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mines the taxability or non-taxability of the transfer. In the case of the resident decedent all of his property (excluding real estate beyond the state boundaries) is subject to the tax. In the case of the nonresident decedent, however, it is only the property within the jurisdiction at the time of his death that is subject to the operation of the statute. Therefore the right of redemption, or in other words, the property to which the personal representative of the resident decedent succeeds is in any event certainly subject to tax whether the tax be imposed at the time of the death or more prudently at the time when the value of the property which is the subject of taxation shall have become ascertainable upon the termination of the pledge contract, whereas the right of redemption, or in other words, the property to which the personal representative of the non-resident decedent succeeds at death is exempt in any event by reason of its situs at the foreign domicile and while any subsequent transaction in compliance with the terms of the contract of pledge may serve to make certain the value of the right to which he succeeds, it cannot be given the effect of changing the status of the property which has already been transferred to the personal representative free from the operation of the transfer tax statute any more than such a subsequent transaction changes the status of the property transferred in the case of the resident decedent. To repeat, it is the transfer or the right of succession to the property that is subjected to the tax and not the property itself. The subsequent redemption of the New Jersey shares if effected by the personal representative of the non-resident decedent can be regarded as nothing else than an investment of other funds of the estate which must necessarily be employed for that purpose.

New York, N. Y.

JOSEPH F. MCCLOY.

PROCESS-SERVICE ON NON-RESIDENT

ATTORNEY.

PAUL v. STUCKEY.

Supreme Court of Arkansas. Nov. 20, 1916.

189 S. W. 676.

Service of summons in a civil action upon an attorney while engaged in the trial of a cause in a county other than that of his residence does not contravene any rule of public policy nor any statute, but attorneys come within the general class against whom suits may be brought in any county in which defendant is summoned under direct provision of Kirby's Dig. § 6072, and section 3129, exempting witnesses attending trial from being sued in counties where they do not reside, not applying.

WOOD, J. The appellant filed her complaint against the appellee in the Pulaski circuit court, alleging that appellee was indebted to the estate of John P. Paul in the sum of $700, and asking that she, as his administratrix, have judgment for that amount. She had summons issued. Appellee is an attorney. He was engaged in defending one Atkinson, who was on trial charged with a felony in the Pulaski circuit court. Appellee, while thus engaged, was called to the door of the courtroom and the summons issued in the civil suit was served upon him. Appellee at that time resided in Jackson county. He moved to quash the service of summons. The court sustained the motion, dismissed appellant's complaint, and she appeals.

Was the service valid? The action instituted against the appellee belongs to that class that may be brought in any county in which the defendant is summoned. Section 6072 of Kirby's Digest. We have a statute expressly exempting witnesses from being sued in counties where they do not reside, while going, returning, or attending in obedience to a subpœna. Kirby's Digest, § 3129. But there is no such statute concerning attorneys at law. They fall, so far as statutory enactment is concerned, within the general class against whom suits may be brought in any county in which the defendant is summoned, Kirby's Digest, § 6072, supra.

The appellee contends that attorneys, while attending court in their professional capacity in counties other than their residence, should be exempt from the service of summons in civil actions against them in those counties under the doctrine announced by this court in Powers v. Arkadelphia Lumber Co., 61 Ark. 504, 33 S. W. 842, 54 Am. St. Rep. 276, and Martin v. Bacon, 76 Ark, 158, 88 S. W. 863, 113 Am. St. Rep. 81, 6 Ann. Cas. 336, to the effect

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that suitors, while in attendance upon judicial
proceedings in courts other than that of their
residence, are privileged from the service of
summons in other adverse proceedings insti-
tuted against them in those counties.

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Arkadelphia Lumber Co.,

"One line of authorities rests the privilege solely on the familiar constitutional ground of freedom from arrest on civil process, but we prefer to rest it also on the ground of a sound public policy, so aptly expressed by the Supreme Court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 40 (18 N. E. 483, 15 Am. St. Rep. 547), thus: 'The question is one which profoundly concerns the free and unhampered administration of justice in the courts. That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer to some other adverse judicial proceeding against them, is so far a rule of public policy that it has received almost universal recognition wherever the common law is known and administered.'"

And again, quoting from Lamkin v. Starkey, 7 Hun. (N. Y.) 479, we said:

"The court has power independently of the statute, to protect its suitors, officers, and witnesses."

In Martin v. Bacon, supra, we quoted the language of Judge Elliott in Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48, as follows:

"High considerations of public policy require that the law should encourage him (the nonresident suitor) to freely enter our forums by granting immunity from process in other civil actions, and not discourage him by burdening him with the obligation to submit to the writs of our courts if he comes within our borders."

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It is shown by numerous authorities collated in the note to Mullen v. Sanborn, et al., 25 L. R. A. 721, that the rule arose and exists as one of the necessities of judicial administration, because without it it would be impossible for the courts to fully and freely administer justice. It is there succinctly stated that:

"The rule exists in order that causes may be fully heard and justice administered in an orderly manner. The privilege is to subserve public interests."

Now the service of summons in a civil action upon an attorney while engaged in the trial of a cause pending in a county other than that in which he resides does not contravene any doctrine of public policy as above defined and as announced in our decisions supra. The service of summons is had by delivering to the

defendant a copy thereof, or, if he refuses to re
ceive it, by offering him a copy thereof. Sec
tion 6042, Kirby's digest.

We cannot see that the mere service of sum-
mons upon an attorney while in attendance
upon a court in his professional capacity would
in any way infringe upon the dignity or invade
the prerogatives of the court. It could not
interrupt the orderly progress of trials nor tend
in the least to hamper and embarrass the courts
in the administration of justice. Therefore, as
we view it, the public good would not be ad-
versely affected by such procedure, and the rule
of public policy applicable to suitors does not
obtain.

In Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962, 27 L. R. A. (N. S.) 333, 134 Am. St. Rep. 886, it is held that (quoting syllabus):

"The exemption of a suitor or witness from process is not a natural right, but a privilege having its origin in the necessity for protecting courts from interruption and delay and witnesses or parties from the temptation to disobey process." It "is in derogation of the common natural right which every creditor has to collect his debt by subjecting his debtor to due process of law in any jurisdiction where he may find him, and therefore the privilege should not be extended beyond the reason of the rule upon which it is founded."

Our statute giving a right of action in any county in which the defendant is summoned" is but declarative of and in conformity with this natural right.

The appellee contends that the rule of public policy declared by this court in Powers v. Arkadelphia Lumber Co. and Martin v. Bacon, supra, exempting non-resident suitors from the operation of the statute, should also be extended, by analogy, to attorneys at law while attending in their professional capacity upon judicial proceedings in counties other than that of their residence. This contention is unsound. The reason upon which the rule is founded, as we have shown, is that it is to the public interest and for the public good that courts should be untrammeled in their efforts to administer justice between parties to causes pending before them. Parties litigant are entitled to be heard in court by themselves and counsel. In criminal prosecutions the accused is guaranteed this right by express constitutional and statutory law. Article 2, § 10, Cont. 1874; Kirby's Digest, § 2273. So far as the interest of the public is concerned, the ends of justice are fully satisfied when suitors are protected in the right to be heard by themselves and counsel. The selection of counsel by suitors is a matter purely of private concern, and

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not of public interest. It is not essential to the administration of justice, and no rule of public policy therefore requires, that courts should extend the privilege, which was intended for the protection of its own authority and dignity and to enable it to do justice between the parties, so as to grant immunities to attorneys from their individual liabilities. The attorney is only the alter ego of his client, in the limited sense that he may plead in matters pertaining to his client's cause. The attorney is not subject, like the suitor, to the process of the court issued to enable it to carry out its orders in pending causes. He cannot stand in his client's shoes as to the consequences of the judicial proceedings. Therefore it is not necessary for courts in order to deal out justice between parties litigant, to shield a non-resident attorney from the service of process in a matter that concerns him only, and which in no manner affects his client's cause.

The effect of the service of summons upon a non-resident attorney does not operate, like an arrest, to deprive the client of the services of his attorney, nor does it tend to interfere with the dignity and authority of the court, and thus to delay and obstruct its orderly procedure in the administration of justice. Nor can it be said that the mere service of a summons upon an attorney while in attendance upon the court could have the effect to so embarrass the attorney and distract his attention from the cause of his client as to virtually deprive the latter of the benefit of counsel and thus deny him his legal right.

When an attorney goes into a jurisdiction other than that of his residence to represent a client before a court in a cause there pending, he does so by virtue of private contract and of his own motion. His case is not like that of one who has to attend upon the court as a suitor, a juror, or a witness. He is not under the protection of the court because he is in attendance thereon in obedience to its process or because he has entered its portals as a suitor. While he takes an oath to support the Constitution and laws, and is an officer of the court in the broad sense that he is licensed to practice before it and is amenable to rules adopted for the dispatch of the business of the court and subject to its orders in conducting any business he may have before the court, yet his employment is private, and while pursuing his practice before the court he is engaged in his own private business. He does not occupy the relation to the court of one of the officers chosen

its business in the administration of justice. But, if he did, there is no rule of public policy requiring the court to shield even its officers from the service of process in civil actions, unless the service of such process would tend to impair the authority and dignity of the court and to obstruct the administration of justice. We cannot see that the mere service of a summons in a civil action upon any of the officers of the court while in the discharge of their duties would in any manner reflect upon the dignity of the court, or lessen its authority, or impede the administration of justice.

Our attention is directed by learned counsel for appellee to quite a number of cases in support of their contention that the privilege extends to attorneys as well as to witnesses and parties. We have examined these cases carefully, and it would too greatly extend this opinion to review them seriatim. ***

Perhaps the strongest case cited by counsel for appellee is that of Brooks v. State ex rel. Richards, 3 Boyce (Del.) 1, 79 Atl. 790, 51 L. R. A. (N. S.) 1126, Ann. Cas. 1915A, 1133, where it is said:

"The privilege of parties to judicial proceedings, as well as witnesses, attorneys, judges, jurors and certain other officers of the court, of going to the place where they are held, and remaining as long as necessary, and returning wholly free from the restraint of process in other civil proceedings, has been long settled and liberally enforced. The rule is of ancient origin, and is mentioned in the Year Books as early as Henry VI. It came to us out of the common law with only such modifications as were required to make its principle harmonize with American institutions and to be in accord with American jurisprudence. * * * The privi lege arises out of the authority and dignity of the court, it is founded on the necessities of judicial administration, it has for its primal object the protection of the court and not the immunity of the person, and is extended or withheld only as judicial necessities require."

There was a time in England when men, however honest they may have been, if unable to pay their debts, were subject to arrest and imprisonment in the tower. This barbarous practice prevailed from the enactment of the "Statute of Merchants," in 1288, until it was finally abolished in the reign of Victoria, in 1868. Statutes 32 and 33 Vict., p. 571. There was also a long period in England when, under the influence and domination of a rampant ecclesiasticism, kings and popes alike granted numerous scandalous immunities and privileges to a favored few of special classes. World's History and its Makers, vol. 1, p. 362; 1 Green's History arrest should have taken root and flourished in the soil of England at a time when it was rich in the production of special privileges, and when poor, but honest, men had to live in mortal dread of being arrested and imprisoned for debt. It is easy to see that in such times witnesses, jurors, suitors, and attorneys might be intimidated from attendance upon the courts, and that the court would therefore be hampered in the administration of justice, and hence the necessity for extending the privilege from arrest to these persons while going to, attending upon, and returning from the courts. Thus arose the above doctrine of the common law which some American courts attempt, by analogy, to apply in this country. But there is no analogy. For here the whole fabric of government rests upon the principles of equality and liberty, and the doctrine of equal rights to all and special privileges to none finds expression not only in the Constitution of the United States, but in the organic law of every state in the Union.

by the public for the discharge of the public | of England, p. 164 et seq. It is not surprising, duty of assisting the court in the conduct of therefore, that this doctrine of privilege from

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We can readily understand how the arrest of an attorney during the progress of a trial, in the presence of the court, which would necessitate his giving bail, or else being removed from the court, would seriously encroach upon the dignity of the court and disturb its orderly procedure, and deprive the suitor of his right to be represented by the counsel of his choice, and also deprive the court of the aid of such counsel. But the service of a copy of a summons upon counsel, which is merely a notice to him that proceedings have been instituted against him in another jurisdiction, could have no such effect. There is no analogy whatever between the service of process of summons and the service of capias. All the reasons therefore for the common law doctrine of privilege from arrest wholly break down in this country when they are attempted to be applied to the mere service of summons. Every reason for the rule having failed, the rule itself should fail.

To hold that non-resident attorneys are immune from the service of summons, or other process, not in arrest, while they are voluntarily in attendance upon the court upon their private business, would be to confer upon them a special privilege not enjoyed by resident attorneys. Kutner v. Hodnett, 59 Misc. Rep. 21, 109 N. Y. Supp. 1068. "The reason upon which those decisions are based" that so hold, as stated by the Supreme Court of North Carolina, "is not satisfactory to us." Greenleaf v. People's Bank of Buffalo et al., 133 N. C. 292, 45 S. E. 638, 63 L. R. A. 499, 98 Am. St. Rep. 709. We agree to the conclusions reached by Chief Justice

Clarke in his concurring opinion in that case It occurs to us that those decisions follow rather loosely the doctrine of the common law without a proper analysis and consideration of the reasons upon which such doctrine was founded.

The framers of our Code, who were presumably familiar with the doctrine of the common law, only exempted witnesses from being sued in counties other than that of their residence. Our court has exempted suitors, on the ground of public policy, and by this appeal we are asked to exempt non-resident attorneys. To do so would be approving a doctrine which is contrary to the genius of our institutions, and which should have no place in the jurisprudence of this country.

If we are correct in our conclusion that no rule of public policy in the administration of justice is infringed by denying the privilege to attorneys, then there is no more reason why the privilege from service of summons should be granted to them than to those of any other profession or business calling. To do so would put the courts in the attitude of establishing a highly discriminatory class privilege in favor of the legal profession. * * *

The judgment is therefore reversed, and the cause remanded, with directions to overrule the motion to quash.

NOTE.-Non-resident Attorney Attending Trial Not Exempt from Civil Process. It may be well to notice that the rule as to non-resident party or witness being exempt from civil process while in attendance on court and going and returning extends only to those voluntarily in attendance and does not apply to one who has been made to attend by force of criminal process or has been brought there under extradition proceedings, there being good faith and no fraud or pretense in the proceeding. Ex parte Hendersen, 27 N. D. 155, 145 N. W. 574, 51 L. R. A. (N. S.) 328. There was such statement as the instant case shows in the Brooks case but exemption was there denied to the president of a corporation attending an argument in a case in which his corporation was a party. He was not thought among the class of "persons whose duty requires their attendance upon the court and whose presence is necessary to the court in the performance of its function of administering justice." This, however, goes beyond witnesses and suitors, and it would seem a suitor that was an artificial entity ought to be entitled to be represented by its executive officer or even by its board of directors.

His being present at an argument merely may have differentiated this case. But taking it that the rule is broad as stated in regard to witnesses and suitors, why should it not extend to attorneys, who, as privileged to represent parties before the court, there appear? Is it not a presumed necessity of judicial administration that one authorized not only to speak for a party, but to bind him in his acts, should be present and

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entitled to the same exemptions as his client? What more does the law care about his being employed to be there than it may care for a witness coupling with his voluntary appearance a condition that his expenses be paid or remuneration given him, say for expert testimony? Suppose he is a professional expert, shall he not be exempt from service of process, while in attendance for pay? He is none the less an aid to the court in the performance of its duties. It has been held that a non-resident who attends a proceeding in bankruptcy as a party and as attorney in fact for other parties is exempt from process. Matthews v. Tufts, 87 N. Y. 568. In Huddeson v. Prizer, 9 Phila. 65, it is said of exemption from process that: "It is a privilege which extends alike to parties, witnesses, attorneys, jurors and all others who are assisting in the administration of justice. It is alike the privilege of the person and the privilege of the court. It renders the administration of justice free and untrammeled and protects from improper interference all who are concerned in it." It may not be that a rule which refuses to exempt a non-resident attorney from service of process applies to an attorney being sued in a county not of his residence. The former was held in Kutner v. Hodnett, 109 N. Y. Supp. 1068. He might not be thought a necessary party and he is allowed in the foreign state only by courtesy, while he is employed in his own state as a matter of right.

The cases in which the claim of exemption of attorney from suit while attending court away from his home are exceedingly rare, but it has been claimed. Thus in Hoffman v. Judge Circuit Court, Mich., 38 L. R. A. 663, an attorney at law was held exempt from service of process while away from his home county attending court in another county, and it was said the same considerations that exempt witnesses and suitors apply to attorneys.

In Trust Co. v. Ry. Co., 74 Fed. 442, the service of a subpoena on a non-resident attorney attending a court in another state was vacated on the principle that out of the common law rule as to attorneys well established in the courts of America that "all persons who have any relation to a cause which calls for their attendance in court and who attend in the course of that cause, though not compelled by process, are for the sake of public justice, protected from arrest," etc. It was admitted that state decision preponderated the other way where there was no arrest, but it was said: "The doctrine of the federal courts clearly extends the privilege in favor of nonresidents at least, to all civil process." This case said that no decision has been called to the court's attention where the exemption had been denied to any attorney and he cites old cases where generally the right of exemption has been declared. In Parker v. Hotchkiss, 1 Wall, p. 269, Fed. Cas. 10739, the judge said: "I am informed that since our term began a gentleman of the bar, who had come from a neighboring county as counsel in a case pending before us by an eminent state judge (Judge Sharswood) from the service of a summons out of his court."

It is difficult to determine where the weight of authority lies because there is so little of it, but we greatly doubt whether the rule as to attorneys

being exempt from service of process in an ordinary suit would be sustained. At common law the only rule was that they should not be arrested. While some cases use general language in which attorneys are put in the same category as witnesses and suitors, yet few cases involve the direct question. A majority of the cases say suitors and witnesses and omit reference to attorneys.

As an illustration of the general language referred to, see a case just decided by U. S. Supreme Court. Stewart v. Ramsey, 37 Sup. Ct. 44. The question of a witness' exemption only was involved, but he is coupled only with suitors in the statement. Why not also with attorneys? We think the English rule as to an attorney being an officer of court does not apply, especially as it provides only for a sort of special proceeding against him.

ITEMS OF PROFESSIONAL

INTEREST.

C.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 116.

Law Clerk; Attorney at Law; Relation to Client-Purchase by clerk in office of attorney for assignee of creditors, of doubtful claim in favor of the assigned estate; his duty upon realization.

A clerk in the office of the attorney for assignee for the benefit of creditors purchased, before the final accounting, and for the sole purpose of disposing of all the assets of the estate, a claim of the assigned estate against another bankrupt estate. The nominal consideration was actually passed. Before this sale was made, the attorney for the assignee inquired of the attorney for the trustee of the bankrupt estate whether any dividend would subsequently be declared, and was informed in definite terms that there was no prospect of any further dividends. Subsequently a dividend was actually declared by the bankrupt estate, and the law clerk, who is the owner of the claim, is now a practicing attorney. At the time he bought this claim, although he was employed in the office of the attorney for the assignee, he was an entire stranger to the business of this estate and had not the slightest part in any manner in the administration of

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