dissenting:
Because the decision in this case entirely ignores the reasons which gave rise to the rule granting immunity from service of criminal and civil process to litigants, witnesses and other persons, while attending court, and completely overlooks and disregards its historical growth and development, I respectfully dissent.
In Whited v. Phillips, 98 W. Va. 204, 126 S. E. 916, 40 A. L. R. 63, the rule is referred to as “a principle established by the common law of England, by the early courts of Virginia (whose decisions are binding upon us), and upheld by principles of right and justice.” In discussing the scope of the rule, the reasons upon which it is based, and its historical development, in the opinion in that case, this Court used this language:
“The rule that parties to judicial proceedings, as well as witnesses, and court officials, shall be immune from service of process while attending court, is of very ancient origin. Reference is found to it in the Year Books of England, as early as Henry VI. In its inception, its purpose *341seems to have been merely to prevent the interference in the administration of justice occasioned by the arrest (whether under criminal or civil process) of suitors, attorneys, witnesses, etc. The rule was originally asserted solely as the privilege of the court supporting its authority and dignity, in order that justice might be unfettered and free from outside interference. Its aim was to secure efficient and orderly trials which could not be had so long as the witnesses and court officials were subject to arrest or intimidation when attending court. As one authority expresses it, the rule was established ‘as good policy that a court should not be hampered by having those attending it pounced on by other litigants’.
“Anciently, it would; seem, as well as in some of the earlier cases in the States, this rule was limited to exemption of a defendant from arrest, rather than from service of a civil process which did not involve arrest. But, as years went by, the rule was enlarged so as to afford full protection to suitors, witnesses and court officials, from all forms of process, whether in civil or criminal cases. The reasons for the rule have also been enlarged. It is now regarded as the privilege of persons attending court in their several capacities, as well as the privilege of the court. It is well said that if there is ever a time when a man should be relieved of all other concerns, and when he should be permitted to use unhampered his every faculty, it is when he is on trial under a charge of a crime. Judicial reasoning also recognizes the right of a man, ordinarily, to be tried by a jury in the vicinity in which he resides, so that he may have such advantage and safeguard there as his conduct and character shall merit. An additional argument for the extension of the rule is that a person should not ordinarily be drawn into a foreign jurisdiction ‘and there be exposed to entanglements in litigation far from home, which means he shall be attended with augmented expense.’ ”
As indicated in the foregoing quotation, the original purpose of the rule was to support the authority and the *342dignity of the courts in order that justice might be administered without interference from any outside source. In the early cases in England and in Virginia that consideration was emphasized and there was no indication that the application of the rule of immunity should be-qualified or restricted to persons who were not residents' of the jurisdiction in which service of process was had. See Hatch v. Blisset, 13 Ann., Gilb. Cas. K.B. 308, English Reports, Full Reprint, Vol. 93, p. 338 (decided during the reign of Queen Anne, 1702-1714); Lightfoot v. Cameron, 2 Black. W. 1113, English Reports, Full Reprint, Vol. 96, p. 658 (decided Michaelmas Term, 17 George III, 1776) Arding v. Flower, 8 Term Rep. 534, 3 Esp. 117, English Reports, Full Reprint, Vol. 101, p. 1531 (decided May 14, 1800); Ex parte Jackson, 15 Ves. Jun., 117, English Reports, Full Reprint, Vol. 33, p. 699 (decided May 21, 1808); Pitt v. Coomes, 5 B. & Ad. 1078, 3 N. & M. 212, English Reports, Full Reprint, Vol. 110, p. 1091 (decided Jan. 28, 1834); Commonwealth v. Ronald, 1786, 4 Call (Va.) 97; Richards v. Goodson, 1823, 2 Virginia Cases 381. Long after the privilege had been established and recognized in favor of residents within the jurisdiction in which process was served, it yras extended to a person who resided in another jurisdiction and had voluntarily come into the jurisdiction of an English court. In Walpole v. Alexander, 3 Dougl. 45, English Reports, Full Reprint, Vol. 99, p. 530 (decided February 1, 1782), the defendant came from France to England and was there arrested for a debt. The opinion of the English Court of King’s Bench, delivered by Lord Mansfield, contains this language: “This is the first case of a witness coming from abroad who has required the protection of the Court. That protection is extended to witnesses coming from abroad, as well as to those who are resident in this country. Although in England a party may have the benefit of the evidence of a witness who has been arrested,, by means of a habeas corpus ad testificandum, yet, in order to encourage witnesses to come forward voluntarily, they are privileged from arrest. This privilege protects them in coming, in staying, and in returning, provided they act bona fide, and without delay, which is a question *343of reasonableness. Every reason which applies to the protection of a witness at home, holds more strongly with regard to a witness who comes from abroad. * * * I am of opinion, that all the rules which apply to the protection of witnesses here, hold with regard to witnesses coming from abroad, and that the defendant must be discharged.” (Emphasis supplied). The report of the case also states that “The protection afforded to witnesses is not on their own account, but for the purposes of justice(Emphasis supplied).
From the foregoing quotations it is manifest that the privilege applied to residents of the jurisdiction in which they were served with judicial process; that its purpose was not primarily the protection of the person served against hardship or inconvenience but the maintenance and the preservation of the dignity of the court and the integrity of judicial proceedings; and that long after the privilege had been firmly established and its application to those within the jurisdiction who were served with process had been widely recognized, it was “extended”, by and as a result of the decision in the Walpole case, to persons who were not residents of the jurisdiction in which they were served. The situation just outlined was the status of the privilege at common law as if existed when Article VIII of the Constitution of West Virginia became effective, and Section 21 of that article declares that “Such parts of the common law, and of the laws of this State as are in force when this article goes into operation, and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the Legislature.” As no statute of this State deals with the immunity of a person from service of civil or criminal process while attending court, the character and the scope of the privilege which applied alike to persons residing within as well as without the jurisdiction in which they were served remain the same as they were at common law when Article VIII of the Constitution was adopted. It is clear, therefore, that at common law and by virtue of the constitutional provision just referred to the petitioner, Fisher, was immune from service of process in a *344civil action against him while he was in the court room of the Municipal Court of the City of Charleston for the purpose of attending a preliminary hearing in that court of a charge of manslaughter against him.
The decisions of this Court in the cases of Whited v. Phillips, 98 W. Va. 204, 126 S. E. 916, 40 A. L. R. 83; Lang v. Shaw, 113 W. Va. 628, 169 S. E. 444, and Morris v. Calhoun, 119 W. Va. 603, 195 S. E. 341, cited and discussed in the majority opinion, recognize and uphold the common law rule of immunity from service of process of a person while attending court, and there is no pronouncement or statement in any of them which expressly or by necessary implication limits it to persons who are not residents, or denies its application to persons who are residents, of the jurisdiction in which they are served. In those cases the question of immunity from service of process of persons residing within the jurisdiction in which they were served was not presented or considered. In the Whited case the person served with process in a civil action in Roane County, West Virginia, was a resident of the District of Columbia who had voluntarily come into the jurisdiction of the circuit court of that county to answer an indictment in a criminal proceeding. In the Lang case and the Morris case the persons served were residents of counties in this State other than the particular county in which each of them was present to defend a criminal charge and was served with process in a civil action instituted in the county in which the process was executed. Those cases simply recognize the rule and apply it to nonresidents of the jurisdiction in which each of them was served with civil process. None of those cases sustains or justifies the holding of the majority in denying the application of the rule to persons who are residents in the jurisdiction in which the process is served.
In the light of the basic purpose of the rule of immunity from service of process of persons while attending court of protecting and maintaining the dignity and the power of the courts in the conduct of judicial proceedings, and from the standpoint of its historical scope and develop*345ment at common law with respect to persons residing within the jurisdiction in which they were served, as indicated by English and Virginia cases to which I have referred, the decision of the court in this proceeding is legally unsound, logically and historically insupportable, and necessarily productive of strange and anomalous results. By restricting the application of the rule to persons who are not residents of the particular jurisdiction in which they are served and refusing to apply it to persons who are such residents, the present decision affords protection to the dignity of the court and against interference with the conduct of its proceedings with respect to persons in one group but effectively denies it with respect to persons in a different group. Such partial and incomplete protection is logically inconsistent and legally indefensible. The indignity to the court and the interference with its orderly and uninterrupted procedure are just as pronounced by the service of process upon a resident within its jurisdiction while present and attending its sessions as that which would result from the service of a nonresident in the same situation. In so far as disruption of judicial proceedings may or does result from service of process upon a person in attendance at court the place of residence of the person upon whom process is served is entirely unimportant. I am unaware of any method of service of process which may be applied alike to residents and non-, residents which would be more disruptive of judicial proceedings in one instance than in the other. If service of process, civil or criminal, be permitted upon any person while attending court, regardless of the place of his residence, the dignity of the court is offended and the orderliness of judicial proceedings is subjected to interference and disruption. The privilege of immunity from service of process, if it is to be really effective and worthy of its continued existence, should be applied alike to all persons while attending court or it should be abolished and not apply to any of them. The strange, illogical, and historically unwarranted result of the present decision limiting the application of the immunity rule to nonresidents of the particular jurisdiction is that the residents of the *346jurisdiction in which process is served, who were the original beneficiaries of the rule, are denied its protection, and nonresidents, who after its establishment were merely afforded the same protection as residents, have now become its only beneficiaries.
An additional objectionable feature of the decision in this proceeding is that, contrary to the primary purpose of the rule as it existed at common law, which was not originally intended to be for the convenience or the benefit of the person upon whom process was served, the application of the rule as now restricted,gives a nonresident of the particular jurisdiction an unmerited advantage over a person who resides within it. The rule, when applied to a nonresident, effectively prevents the institution of any civil proceeding against him in the jurisdiction in which he may be while attending court. In effect he can not be sued except in the jurisdiction in which he resides. The local suitor who has a claim against him must follow him into the jurisdiction of his residence and there sue him or, for all practical purposes, abandon the claim. As to a person, however, who attends court in the jurisdiction in which he resides, and who by a proper application of the rule would be immune from service of process only during his presence and for a reasonable time after his attendance at court ends and may then be served, the rule, as now restricted, does not apply and he is subject to service of process while he is present in court even though he may at the time of such service be engaged in the actual trial of a case. In the one instance the prospective defendant is immune from service of process while at court and until, within a reasonable time, he leaves its jurisdiction, but in the other he can not get out of the courthouse or even off the witness stand without being subject to action at the hands of the process server. This presents a strange and unwarranted example of the discriminatory effect of the rule as now restricted and applied by this Court in favor of a nonresident of West Virginia and against a resident of any section of this State who is served with process in the jurisdiction in which he resides. Such a harsh and indefensible result is wholly for*347eign to any basic purpose of the rule and should not be possible of accomplishment in any instance. Conceding that the proper application of the rule affords greater protection to a nonresident in that he is permitted to escape service of process in a particular jurisdiction if he leaves it within a reasonable time after he has ceased his attendance at court than it gives to a resident of the jurisdiction who may be served in it when a reasonable time elapses after he has ceased to attend court, in all fairness and justice the rule should operate upon the nonresident and the resident alike while each of them is attending court and give to each the same immunity from service of process at and during that time.
It is also pertinent to remark that the restriction by the present decision of the application of the rule to a nonresident of the jurisdiction is entirely unnecessary in this instance, as there is no showing that the petitioner, Fisher, could not have been served in the jurisdiction of his residence with process in the civil action against him upon the expiration of a reasonable time after he had left the room of the municipal court. In the situation disclosed by the record it was not necessary to serve him with process while he was actually present at court.
I would recognize and apply the rule of immunity from service of process as it existed at common law and, in so doing, award a writ of prohibition in this proceeding.