Bolgiano v. Gilbert Lock Co.

• Decision Date: 13 November 1890
• Citation: 20 A. 788,73 Md. 132
• Parties: BOLGIANO v. GILBERT LOCK CO. ET AL.
• Court: Maryland Court of Appeals

20 A. 788

73 Md. 132

BOLGIANO v. GILBERT LOCK CO. ET AL.

Court of Appeals of Maryland

November 13, 1890

Appeal from circuit court of Baltimore city.

Alfred J. Carr, for appellant.

M. R Walter and Wm. L. Dallam, for appellees.

Argued before ALVEY, C. J., and MILLER, MCSHERRY, BRYAN, and FOWLER JJ.

MILLER J.

Thomas P. Bolgiano filed a bill in the circuit court of Baltimore city against the Gilbert Lock Company and G. M. Lance, its secretary, for the specific execution of a contract alleged to have been made by the complainant with said Lance acting as the agent for said company. The subp na against the defendants was duly issued, and the sheriff returned the same, "Summoned the Gilbert Lock Company by service on G. M. Lance, secretary; also summoned G. M. Lance." When this return was made, the company and Lance filed a petition to the court, alleging--First, that the Gilbert Lock Company is a body corporate, duly incorporated under the laws of New Jersey, and doing business in that state, and is a foreign corporation not having an office or agent in the state of Maryland; second, that Lance is a resident of the state of New Jersey, and not a resident of the state of Maryland; third, that Lance was present in the city of Baltimore on the 28th of March, 1890, (the day the subp na was issued,) attending as a witness the trial of a certain cause in the superior court of said city, in which the Gilbert Lock Company was plaintiff, and a certain Gilbert C. Bolgiano was defendant, and that while he was in attendence as such witness, and was within the state of Maryland for that and no other purpose, the summons was served upon him both as an individual and as an officer of said company. The petitioners therefore aver that this service was illegally made upon Lance in violation of his rights and privileges as a witness, and is null and void, and they pray for an order quashing the writ and the return thereon. There was a demurrer to this petition, which the court overruled, and, from the order overruling this demurrer, this appeal is taken.

A witness is protected from arrest on any civil process while going to the place of trial, while attending there for the purpose of the cause, and while returning home; eundo morando, et redeundo; and it matters not whether he attends voluntarily or by compulsion. 2 Tayl. Ev. § 1199; 1 Greenl. Ev. § 316; 1 Whart. Ev. § 389. The rule stated in these terms is of almost universal application, whether the privilege be regarded as a personal one to the witness or the privilege of the court. But does it protect a witness or a party from service of a summons in order to secure his appearance to an ordinary civil suit? On this question there has been some conflict of decision. The tendency, however, 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...