Mathews v. Tufts

—In Van IAeuw agt. Johnson, decided March, 1871, and referred to in Person agt. Grier (66 N. Y., 126), a majority of this court were of opinion that a summons could not be served upon a defendant, a non-resident of the state, while attending a court in this state as a' party. This immunity does not depend upon statutory provisions, hut is deemed necessary for the due administration of justice. It is not confined to witnesses, but extends to parties as well, and is abundantly sustained by authority (Cole agt. Hawkins, Andr., 275 ; S. C., 2 Str., 1094 ; Arding agt. Flower, 8 I. R., 534 ; Miles agt. McCullough, 1 Binn., 77 ; Hayes agt. Shields, 2 Yeates, 222 ; Parker agt. Hotchkiss, 1 Wall, Jr., 269 ; Juneau Bank agt. McShedan, 5 Biss., 64 ; Halsey agt. Stewart, 1 South. [N. J.], 366 ; Miller agt. Dungan, 8 Va., 182 ; In re Healy, 53 Vt., 694).

This exemption from service of civil process has been frequently accorded to creditors attending proceedings in bankruptcy (Ex parte List, 2 Ves. & B., 373 ; Ex parte King, 7 Ves. Jr., 312), and to a creditor who attended before the commissioners to propose himself as assignee and watch the proceedings (Selby agt. Hills, 8 Bing., 166). Commissioners in bankruptcy are a court of justice sufficient for the purpose of having their witnesses protected by the court of chancery, at least, if not by themselves. They sit in the nature of a court in the administration of justice (Arding agt. Flower, 8 I. R., 534).

In proceedings in bankruptcy the due administration of justice requires that all the creditors should be free to attend, without interference by service of process of any kind. The moving affidavit showed that the defendant came from Boston, where he resides, to Hew York, and attended the meeting of creditors, at the office of the register in bankruptcy, solely as a creditor and witness to prove certain debts and claims against the estate of the bankrupt, and to participate in the choice of an assignee, and for no other purpose; that while so attending, and while the meeting was being held, or immediately thereafter, before he had time to complete his business as such creditor and witness at such meeting and leave the office, the summons was served upon him. It appears that the defendant did, at said meeting, present proofs of claims amounting to upwards of $386,000 in his own behalf, and also presented proofs of claims of other creditors, as their attorney in fact, and voted for the assignee, both individually and as attorney for the other creditors whom he represented, and that the proofs of debt had been prepared and verified in Massachusetts. The plaintiff claims that the defendant was not attending as a witness, but only as a creditor; and, also, on the hearing of the motion, read affidavits denying the validity of his claims as a creditor. ■ These claims could not be tried on the motion to set aside the service, and conceding that the defendant was in attendance only as a party, and as attorney for other parties, we think that he was privileged from service of process or summons while so attending.

The order of the general term should he reversed, and that of the special term affirmed, with costs.

All concur.