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; Ralston 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. McSpedan, 5 Biss. 65, Fed. Cas. No. 7,582; Central Trust Co. v. Milwaukee Street R. Co. 74 Fed. 442; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10,739.

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 ting 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 the service be vacated and set aside.

relation to a suit which calls for their attendance, they are protected from arrest upon any civil process while going to the place of trial, while attending there for the purposes of the cause, and while returning home." In 3 Bl. Com. *289, the rule is laid down thus: "Also clerks, attorneys, and all other persons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege), as being personally present in court." We have no statute law in this state affording exemption to attorneys from the service of court process upon them, and, as we have seen, there was nothing at common law which exempted an attorney from being served with process in the nature of our summons. The service of the summons upon Morey was therefore regular, and should not have been vacated and set aside by his honor.

As to the service made upon the defendant the People's Bank, the question resolves itself into this form: Is service of a summons an invalid service if made upon a managing officer of a nonresident corporation who is in this state for the sole purpose of attending a sale of land in which his corporation is interested, and the sale being made under a judicial decree of the circuit court of the United States in an action in which the foreign corporation was a party? The answer to the question depends upon whether or not the sale was such a matter as amounted to a judicial proceeding and rendered Bissell's presence equivalent to a constructive presence in the court. If so, his honor was correct in his judgment vacating the service of the summons on the People's Bank for in Cooper v. Wyman, 122 N. C. 784, 65 Am. St. Rep. 731, 29 S. E. 947, this court held that parties 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 under order of the court; nor was he doing anything which could alter the decree of sale or affect in any manner the action of the commissioner who had been ordered to make the sale. That officer was directed by the court to do all that was to be done on the day of sale; that is, to make the sale, and report the result back to the court.

pendence of this state and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this state." The matter of exemption from service of process in civil actions, as it prevailed at common law, has been the subject of revision by our stat

utory law, as will appear by reference to §§ | 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, and because of obsoleteness by nonusage, the privilege ought not to be afforded to attorneys, except when they are actually in at tendance upon court in the due course of their employment as attorney. In a very few states of the Union the courts have held that attorneys at law, while in attendance upon court, are exempted from the service of summons, or other process not in arrest; but the reasoning upon which those decisions are based is not satisfactory to us. It must be borne in mind that the privilege of exemption from arrest afforded to attorneys while attending court is not so much for the benefit of the lawyers as it is for their client, and for the aid they give to the court as of ficers thereof in the due administration of justice. There was error in the vacation and setting aside of the sheriff's return of the service of the summons upon Morey, the attorney. Error.

Clark, Ch. J., concurring:

common law no exemption of lawyers from service of process other than arrest, and the reason for the latter was that it would be an injury to clients whose, cause had been prepared for trial by such counsel to suddenly deprive them of his services; but service of a summons does not have that ef fect. In Robbins v. Lincoln, 27 Fed. 342, it is well said: "Inasmuch as resident attorneys may be served with summons while in attendance upon court, an attorney from another state has no greater privilege. This is exactly in point here. It is well known that no lawyer in this state has ever in its history been privileged, or contended even that he was privileged, from service of summons while attending court. If he were, as the Constitution (art. 4, § 22) now provides that "the courts are always open," no lawyer or judge could ever be served with summons. In England, Blackstone says (3 Bl. Com. 289) that lawyers could not be arrested on civil process while in attendance upon court, but could be served with a bill without arrest, which was equivalent to service of a summons. The same is stated in 8 Bacon's Abr., Privilege, B, with the modification that, if an attorney is sued with another (as in this case), "he is not priv

his attendance in court;" the evident reason being to prevent class discrimination. The exemption of lawyers from arrest, it seems, has now been repealed in England. In this state the English privilege of exemption of lawyers from arrest has never been recog

The defendant Morey was served with summons in this case while at a hotel in this state. He contends that because he was a lawyer resident in another state, and was attending court in this state as counsel inileged from arrest, even though it is during a cause therein pending, the service should be struck out. The proposition is a novel one in a land where equality before the law is the ruling principle, and where special privilege to any class of our citizens is not only not recognized by law, but is prohibited by the Constitution. A careful exam-nized. ination shows no ground for the alleged exemption of lawyers from service of sum mons. There is no precedent in England to sustain the proposition, and none in this country, save a single case, a very recent one,-Hoffman v. Bay County Circuit Judge, 113 Mich. 109, 38 L. R. A. 663, 67 Am. St. Rep. 458, 71 N. W. 480,-which holds that a lawyer resident in the same state is privileged from service of a summons while attending the supreme court of the state or going or returning therefrom; but none of the authorities cited in that opinion sustain its conclusion. The reason given in the 'from service of summons, and the exemption

It is well known that one of the most distinguished lawyers and judges of this state, whose portrait now hangs on the walls of this chamber, was arrested and imprisoned for debt, and long prevented from attendance upon court. This barbarous proceeding of imprisonment for debt, handed down from the common law, should have been repealed long before it was; but while it was in force our predecessors applied it impartially, and the bench did not hold their own members or their profession exempt. There was not at common law, and has not been in this state, any exemption of anyone

term.

from arrest under our statute is conferred | turning home and adjusting his business, for only upon witnesses and jurors. Code, §§ the trial of his case is for a subsequent 1367, 1735. And even witnesses and jurors 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 uniislative 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 V. nesses and suitors, coming into this state Griffith, 27 Tex. 461. For a stronger solely for the purposes of litigation, were reason this is SO where, as 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 mons. 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 Cen- 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 subpoena 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 Bensubpoenaed 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

of process extends to it. Such exemptions are restricted to nonresident witnesses and parties, and are permitted, not on their own account, or for their own benefit, but for the benefit of the court in obtaining evidence at a trial, when the court cannot compel the presence of those who can testify to facts in issue in the litigation. This can have no

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. Cassi-proceeding, and no exemption from service dy v. Steuart, 2 Mann. & G. 437. It is not for an American court to reverse the process, and hold that, because lawyers were formerly privileged from arrest during attendance upon court, therefore they are exempt from being sued and being served with a summons. By the census of 1900 there were 114,703 practising lawyers in the United 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 possessed the privilege of exemption from the service of summons, assuredly more than one case could be found to assert it. If it had been so asserted, it would have been promptly repealed by statute, seeing that the Parliament in England passed an act denying a similar claim that its own members were exempt from service of summons because privileged from arrest, and that members and Senators in Congress are not privileged from service of summons, though expressly exempted from arrest on civil process by the Constitution. Even the former privilege of lawyers from arrest has been modified in some states and expressly repealed in others, and in others still-as in North Carolina-it has never been recognized or acknowledged.

a sale under a decree in the cause for his own convenience or benefit. In the days of privilege, under the rule of ecclesiastics in England, they held their own profession exempt from the jurisdiction of the civil courts, and set apart certain places where all men were exempt from service of process under the "privilege of sanctuary." The last remnant of such class privileges was repealed. 21 James I. Judges have never claimed for the legal profession or the courts any similar exemption, either as to persons or places. With lawyers for judges, justice knows neither class nor caste, and admits no special privileges, and for its administration "every place is a temple, and all seasons summer."

The judgment setting aside the service of summons must be reversed.

Douglas, J., concurs in the above con

Equally unfounded is the claim that service upon the other defendant, the officer of a corporation (Jester v. Steam Packet Co.curring opinion.