wms. 556; Maynard v. Pomfret, 3 Atk. 468; Keighler v. Ward, 8 Md. 254.

sion was made for the case of absent defendants not having absconded.85 By the statutes of 3 and 4 Vict. c. 94, 4 and 5 Vict. c. 52, and 8 and 9 Vict. c. 105, "for facilitating the administration of justice in the court of chancery," and by the general orders made under them, the partial remedies afforded by the earlier acts were extended, and provision was made for default in appearance, and for default in answering after an appearance by the defendant;86 so that in the latter case the following modes of procedure were open to the complainant: (1) By process of contempt; (2) by taking the bill for confessed; or (3) by going into evidence without an answer.87

§ 139. Process against corporations.

A corporation aggregate, being an ideal and invisible person, existing only in contemplation of law, cannot be attached or apprehended. Under the ancient practice, its appearance was enforced by a distringas, which was a writ directed to the sheriff, commanding him to distrain the lands, goods, and chattels of the corporation, so that it might not possess them till the court should make an order to the contrary.s 88 Upon a distringas, if the corporation had property, the sheriff usually levied forty shillings only, and made his return accordingly, and, if this execution did not procure the obedience of the corporation, an alias distringas was obtained. Upon this writ the sheriff usually levied four pounds; and if, after that, the corporation still continued disobedient, a pluries distringas issued, upon which he levied on the whole property. If the pluries distringas failed of effect, upon its being returned by the sheriff a commission of sequestration could be obtained against the corporation.89 Ow

85 Adams, Eq. 326, 327.

80 Adams, Eq. 327, 328.

87 Adams, Eq. 328, 329. See, as to former practice, Thomson v. Wooster, 114 U. S. 110; Williams v. Corwin, Hopk. Ch. (N. Y.) 471; De Wolf v. Long, 7 Ill. 682.

88 1 Hoffman, Ch. Pr. 164, 165; 1 Barbour, Ch. Pr. 75, 76.

89 1 Barbour, Ch. Pr. 76; 1 Hoffman, Ch. Pr. 164; Rowley v. Corporation of Bridgewater, 1 Fowler, Ex. Pr. 200; Attorney General v. Govern