The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-11-11

same Is stated In 8 Bacon'S Abr. 'Priyi
lege' B, with the modification that if Tn
attorney is sued with another Gas in this
| case) he is not privileged from arrest
even though it is during his attendance
| in court the evident reason being to
prevent class discrimination. The ex-
emption of lawyers from arrest, it seems,
has now been repealed II England. In
this State, the English privilege of ex-
emption of lawyers from arrest has never
! been recognized. 1t is we'll known thai
enc 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 attending upon court.
This barbarous proceeding OF lmprlson-
ment for debt handed down from the com
mon law, should have been repealed long
before 1T was, but while it was n 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
rot been in this State, any exemption OF
any one from service of summons, and
the exemption from arrest under our
statute is conferred only upon witnesses
ard jurors. Code Sec. 1867 and 1885. And
even witnesses and jurors are not eX-
empted from service of summons, since
such service would not deprive the court
OF their presence. There is no reason
why lawyers should be privileged from
either arrest or service of summons, any
more than other officers of the court, as
sheriffs clerks, criers, and the like, and
the legislative power has therefore seen
fit to make the exemption apply only &c
witnesses and jurors, and, as to them.
to make the exemption extend to free
doom from arrest only"
And further on:
mo court whatever has in any case ex-
tended the exemption to nonresident
lawyers. The nearest approach to it Is
Trust Co. V. Railroad, "a Fed. Rep. 442, in
which a subpoena, served upon non-resi-
dent counsel which prevented his return
ing home and attending to business he
had left unprovided for, was set aside
That case is not sustained by any pre-
vious authority and evidently rests more
upon the ground stated therein that the
! nonresident subpoenaed was president OF
a railway company, than because he was
also a lawyer, but. if sound. it IS very
far from sustaining an alleged exemption
from service OF summons, which did not
prevent Grey from returning home and
adjusting his business. for the trial OF
his case is for a subsequent term"
Continuing, the opinion says:
"Nor, in the nature OF things, is there
any reason why a nonresident lawyer
coming here for consideration in the
pursuit Of his profession, should be ex-
empt from the service OF summons any
mere than nonresident physician. o.
minister, or a member OF any other call
ing The plaintiff sues for services rem
dered to the defendants in this State at
their request. IL Grey is exempt from
service because herein the exercise of hi
profession, commercial tourist is by
the same right exempt from being served
with summons in an action for hote
bill incurred while prosecuting his call
ing. Indeed his ground for exemption
would be more plausible, for he Is en-
gagged i'll Interstate Commerce and the
lawyer is not. Service Of summons upon
neither will interfere with the dignity
of the courts or their dispatch OF bust
ness. Our State extends no preference TO
nonresident lawyers over those living
here Code Sec. Is and 10; Manning ".
Railroad. 192 y. c.. p. SIS.
"As far back as 1863 90 Geo. III CHI. 500
England passed a statute confirming the
ruling of Sir Orlando Bridgeman in Ben
yon v Evelyn TT. IA Car II. c. B. Roll
over a century before Q66D and cited IN
Knowles case Q69D that the privilege
which Members Of Parliament enjoyed Of
being exempt from arrest did not exempt
them from being sued or from service OF
ordinary process. without arrest. The
privilege was deemed too invidious class
privilege even for that age and country
and the claim was denied by Parliament
itself. and the contention put at rest.
Cassidy V. Stewart, 2 Man and G.. 437. 1t
is not for an American court to reverse
the process and hold that because law
yers were formerly priyeiegeed from ar
rest during attendance upon court, there
fore they are exempt from being sued and
being served with a summons. BY the
census of 1900 there were 1l4.703 prac-
ticing lawyers in the United States, OF
whom 1858 were Ill North Carolina. II,
during ell these years. lawyers had pos
sessed the privilege of exemption IRON
the service of summons assuredly more
than one case could be found to assert it
II it had been SO asserted 1t would have
been promptly repealed by statute see
ing that the Parliament in England
passed an act denying similar claim that
it's own members were exempt from ser
vice Of summons because privileged from
arrest, and that members and Senators
in Congress are not privileged from SER
vice of summons though expressly ex-
empted from arrest in civil process, by
the Constitution Even the former priv
ilege of lawyers from arrest has been
modified in some States and especially
| repeal led in others, and in others still, as
in North Carolina. it has never been rec
ognized or acknowledged.
The opinion concludes as follows