dissenting:
Being of the opinion that the refusal of a writ of prohibition in this case virtually emasculates the principle relative to immunity of a litigant from the service of judicial prbeess in the circumstances here shown, I respectfully dissent.
The rule of immunity of a litigant in attendance upon a court from the service of judicial process is of ancient *118origin. Some authorities say that it existed in the reign of Edward the Confessor. Other authorities say that references were made to such rule in the Year Books of England as early as the reign of Henry VI. See Whited v. Phillips, 98 W. Va. 204, 126 S. E. 916; dissenting opinion of Judge Haymond in Fisher v. Bouchelle, 134 W. Va. 333, 61 S. E. 2d 309, for the historic background of this ancient rule of the common law.
Originally the rule of immunity applied only to the judges and attaches of a court, but gradually it has been extended to cover witnesses and litigants as well. It seems to have been founded on reasons of public policy in that service of process on a judge or official of a court would interfere with the orderly administration of justice and would detract from the dignity of the court. An additional reason in modern decisions has been assigned: that a witness should be free of fear, embarrassment, vexation and harassment while attending a court as a witness in one cause and therefore should be immune from service in a different cause. The same reason has been assigned for the protection of a litigant, that he should not be vexed by the service of process in another action or criminal prosecution.
In this jurisdiction there is no statute dealing with the subject of immunity from service of judicial process to a person to whom the rule applies. The law on the subject will be found in the opinion of this court in Whited v. Phillips, supra, and cases subsequently decided by this court hereinafter cited. This court in the Whited case used the following language: “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’.” In the Whited case the defendant, though a resident of Wash*119ington, D. C., voluntarily entered into a bond conditioned for his appearance before the Circuit Court of Roane County, West Virginia. In response to that condition, he appeared and while there was served with process commencing an action at law.
In the case of Lang v. Shaw, 113 W. Va. 628, 169 S. E. 444, a person who was charged with a criminal offense in *a county other than that in which he resides, was released upon his own personal recognizance, and in accordance with the condition or such recognizance, appeared in the county where the same was taken, in answer to a criminal charge. While there, he was served with process commencing a civil action. The person so served was held to be immune from service of such process. In Lang v. Shaw, supra, the case of Netograph Mfg. Co. v. Scrugham (N. Y.), 90 N. E. 962, disapproving the application of immunity was discussed, and the case of Michaelson v. Goldfarb, (N.J.L.), 110 A. 710, 711, was cited with approval, in which case the rule of immunity applicable to a defendant under an indictment was upheld.
The same question with reference to the immunity of defendant in a criminal action came before this court in the case of Morris v. Calhoun, 119 W. Va. 603, 195 S. E. 341. In the Morris case this court held in the third point of the syllabus: “A defendant in a civil action cannot be legally served with process therein in a county other than that of his legal residence, when in such county in obedience to legal process or its equivalent * * * [Emphasis supplied] In the body of the opinion in the Morris case this court uses the following language: “It appears, therefore, that whether the presence of Morris in Hampshire County was voluntary or in obedience to the citation, his exemption from civil process existed until the necessity for his presence had passed and a reasonable time thereafter * * * .” At another point in the Morris case this court uses the following language: “Whether his presence in that county was voluntary or involuntary is immaterial; nor is it of consequence that no warrant had been issued or an indictment returned against him”. In the case of *120Godby v. Chambers, 130 W. Va. 115, 42 S. E. 2d 255, this court held that a sentence for a misdemeanor was not process within the meaning of the immunity rule here discussed, and that a person having been convicted of crime and serving the sentence imposed as a result of such conviction is not immune from service of process sued out in a civil proceeding. In the case of Fisher v. Bouchelle, supra, this court denied the application of the immunity rule where a defendant in a civil action was served while attending court in the county of his legal residence.
In the State of Virginia a leading case on this subject is that of Commonwealth v. Ronald, 4 Call (8 Va.) 97. For a later case decided by the Supreme Court of Appeals of Virginia, see Wheeler v. Flintoff (Va.), 159 S. E. 112.
Examination of cases cited in the majority opinion necessarily leads to the conclusion that they lose some of their pursuasive force when it is considered that in many of those cases the court considered statutory provisions dealing with the immunity rule. In this jurisdiction we have no statute concerning the immunity of a litigant.
The specific question here considered is: May a defendant in a criminal charge, confined in jail on such charge and unable to furnish bail bond, be served with process commencing a civil action based on the same facts as those involved in the criminal prosecution?
An examination of the various authorities will disclose that the courts of last resort which have considered this question are not in accord and that the authorities are in confusion with respect to the same. For the variant decisions, see Fifth Decennial Digest, Volume 37, p. 1428; Fourth Decennial Digest, Volume 26, p. 587; Third Decennial Digest, Volume 22, p. 1429; American Digest, Second Decennial Edition, Volume 18, p. 1222; American Digest, Decennial Edition, Volume 16, p. 1443; where the subject of immunity of parties to litigation is dealt with in variant and diverse ways.
The case of Cook v. Cook (N. J.), 28 A. 2d 178, holds that a non-resident of the state voluntarily within the *121jurisdiction, of a state as a defendant in a criminal case is immune from the service of the writ ne exeat. See Feuster v. Redshaw (Md.), 145 A. 560; Lingemann v. Deknke (Mich.), 226 N. W. 259; Annotation, 65 A.L.R. 1370; Annotation, 14 A.L.R. 771. For a restricted application of the rule of immunity, see the case of White v. Ordille (N. C.), 50 S. E. 2d 499.
In Alderson on Judicial Writs and Process, Page 273, the following pertinent and persuasive language is used: “The inconvenience, expense, disadvantage and peril of one who is compelled to litigate his rights in a strange jurisdiction, are vividly and correctly detailed in the cases, and constitute the chief reason for refusing to permit him to be subjected to a service of process when in a foreign jurisdiction by compulsion. The reason prevails with equal force whether the party suing had aught to do with the circumstances attending the presence of the person in the jurisdiction, or was entirely innocent of the fraud, force or criminal proceeding which brought him there. If he is there involuntarily, that is by fraud or compulsion, he is and should be within the rule, and justice demands that his personal rights be not violated by the service of process, regardless of whether or not the suing party is in any way responsible for the unwilling presence.” See Bowers on Process and Service, Section ,382.
In the instant case, Sivnksty came into Gilmer County voluntarily for the purpose of fishing. While there, he had an accident and thereafter was incarcerated in the jail. His presence in Gilmer County, originally voluntary, became involuntary. As stated in Morris v. Calhoun, supra, I think whether Sivnksty came into Gilmer County voluntarily or otherwise has no pertinancy to the question here presented.
Sivnksty will be forced to trial in a county far from his residence, among strangers. Even though he may have lead an exemplary life and may have had a good reputation in the county of his residence, he would derive little or no benefit from those factors. In addition, he was harassed in his defense of the criminal charge by the in*122stitution of the civil suit against him while the criminal charge was still pending. This case is dissimilar from Godby v. Chambers, supra. In that case, the defendant had already been convicted.
Another element enters into this case. It is a matter of common knowledge that in this day and age there is much travel by motor vehicles. Under the rule laid down in the majority opinion, the luckless motorist, who has the misfortune to have an accident injuring persons or property in a county or state far from his residence, may be arrested and incarcerated in jail on a criminal charge, based on a real or fancied violation of an ordinance or statute having no connection with the accident, and while so incarcerated, the person suffering the injury would immediately commence an action in his own home county for the recovery of alleged damages. This could and may lead to widespread abuse of judicial process.
I think that the award of a writ of prohibition in this case would have been consonant with the decided cases in this jurisdiction hereinabove cited, as well as the well considered cases in other jurisdictions cited in this note of dissent.
I would therefore have awarded the writ of prohibition prayed for herein.