Dwelle v. Allen, 193 F. 546

Dwelle v. Allen

193 F. 546 | S.D.N.Y. | 1912

HAND, District Judge

(after stating the facts as above). The plaintiffs chief reliance is Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962, 27 L. R. A. (N. S.) 333, 134 Am. St. Rep. 886. In that case Scrugham, a citizen of Ohio, came to New York to testify at a legislative.hearing. While there, he was arrested on a criminal charge, and thereafter indicted by the grand jury of the Court of General Sessions for the county of New York, to whose indictment he gave bail. Lie then returned to Ohio, hut later came back to New York for trial, at which he was acquitted on March 26, 1909. lie stayed overnight in New York partly because he could get no berth in a sleeping car and partly to consult counsel in regard to other indictments, as to which it does not appear whether or not he had given bail. The plaintiff served him with process early on the morning- of March 27, 1909, in an action having no connection with the subject-matter of the indictments. The Court of Appeals of the state of New York declined to vacate the process, on the ground that liis release from custody on recognizance still left him in the custody of his bail, and that bis subsequent appearance was not voluntary. The remarks of the court on pages 381 and 382 of 197 N. Y., on page 962 of 90 N. E. (27 L. R. A. [N. S.] 333, 134 Am. St. Rep. 886) show that the court based their decisions wholly on the ground that the defendant was actually in the custody of his bail; hence they thought applicable the rule that the privilege against tile process does not exist when the person served is in custody. Certainly that case has no application to the case of a witness under subpoena, who, though he is subject to attachment, is in no sense actually in custody. It is therefore not necessary to consider whether the decision is authori*548tative for a federal court. The purpose of the rule is to remove any inducement to the party or witness to avoid appearance, and,-when he is in cu'stqdy, de facto, under all the authorities, the reason fails. There is at least an argument that the custody of bail is not such that it will surmount the possible deterrent which might arise from liability to civil suit, but that question is not up here. The privilege in federal courts extends to witnesses appearing under subpoena. Hurst’s Case, 4 Dall. 387, 1 L. Ed. 878; Small v. Montgomery (C. C.) 23 Fed. 707; Skinner & Mounce Co. v. Waite (C. C.) 155 Fed. 828. Originally the doubt seems indeed to have been not whether subpoena, but whether voluntary appearance, would not avoid the privilege (Rex v. Keel, 3 Dougl. 45 [1782]) was the first case in which a witness out of reach of process voluntarily appeared. ’ There had been a subpoena served, but it seems under the court rules to have been void, and the case was decided on that assumption. Lord Mansfield observes that subpoena would be useless upon a witness abroad, showing that he was answering the suggestion that the privilege extended only to a case of subpoena. Buller, J.’s, opinion is still more significant (page 47):

“It is pot true that the privilege of a witness depends upon a su'bpcena. I have found a ease (E. 27, Car. 2) where a man was discharged who came to London to make an affidavit, which might have been made in the country; but it was for the furtherance of justice, and he was therefore protected. No subpoena is necessary where the witness lives abroad.”

Lord Eldon argued in the same way in Ex parte Byne, 1 Vesey and Beanie, 316, where a witness appeared voluntarily. These cases show that the question a hundred years ago was whether voluntary appearance did not avoid the privilege. The plaintiff’s position is a strange inversion of the history of the law. If authority is needed, in Spence v. Stuart, 3 East, 89, the King’s Bench canceled a bail bond which a defendant had given on a capias; he being in attendance upon a prior action under summons. The fact that the defendant was a party to the prior action is not material, if he be summoned. Although the rule was discharged in Randall v. Gurney, 3 Barn. and Ald. 252, under similar circumstances, no one doubted that the privilege had existed, and the case turned upon delay. Sir Thomas Plumer ruled similarly in Franklyn v. Colqhoun, 1 Mad. 580. So, also, of a bankrupt, Ex parte Temple, 2 Ves. and B. 391. Gibbs v. Phillipson, 1 Russ. and M. 19, shows the same understanding of the privilege, though for other reasons it was denied.

It is quite true, as the plaintiff says, that the New York cases all seem to be those in which the person served appeared voluntarily either as a suitor or a witness; at least I can find no instance to the contrary. However, the reason for this is plain, on reflection, because the case must be rare in which a witness out of reach of summons will appear under subpoena. Such, cases are more likely in the federal courts, where the process of subpoena runs outside the district or the state. No distinction is made anywhere in the cases, as far as I can find, between a witness under subpoena and one appearing voluntarily, and the proper test is not, I think, whether the appearance be voluntary or not, but whether the privilege will promote the pur*549poses of justice. It would certainly be a strain upon one’s confidence in the sanctions of process to say that the privilege would not conduce to obedience. How far such considerations apply. also when the defendant is at large under hail is a different matter, for the sanction is greater and the rights of the bail immediate. Moreover, if the service of subpoena avoid the privilege, I cannot see why a threat to subpoena a witness who lives within 100 miles should not do the same. Again, if a threat would do, should not the mere liability to process answer as well? Witnesses sometimes come without process merely because they recognize the futility of refusal. That does not mean that they might not evade cither subpoena or attachment, if they were liable on arrival to service of original process. Therefore, however it may be when they are actually in the constructive custody of their hail, the scope of the privilege, which should be dependent on its purposes, certainly should extend to one who, in answer to a subpoena, comes within reach of original process.

As to laches, the defendant has certainly not been expeditious, but no step has been taken in the action, and I hardly think the delay long enough to justify refusal of relief.

The motion is granted, and the writ quashed.