In the Matter of William A. Jenckes Another

Brayton, J. The petitioners, in this application, ask to be relieved from imprisonment upon the writ of attachment, by virtue of which they are now held, on the ground that the magistrate who issued it had no lawful authority .to issue such process; and they claim, that the magistrate has no authority to take the depositions which he proposes to take, or to summon the petitioners for that purpose; and that the whole proceeding is unauthorized by the statute. The statute under which the magistrate proceeded to act, as contained in ch. 187, sect. 15, of the Revised Statutes, provides, that, “ It shall be lawful for any justice of the supreme court, justice of the peace, or public notary, to take the deposition of any witness to be used in the trial of any civil suit or action,” &c., “ which may be commenced or pending in this state, or in any other state or government; ” and by section 21 of the same chapter, it is provided, that any person may be compelled to appear and depose as aforesaid within this state in the same manner as to appear and testify in court. The statute is express, that if there be a civil suit pending, the magistrate may summon any witness to appear before him to give his testimony relating to such suit; and if he refuse to attend, or having appeared, refuse to testify, the magistrate may exercise the usual power of a court of record, and attach the witness as for contempt of his authority, and commit him until he shall submit to an examination. And this he has authority to do, whether such suit be pending in the courts of this state, or in any other state or government. ■ The statute was intended to extend that comity, which is properly due from *21 one state to another, to every foreign jurisdiction; and in all civil controversies, to enable such foreign state to administer justice, without let or hindrance here ; and by enabling the parties litigant to procure such testimony as may be necessary for the determination of the questions in issue between them, to prevent a failure of justice, which it is equally the interest of every civilized state should not occur. This power is conferred as ancillary to the court which has jurisdiction of the suit, and in aid of its proceedings. It is confined to civil suits, and does not extend to criminal' proceeding; criminal law being strictly local, and a subject to which-the comity of states does not extend. The power of the magistrate depends upon the fact that a civil suit was pending at the time at which the testimony of the witnesses was to be taken. If there were no such suit, clearly the magistrate had no power to summon. This is the condition upon which alone he has power to act at all. It is not sufficient, as contended by the respondent, that the summons issued by the magistrate states that the testimony is to be used in a civil suit, and that such suit is pending, or that it be stated in the writ of attachment. Neither the summons nor the writ concludes the witness as to this fact. The statement of the magistrate in the summons is not, as contended, in the nature of an adjudication. The magistrate, in issuing his summons, is not acting judicially, but ministerially; and his subsequent power to attach for contempt of such summons depends upon his power, in the first- place, to summon at all. His proceedings are not in the nature of a suit against the witness, that they should, in any contingency, bind him as to the existence of the condition upon which the magistrate had power to act; and even if he were acting judicially, still the question of his jurisdiction would be open to inquiry, since, if he act out of his jurisdiction,, his proceedings would be coram, non juclice and void. The - case of Angell v. Robbins & others, 4 R. I. 493, has no application to the question here made. In that case the justice was authorized to issue a citation, in favor of an applicant for the poor‘debtor’s oath, to his creditor, upon condition that a change of circumstances of the debtor, since *22 the last citation to such creditor, had taken place. Such change was to be proved by the debtor, upon evidence to be submitted to the justice; and so, from necessity, the justice was to determine, upon the proof, whether a change had occurred. As to that question, he was constituted a judge. There is no such provision as to taldng depositions ; and whether the condition existed, upon which the power to summon is given, is a matter open to inquiry. We are only to inquire, then, whether there was a civil suit pending, in which the testimony was to be used. The testimony was to be used in the matter of the application of William A. Jenckes to take the poor debtor’s oath, then pending before Henry C. Rice, a master in chancery, at Worcester, in the state of Massachusetts. His creditors, Charles W. Freeland & Co., are respondents in that application." This application was to be heard and determined by said master, upon evidence to be submitted before him. The statute of Massachusetts authorized such application, trial, and determination. It is agreed that such a proceeding was pending. It is however contended by the petitioners, that such a proceeding is not a suit or action, within the meaning of the act authorizing the taking of depositions. This proceeding falls within the definition of a “ suit,” given by Marshall, C. J., in Cohens v. Virginia, 6 Wheat. 407: — “ the prosecution, or pursuit, of some claim, demand, or request; ” “ the prosecution of some demand in a court of justice.” It is the pursuit of a right or remedy in form of law. Burrill’s Law Dict. 955. This is clearly the pursuit of a right or remedy, given by the laws of Massachusetts, prosecuted in the forms of law, and to be judicially determined. Within the common-law definition of suit, this clearly is of that character; and we see nothing in any of the other sections of this chapter which leads to the conclusion, that the terms “ suit or action ” were intended to be used in other than the sense of the common law. On the contrary, in looking at the various provisions of this chapter, it is quite evident that these terms were used in the most enlarged sense, and to enable parties litigant to procure evidence existing here, in all civil controversies. Section 5 au *23 thorizes auditors, referees, arbitrators, masters in chancery, and commissioners to summon witnesses; and section 7, referred to by counsel, and which declares.that the witness shall be obliged to attend, if summoned, uses the terms “suit or proceeding.” This section relates to the attendance of witnesses, personally, at the hearing of such suit or proceeding. Section 22 provides, that the deposition may be used as evidence in any cause in .which it may be taken to be used. Section 24 uses the same term, “ cause.” Section 27, providing for the taking of depositions here, by commission from another state, uses the terms “ any cause pending in any other government.” We think, from the general scope of this chapter, that it was designed, in the most enlarged sense, .to enable evidence to be taken here which may be material or necessaiy for the determination of all civil controversies pending elsewhere, which may be presented in form of law; and that the power was not intended to be limited to actions, strictly so called, or suits pending in courts of record; but extends to all matters, to be determined by competent authority, acting judicially, and upon proof. But it is said that though this be a suit within the meaning of the act, it is nevertheless not a civil suit, but is criminal. It is sufficient to say here, that this has been determined otherwise by the supreme court of Massachusetts, —Parker v. Page, 4 Gray, 533, in which it is held to be a civil proceeding. There was then a civil suit pending, in which the testimony was to be used; and so the condition upon which the magistrate had power to act existed; and upon application for that purpose, it became his duty to summon the witnesses in this case. In contempt of that summons, and of the authority of the magistrate, they refused to obey the summons, or to appear or testify. Had the power of the magistrate ceased here, the whole purpose of section 15, authorizing the taking of depositions, would be defeated. The- magistrate would be left without the power of discharging the duty imposed upon him, and the party be as far from procuring the evidence sought, as if the power to summon had not been 'given. That the purpose of the act may not thus be defeated, it is *24 provided in section 21, that the magistrate shall have the like power to compel the witness to appear and depose, as courts of law have to compel a witness to appear and testify in court. The power is conferred upon him for the same reason that it is conferred upon the court, — that justice shall not fail. It is to be exercised in the same way, by process of attachment against the witness who disobeys the summons. Upon such process, rightfully issued by the magistrate, the petitioners are now im» prisoned. They cannot be properly relieved until they appear and submit to testify; and their petition for the writ of habeas corpus must be dismissed.