
    Barber v. Knowles.
    
      Privilege from summons — Extended to non-resident stiitor — Going to or returning from court — Reasonable deviation from direct route allowed.
    
    1. A suitor going to, attending or returning from court, for the purposes of a case to which he is a party, is privileged from service of summons while so going, attending or returning. Andrews v. Lembeck, 46 Ohio St., 38, approved and followed.
    2. The privilege extends to all suitors, whether they be residents or non-residents of this state.
    3. The privilege should be allowed with a reasonable latitude. A party going to or returning from court need not take the most direct route. Reasonable deviations or delays should be allowed, provided they do not arise in carrying out a purpose entirely distinct' from the purpose of going to, attending, or returning from court.
    (No. 10225
    Decided November 19, 1907.)
    Error to the Circuit Court of Montgomery County.
    The defendant in error is a resident of the state of Illinois and was, at the time the summons in this case was served upon him, a party to a suit pending in the United States Circuit Court for the Southern District of Ohio, at Cincinnati. The said cause in the circuit court was assigned for trial on the third day of October, 1905. The defendant came to Ohio on or about the first day of October, 1905, stopping at Greenville for consultation with his counsel and started to Cincinnati on the second day of October by way of Dayton. There are two routes from Greenville to Cincinnati, one by way of Eaton, which is. perhaps the most direct, and one by way of Dayton, which is most generally used and is perhaps the most convenient. The defendant was instructed by his counsel that one Kline, a civil engineer, whose home and office were in Dayton, was a necessary witness for him in the trial in the United States court at Cincinnati, and that it would be necessary for the defendant to take certain books and papers, which were in his possession, to Kline at Dayton, and have him make therefrom certain calculations which were necessary in order to save the time of the court in the examination of Kline as a witness in the case. The defendant, therefore, stopped off at Dayton, arriving at Kline's office about nine o’clock in the morning, and being occupied with his business there until about five o'clock in the evening, leaving Dayton about six in the evening for Cincinnati. While the defendant was in Dayton for the purpose aforesaid he was served with summons in this cause. On the hearing of a motion to quash the service, the court of common pleas sustained the motion and the judgment of the court of common pleas was affirmed by the circuit court. The plaintiff below prosecutes this proceeding in error to reverse the judgments of both the courts below.
    
      Mr. W. A. Hallanan, for plaintiff in error.
    A party or witness, etc., to a suit, while necessarily going to, staying, at, or returning from, court is privileged from the service of summons. Dugan v. Miller, 8 Vroom, 183; Halsey v. Stewart, 1 Southard (N. J. L.), 366; Brooks et al. v. Farewell et al., 2 McCrary, 221; Lyell v. Goodwin, 4 McLean, 32.
    
      The privilege extends to attendance before a tribunal or officer before whom proceedings necessary in the trial or bearing of the cause, are had, as before arbitrators appointed by the rule of court, or a master in chancery. 2 Taylor on Evidence; Dugan v. Miller, 37 N. J. L., 182.
    Non-resident suitors and witnesses are privileged from being served with a summons during the time necessarily occupied in going to, attending and returning from trial. Bassett v. Gunsolus, 6 O. Dec. Rep., 1228; Nicholas v. Horton, 14 Fed. Rep., 329.
    The rule which protects parties and witnesses, from such service, while in attendance upon the trial of causes within his state, has no application to a citizen of a foreign state, having a litigation pending in said foreign state; who attends in this state in order to take testimony out of court. Parker v. Manco, 61 Hun, 519; Greer v. Young, 120 Ill., 184.
    In Van Liew v. Johnson (not reported, but cited in Person v. Greier, 66 N. Y., 126), the court say: “The order denying an application to set aside the summons in that case, was affirmed upon the ground that the party had lost his privilege by remaining within the state an unreasonable and unnecessary time • after the close of the trial, upon which he attended,” So here, Knowles took an unnecessary route to go to Cincinnati.
    The rule of exempting the witness from service of summons and arrest does not apply to nonresident suitors. Baldwin, Recr., v. Emerson, 16 R. I., 304; Capwell v. Sipe et al., 17 R. I., 475.
    
      
      Mr. W. N. Stubbs, for defendant in error.
    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 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. Compton, Ault & Co., v. Wilder, 40 Ohio St., 130; Andrews v. Lembeck, 46 Ohio St., 40; Lyell v. Goodwin, 4 McLean, 29; Miles v. McCullough, 1 Binney, 77; Bolton v. Martin, 1 Dallas, 396; Whitman v. Sheets, 20 C. C., 1; Hayes v. Shields, 2 Yeates, 222; Wetherill v. Seitzinger, 1 Miles, 237; Greer v. Youngs, 17 Ill. App., 106; Halsey v. Stewart, 1 Southard, 366; Huddeson v. Prizer, 9 Phila., 65; Holmes v. Nelson, 1 Phila., 217; Matthews v. Tufts, 87 N. Y., 568; In re Healey, 53 Vt., 694; Juneau Bank v. McSpedan, 5 Bissell, 64; Anderson v. Roundtree, 1 Pinney, 115; Lamkin v. Starkey, 7 Hun, 479; Dugan v. Miller, 37 N. J. L., 182; Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. Pr., 331; Cole v. Hawkins, Andrews, 275; Parker v. Hotchkiss, 1 Wall., Jr., 269; Person v. Greier, 66 N. Y., 126.
    It is a principle of common law that privileges are not to be taken away by the general, comprehensive words of a statute; there can not be done by construction what is not clearly authorized by the legislature. Sedgwick on Statutory and Constitutional Law, 318; Anderson v. Roundtree, 1 Pinney, 115; Matthews v. Tufts, 87 N. Y., 568; Lamkin v. Starkey, 7 Hun, 479; Andrews v. Lembeck, 46 Ohio St., 43.
    The service of Knowles was in clear violation of this statutory rule and was properly quashed by the court below. Compton, Ault & Co. v. Wilder, 40 Ohio St., 130; White v. Marshall, 3 C. C., N. S., 499; Commonwealth v. Wright, 58 Mass., 154; State v. Simmons, 39 Kan., 264; Hackney v. Welsh, 107 Ind., 255; State v. Hall, 40 Kan., 340.
   Davis, J.

The statutes of this state (Revised Statutes, Section 5457) provide that all suitors while going to, attending, or returning from court, shall be privileged from arrest; and ever since the decision of Andrews v. Lembeck, 46 Ohio St., 38, the statute has been construed as extending the privilege to the service of summons in civil cases.

We do not understand that the counsel for the plaintiff in error questions this construction; but his contention is that the privilege is confined to the time during which the suitor is necessarily occupied in going to, attending, or returning from court; or, in other words, that in order to claim the exemption the suitor must go to. or return from court b}^ the most direct and speediest route, and that he must not delay in attendance upon the court any longer than is absolutely necessary. We think that such a rigorous application of the law would destroy the privilege, which had its origin in justice to the suitor and in the necessity of protecting the courts from embarrassment in the transaction of business.

It is a rule of interpretation, which is universally recognized, that a statute will not be presumed to derogate from or abrogate the common law. Such a legislative intention must plainly appear. It does not appear here; and therefore we may properly look to the common law for an explanation of the terms of the statute. A very few citations will be sufficient to show that under the common law the privilegie is allowed with a reasonable latitude; that a party going to or returning from court need not take the most direct route; that reasonable deviations or delays will be allowed, provided they do not arise in carrying out a purpose entirely distinct from the purpose of going to, attending, or returning from court.

In Willingham v. Matthews, 6 Taunt., 356, it appeared that the defendant went from the court, that he passed through streets which were not in the direct way to his home, and that he went into a cutler’s shop on one of those streets; and it was argued that it was his duty to go directly home and not to transact his own business by the way. The court, however, said: “A party is not bound to go the nearest way home; and if he do not abuse the privilege for the purpose of going about other business of his own, of which no evidence appears on these affidavits, we must say that he is entitled to his discharge.”

Pitt v. Coomes is reported in 5 B. & Ad., 1078, and 3 Nev. & Man., 212. Pitt had left the court in the evening and had gone directly to his office where he took refreshments and sorted his papers. After remaining at his office for from one to two hours, he left for his home, but went into a tailor’s shop, where an officer arrested him. Denman, C. J., said: “The doctrine of deviation might become very alarming if carried to such an extent that whenever the officer saw the party going one yard out of his way home, he might immediately arrest him. * * * A party on his return from a court of justice ought substantially to receive its protection, and to have the benefit of its dignity and quiet, till he reaches his home. The case just cited is stronger than this. [Lightfoot v. Cameron, 2 W. Bla., 1113.] There the party was dining with his attorney and witnesses when the officer took him; and yet he was held do be protected.” Littledale, J., in the same case said: “There is a case where a woman was a witness on a trial at Winchester, which ended at four in the afternoon of Friday; she stayed there till Saturday, and at seven in the evening was arrested as she was going home to Portsmouth; and this court held that she ought to be discharged.”

Williams v. Webb, 5 Scott’s N. R., 898, is also very suggestive. The defendant left his residence to go to his office to get some papers which he believed to be necessary in the argument of a motion in court, intending to pursue his way from his office to the court. On the way to his office he was arrested. Tindal, C. J., said: “There is no pretense for saying that this person had not a right to go to his office for his papers. The only question is whether or not he was going out of the way. Upon these affidavits I do not collect that there was any real deviation.” Pitt v. Coomes, supra, was cited, and Lord Chief Justice Tindal remarked that he could not see any substantial distinction between that case and the one then before the court; and all the other judges concurred.

In Selby v. Hills, 1 Moore & Scott, 253, also reported in 1 Dowl. Pr. C., 257, Lord Chief .Justice Tindal again said: “The only question to be considered is, whether the defendant was honestly using his privilege, or whether he only sets it up as a pretense to defeat a creditor. The rule is not to be scanned with too strict an eye; every reasonable intendment is to be made in favor of a party claiming exemption under it.”

In Ricketts et al. v. Gurney, 7 Price, 699, it appeared that the defendant went from London to Clifton, on the way to trial at Exeter, staying at Clifton two days to procure and sort his papers, and with his lawyer selecting such documents as were necessary to be used in the trial. The defendant was arrested at Clifton; but it was held that he was entitled to the' privilege, on the ground that the deviation was for a necessary purpose and the delay no more than -reasonable.

In Sidgier v. Birch, 9 Ves. Jr., 69, it was shown that for the purpose of an examination before a master in chancery, it was necessary for the defendant to see a deed which was in the hands of another party, who was hostile to him, and whom, therefore, he did not choose to see except in the presence of his solicitor, and failing to meet his solicitor, after waiting for several hours, was returning home for other necessary papers when he was arrested. Lord Chancellor Eldon discharged the defendant and said that the question in these cases is always whether the man was. bona fide engaged in the business he was called upon to execute.

It is claimed that the defendant in this case, being a non-resident of this state, is not within the privilege; but the statute extends the privilege to “all suitors,” nor is it restricted to going to, attending or returning from any particular court, and apart from the statute the immunity does not depend upon statutory provisions, but arises ex necessitate in the due administration of justice.

It does not appear that the defendant made an unreasonable deviation from a direct route to the place of trial, or that his stopping at Dayton was, under the circumstances, unreasonable or unnecessary, or that his tarrying on the way at that place was not in good faith or for any purpose wholly disconnected with the purpose of going to and attending the trial at Cincinnati.

The judgment of the court of common pleas quashing the service which was made upon the defendant, was therefore correct; and the judgment of the circuit court affirming the judgment of the court of common pleas is

Affirmed.

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.  