UNITED STATES V. MORRIS.
The court further say it would doubtless be within the power of the Etate in which the land lies to provide that the court might appoint a trustee to execute or cancel a deed on behalf of a defendant not found within the jurisdiction of the court. Massie v. Watts, 6 Cranch, 148; Orton v. Smith, 18 How. 263; Webster v. Reid, supra. Believing, as I do, that the supreme court has established the rule of law applicable to this case, it is not necessary for me to discuss it as an original proposition, or to refer to the general views presented by defendant's counsel, or by Mr. Justice HUNT in his dissenting opinion in Penno.lJcr v. Neff, howerer much of reason they might preaent to my mind if the question was not stare decisis. The plaintiff's demurrer must be sustained; and it is 80 ordered, with leave to defendant to answer.
(District Oourt, E. D. Penn8ylvania. 1886.)
TAXATION-LEGACY TAX-ACT OF CONGRESS OF JUNE
30, 1864. When a testator has abandoned his residence in this country, the legacies provided for by his will are not subject to the legacy tax provIded for by the act of congress of June 30,1864. U. S. v. Hannewell, 13 Fed. Rep. 617. followed.
Trespass on the case. The jury found:
(1) Prior to the year 1866 the defendant's testator, Hartman Kuhn, was a citizen of the United States, and resided in the city of Philadelphia. in the state of Pennsylvania. (2) In May, 1866, he abandoned his residence in Philadelphia, and went with his family to live in Europe. with the intention of permanently residing abroad. (3) On January 23, 1870. the said Hartman Kuhn died at Rome, Italy, where he was domicilerl at the time of his death. (4) By his will the said Harttuan Kuhn bequeathed one-third of his personal property absolutely to his wife, and the remaining two-thirds thereof to three trustees, in trust for his son, and of his said will the'testator appointed his wife to be executrix and his brother and the defendant to be executors. The latter alone resided in the United States, and to him alone letters testamentary were, on the twenty-first day of February, 1870, granted by the register of wills for the county of Philadelphia aforesaid. (5) The total net amount of the personal property of the said testator in the state of Pennsylvania which came into the hands of the defendant as executor was $110.25ttl:1O. (6) On the fourteenth of March, 1871, the executor filed his final account in the office of the register of wills for the county of Pltiladelphia. which was .duly audited and c.onfirmed by the orphaus' court of the said county, and the
'.Reported by C. B. Taylor, Esq., of the Philadelphia bar.
balance of the personal property thereupon distributed to the legatee under the will. (7) The succession tax due the United States was paid by the trustees in Septt>mber, 1871, but the legacy tax on the personal property was not paid. (8) The defenuant in not paj'ing the legacy tax acted under the advice of counsel, who so advised; and prior to such advice the commissioner of in. ternal revenue had decided that" unless a testator who dies in a foreign country has a residence in the United States his legatees in this country are not subject to the It>gacy tax." The facts contained in this paragraph were communicated in 1871 to the collector of internal revenue of this district. (9) The writ in this case issued October 3, 1879. 1f upon the above facts the court shall be of opinion that the defendant is liable for the legacy tax upon the personal property of the said Hartman Kuhn, deceased, then the jnry find for the plaintiff. and assess the damages at $735.04. If upon the above facts the court shall be of the opinion that the defendant is liable, not only to the said legacy tax, but also for the penalty for previons non-payment thereof, then the jury find for the plaintiff, and assess the damages at $1,087.84. If upon the above facts the court shall be of the opinion that the defendant is not liable for the said legacy tax, then the jury find for the defendant.
John K. Valentine, for the United States. William H. Rawle, for defendant.
BUTLER, J. Under the facts stated in the special verdict the defendant is entitled to judgment. The testator having abandoned his resi'dence in this country, and removed to Europe,-where hedied,the legacies provided for by his will are not affected by the act of congress of June 30, 1864. The case cannot be distinguished from U. S. v. Hannewell, 13 Fed. Rep. 617. The clerk is therefore directed to enter judgment for the
(Olrcuit Oourt, N. D. illinois. April, 1886.)
Under the Illinoi, statute a resident attorney may be served with summons in a civil action or suit while in attendance upon the courts, and an attorney from another state has no greater privilege.
AND PROCESS-EXEMPTION OF ATTORNEY FROM ANOTHER STATE ATTENDING COURT-.ltEV. /:)1'. ILL. CR. la, § 9.
At Law. Trumbull, Washburn et Robbins, for complainant. John Woodbridge, for defendant.
BLODGETT, J., (orally.) This is a motion to quash the service of summons on the defendant, Timothy D. Lincoln, the ground for the motion being that Mr. Lincoln, who is a resident of the city of Cin· cinnati and an attorney at law, came into this district for the purpose
of attending to the trial of a cause pending before this court in which he was counsel and solicitor, and while here was served with the ordinary chancery subpcena or summons requiring him to appear and answer the complainant's bill at a future day. In resisting this motion, one of the points made by the complainant is that Mr. Lillcoln is not a member of the bar of this court. 'rhis point is not well taken, it being personally known to myself, and would undoubtedly be established by the records of this court, bnt for the fact they were destroyed by the fire of 1871, that Mr. Lincoln, as early as 1856, was admitted as an attorney in this court, and appeared in a series of very important cases then pending here. Further than that, the supreme court of the United States hus held that a member of the bar of the supreme court is entitled to practice in any of the federal courts, and Mr. Lincoln has for many years past, as the reported cases show, appeared as attorney in cases before the supreme court of the United States. The question raised by this motion involves the construction to be given the Illinois statute in regard to the privilege of attorneys and officers of courts. I do not see that a member of the bar from neighboring states is entitled to any greater privilege than a member of the bar of our own state as to eervice of process upon him while in the exercise of his professional functions. Section 9, c. 13, Rev. St. Ill., provides:
"All attorneys and counselors at law, judges, clerks, sheriffs, and all other officers of the several courts within this state, shall be liable to be arrested and held to bail, and shall be subject to the same legal and may in all respects be prosecllted and proceeded agai nst in the same court. and in the same manner, as othel"persons, any law, usage, or cWltom to the contrary notwithstanding: provided, nevertheless. said judges, counselors. or attorneys, <:lerks, sheriffs. or other officers of the several courts, shall be privileged from arrest while they are attending court. and while going to and returning from court. "
This statute has never been passed upon by the supreme court of this sta,te, and I am compelled to give it such construction as it seems to me the legislature of the state intended. 'l'he word "arrest," as used in connection with the privilege of members of congress, officers of courts, witnesses, etc., has been construed by many of the courts, and several of the federal courts, to include the service of summons; so that there is a line of deciSIOns running through the state and federal reports holding that service of summons on a party is equivalent to an arrest, and that the privilege from arrest is violated by the service of a summons. The statute of lllinois, however, I think, clearly implies by the word "arrest" a detention of the person within the technical and legal meaning of the word in contradistinction to mere service of summons, because the first paragragh of the section which I have just read, after enumerating the persons, says, "Shall be liableto be arrested, and held to bail," thereby implying something more than service of summons on them which shall require their at·
tandance at a future day; and although the proviso of the statute under which these persons are privileged when in attendance upon the courts uses the word "arrest," yet, at the same time, it is very evident that the word as used in the proviso relates back to the use of the same word in the body of the section; so that I have no doubt the legislature of Illinois intended that the privilege should be only from being arrested and held to bail. The eVIdent purpose and meaning of the Illinois statute, when all considered together, is, as it seems to me, to privilege an attorney from actual arrest while in attendance upon the courts where he has professional duties to perform; as, if arrested at such time and imprisoned,or obliged to seek bail, the rights of his client may be jeopardized, anfi the business of the court interrupted or delayed; but it only privileges him from such service of process as involves imprisonment or holding to bail. I do not intend in deciding this motion to be understood as dissentting from the cases where it has been held that a person coming into the district as a witness is privileged from being served by summons, nor the cases where a party has been induced by some false or fraudulent pretense to come within the territorial jurisdiction of a court, and then served with summons, as these cases, it seems to me, rest upon a different principle. I only intend to decide that, as I construe the Illinois statute, a resident attorney may be served with summons while in attendance upon the courts here, and that an attorney from another district or state has no greater privilege. The federal statute allows a civil suit to be brought against a person in the district whereof he is an inhabitant, or in which he may be found at the time of serving process; and as the return in this case sbows that this defendant was found in this district, and served with process of summons therein, I think the plea or suggestion of privilege is not well taken.
& T. C. Ry. Co. and others.!
(Oircuit Oourt, E. D. Texas. March 15, 1886.)
1. BANKS AND BANKINO-DEPOSITS-COURT FUNDS-MONEYS
Where, by the orders appointing them, receivers were authorized and directed to carryon and operate railways, llnd the property thereof, and such carrying on and operating contemplated and required the handling, receiving, and paying out of moneys, the paYJlent and collection of bills, and the transaction of such financial business as would requit'e the medium anJ accommodation of banks, lteld, that in the transaction of this business, such moneys so deposited in such banks were not deposited as special funds, to be drawn out on or-
PAID INTO COURT.
lReported by Joseph P. Homor, Esq., of the New Orleans bar.