1. A nonresident defendant to an action in the district court is
immune to service of process therein while present within the
district as a party to litigation in a state court attending a
hearing before a special master. P. 261 U. S.
2. This exemption from service is the privilege of the court
before which the party is attending, rather than the privilege of
the party himself. P. 261 U. S.
3. Where the action in which service is attempted is for an
alleged libel in his pleadings on file in the case upon which he is
attending, he cannot be adjudged to have forfeited his immunity
upon the theory that the libel was still being committed, through
such pleadings, to the time when the attempted service was made.
Error to a judgment of the district court sustaining a plea in
abatement to an action for libel.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The Page Company brought suit in the district court of the
United States for the District of Massachusetts against the
defendant in error for libel, constituted, it was alleged, by
allegations in a certain bill of complaint which was filed by her
against that company in a superior court of Massachusetts.
A question of jurisdiction in the sense of immunity from process
is presented. Plaintiff in error is a Massachusetts
Page 261 U. S. 447
corporation; defendant in error, a resident and citizen of
Leaskdale, Ontario, Canada.
The Page Company brought this suit against defendant in error,
alleging her suit against it, the Page Company, was a deliberate
and malicious libel; its statements having been made "with full
information and knowledge that they were false," and for the
purpose of injuring the company's reputation. Damages were
The facts are stipulated, and are condensed by the district
court as follows:
"The facts on which this plea is grounded are not in dispute:
Mrs. Macdonald brought a suit in equity against the Page Company in
the state court. The Page Company, claiming that certain statements
made by her in the bill were libelous and actionable, brought the
present action at law against Mrs. Macdonald in this Court, and
service was made upon her while she was in the district 'in
attendance before a special master appointed by the superior court
to hear the parties and their evidence' . . . in the other case.
She has pleaded in abatement of this action that she was immune
from service while within the district for the purpose stated."
The court decided "that the plea in abatement is good and that
the action must be abated," citing Stewart v. Ramsay,
242 U. S. 128
Larned v. Griffin,
12 F. 590; Diamond v. Earle,
217 Mass. 499.
The Page Company, contesting the ruling and the application of
the cases cited to sustain it, contends that immunity cannot be
claimed and sustained from the judicial process of a different
In Diamond v. Earle
and Stewart v. Ramsay,
is said both courts were exercising jurisdiction conferred by the
same sovereignty. It is, necessarily, a condition of the contention
that the federal court in Massachusetts is a foreign court within
We are unable to concur. A federal court in a state is not
foreign and antagonistic to a court of the state
Page 261 U. S. 448
within the principle, and therefore, as said in Stewart v.
"suitors as well as witnesses, coming from another state or
jurisdiction, are exempt from the service of civil process while in
attendance upon court, and during a reasonable time in coming and
And we can add nothing to what is said in support of the rule.
"It is founded," it is said, "in the necessities of the judicial
administration," and the courts, federal and state, have equal
interest in those necessities. They are both instruments of
judicial administration within the same territory, available to
suitors, fully available, neither they nor their witnesses subject
to be embarrassed or vexed while attending, the one "for the
protection of his rights," the others "while attending to
The next contention of the Page Company is that defendant in
"forfeited her right to claim and obtain immunity from the
service here questioned by using the state court as a medium for
the publication of a deliberate and malicious libel concerning this
plaintiff [the Page Company] as to matters not material to any
issue raised by the bill in her suit against this plaintiff, to
testify in which she came to Massachusetts."
It must be assumed, is the further contention, to be a
"a continuing tort, potentially and actually working injury to
the plaintiff down to and at the moment of the service upon
defendant of the process in this suit."
The contention has strength upon first impression which
disappears upon reflection of the purpose of the principle and the
necessity of its inflexibility. The service of process is upon the
individual, but the exemption from its requirement is something
more than a privilege to him. It is "the privilege of the court,"
we have seen, rather than his. "It is founded in the necessities of
the judicial administration." Besides, it cannot be assumed, as
plaintiff in error does, that the pleading in her suit against
plaintiff in error was false and a tort, and on that
Page 261 U. S. 449
assumption deny her the immunity to which she is entitled. The
truth or falsity of the pleadings is not to be assumed; it is to be