Hayes v. Shields, 2 Yeates, 222; United States v. Edme, 9 S. & R., 147; Holmes v. Nelson, 1 Phila., 217.

"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," say the court in Huddeson v. Prizer, 9 Phila., 65.

In New Jersey, also, a full discharge is granted. Harris v. Grantham, Coxe (N. J.), 142.

In Massachusetts it was held by Judge Morton in Julio v. Bolles, 22 Law Rep., 354, that a foreign witness was protected from summons. In that case a plea in abatement had been filed, which was demurred to by the plaintiff. In overruling the demurrer the learned judge observes: "If this service was illegal, the jurisdiction fails and the writ should be abated."

In Vermont we are referred by plaintiff's counsel to the case of Booraem v. Wheeler, 12 Vt., 311, which holds a plea in abatement bad in the case of a witness arrested while attending court; the court maintaining that it has never been held that a man's property may not be attached, or he be served with a summons, while attending court as a witness or suitor. What is wanted is that the suitor or witness may give uninterrupted attendance at court; that this object is not secured by abating the writ, for the question may not be heard until long after the court he was attending had closed its session. The legal object can be and always has been better secured by the summary proceeding of a motion to the court to release the person for the time being, or by habeas corpus.

But the views here expressed of the extent of the privilege of suitors or witnesses are clearly inconsistent with the later case in Vermont of In re Healey (1881), 53 Vt., 694, which declares a service by summons upon a witness to be illegal. The court, citing Person v. Grier, 66 N. Y., 124, and other cases, remark: "In the case of a non-resident suitor or witness, the weight of authority is to the effect that the immunity is absolute from the service of any process, unless the case is exceptional." And it is further declared that if the writ had been made returnable to that court it would have been dismissed upon motion; the court would not have taken jurisdiction of a party whose rights were thus invaded, for to do so would be in effect a withdrawal of the shield and protection which the law uniformly gives to witnesses.

Whether this plea in abatement shall be sustained or not turns upon the view taken of the extent and character of the privilege to which suitors and witnesses are entitled. If we adopt the older and narrower view, that this is wholly the privilege of the court rather than of the suitor, and therefore a question of judicial discretion rather than of personal right; and further, that while the offender may be punishable for contempt if the arrest is made in the actual or constructive presence of the court,-still the suitor or witness can only ask to have the arrest set aside upon giving common bail, or entering a general appearance; then the suit does not abate, and the present plea is bad. But if we adopt the broader rule, which it appears to us is clearly warranted by the more recent decisions in the federal and state courts, and which in our opinion is necessary to the due administration of justice, that this immunity extends to all kinds of civil process, and affords an absolute protection, then we see no good reason why a plea in abatement is not proper here, as in other cases of privilege where an absolute discharge is granted, and where the plea is held good. See authorities before cited.

The plaintiff contends that the defendant submitted to the arrest, made application to give bail, and entered into a bond, and that this constitutes a waiver of his privilege. We do not think this sound, though we are aware that some cases seem to point in this direction. Fletcher v. Baxter, 2 Aiken (Vt.), 224; Brown v. Getchell, 11 Mass., 11, 14.

The question, however, was directly passed upon in United States v. Edme, 9 S. & R., 147, 149, and it was there decided that the giving of a bail-bond is so far from waiving the privilege, that the court, when they discharge, will order it to be delivered up and canceled.

"It is not esteemed any good ground for presuming a waiver of privilege from arrest, because the person takes the ordinary and most expeditious mode of freeing himself from arrest." Redfield, J., in Washburn v. Phelps, 24 Vt., 506.

It appears in this case that an answer to the merits was filed with the plea in abatement. It has been decided that in Massachusetts the validity of neither is affected by their being pleaded together, and that the plea in abatement is not thereby waived. Fisher v. Fraprie, 125 Mass., 472; O'Loughlin v. Bird, 128 Mass., 600.

Upon the whole we are of the opinion that the plea in abatement should be sustained. Action dismissed.

§ 15. In general.- The privilege of a party or witness to a suit from arrest is one not merely for the benefit of the party and witness, but exists for the purpose of maintaining the dignity, and carrying out the commands, of the court which issues the subpoena, and of promoting public justice; and the order of the court discharging the party from imprisonment will be a conclusive justification of the sheriff in every other court, even in the court which issued the process. In re Kimball, 2 Ben., 38.

§ 16. It is not a contempt of court to serve a person while attending at the court as a party in a cause, or as a witness, with a summons. This privilege extends to exemption from

arrest, and no further. Blight v. Fisher, Pet. C. C., 41.

§ 17. It is a contempt of court, however, to serve process, either of summons or capias, in the actual or constructive presence of the court. Ibid.

§ 18. Members of congress are privileged from arrest both on judicial and mesne process, and from the service of a summons or other civil process while in attendance on their public duties. Nones v. Edsall, 1 Wall. Jr., 189.

§ 19. Attendance upon congress as a member of that body does not confer such "privilege" as to entitle a party to have a postponement of his suit as a matter of right; though the court may grant a postponement under particular circumstances, in its discretion, and upon terms. Ibid.

$ 20. Judges. A summons was served on a judge by leaving a copy at his residence. At the time of the service he was making preparations to leave home on the same or the next day, to meet the court in which he presided. Held, that although privileged from arrest while in the performance of his judicial duties, or traveling to and from his court, he could not claim the privilege against the service when at home and not about to set out on his judicial circuit. Lyell v. Goodwin,* 4 McL., 44.

21. A suitor in a United States circuit court, residing without the circuit, is privileged from the service of a summons. The case of Blight v. Fisher, decided in 1809, in which this privilege was limited to exemption from arrest, overruled. Parker v. Hotchkiss, 1 Wall. Jr., 269.

§ 22. The general rule is that a person illegally in custody at the suit of one party is not privileged from arrest at the suit of another, unless there is some proof of concert or collusion. Union Sugar Refinery v. Mathiesson, 2 Cliff., 304.

§ 23. A bankrupt was arrested while on his way to the register's office for the purpose of being examined, an order having been served upon him commanding him to appear and be examined. Held, that the order was substantially a subpœna, and that, as a witness and as a party to the bankruptcy proceedings, he was privileged from arrest and entitled to the protection of the court. In re Kimball, 2 Ben., 38.

§ 24. A party to a suit having been discharged from arrest by reason of his privilege from

S$ 25-31.

PRIVILEGED COMMUNICATIONS-PROBATE OF WILL.

arrest as such party may be re-arrested under the same or other process, whenever the privi lege ceases.

Ibid.

§ 25. A petitioner in bankruptcy is privileged from arrest on civil process pending the proceedings in his application for relief under the bankruptcy law. United States v. Dobbins,* 1 Penn. L. J., 9.

§ 26. Petitioners under the bankrupt act are entitled to the same privilege from arrest given to other suitors, and this privilege will be regarded liberally. Thus, where a petitioner was taken on a ca. sa. while on his way to the commissioner's office on business connected with the petition, held, that he was privileged from arrest, although at the time of his arrest he had deviated three hundred yards from the straight course from his residence to the office of the commissioner. Ex parte Mifflin,* 1 Penn. L. J., 146.

§ 27. A party to a cause depending for trial is privileged from arrest during the continuance of the court at which the trial will take place. This privilege extends not only to prevent his arrest when attending the court, and when coming to and returning from it, but while he is at his lodgings. Ex parte Hurst,* 1 Wash., 186.

§ 28. A witness is privileged from arrest for a reasonable time to prepare for his departure and return to his home as well as during his actual attendance upon the court. But the privilege does not extend throughout the term at which the cause is marked for trial; nor will it protect him while engaged in transacting his general private business after he is discharged from the obligation of the subpoena. Smythe v. Banks, 4 Dall., 329.

§ 29. A citizen of another state who, when in attendance on court as a suitor, has been subpoenaed as a witness in another case, is privileged from an arrest in execution issuing from a state court, while at his lodgings; and a sheriff will be indemnified by an order of discharge of a court of competent jurisdiction. Hurst's Case, 4 Dail., 387.

§ 30. A recommitment of a debtor upon a ca. sa. after he has been out for more than a year upon a prison-bounds bond is not a breach of his privilege as a witness and party, bound to attend the court. Ex parte Bill, 3 Cr. C. C., 117.

§ 31. If an attachment, under the Maryland act of 1795, chapter 56, and a capias ad respondendum, be both served while the defendant is attending the court as a party in another cause, the attachment will be ordered to be dissolved upon the arrest of the defendant on the capias, and the defendant will be discharged from the arrest, because privileged as a suitor in another cause. McFerran v. Wherry, 5 Cr. C. C., 677.

PRIVILEGED COMMUNICATIONS.

See EVIDENCE.

PRIVILEGES AND IMMUNITIES.

See CONSTITUTION AND LAWS.

PRIZE.

See WAR.

PROBATE COURTS.

See COURTS.

PROBATE OF WILL.

See ESTATES OF DECEDENTS.

PROCESS.

See WRITS.

PROCLAMATIONS BY THE PRESIDENT. ·

See GOVERNMENT; WAR.

PRODUCTION OF BOOKS AND PAPERS.

See EVIDENCE; PRACTICE; REVENUE.

PROFERT.

See PLEADING.

PROHIBITION.

See WRITS.

PROMISSORY NOTES.

See BILLS AND NOTES.

PROPERTY.

§ 1. In general.- Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. Parrott's Chinese Case, 6 Saw., 349.

§2. Situs.- Personal property is presumed to follow the person, and in actions for personalty the lex domicilii, and not the lex loci rei sito, as in cases of real or immovable property, governs. Benton v. United States,* 5 Ct. Cl., 692.

§ 3. The fiction of law that the domicile of the owner draws to it the personal estate which he owns, wherever it may happen to be located, yields whenever it is necessary for the purpose of justice that the actual situs of the thing should be examined; and always yields to laws for attaching the estates of non-residents, because such laws necessarily assume that property has a situs entirely distinct from the owner's domicile. Personal property situated in Illinois was mortgaged in New York. Two days later, before the mortgage could be recorded in Illinois, the property was attached and sold under process issued out of a court of the latter state. Held, that as the laws of Illinois required a mortgage to be recorded, the attachment proceedings took precedence of the mortgage, although by the laws of New York no record of the mortgage conveyance was necessary to its validity as against third persons. Green v. Van Buskirk, 7 Wall., 139.

$ 4. Where personal property is sold under attachment proceedings instituted in the state where the property is located, the liability of the property in such proceedings must be determined solely by the law of that state, although the owner of the property as well as the other claimants are domiciled in another state; and where, in another state, a suit is instituted growing out of the attachment proceedings, the law of the state where such proceedings were had must determine their effect, and the title to the property thereunder. Green v. Van Buskirk, 5 Wall., 307.

§ 5. A conveyance of personal property by deed in trust, which deed was duly recorded in the state where all the parties resided, and was valid by the laws of that state, is sufficient to protect the title thereto against subsequent creditors of or purchasers from the grantor, although the parties to the deed have removed to another state, taking the property with them. Bank of the United States v. Lee, 13 Pet., 107.

§ 6. Personal property has no locality. The law of the owner's domicile is to determine the validity of the transfer or alienation thereof, unless there is some positive or customary law of the country where it is found to the contrary. Hence an assignment, lawful and regular in the state where made, of personal property in another state, will bind all persons who have notice of it. Black v. Zacharie, 3 How., 483. §7. Personalty.- Unchallenged and continued possession of personal property, with a claim of title to it, is prima facie evidence of ownership. Grossmeyer v. United States,* 4 Ct. Cl., 1.

§ 8. Where a party held undisturbed possession of personal property for two years before the same was captured by the military forces of the United States, held, to be a sufficient proof of ownership in an action under the "abandoned or captured property act" (12 Stat. at Large, 820). Geilfuss v. United States,* 4 Ct. Cl., 478.

§ 9. Where several persons reside together, and have a joint possession of property, the law casts the actual possession upon the legal owner. Lenox v. Notrebe, Hemp., 225.

66

§ 10. A membership in an Exchange," a corporation organized for the purpose of advancing the interests of trade, etc., with the power of holding property to a certain amount for the purposes of the association, is property which passes to the assignee in bankruptcy under sections 5044 and 5046, R. S. U. S., and which the creditors of the bankrupt are entitled to have applied to the payment of their debts. In re Warder, 10 Fed. R., 275.

§ 11. A whale killed and taken into complete possession is the property of the taker. And where a whale after being killed was anchored by the taker, and, having drifted from its anchorage, was found by other parties, with the anchor still attached, and by them appropriated, held, that the original taker might maintain an action for the value of the whale as his property. Bartlett v. Budd, 2 Low., 223.

§ 12. A lease for ninety-nine years, renewable forever, by the common law is only a chattel. McLean v. Rockey, 3 McL., 235.

§ 13. Movable property of railroad company.- Under the Illinois constitution of 1870, the rolling stock and other movable property of railroads is personal property; but this does not affect the rule of equity declared in the case of Pennock v. Coe, 23 How., 117, to the effect that whenever a mortgage is made by a railroad company to secure bonds, and the mortgage includes all present and after-acquired property, as soon as the property is acquired the mortgage operates upon it. Scott v. Clinton & Springfield Railroad Co., 6 Biss., 529.

§ 14. An inchoate title to lands is property, and comes within the scope of the clause in the treaty ceding Louisiana to the United States, declaring that the rights of the inhabitants "of the ceded territory shall be maintained and protected in the free enjoyment of their liberty, property," etc. Delassus v. United States, 9 Pet., 117.

§ 15. "Good will," as property, may adhere to, or spring out of, corporeal property, but no corporeal property can adhere to it as an incident. Sheldon v. Houghton, 5 Blatch., 285. § 16. "Good will," resting upon no legal foundation other than a "courtesy of the trade," is not property within the meaning of the law. Accordingly where a bill in equity alleged that "by the custom of the trade of booksellers and publishers in the United States, when any person or firm engaged in that business has undertaken the publication and sale of a book not the subject of statute copyright, and has actually printed and offered an edition of such book to the public for sale, other persons and firms in the same trade, having respect to the trade priority so acquired in the publication and sale of such book, refrain from entering into competition with such publisher by publishing such book in a rival edition,” held, that by reason of the above custom, if such existed, the publication of such book did not become a "good will" in the hands of the person or firm so first publishing the same. Ibid. § 17. Where a will directs land to be sold and turned into money, or money to be employed in the purchase of land, courts of equity in dealing with the subject will consider it that species of property into which it is directed to be converted. Peter v. Beverly, 10 Pet.,

532.

18. No exception to the rule, that land directed to be sold and turned into money is considered as money from the death of the testator, arises because the period of sale is remote, and the conversion cannot be made until the time arrives. The rule also applies to a bequest of the proceeds of the land to a residuary legatee, unless he has made an election to consider the proceeds as land. Rinehart v. Harrison, Bald., 177.

§ 19. Where a testator by his will devised his real estate to his executors, and directed them to apply the rents and profits to specific purposes until the happening of a certain event, and