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empt a nonresident party to the action, who | Kennedy, 25 Fed. 785; Larned v. Griffin, 12 comes into the state solely for the purpose Fed. 590; Huddcson v. Prizer, 9 Phila. 65; of attending the sale, from service of civil Langdon v. Baker, 5 Ohio, N. P. 118; Ralprocess.

ston v. Tobin, 9 Pa. Dist. R. 234; Kinne 2. A nonresident attorney at law is not

v. Lant, 68 Fed. 436; Plimpton v. Winslow, exempt from service of process when coming into the state to transact business 9 Fed. 365; Matthews v. Tufts, 87 N. Y.

before the courts in the interest of his client. 568; Person v. Grier, 66 N. Y. 126, 23 Am. 3. The common-law privilege accord- Rep. 35; Cooper v. Bogle, 122 N. C. 789, 29

ed to attorneys at law, of freedom from S. E. 1034; 1 Greenl. Ev. § 317; Mullen v. arrest on civil process, should be limited to Sanborn, 25 L. R. A. 721, notes, 79 Md. 364, the time in which they are actually in at- 47 Am. St. Rep. 421, 29 Atl. 522; Juneau tendance upon the court in the due course of their employment as attorneys.

Bank v. šscSpedan, 5 Biss. 65, Fed. Cas.

No. 7,582; Central Trust Co. v. Milwaukee (November 10, 1903.)

Street R. Co. 74 Fed. 442; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10,739.

The fact that the proceeding in question Superior Court for Dare County strik

was a judicial sale, and not an actual suit ing out the returns upon process issued to pending in a court, cannot make any mateinstitute actions against defendants and set- rial difference in the judgment of the court. ting aside the service. Reversed.

17 Am. & Eng. Enc. Law, 2d ed. p. 593; The facts are stated in the opinions. Parker v. Marco, 136 N. Y. 585, 20 L. R. A.

Messrs. E. F. Aydlett, George W. 45, 32 Am. St. Rep. 770, 32 N. E. 989; WestWard, and W. M. Bond for appellant. ern N. Y. & P. R. Co. v. Clermont & N. C.

Messrs. Pruden & Pruden and Shep- R. Co. 9 Pa. Dist. R. 299. herd & Shepherd, for appellees :

The service upon the attorney, Norris Montgomery, J., delivered the opinion Morey, was properly set aside.

of the court: It would be a quite intolerable state of Upon the motion to strike out the returns affairs if an attorney residing in New York, of the sheriff of service of process (sumor at Baltimore, or at Raleigh, could not go mons) upon the defendants the People's to another state to appear in its courts, or Bank of Buffalo and Norris Morey, the folin the courts of the United States, to repre- lowing are substantially the facts as found sent the interests of his clients in litigation by his honor: In February, 1898, an action there, without the liability of being sued was begun in the United States circuit court personally.

for the eastern district of North Carolina, 1 Greenl. Ev. § 316, note; Meeking v. in which the East Coast Cedar Company Smith, 1 H. Bl. 636; Humphrey v. Cum- was plaintiff and the People's Bank of Bufmings, 5 Wend. 90; Central Trust Co. v. falo, New York, American Exchange Bank Milwaukee Street R. Co. 74 Fed. 442; Hal of Buffalo, New York, William A. Ensign sey v. Stewart, 4 N. J. L. 366; Parker v. and Charles A. Ensign, and Henry H. PerHotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. sons, and John R. Hazel, receivers, were de 10,739; Miner v. Markham, 28 Fed. 387; fendants. The defendant Morey was one of Juneau Bank v. McSpedan, 5 Biss. 64, Fed. counsel of the defendants, and A. D. Bissell Cas. No. 7,582; Gilbert v. Vanderpool, 15 was vice president of the People's Bank. Johns. 242; Parker v. Marco, 136 N. Y. 585, Under a decree for the sale of the real es20 L. R. A. 45, 32 Am. St. Rep. 770, 32 N. tate described in the pleadings the sale took E. 989; Secor v. Bell, 18 Johns. 52; Whit- place at Manteo, North Carolina, on the man v. Sheets, 20 Ohio C. C. 1; Hoffman v. 12th November, 1902. Service of the sumBay County Circuit Judge, 113 Mich. 109, mons in the case before us was made person38 L. R. A. 663, 67 Am. St. Rep. 458, 71 N. ally upon Bissell by the sheriff of Dare coun. W. 480.

ty at the sale, Bissell being present at the The alleged service of the summons on Ar- sale and in the state by the advice of coun. thur D. Bissell while in attendance at the sel, and for no other purpose than to atjudicial sale at Manteo, North Carolina, on tend the sale. The summons was served upNovember 12, 1902, representing one of the on the defendant Morey in an action for defendants as its vice president in the par- debt in Wake county, North Carolina, on tition action, was void and of no effect. the 2d January, 1903, at his hotel, while he

Cooper v. Wyman, 122 N. C. 784, 65 Am. was in attendance upon the United States St. Rep. 731, 29 S. E. 947; Ballinger v. circuit court for the purpose of representing Elliott, 72 N. C. 596; Bridges v. Sheldon, his clients as their attorney in the matter 18 Blatchf. 295, 7 Fed. 17; Kauffman v. of a notice made in the cause for the contending court, see Hoffman v. Bay County Cir- | suit, see note to Mullen v. Sanborn, 25 L R cuit Court Judge, 38 L. R. A. 663.

A. 721. As to privilege of nonresident witness from

firmation of a sale made by certain commis- | At that time the defendants would then sioners, and for the entry of a decree con- have their day to make exceptions to the refirming the sale and directing title to be port, or to take any action concerning it made to the purchasers in accordance with which they might deem proper. We therethe practice of the United States courts.fore think his honor was in error in setBoth Bissell and Morey were at the times ling aside and vacating the return of the of the service of summons residents of New sheriff of Dare of the service of the sumYork state, and had been for many years mons upon the People's Bank of Buffalo. just preceding the service of the summons;

As to the service of the summons upon Bissell having been in North Carolina at Morey, the attorney at law: The commonthat time solely for the purpose of represent law rule on the question of service of procing the People's Bank at the sale, and the ess in civil actions upon attorneys is stated defendant Morey solely for the purpose of at. in 2 Taylor, Ev. § 1330, in these words: tending the court as attorney for his clients "In order to encourage witnesses to come in the case, and especially to attend to the forward voluntarily, they are not only promatters embraced in the motion. Upon tected from any action for defamation with motion of counsel in the court below who respect to such statements as they may make made special appearances, his honor struck in the course of judicial proceeding, but, out the returns of the sheriffs of service in common with parties, barristers, solicof process (summons) upon Bissell and Mo- itors, and in short all persons who have that rey, and it was adjudged by the court that relation to a suit which calls for their atthe service be vacated and set aside. tendance, they are protected from arrest up

As to the service made upon the defend- on any civil process while going to the place ant the People's Bank, the question resolves of trial, while attending there for the puritself into this form: Is service of a sum- poses of the cause, and while returning mons an invalid service if made upon a home.” In 3 Bl. Com. *289, the rule is managing officer of a nonresident corpora- laid down thus: “Also clerks, attorneys, tion who is in this state for the sole pur and all other persons attending the courts pose of attending a sale of land in which of justice (for attorneys, being officers of the his corporation is interested, and the sale court, are always supposed to be there atbeing made under a judicial decree of the tending) are not liable to be arrested by the circuit court of the United States in an ac ordinary process of the court, but must be tion in which the foreign corporation was sued by bill (called usually a bill of privia party? The answer to the question de lege), as being personally present in court.” pends upon whether or not the sale was such We have no statute law in this state afforda matter as amounted to a judicial pro- ing exemption to attorneys from the service ceeding and rendered Bissell's presence of court process upon them, and, as we have equivalent to a constructive presence in the seen, there was nothing at common law court. If so, his honor was correct in his which exempted an attorney from being judgment vacating the service of the sum- served with process in the nature of our mons on the People's Bank for in Cooper summons. The service of the summons upon v. Wyman, 122 N. C. 784, 65 Am. St. Rep. Morey was therefore regular, and should not 731, 29 S. E. 947, this court held that par- have been vacated and set aside by his honor. ties and witnesses who were nonresidents The question does not arise in this case were exempted from the service of summons as to whether the common-law exemption, to and other civil process from the time of its full extent, of an attorney from arrest their coming into this state, during their in a civil action, prevails in this state, but stay, and a reasonable time for returning, we think an expression of opinion on the and when they are here for no other pur- matter might not be out of place. The propose whatever. But we are of the opinion that vision of the Code embraced in § 641 prothe sale of the land, although made under vides that "all such parts of the common a judicial decree, was not such a judicial law as were heretofore in force and use withproceeding as would exempt a party inter- in this state, or so much of the common ested from service of civil process. Bissell law as is not destructive of, or repugnant to, was not before the court constructively. He or inconsistent with, the freedom and indewas not attending the taking of depositions pendence of this state and the form of govunder order of the court; nor was he doing ernment therein established, and which has anything which could alter the decree of not been otherwise provided for in whole or sale or affect in any manner the action of in part, not abrogated, repealed, or become the commissioner who had been ordered to obsolete, are hereby declared to be in full make the sale. That officer was directed force within this state.” The matter of exby the court to do all that was to be done emption from service of process in civil acon the day of sale; that is, to make the tions, as it prevailed at common law, has sale, and report the result back to the court. 'been the subject of revision by our statutory law, as will appear by reference to $8 | opinion is that while by statute in that state 1367 and 1735 of the Code. Section 1367 the prohibition of the arrest of counsel in a provides that witnesses shall be exempt from civil suit is restricted to the actual sitting arrest in civil cases during their attendance of a court at which he is engaged, this does at any court, and during the time such wit. not repeal the common-law exemption of nesses are going to and returning from the counsel from service of summons. But, on place of attendance; and § 1735 prohibits the other hand, the most eminent lawyer the sheriff or other officer from arresting which that state (Michigan) has prounder civil process any juror during his at- duced, Judge Cooley, in a note to his work tendance on or going to and returning from on Constitutional Limitations, 5th ed. p. any court of record. As we have said, we 161, says: “Exemption from arrest is not have no legislation on the subject of the ex- violated by the service of citation or declaraemption of attorneys from the service of tion in civil cases.” Besides, there was at process, but we think under our institutions, common law no exemption of lawyers from and because of obsoleteness by nonusage, the service of process other than arrest, and the privilege ought not to be afforded to attor- reason for the latter was that it would be neys, except when they are actually in at- an injury to clients whose, cause had been tendance upon court in the due course of prepared for trial by such counsel to sudtheir employment as attorney. In a very denly deprive them of his services; but servfew states of the Union the courts have held ice of a summons does not have that ef. that attorneys at law, while in attendance fect. In Robbins v. Lincoln, 27 Fed. 342, upon court, are exempted from the service of it is well said: "Inasmuch as resident atsummons, or other process not in arrest; torneys may be served with summons while but the reasoning upon which those deci. in attendance upon court, an attorney from sions are based is not satisfactory to us. It another state has no greater privilege. This must be borne in mind that the privilege of is exactly in point here. It is well known exemption from arrest afforded to attorneys that no lawyer in this state has ever in its while attending court is not so much for the history been privileged, or contended even benefit of the lawyers as it is for their client, that he was privileged, from service of sumand for the aid they give to the court as of- mons while attending court. If he were, as ficers thereof in the due administration of the Constitution (art. 4, § 22) now projustice. There was error in the vacation vides that "the courts are always open," no and setting aside of the sheriff's return of lawyer or judge could ever be served with the service of the summons upon Morey, the summons. In England, Blackstone says (3 attorney.

Bl. Com. 289) that lawyers could not be arError.

rested on civil process while in attendance

upon court, but could be served with a bill Clark, Ch. J., concurring:

without arrest, which was equivalent to The defendant Morey was served with service of a summons. The same is stated in summons in this case while at a hotel in this 8 Bacon's Abr., Privilege, B, with the modistate. He contends that because he was a fication that, if an attorney is sued with anlawyer resident in another state, and was other (as in this case), "he is not privattending court in this state as counsel in ileged from arrest, even though it is during a cause therein pending, the service should his attendance in court;" the evident reason be struck out. The proposition is a novel being to prevent class discrimination. The one in a land where equality before the law exemption of lawyers from arrest, it seems, is the ruling principle, and where special has now been repealed in England. In this privilege to any class of our citizens is not state the English privilege of exemption of only not recognized by law, but is prohib- lawyers from arrest has never been recogited by the Constitution. A careful exam. nized. It is well known that one of the ination shows no ground for the alleged ex- most distinguished lawyers and judges of emption of lawyers from service of sum- this state, whose portrait now hangs on the

There is no precedent in England to walls of this chamber, was arrested and imsustain the proposition, and none in this prisoned for debt, and long prevented from country, save a single case, a very recent attendance upon court. This barbarous proone,-Hoffman v. Bay County Circuit Judge, ceeding of imprisonment for debt, handed 113 Mich. 109, 38 L. R. A. 663, 67 Am. St. down from the common law, should have Rep. 458, 71 N. W. 480,—which holds that a been repealed long before it was; but while lawyer resident in the same state is priv- it was in force our predecessors applied it ileg from service of a summons while at- impartially, and the bench did not hold their tending the supreme court of the state or own members or their profession exempt. going or returning therefrom; but none of There was not at common law, and has not the authorities cited in that opinion sus been in this state, any exemption of anyone tain its conclusion. The reason given in the from service of summons, and the exemption

mons.

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reason

SO

as

mons.

from arrest under our statute is conferred turning home and adjusting his business, for only upon witnesses and jurors. Code, $8 the trial of his case is for a subsequent 1367, 1735. And even witnesses and jurors term. are not exempted from service of summons, The United States Constitution (art. 1, since such service would not deprive the 6) prohibits the arrest of a member of the court of their presence. There is no reason House of Representatives or a Senator durwhy lawyers should be privileged from ing the session, except for treason, felony, either arrest or service of summons, any and breach of the peace. There is a similar more than other officers of the court, as sher-provision as to the members of the legislaiffs, clerks, criers, and the like; and the leg- ture in Nebraska. The numerous and unj. islative power has therefore seen fit to make form authorities that such privilege from arthe exemption apply only to witnesses and rest does not exempt from service of process jurors, and, as to them, to make the ex- without arrest are collected in a very recent emption extend to freedom from arrest only. and able opinion (1903) in Berlet v. Weary As to nonresidents, in Cooper v. Wyman, (Neb.) 60 L. R. A. 609, 93 N. W. 238, and 122 N. C. 784, 65 Am. St. Rep. 731, 29 S. E. in Rhodes v. Walsh, 55 Minn. 542, 23 L. R. 947, this court held that nonresident wit- | A. 632, 57 N. W. 212; Gentry nesses and suitors, coming into this state Griffith, 27 Tex. 461. For stronger solely for the purposes of litigation, were

this is where, in most exempt from service while here for that pur- states, as well as in this, lawyers are pose only. This was put upon the ground of not exempt even from arrest. In Lyell v. necessity, because the state could not com- Goodwin, 4 McLean, 29, Fed. Cas. No. 8,616, pel their presence, and that, since no one a service of a summons from a United States else could fill their functions, it was in the court upon a judge of the state supreme interest of justice to give them “a safe con- court in his own court and while actually duct.” But this reasoning has not obtained on duty was set aside because being a supin some states, notably Illinois, which hold posed indignity to the court, and interferthat neither are exempt from service of sum- ence with its business. Even if this can be

Greer v. Young, 120 Ill. 184, 11 N. sustained and extended to counsel neither E. 167, citing authorities. In Nichols v. the dignity of the court nor the despatch of Goodheart, 5 Ill. App. 574, it was held that business, in this case, could be interfered a defendant involuntarily in the state by with by the service of summons upon Morey virtue of criminal process is not exempt at the hotel. Nor, in the nature of things, from service of summons; citing Williams v. is there any reason why a nonresident Bacon, 10 Wend. 636. Other states hold that lawyer, coming here for a consideration in the rule is restricted to witnesses only. the pursuit of his profession, should be exSherman v. Gundlach, 37 Minn. 118, 33 N. empt from the service of summons any more W. 549. Other states extend the exemption than a nonresident physician, or minister, to parties also, since they have become com- or a member of any other calling. The petent as witnesses (Mitchell v. Huron Cir- plaintiff sues for services rendered to the decuit Judge, 53 Mich. 541, 19 N. W. 176); fendants in this state at their request. If and our state has adopted that rule, but re- Morey is exempt from service because here stricts the exemption to those two,—"nonres in the exercise of his profession, a "commerident witnesses and parties.” An exhaustive cial tourist” is by the same right exempt brief of all the authorities showing that the from being served with summons in an acprivilege extends only to nonresident wit- tion for a hotel bill incurred while prosecutnesses and parties will be found in the notes ing his calling. Indeed, his ground for ex(18 pages) to Mullen v. Sanborn, 25 L. R. emption would be more plausible, for he is A. 721-738. No court whatever has in any engaged in interstate commerce, and the case extended the exemption to nonresident lawyer is not. Service of summons upon lawyers. The nearest approach to it is Сen- neither will interfere with the dignity of the tral Trust Co. v. Milwaukee Street R. Co. courts or their despatch of business. Our 74 Fed. 442, in which a subpæna served upon state extends no preference to nonresident nonresident counsel, which prevented his re- lawyers over those living here. Code, $$ 18, turning home and attending to business he 19; Manning v. Roanoke & T. River R. Co. had left unprovided for, was set aside. That 122 N. C. 828, 28 S. E. 963. case is not sustained by any previous author- As far back as 1769 (10 Geo. III. chap. ity, and cvidently rests more upon the 50) England passed a statute confirming ground stated therein that the nonresident the ruling of Sir Orlando Bridgman in Bensubpænaed was president of a railway com- yon v. Evelyn, Tr. 14 Car. II. C. B. Roll, pany than because he was also a lawyer; over a century before (1664), and cited in but, if sound, it is very far from sustaining Knowles' Case, 12 Mod., at p. 64 (1694), that an alleged exemption from service of sum- the privilege which members of Parliament mons which did not prevent Morey from re- 'enjoyed of being exempt from arrest did not exempt them from being sued, or from serv- 131 N. C. 54, 42 S. E. 447) was invalid beice of ordinary process without arrest. The cause made when he was attending a sale privilege was deemed too invidious a class of land under a decree of court. Such sale privilege, even for that age and country, may, like other acts, come before a court for and the claim was denied by Parliament it- review; but the sale itself is not a judicial self, and the contention put at rest. Cassia proceeding, and no exemption from service dy v. Steuart, 2 Mann. & G. 437. It is not of process extends to it. Such exemptions for an American court to reverse the process, are restricted to nonresident witnesses and and hold that, because lawyers were former parties, and are permitted, not on their own ly privileged from arrest during attendance account, or for their own benefit, but for upon court, therefore they are exempt from the benefit of the court in obtaining evidence being sued and being served with a sum- at a trial, when the court cannot compel the mons. By the census of 1900 there were presence of those who can testify to facts in 114,703 practising lawyers in the United issue in the litigation. This can have no States, of whom 1,263 were in North Caro- application to the attendance of a party at lina. If during all these years lawyers had a sale under a decree in the cause for his possessed the privilege of exemption from own convenience or benefit. In the days of the service of summons, assuredly more than privilege, under the rule of ecclesiastics in one case could be found to assert it. If it England, they held their own profession had been so asserted, it would have been exempt from the jurisdiction of the civil promptly repealed by statute, seeing that the courts, and set apart certain places where Parliament in England passed an act deny- all men were exempt from service of process ing a similar claim that its own members under the "privilege of sanctuary.” The were exempt from service of summons be- last remnant of such class privileges was recause privileged from arrest, and that mem- pealed. 21 James I. Judges have never bers and Senators in Congress are not priv- claimed for the legal profession or the courts ileged from service of summons, though ex- any similar exemption, either as to persons pressly exempted from arrest on civil process or places. With lawyers for judges, justice by the Constitution. Even the former priv- knows neither class nor caste, and admits no ilege of lawyers from arrest has been modi- special privileges, and for its administration fied in some states and expressly repealed in "every place is a temple, and all seasons others, and in others still-as in North Caro- summer.” lina—it has never been recognized or ac- The judgnient setting aside the service of knowledged.

summons must be reversed. Equally unfounded is the claim that serv. ice upon the other defendant, the officer of a Douglas, J., concurs in the above concorporation (Jester V. Steam Packet Co. 'curring opinion.

OHIO SUPREME COURT.

a

PITTSBURG, CINCINNATI, CHICAGO, & tempted under such circumstances or in such ST. LOUIS RAILWAY COMPANY, Piff.

manner as to constitute recklessness."

Those conditions appearing, a recovery will in Err.,

not be prevented by the fact that negligence of the person whose rescue is attempted con

tributed to his peril, nor by the fact that LYNCH.

the plaintiff is an employee of the defendant. (........ Ohio.........)

(October 27, 1903.) • In an action to recover on account

of injuries sustained in an effort to save human life,

E the conditions

upon

rawas County to review a judgment afwhich there may be a recovery are, "that the person whose rescue is attempted must be in firining a judgment of the Court of Common a position of peril from the negligence of the Pleas in plaintiff's favor in an action defendant, and the rescue must not be at- brought to recover damages for personal

injuries alleged to have been caused by de*Headnote by the COURT.

fendant's negligence. Affirmed. NOTE.-For other authorities in this series as to voluntarily incurring danger to rescue Statement by Shauck, J.: another person, see Corbin v. Philadelphia, 49 The railway company, for purposes of opL. R. A. 715, and note; also West Chicago erating its road, maintains 10 tracks over Street R. Co. v. Liderman, 52 L. R. A. 655, and Becker v. Louisville & 'N. R. Co. 53 L. R. the grade crossing of Third street, in DenA. 267.

nison; that street being the principal

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