Thе privilege conferred upon witnesses by “ An act concerning evidence,” is that every witness shall be privileged from arrest in all civil actions, and no other, during his necessary attendance at any court or other plаce where his attendance shall have been required by subpoena previously and duly served, and in going to and returning from the same, allowing one day for every thirty miles from his place of residence. This part of the statutе, excepting the allowance of time by distance, was passed, originally, June 7th, 1779. It grants immunity to the witness only from arrеst, and then only when in attendance upon a court under due service of a subpoena.
In regard to the рrivilege of a witness attending voluntarily, the rule, both in this state and elsewhere, is more liberal than the statute. In England the weight of authority is that a person who so attends for the purpose of giving testimony, although not under service of рrocess, is privileged from arrest. Taylor on Evid., § 1330. And that is the rule in this state. Harris v. Grantham, Coxe 142; Dungan ads. Miller, 8 Vroom 182, overruling Rogers v. Bullock, 2 Penn. 516, in which case it was held that upon the language of the statute, due service of a subpoena was necessary to entitle the witness to the privilege from arrest. The words of the statutе have not only been departed from in this respect, but also in the other respect, namely, that the privilеge is only from arrest. The same freedom has been claimed from liability to be served with summons, and the claim has in sоme instances in this state been allowed.
This claim has no countenance in the English practice. The service of a summons upon a witness there may be made at any time, and the court will not set it aside. Poole v. Gould, 1 H. & N. 99. This is so, although the service of the writ in open court may be so manifestly indecorous as to amount to a contempt. Cole v. Hawkins, 2 Strange 1094; Poole v. Gould, supra.
In this state in two instances the privilege of witnesses has
The witness in the present case is a resident of New Jersey, and the point is taken that the status of such a witness differs from that of a foreign witness or party. I think there is solid ground upon which to place a distinction between these classes.
The foundation of the rule is the impolicy of permitting an act which will deter suitors or witnesses from attending courts. The argument of -Southard, J., in Halsey v. Stewart, was the difficulty with which foreign witnesses, not amenable to process, could be induced to come into the state to testify if they were liable to be served with a summons in a court in a foreign jurisdiction at a distance from his witnesses and his means of defence. The courts of the State of New York early distinguished the cases in which the party or witness was or was nоt a resident of the state. If a non-resident was arrested he was discharged absolutely, but a resident was dischargеd on filing common bail. Hopkins v. Coburn, 1 Wend. 292.
In Seaver v. Robinson, 3 Duer 622, it was held that a nonresident party could not be served with process in New York city, and in Merrill v. George, 23 How. Pr. 331, a nоn-resident party and witness was held exempt from service of summons. In each case the argument of the court in favor of the rule was that oral examinations, instead of depositions, were to be fostered, and that аny course of procedure which kept away witnesses whose presence could not be comрelled, was impolitic.
There is no intimation in the numerous cases in that state that the same immunity from the service оf process exists in
A resident can be compelled by process to come into court, yet by the service of a writ in a distant county, and by so transferring from his home a litigation, it may be as onerous as if he were a resident of another state. And thе knowledge of the hazard he runs by obeying the súbpoena may compel him to evade its service or tempt him to disobey its command.
I do not think this is a reason for holding every such service a nullity, but it is a reason why the courts should retain control over it. There may be instances where the service was so flagrantly improper as to rеquire- a vacation of the service. But in most instances the only cause of complaint which the persоn- served could urge would be that he was served in one county and not in another. The remedy for this complaint is not a vacation of the service, but a, change of venue, if an unfair advantage has been obtained by such service in fixing the place of trial.
The circumstances of each case should control the cоurt in dealing with such a service. The manner of service, the residence of defendant’s witnesses, the place where the cause of action arose, are all factors in determining whether the service should stand.
In thе present case the defendant is a resident of Atlantic county. Service was made and venue laid in Camden county. If the defendant desires the venue changed to Atlantic county it will be so ordered, unless the plaintiff*objects to such change, in which event the servioe of the summons will be set aside.