HARRIMAN V. ROCKAWAY BEAOH PIER CO.
HARRIMAN 'V. THE ROCKAWAY BEACH
Oourt, E. D. NC'IJJYO'1'k. August 30, 1880.)
An attachment, under an ordinary process in per8onam, will not be vacated upon the ground that the marshal attached the property without having made any proper effort 10 serve the defendant, where the marshal returned that he made -a reasonable effort to sel've the defendant before making the attachment.
The proper course, under such circumstances, Is to allow the retllI'n to stand, and leave the marshal to justify it in an action against him for a false return.
An iron pier is not attachable under such process as coming the designation of goods and chattels.-lRD.
In Admiralty. BENEDICT, D. J. This is a motion on the part of the defendant for the release of the iron pier at Rockaway froIn a. seizure thereof made by the marshal on the 19th inst. , The process was the ordinary process in personam, and eontained a clause directing the marshal, in case the defend· ant could not be found within his district, to attach the goods and chattels thereof within the district to the amount sued for. In pursuance of this direction the marshal attached the iron pier in question, and also certain lamps, a. life-boat, a clock, some life-preservers, awnings, and a quantity of rope, oil, varnish, paints, lumber, etc., andmadG return to the process that the defendant, not having been found, he had, in obedience to the writ, attached the iron pier and other property above described. The defendant now moves to vacate the attachment. One ground of the motion is that the marshal attached the property without having made any proper effort to serve the defendants. The fa;cts, as they appear in the affidavits that have been read, are not sufficient to justify a discharge of the attachment on this ground. The marshal's return to the process is, in legal effect, that he made a reasonable effort to serve the defendant before making the
attachment. This return is not shown to have been the reBUlt of any colhlsion or fraud on the part of the libellant; and the marshal now insists that all proper effort to serve the defendant was made by him before he levied, the attachment. If the marshal's return be true, the right to attach is clear. If the return be false, the marshal is liable for a false return. The proper course, under those circumstances, is to allow the return to stand, and leave the marshal to justify it in an action against him for a false return. But there is another ground upon which the motion is pressed, so far as it relates to the pier itself. This ground is that the pier is real property, and not within the scope of the process that was issued to the marshal. The process authorized the marshal, in case the defendant should not be found within this district, then to attach the defendant's goods and chattels to the amount sued for. The marshal's authority was therefore limited, by the terms of the writ, to the seizure of goods and chattels, 'and he had no power to attach the iron pier in question, unless it can be held that such a structure comes within the designation of goods as used in the process. In my opinion it cannot be so held, and therefore the attachment, so far as it affects the pier proper, cannot be maintained. Whether it would have been competent for this court, sitting in admiralty, to direct the attachment of real estate upon re-issne process is a question not presented by this case, and as to which I express no opinion; nor do I express any opinion as to the power of the court to amend ,the process at this stage of the cause, for such amendment, if now made, would be of no benefit to the libellant, as the defendants now stand ready. to enter their appearance. The objection that the question whether the pier attached comes within' the designation of goods should not be decided upon in a suit like the present, is obviated by the offer to the defendant to give the usual bond for the other property soized in an amou'tl:t sufficient to cover the libellant's demand. The attachment of the pier proper is, therefore, set aside, and the pier itself discharged from custody. As to the other property seized the !1ttachment must stand.
NEW HARBOR PROTEO'N CO. V. STR.CBAS.P.OHOUTEAU.
PROTECTION CO. V. STEAMER CUARLES CHOUTEAU.
(Di8trict Court, D. Loui,.iana. January, 1881.)
1. SALVAGE-BURNING VESSEL-SERVICES DECLINED.
Salvage cannot be claimed for aid tendered a burning vessel, when such assistance was absolutely declined.
SAME-ATTEMPT TO COMPEL ACCEPTANCE OF SERVICES.
An attempt to compel an acceptance of such aid will forfeit all right to compensation for expenses incurred in going to the relief of the burning vessel.-[ED.
In Admiralty. On the twenty-fourth day of 1880, about 8: 15 P. M., a fire was discovered, which had originated in some bales· of jute stored on the larboard guards of the ·Charles.P. Chou· teau, some 50' feet aft of the boilers. The officers and crew immediately assembled and commenced to put it out, and in about two minutes the fire-engines of the boat were in operation and playing three streams of water on the fire. Two Babcock extinguishers were also playing on the flames, and the crew were so alive and vigilant that in about five minutes after the fire was discovered it was put out by their efforts, without aid from anyone else. Soon after the fire was dis. covered the watchman rang the bell several times as a signal to the pilot to stop the boat. The sound of this bell, and the smoke rising from the flames, drew to· the scene the Pro. tector, a fire-boat belonging to libellarits, which is always kept in a state of readiness to render service at any poil1t' on the city front. Although the fire was nearly extinguls'hed, the Protector came along.side,and, without any hailing or usual inquiry if any aid was needed, endea"ored' to force her aid in putting out the remainder of the fire. The captain of the Chouteau told the crew of the Protector that he did not need their aid, and ordered them to! desist. In spite of this' order, they began to pump water on the burning vessel, whereupon the captain of the latter threatened to shoot them if they did not stop. The Protector was finally driven off,