WELSIi V. TUB ]SOllTH CAMBRIA..
repairs have gone to enhance ,by so much the proceeds or the salebfthe vess'el. now.in court,andcan110t with justice be applied to the payment of the bottomry. As tothe demands whi¢h consist of 'advances made by the ship's agent and the interpreter, the bottomry holder cannot claim preference, bec!j.usa his delay to enforce the bond tended to induce the incurring of thesee!l\:penses. His bond became due, by its terms, on the arrival of the vElssel in New York. He took no steps to enforce it until aU the debts in. qllestion had been incurred. He should not be permitted to lie back in this way and allow expenses to be incurred, and then contend ,that his bond should, be paid in preference to such expenses. As betWeen 'the men,. the. agent, and the interpreter, the question ofpriority must therefore be decided arlverselyto the bottomry b6nd. Thifdeaves a deficiency greater than the sums in these respective bills which the bottomry ho1<ler has insisted, carried no lien, and it becomes unnecessary, therefor"hJo decide the question of lien wbich ,bas :boon raised on this occasiOIl. ' Reference bas been made on the argllment to tbe case of The Aina, '269, lately decided in thiBeourt, and the point takep. that theqllestion of lien was not open to be: ;contested by the bpHhe ,practieepurslied in this Case is different purslled in the case of. The AiM. Ip. this no interlocutory; decree, h!lS ,been enterj:l<l,in favor 'of any <party except Bertschmann, the bottoJ;nry holder, a.u<l,all other demands are before the :court as upon final hearing uponplead,ipgs 'and proofs. It -is open to the bottomry holder"therefore, to raise the .question of lien as against' any of thepetitibnerSj but as already the disposition made of the question of priority renders a ,decision of the question onien umiecessaryat this stage of the case. If ,$U bseqUiElptly a decision' upon tbose points should bedesired,my. Mtention can 'be called to it 'by parties interested. " .,
'" · '. f,_,
(D18W'Lct Qou,re. E. D. Pennsywan14.1une 25, 1869.)
L L.&.ws. .· .' . . . ", .,, ., The admlraltysylltem of laws'ill within the exoluaivre colitrol of congressanll' the states have no 'power to legiS14',te in regard to it. '
In some few instances the 'states may exeroise powersV8sted in the federalgovernment·.but this dootrineis.not to be extended beyond the. subjeotBtl>whlchithas , been,applied..., · 8. MARITuriLIliNll-DJiATH ByWRONGII'UL Ac'l'., , . The-·RO ..'t8bf'a8ileriiblY Of, pe.n.PSYIVania,ap , APrU15,.185.1, cP,',L.ll7:.4,). and A,prU 1855dP: L. :809,) do 'not, by .their tef"!Ils. a lien for death . gence UpOll t.he hIgh seall, and as there is no JurllJchotioll of· statut017 pte"vision'Dol1eOli.nbetlustained., : : ' · ;', " ," ·..·· ';;j"
(SyZl.abus by the:CO'lII'Ilt.) ,
Hearing on libel and answer.
ll'EDERAL .REPORTER, vol. 40. Libel by Bridget Welsh, in her own behalf and that of her minor 'children, against the North, -Cambria, under Acts Pa. April 15, 1851, and April 26, 1855, to recover for the death of her husband, Peter Welsh, who wa:s killed on May 25, 1889, while employed as a laboter on said steam-ship, by the falling upon him of a tub of iron, through the negligence of employes not fellow-servants of deceased· .McK1tn.ley, Drivf/T' & Coulston. for libelant. 'N. G. Ward and E. B. (Jonver8, for respondents· .BUTLER, J. The question of jurisdiction is raised on this motion by 'consent. That the libel cannot be sustained independently of statutory provision; is settled by The Harri8burg, 119 U. S. 199 j 7 Sup. Ct. Rep. 140. Thllt the Pennsylvania statute,on which the case is put, does not · create an admiralty lien; and thus authorize the seizure, seems entirely clear. There is nothing whatever in the statute indicative of a purpose -w oreate such alien; and if there was 1 would' hold the statute to be itloperative in this respect.. The states have no power to interfere with!itheadmiraltysystem onaws; they can add nothing to it, nor · lies within the exclusive domain of congress; ;It is true that the supreme court has held that as respects pilotage and a few other subjects the states may exercise powers vested in the fedet'algo'*ettllllent until the latter assumes the assertion of its authorhowever, with which this (appMently illogical) dootrine (borli, doubtless,ofthe excessive tenderness which formerly existed ,respecting" state rights")i8 regarded to-day justifies.a very confident be'lief that 'it will not be extended beyond the subjeots to which it has been applied.: "fo this doctrine must be ascribed the decision in The Lottawanna,'21,Wiill. 580,tha.t;liens created by state statute for the repair of vessels, etc., in home ports within the state, ma, be enforced by admiralty. As this court held h9wever in The E. A. Barnard, 2 Fed. Rep. 712, such statutes do ..Il()t create an admiralty lien or ingraft any new provision upon the admiralty laws. The court in such case has jurisdiction, as the debt arises from an admiralty contract; and The Lottawanna decides no triorethallthat the sta:temay make this debt a lien for the purpose of securing, and regulating distribution between its own citizens in the abSeooe of provision respecting it by congress. Even this is ·acknowledged to be anomalous and is put upon "long usage" rather than The views of this court on the subject generally, are stated in The Barndrd, above cited. I will not repeat them. 'rhey are. asapplica!>le h,ere.as they were there. The decisions of the disdrict oourtllrespecting the subject are not harmonious. In The Sylvan Glen. 9 Fed. Rep. 335, and The Manha88et, 18 Fed. Rep. 918, the state ! statutes were denied effect in the admiralty.' This view is also supported ,by the judgnlfjllt in The Vem Cruz, L. R. 10 App. Cas. 59. In otherinstances the question has been'decided differently. It has boon 80 fully discussed in the cases cited that I will not enlarge upon it.
·INS fl. HENDRYX.
C04n'tmtt OO'Ulrt, D. Massachusetts. December 20, 1889.}
FEDERAL COURTS-JURISDICTION-NON-RESIDENTS-SERVICE OJ!' PROCESS.
A federal court does not acquire jurisdiction of a suit removed from a state court by virtue of an attachment made in the state court, where. there was no personal service of process on defendant, a resident of another state.
SAME-WAIVER OJ!' OBJECTION-REMOVAL OJ!' CAUSE.
Defendant does not, by appearing in the state court for the. purpose of removing the case to the federal court, thereby waive any irregularity 88 to service ot process.
Plaintiff, pro 86. JohnL. 8. Roberta and James E. Leach, for defendants.
CoLT,J, This suit wp.s originaUy brought in the state court, and was removed by the defendants to this court. The defendants are residents of the state of Connecticut, and no personal service was made upon them, but at the time the original writ was issued the property of the defendants in the hands of certain residents of Boston was attached. The defendants now move to dismiss the suit for want of juri!3diction. Thefirst question which arises is whether this court acquired jurisdiction by virtue of the attachment made in the state court. This question must be answered in the negative, because the law is settled that the United States courts have no jurisdiction in suits founded on fordgn attachment, and without personal service of process. Toland v. Sprague, 12 PeL 300; v. Darden, 2 Woods, 437; Sadlier v. Fallon, 2 -Curt. 57!). The sec<md question which arises is whether the act of the defendants in appearing in the state court for the purpose of removing the case to this court constitutes a waiver of any irregularity as to service of proceSs. This identical question haS been several times before the federal courts for adjudication; and, so far as I have been able to examine the cases, it has been uniformly beld that an appearance in the state court for the purposes Qfremoval is not such a general appearance as to give the federal court jurisdiction. Hendrickson v. Railway 00., Fed. Rep. 569; SmaU v. Montgomery, 17 Fed. Rep. 865; Atchison v. Morris, 11 Fed. Rep. 582. In thl;llast case, Judge DRUMMOND says: "In fact, it may have been, among other reasons, for the very purpose of .objecting to the service of summons, the defendant requested that the cause should be removed to the federal court. because, in a proper case, a party has the right to the opinion of the federal court on every question that may arise" in the case, not only in relatieln to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of the act of congress to hold that a ·party who has a right to remove a cause is foreclosed as to any question which the federal court can be called upon, under the law. to decide; and I have no doubt this is such a question," v.40F.no.12-42
On Motion to Dismiss for Want of Jurisdiction.