him for bringing a suit therein against a citizen of the United States, but a nonresident of the state in which the action is brought and having no property therein subject to attachment.

The fact that a defendant is not a resident of a state and has no property therein subject to attachment, is not a reason why he cannot be sued in the state in a transitory action by a plaintiff not a citizen of or resident in the United States, if only he be personally served with process within the state.

It is not necessary that a person should be a resident of a state or of the United States, or that he should be personally present in a state, in order that he may be entitled to bring an action against a defendant who is not a resident of the state and who has no property in it subject to attachment, if only the defendant be found and served with process within the state.

Process for the commencement of a suit may be served on the defendant, a nonresident of the state on board a foreign vessel at her dock and before she is moored to it, and such service is good even if the defendant be only transiently within the jurisdiction, on his way from a foreign country to his residence in another state of the Union.

Accordingly, where the defendant, a citizen and resident of New York, was served with process on board an English steamer, bound from Liverpool, England, to Boston, at her dock in East Boston (in the waters of the state of Massachusetts), before she was moored and while defendant was journeying from Halifax, Nova Scotia, to his home in New York, said vessel being a "British mail steamer" :— Held, that such service was good and that it gave the court jurisdiction.

THE declaration in this case was for one hundred thousand pounds sterling due on account annexed.

Also for one hundred thousand pounds sterling money paid by plaintiffs to the use of defendant and for interest and commissions thereon.

The defendant appeared personally for the purpose of objecting to the jurisdiction of the court, and pleaded that the plaintiffs were merchants, residents and citizens of London, in the kingdom of Great Britain; that defendant was a resident and citizen of New Brighton, in the state of New York; that neither is or was at the time of the service of the writ a citizen or temporary resident or commorant in the Commonwealth of Massachusetts or within the jurisdiction of this court; that the defendant at that time had neither property nor estate subject to attachment within said jurisdiction; and further, that the service of said writ was made on him by the officer handing him a summons in hand while he was on board the English steamer China, bound from Liverpool, England, to Boston, and immediately after said steamer had reached her dock in East Boston and before she wa moored to her dock; that he was journeying from Halifax, Nova Scotia, to his home in New York; that said steamer was at tha time and still is a British mail steamer.

To this plea the plaintiff demurred generally.

The case was heard first at the Special Term, and reserved for the determination of and heard by the full court.

Charles A. Peabody (of New York) and Charles G. Thomas, for plaintiffs.

Sidney Bartlett and Robert D. Smith, for defendant.

The opinion of the court was delivered by

WELLS, J.-That both parties are foreigners is no ground for dismissing the writ: Roberts v. Knight, 7 Allen 449. It is not necessary that a foreign plaintiff should be personally within the jurisdiction in order to institute an action. The statute requires only that he shall furnish an endorser to his writ, who is an inhabitant of the state: Gen. Stats., c. 123, § 20.

Personal actions, of a transitory nature, may be maintained in any jurisdiction within which the defendant is found, so that process is legally served upon him: Story on Conflict of Laws, §§ 543, 554; Barrell v. Benjamin, 15 Mass. 354; Wright v. Oakley, 5 Met. 400.

This we understand to be the general rule of the common law. Such is also the clear implication of the statutes of this Commonwealth. The restriction in Gen. Stats., c. 126, § 1, that a party defendant must have been, before the time of action brought, an inhabitant of the state, or that an effectual attachment must be made of his goods, estate, or effects, has application only to actions "against a person who is out of the state at the time of the service of the summons."

When the party is in the state, however transiently, and the summons is actually served upon him there, the jurisdiction of the court is complete as to the person of the defendant. In the numerous discussions of the force and effect of judgments, rendered in one of the United States against citizens of another state, this has been repeatedly and always recognised as sufficient to give full jurisdiction in transitory actions: Hall v. Williams, 6 Pick. 232, 241; Gleeson v. Dodd, 4 Met. 333, 338; Ewer v. Coffin, 1 Cush. 23; Barringer v. King, 5 Gray 9; Carlton v. Bickford, 13 Gray 591.

We do not find that the statement of the case in Barrell v. Benjamin bears out the assertion upon the defendant's brief that

"it was a case where both parties were transiently resident here.” On the contrary, it does not appear from the agreed facts that the plaintiff, who resided in Connecticut, was at the time in Massachusetts at all; and the defendant, a native of Connecticut, then a resident of Demarara, at the time of his arrest Boston, on his way to Demarara.”

66 was in

The objection of the defendant, as stated by the court, was, that he was not resident in the state, but was arrested "when here only for the purpose of embarking for Demarara." And the court say, "we see no way of upholding the distinction, and there is nothing to be found in the books to support it."

Some consideration, it is true, was given in that case to the fact that the plaintiff was a citizen of a sister state, and as such, under the Federal Constitution, entitled to all the rights of a citizen of Massachusetts. But the right of a non-resident to sue in our courts is not regarded in Roberts v. Knight, 7 Allen 449, as depending upon considerations of that nature. We cannot consider the fact that the plaintiffs in this case were residents of a foreign country, as having any weight upon the legal question of jurisdiction.

The defendant calls attention to a remark of the court in Putnam v. Dike, 13 Gray 535, as indicating that, upon a plea to the jurisdiction, the action could not have been maintained against a non-resident if he had never been an inhabitant of the state, and there was no effectual attachment of his property in the suit. But in that case, as it is stated by the court, there was "no evidence to show that the defendant ever came within the limits of this state." Of course there could have been no service of the summons upon him. It appears from the files in that case that there was in fact no such service.

Upon the question of jurisdiction, in its international aspect, we are satisfied that the service of the process, by summons merely, is equally effective with an attachment or arrest of the body.

The defendants contend that service by a separate summons, after a nominal attachment only, is not authorized by statute: Gen. Stats., c. 123, §§ 10, 11.

The proceeding is, in form, a literal compliance with the statute. We understand it to be in accordance with long-established, general practice Howe's Practice 61. It appears to be recognised

as a proper mode of service: Belknap v. Gibbons, 13 Met. 471, 475; Orcutt v. Ramney, 10 Cush. 183.

No case is cited in which it has ever been held that such service is not good. The language of the provision does not necessarily import" an effectual attachment," such as is required to give jurisdiction against an absent defendant who was never an inhabitant. See chap. 126, § 1. For this purpose of determining the proper mode of service, the return of the officer that he had attached the property of the defendant cannot be contradicted by evidence, and is not contradicted by the apparent want of value in the article returned as attached.

The defendant also objects to the service, because it was made upon him while he was still on board a British mail steam vessel, and "immediately after said steamer had reached her dock in East Boston, and before she was moored to her dock." But we are unable to see any force in this objection. Whatever jurisdiction the English courts may be authorized to exercise over controversies arising between English subjects or others, on board English vessels while in foreign ports; and whatever comity may be properly exercised in remitting such controversies for adjudication to the domestic tribunals, there can be no doubt that the defendant was strictly within the jurisdiction of this court, liable to its process, and that he was properly served with it on board the foreign vessel: Commonwealth v. Peters, 12 Met. 387.

But if there were any discretion in the court, as a court of law, in regard to the matter either on the ground of general comity, or of the nature of the controversy, the question is not presented upon a plea in abatement for insufficient or defective service of the writ.

Demurrer sustained.

Circuit Court United States.

Eastern District of Pennsylvania.

DOLL v. EVANS ET AL.

An assessor of internal revenue has power to reassess an income tax where he is satisfied it is incorrect, although the party has paid the tax first assessed against him.

Where the assessor finds the first return to be false or fraudulent, it is his duty to add a penalty of one hundred per cent. on the second assessment.

The Act of Congress which imposes an addition of one hundred per centum to the tax, as a penalty for the "return of a false or fraudulent list or valuation." Is constitutional.

DEMURRER to plea.

N. H. Sharpless, for demurrer.

Aubrey H. Smith, District Attorney, contrà

The opinion of the court was delivered, by

MCKENNAN, C. J.-This demurrer presents only two questions which it is necessary to consider. 1. Has an assessor of internal revenue power to reassess the income tax of a citizen, who has paid the tax first assessed against him? And 2. Is the Act of Congress, which imposes an addition of one hundred per centum to the tax, as a penalty for the "return of a false or fraudulent list or valuation," constitutional?

The defendants' plea avers, that the plaintiff made a return of his income for the year 1868, to the assessor of the third collection district of Pennsylvania; that he was thereupon assessed with an income tax of $95.60, which was placed by the assessor on the annual list; that this list was delivered to the collector, to whom the plaintiff paid the tax so charged against him; that afterwards and within fifteen months after the delivery of said list to the collector, to wit, on the 21st October 1869, the assessor duly summoned and required the plaintiff to appear before him at his office in Philadelphia, on the 25th October 1869, to produce all books of accounts, containing entries of profits from business, rents, &c., relating to his income and business from January 1st 1868, to December 31st 1868, which he had in his power, custody, or care, and to give evidence according to his knowledge respecting his liability to an excise or tax, under the internal revenue laws; that the plaintiff did not appear in pursuance of said notice, whereupon the assessor proceeded to make, according to the best information he could obtain, and to his own view and information, a list or return of the income, gains and profits of the plaintiff for the year 1868, and did assess thereupon and charge to the plaintiff the sum of $482.84, in addition to the $95.60 before assessed, as his income tax, and did further add thereto the sum of $482.84, being one hundred per centum, as and for a penalty for having made the false and fraudulent list, statement, or return as aforesaid; that afterwards, to wit, on the 20th day of April 1870, the said assessor certified and delivered to the defendant, George C. Evans, as collector, a certain list, called the monthly