Mullen v. Sanborn

Fowler, J., delivered the opinion of the Court. Edward P. Sanborn and Arthur C. Mann, trading as Sanborn & Mann, residing and doing business in Massachusetts, issued out of the Baltimore City Court an attachment on original process against Joseph Mullen, a citizen ■of this State and a resident of Baltimore city. This attachment was subsequently quashed, and the short note case was prosecuted, but without success. Sanborn, one of the plaintiffs in the attachment suit, was advised by his counsel here that it would be necessary for him to testify as a witness at the trial of the short note case, and it is admitted he came here for that purpose.

The case, however, was continued, and Sanborn, having left the courtroom in Baltimore, was about to depart'from this State for his home in Massachusetts, when he was summoned as a defendant in a cause brought by the appellant, Mullen, to recover damages for wrongfully, maliciously, and without probable cause, issuing the attachment above mentioned. Sanborn moved to quash the writ of summons and the return of the sheriff thereon, on the ground that being a witness from another State he was exempt from civil process while attending as a witness in the short note case, and for a reasonable tíme thereafter. This motion was answered by Mullen, who insisted that it should be dismissed, but the Court below, being of opinion that it was hound by the decision of this Court in Bolgiano vs. Gilbert Lock Co. and Lance, 73 Md., 132 .passed an order quashing the writ of summons as prayed by Sanborn. Prom this order Mullen has appealed.

The only question, therefore, presented here is, whether under the circumstances of this case the appellee, San- ³⁶⁶ born, is exempt from the service of summons issued to bring him into Court to respond in damages for the wrong-. ful and malicious issuing of the attachment. We do not-think this case is within the rule laid down by this Court in Bolgiano’s Case, supra. That was the case of a witness, who was not a party to the suit, who came here from Eew Jersey, where he resided, for the purpose of testifying in a cause on trial in this State, and we there expressed the view that the tendency of the courts in this country “ is to enlarge the privilege and afford full protection to suitors and witnesses, from all forms of process of a civil nature during their attendance before any judicial tribunal, and for a reasonable time in going and returning; ” but continuing, we said: “We think the decided weight of authority has extended 'the privilege so far at least as to exempt a resident of another State, who comes into this State as a witness to give evidence in a cause here, from service of process for the commencement of a civil suit against him in this State, and that the privilege protects him in staying and returning, provided he acts bona fide, and without unreasonable' delay.” The language above quoted was, of course, used in reference to the facts of the case then before us, that of a witness who was not a party to the cause. As we did not in the case just cited undertake to lay down any general rule as to the exemption of suitors from civil process, because that was a case involving only the rights of a witness, we do not think the case now before us would justify us in announcing a rule of exemption applicable alike to all suitors in all civil actions.

As to what the better rule may be, both as to plaintiffs and defendants, there is some conflict of authority; but we are all of opinion that this right of exemption should not be extended to one who, like the appellee, comes here and avails himself of the right given him by our statute to issue an attachment for fraud, or, as it is generally called, an attachment on original process. This proceeding has always been considered an extreme remedy, and the legisla ³⁶⁷ ture seeing the great temptation there would exist to abuse it, and the loss and injury to the