.' FEDERAL ItEPORTER,'Vol. 40."
suming that this construction, which bas been sanctioiledby a number of decisions of (Jircuit courts, the next guestion which would naturally be considered iswhethEir' any personal ,service was made upon the defendant.' 'The plaintiff, lnthe last brief of his. counsel; properly admits that up to the present time ,no such service has been made, and no such appearance has been entered by it, as would plaintiff to a,iudgment:in perscmam, but contends that under the act of March 3, 1887, a Judgtnent can properly be rendered against the defendant's property which is situated in this state, and was attached in this suit. His argument, briefly stated, is that whereas, the statute of Connecticut permits the attachment of the property,located in this state, of a non-resident defendant, without personal service upon him,and, in the absence of his voluntary appearance, the subjection of such property to a.judgment in rem; and whereas, sections 914 and' 915 of the Revised Statutes authorize the practice and modes in the United States courts to be conformed to the modes of procedure in the re8pective states wherein such courts are held, abd authorize thesll.meremedies byattachment as arc permitted by the statutes of said respective states; and whereas, by the act of March 8, 1887, when anonginal suit is brought in the circuit: court, and jurisdiction is founded only on the fact of diverse citizenship, such suit can be !brouE1;ht either in the district of the residence of the plaintiff or thedefendant,-the circuit court can obtain jurisdiction in'rt1'ri/, by attachment of the property of anon-resident defendant, which is situated within the district of' the plaintiff, without personal It. will be readily admitted that the United States courts, which are created. by statute, "can have no jurisdiction but such as the stb.tute confers," (SheldOn v. SiU,8 How. 441;) and that this doctrine has been asserted with. great earnestness by the sUpreme court. n is furthern'ldte evident that a state may sUbject property situated within its limits;· which is owned by non-resid,ents, to the payment of the demands' of its own citizens, and that, when' the bob-resident cannot be per80naUy served with process,the;statutes of the state may author.. ize a constructive service, whiehshall be sufficient· to Bubject the property to 8 proof;eding in Tem; b\1tsuoh proceedings 'must be authorized arid derive theit \talidity from the local statutes. Pennoyer v. Neff, 95 U. S. 714. 'Neither can it be denled that priort6 the 'enactment of sections 914 and 915 there was no statute of the United· States which gave authority toa circuit court, by original process, in anaction at law, to seize the propert)r of a non"residentdefendant, and subject it to the demands of '8 tesident plaintiff, 'i:Without personal service upon the defendant, and, in the case ofa corporation;upon such agents as may }Jroperly be deemed its tepresentatiVes, 6r the appearanee' of the defendant in the suit. , caSe of' Toland v; Sprague, 12 Pet. 300, the'followingpropositibn was announced;" which has ever sibce beenadhetetl to, (Curt. Jur. of U.S. Courta,105,) and in Ex parte Railway Co., lOSU.S. 794,was 'e'Vidently regarded as axiomatic: "(4) toattacb property, to compel the appearance of per80ns, can properly be used only in cases' in which such' persons are, amena-
BARL,A.ND .t1., ·UNITED LINES. TELf CO.
pIe to. the process of 1,1J. personam; .thatis,.where they are inhabitants, or found within theUnitJed States. and not where they are aliens, or resident abroad, at the commencement of the ,suit. and have no inhabwe add that, even ip.case ora pers!>n being amenaple to process in personam, an attachment' against his property cannot be issued against him, except as part of, or together with, process to be served upon . his person. h In Ex parte Railway Co., decided in 1880, Chief Justice WAITE said: "ltis conceded that tbe pex:soQ against wbom this suit was brought in the circuit court was an inhabitant of the state of Massachusetts, and was not found in, or served with' pl'ocess in, Iowa. Olearly, then, he was not suable in the circuit court of the district of Iowa, and, unless. be could be sued, no attacbment:could issue.from that court against.his property. An attachment is but an incident to a suit, and, unless the suit can be maintained, the,attachment must fall." . . . The attachment in that case was made in accordance with the statute of the' state of Iowa in regard to' attachments of the property of non-resi;dents.. , But it is said, notwithstanding this decision was made after, sections 914 and 915 were passed, that those sections confer upon the cir.cuit'courts'jurisdiction in rem over. attached property of non-residenta which 'is situated within the limits of the'8tate wherein the suit is brought, ihhe attachment is made in conformity with state laws; Sootiort914 assimilates the practice, forms, and modes of proceeding in civil causes, other than equity and admiralty 'causes, ih .the courts of the United:States, to the practice; forms, andproceedirigs in the courts of l'ecord oithe state withillWhich such: district courts are held. The statute is an act in regar.d to' practice and procedure, aridrrot iuregaid to' jurisdiction. The questioll'at issue in this case relates to the power of the court; , :Section :914 confers no ilewpower'orauthority upon· the circuit court.· ,,'In Butler v. Young, 1· Flip. 27&, the distinction which is to be observed, in the construction of this section, between is conferred.antl,'practice whitlh,is to be observed, is:clearly 'Pointed out; Theeourt says: ' , '''.(Jareand ilautlorr 'will 196 'used that rights given by the state law.stsball not be confounded ,witbwhat is mere practice. in the state:eourts. In this conneeUon, I may WlWtion, to ,bring an absent or non-resident defendant into court by publ1cation, or the right to a second trial, which are not matters of mere practice, but are substantial rights conferred by the statute of the state, and, in my opinion, were notcontemplated by congress, by the law in question, to be given to parties in this court." Wea1' v. Mayer, 6 Fed. Rep. 660; Lyons v. Bank, 19 Blatchf.279, 8 Fed. Rep. 369; Insurance 00. v. Bangs, 103 U. S. 435. Section 915 entitles plaintiff, in common-law causes in the courts of the United States, to similar remedies by attachment against the property of the defendant which are provided by the law of the state in which such court is held for its courts. It empowers the United States court to adopt the remedies by attachment or other process, and relates to methods and forms. It does not create jurisdiction over property without personal service upon the defendant. As succinctly stated by Mr. Justice MILLER in Naz:ro v. Cragin, 3 Dill. 474: