Monroe v. St. Clair Circuit Judge

Hooker, J. Monroe, living in the county of Charlevoix, owned a vessel. He sold and delivered her into the possession of Slyfield, who paid $100 in cash, and left a draft and other papers with Pratt & Davis, a law firm at Traverse City, to be delivered to Monroe upon his executing a proper bill of sale and a bond to protect Slyfield against liens. Sperry commenced a suit against the boat, for supplies, in the federal district court for the Eastern district of Michigan, and the boat was seized at Port Huron by the United States marshal. Slyfield conferred with Phillips, an attorney at Port Huron, to ascertain whether he could safely pay the claim, and was advised that he could not, and that Monroe had better authorize Slyfield to pay it, or come down to Port Huron and arrange it. Slyfield telegraphed Monroe to come, and he did so, whereupon he was arrested at the suit of one Bonnah, for whom Phillips was counsel. The circuit court refused to discharge him, which was asked upon the ground that he was privileged from arrest. The privilege of a witness or suitor is to be found in the common law or our statute (3 Comp. Laws 1897, § 10157). The statute does not cover this case, for the relator did not attend as a witness. But the privilege of a party from arrest existed at common law, and has not been abrogated. This privilege applied to him while in attendance upon the court, and was a rule of public policy, based, not upon the welfare of the party, so much as upon the protection of the administration of justice; and it extended no further than to the period of his actual attendance upon some judicial proceeding or inquisition, and the reasonable time used in going to and returning from such tribunal. I am able to find no sanction for the doctrine that it protects a- party while going away from his residence to consult counsel, whether at the place where the court is usually held or elsewhere; and no case [285] is cited which recognizes it while he is in such locality for the purpose of settling his case. The reason for this privilege, and its nature and extent, are shown by numerous cases cited in a note to the case of Mullen v. Sanborn, 25 L. R. A. 721 (79 Md. 364, 29 Atl. 522, 47 Am. St. Rep. 421). We do not quote from them, for the summary can as well be read; but, in our opinion, neither the cases themselves, nor the principle underlying them, sanctions such an application of the doctrine as is sought here. Nor do the cases from Michigan justify it. It is said that “the right of a defendant to be sued at his domicile is not a technical, but a substantial, right.” If this be true, the same can be said of the plaintiff; i. e., that his right to sue a defendant away from his domicile, which he may do under the statute, is not a technical, but a substantial, one. If the one is not to be deprived of a right by disregarding his privilege, the other is not, by extending it to cases not within the rule or its reason. In the case of People v. Judge of Superior Court of Detroit, 40 Mich. 730, relator was arrested and taken from his domicile to the place where he was sued. He was clearly protected under the common-law rule. In Mitchell v. Huron Circuit Judge, 53 Mich. 541 (19 N. W. 176), a person attended court solely for the purpose of testifying as a witness. He was clearly within the statutory as well as the common-law rule. Letherby v. Shaver, 73 Mich. 500 (41 N. W. 677), was on all fours with Mitchell v. Huron Circuit Judge. In Hoffman v. Bay Circuit Judge, 113 Mich. 109 (71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458), the rule was applied to counsel when returning from a session of this court, where he had argued a case. He was protected both by statute and common law. The only case that seems to afford any support to relator’s contention is Jacobson v. Wayne Circuit Judge, 76 Mich. 234 (42 N. W. 1110). The relator was let to bail in the village of Yassar. The next morning he went to Detroit to consult counsel in relation to his arrest. While in his office he was served with process in favor of a non. [286] resident of the State. The court did not hold that he was privileged because he went to consult counsel, and clearly indicated that the holding would have been the same had he not desired to consult counsel. They say that “it appears that to go by Detroit [to his home in Greenville] was as convenient and usual as any other route,” but that ‘ ‘ this does not impress us as very significant, inasmuch as it was a common line of travel ” (i. e., between those places), and that “he had a right to see his regular counsel on his way home,” and that “it cánnot be treated as going out of his way to do so.” In the case before us there was no pretense that relator went to Port Huron to attend court,' nor, for that matter, to see his regular counsel, or any counsel. There is nothing to indicate that court was in session. He went there voluntarily, at Slyfield’s request, to see if he could not make arrangements to carry out his contract of sale, and was no more privileged than as though he had gone there to sell his vessel in the first instance, and had been arrested. His claim to immunity from arrest has not the sanction of authority, and is not, in our opinion, within the reason of the rule invoked. The order of the learned circuit judge should be affirmed, and the writ is denied. Montgomery, C. J., and Grant, J., concurred with Hooker, J.