PROVOST V. PIDGEON.
to any person purchasing rolls of Allis & Co., and these defendants did purchase rolls of Allis & Co. The controversy, primarily, should be between Allis & Co. and Downton, setting up all these matters, as between them, to take out of them or him any pretended right either may have. But, so far as third persons are concerned, who acted on the faith of Downton's conduct, publications, and the recorded assignment, they cannot be proceeded against for the use of this process. To get rid of any difficulty in this matter, he should proceed directly against Allis & Co. to have the original agreement reformed, so as to correct the mistakes which may be, possibly, detected by looking at the cotemporaneous· agreements between the parties. In other words, there should have been a suit against Allis & Co. to reform the agreements, as between themselves, and having them reformed, sue anyone who thereafter might infringe the process. On the trial, at the proper time, the merits will be considered to determine as to the validity of the process patent.
(District Oourt, S. D. NeUJ York. tieptember 23,1881.)
WHEN SET ASIDE.
An attachment will be set aside in the absence of any proper endeavor to make personal service upon the respondent.
When the respondent is a married woman, having no place of business or of customary resort other than her home, which there is no reason to suppose she has left, an omission to seek her there, or at her usual or last known place of residence, must be hcld a failure of any proper endeavor to make personal service.
3. MISUSE OF PROCESS-PRAC'l'ICE.
When it is clear from undisputed facts that through the want of any proper effort to make personal service the process has been used in an unauthorized manner, such misuse will he corrected on motion.
In Admiralty. Motion to set asid'e the service of process of attachment. Samuel B. Caldwell, for libellant. P. Cantine, for respondent. BROWN, D. J. A libel in personam was filed in this case on September 5, 1881, to recover for supplies furnished the steam-tug Frank Pidgeon, Jr., in her home port, during 1877 and 1878. On t,he same day process was issued to the marshal, with the usual clauso
directing him, in case the respondent could not be fouud, to attach her goods, etc., to-wit, the steam-tug Frank Pidgeon, Jr. The return of the marshal states that "after diligent search and inquiry he was unable to .find the respondent, and ,that he thereupon, on September 5th, attached the respondent's right, title, and interest in the steamtug byleaving a copy ·of the process with the engineer in charge of the tug, and showing him the originaL" Upon the return-day the respondent appeared specially for the purpose of moving to set aside the:service of process on the ground that no proper attempt was made to find or serYe the respondent personally before attaching the tug. The matter has been submitted to my determination' upon theaffida.vits of the parties, and of the deputy marshal who made the servico. From these it appearsThat the respondent is the wife of Francis Pidgeon, of Saugerties, Ulster county, New York, where she has for many years resided; that she has been owner of the tug since August, 1876, and that the bill of sille of the tug to her, registered at the New York custom-house, d,escribes her as residing at Saugerties; that her husband, who has had the management and control of the tug, has for 20 years past had a place of business at Long Island city, and has been known to the libellant, who also did business in the saille neighborhood for about that time; that the libellant knew he resided" up the river this side of Albany, but did not know his precise residence;" and that, prior to filing the libel, he had reason to believe that the respondent was the wife of said Frank Pidgeon, and the libel itself so states; that the supplies furnished by the libellant, for which this suit was brought, were furnished at the husband's request; tbat prior to the attachment the husband had, for some time, been absent from bis place of business at Long Island city, and was supposed to have become insolvent; that the libellant's procbr, before filing the libel, had consulted the registry at the custom-house, and found that the respondent was owner of the tug since August, 1876; and that the marshal; on receiving the process for service, was informed by the libellant's proctor that the respondent was believed to be the wife of Francis Pidgeon, and that she resided in Saugerties in 1876, but whether she now ref;ided there or not he did not know; that her husband had a place of business at Long Island city; that the marshal went to the husband's said place of business, did not find him, nor" learn anything of his whereabouts," either there or upon inqUiry in the neighborhood; 'that he thereupon went to the tug, and, without inquiry for the respondent. attached it at once, and was thereupon immediately informed by the captain that Mr. Pidgeon was at Saugerties.
From these facts it seems evident to me that no bona fide endeavor was made by the marshal to Berve the respondent personally. It was sufficiently known to him that she was the wife of Francis Pidgeon, and that she 'resided in Saugerties in August, 1876. The registry so stated, and the libellant's proctor so informed him, awl no reason is
suggested· for supposing her place of residence tobave been changed. She had no place of business at Long Island city or elsewhere, and the only place where she was likely to be found, so as to be personally served, was at the home of herself and husband in Saugerties. That is within this district. It was the marshal's first duty to seek her there. He was not bound to go elsewhere, except upon some further definite information of her whereabouts. Having no reason to suppose her absent .from her home, he had no right to forbear. going there to find her, simply because it was in a portion of his district remote from his office, and therefore inconvenient to him to make per80nal service. To admit such an excuse would be to deny the benefit of equal laws to all parts of the district, and to inflict a penalty upon those who happen to live at a distance from the marshal's office. The marshal sought for the respondent's husband at Long Island city. Had he found him there it would not have aided him in making personal service upon the respondent. It was possible her residence might have been changed, and the marshal might properly enough have sought her husband to be assured of that fact; but, not having found him, his duty remained of seeking her at her last known place of residence, the only place· she was at all likely to be found. Had the marshal found the husband it would only have resulted in informing him that the respondent could be served at Saugerties, and of this fact the marshal already had sufficient presumptive evidence. Had the real purpose been to find and serve the respondent, no reason appears why inquiry should not have been made of the master of the tug before serving the attachment, instead of immediately afterwards, when the respondent's residence at Saugerties was again indicated.. The fact, moreover, that the libellant's proctor had, before filing the libel, sought for the respondent's husband at Long Island city, and been informed of his continued absence from his place of business there, leads to the inference that the marshal's renewed inquiry for the husband or for the respondent at Long Island city instead of at Saugerties, together with the absence of inquiryat the tug before attaching her, could scarcely have been for the purpose or with the expectation of finding or serving her, but rather as a pro forma preliminary to an intended attachment of the tug without any serious endeavor to serve the respondent. The case seems to be entirely within the principle of the decision of Judge Choate in the case of the International CeiUng Co. v. Dill, (unreported; to appear in 10 Ben.,) where it was held that, in the absence of any previous endeavor to make personal service upon the
reEpondent, the attachment must be set aside. The return in the present case, it is true, alleges "diligent search and inquiry," which was not alleged in the former case. But the facts in this case, as in that, are substantially undisputed upon the affidavits submitted. In the former case there was no attempt at all to serve the respond. ent. In the present case the only attempt was by inquiries for the respondent's husband at his place of business, a hundred miles from her home, and a place where there was no reason to suppose she could be found or had ever been; while she was not sought at her home in Saugerties, of which the marshal was sufficiently informed, which there was no reason to suppose she had left, and where she might easily have been served. This is not entitled to be considered any attempt at personal service. When the respondent is a manied woman, having no place of business or of customary resort other than her home, which there is no reason to suppose she has left, an omission to seek her there, or at her usual or place of resi. dence, must be held a failure of any proper endeavor to make per· sonal service. When the affidavits present any important disputed question of fact relative to the marshal's endeavor to make service, the persons aggrieved must be remitted to their remedy by action against him for a false return, (The Intemational, etc., v. Dill, 8ltpra; Harriman v. Rockaway, etc., 5 FED. REP. 461;) but where it is clear from the undisputed facts that the process, through the want of any proper effort to make personal service, has been in effect used in an unauthorized manner, such misuse should be corrected on moticm without involving the parties and the officer in the expense or delay of an action f01' false return. For these reasons the attachment should, in this case, be set aside. As the marshal's return does not import any seizure of the tng (Brennan v. The A. P. Dorr, 4 FED. REP. 459) no costs seem to have been incurred.
THE PLYMOUTH BOCK.
THE PLYMOUTH ROCK.
(District Court, 8. D. New York.
1 SALVAGE-PA8liIENGER STEAMER.
Towage rendered to a vessel that is disabled, and in a situation to occasion reasonable apprehension of danger, is salvage service. Hence, where the Plymouth Rock, a passenger steamer of light draught and excessive" free board" exposure to tIre wind, in grade belonging to the class of river and sound steamers, and rated as A. 2,%", became completely helpless as to motive power by the breaking of her steam-pipe within a short distance of the New Jersey coast, in a north-east gale and a heavy sea, and with only two-thirds of the usual equipment in anchors and chains of full sea-going vessels, held, that the service performed in towing her into the port of New York is a salvage service. 2.
In the language of the court, the most important considerations in fiXing such awards are the value of the property rescued, the number of lives imperillep, the degree and imminence of the danger, the proximity of other means of succor, the hazard, labor, and skill ohhe salvors, the duration and,riifficulty of the service rendered, the value of the vessel employed, and her danger in rendering it, and the incidental risks or responsibilities incurred by the latter or . her owners, if any, through any deviation from her voyage in rendering the service. In this case $2,000 was adjudged to be a just award, in view 01 all the circumstances.
In Admiralty. Butler, Stillman II Hubbard, for libellants. Sidney ChlLbb and Wm. W. Goodrich, for claimant. BROWN, D. The libel in this mise is filed by the owner, together with the master and crew, of the steam-tug Germania, consisting of ,seven persons, to recover the sum of $10,000 for salvage services rendered to the Plymouth Rpck, August 17, 1881. The answer admits that towage service was rendered, and tenders $300, which it alleges is a reasonable compensation therefor, and denies that the libellants are entitled to any compensation as salvage.
The Plymouth Rock is a side-wheel passenger steamer, originally constructed for navigation upon Long Island sound. Her length is 325 feet, beam 28 feet, tonnage 1,812 tons,-half above and half below,-her main deckuepth of hold 12 feet, and draught loaded about 9 feet; her boilers are set upon guards, on a line with the main deck; above this is the promenade deck, and a hurricane deck above. Some years ago she was withdrawn from the sound, and used as an excursion steamer. In grade she belongs to the fifth class of steamers, -i. e., river and sound steamers,-and in that class ranks as A 2l, "very low as a sound steamer;" not being fitted, either in structure or equipment, for general ocean navigation, nor for the coasting service. She has ueen consid·