FOnSYTH V. PIERSON.
801 and others.
FORSYTH
and another v.
PIERSON
(Oircuit Oourt,.D. Indiana.
January 17,1882.)
In Chancery. J. R. Doolittle, Jr., and McDonald It Blttler, for complainants. Baker, Hord <t Hendricks, for intervening petitioners. Gra.nt, Swift J; Bradley, for defendants. GRESHAM, D. J. The complainants filed their bill of complaint against the defendants on the eleventh day of November, 1881, to enforce their right to redeem certain real estate, situated in Indiana, from a mortgage, both of which are described in the bill. At the same time the East Chicago Improvement Company filed its inter. vening petition setting up that it was the owner of the mortgaged premises by mesne conveyances from the complainants, who were the mortgagors, and that it desired to make various permanent and expensive improvements upon the premises, which could not be made while the mortgage remained upon the property. The petitioner pa.id into court $75,000, which, added to $135,000 already paid in by the complainants, was, the petitioner averred, more than sufficient to pay the amount that was claimed to be due upon the mortgage. The prayer of the intervening petition was that the lien of the mort· gage should be transferred from the lands to the fund in the registry of the court, and that the mortgagees should be decreed to enter satisfaction of their mortgage. At the time the bill and intervening petition were filed, J. R. Docv.9,no.14-51
802
FEDERAL REPORTER.
little, Jr., Esq., one of the complainants' solicitors, filed his affidavit describing the complainants' cause of action, stating that John o. Piersoll, one of the defendants, was a resident of the city of Chicago and state of Illinois; that the Continental Life Insurance Company was a citizen of the state of Connecticut, and that certain other defendants were citizens of Boston, in the state of Massachusetts; that neither said non-resident defendants, nor either of them, could be found in the district of Indiana, nor did they, or either of them, voluntarily appear to the complainants' bill of complaint. On the information contained in this affidavit the court entered an order that the defendants named in the affidavit appear and plead, a;nswer or demur, to the bill and intervening petition on or before the seventh day of December, 1881, and that a copy of the order should be served upon each of such defendants. Certified copies of this order and the bill of complaint and intervening petition were served upon the Continental Life Insurance Compauy, in Connecticut, on the sixteenth day of November, 1881, by the marshal for the district of Connecticut. Samuel C. Hays, in an affidavit in which he describes himself as deputy United States marshal for the northern district of Illinois,' swore that he made similar service on John O. Pierson on the same day. And B. B. Johnson made affidavit of similar service at Boston on the seventeenth day of November, 1881, on the defendants, who were citizens of that place, describing himself as deputy marshal for that district. .J\{r. Johnson also indorsed the usual return of service upon the certified copies of the order, bill, and intervening petition, which were placed in his hands as deputy United States marshal for the district of Massachusetts. The defendants now appear specially and move to set aside the order of the court and the service of the same, for the reason that the order was prematurely made; that it was not based upon proper information; that the day designated for the defendants to appear and plead was not a rule-day; that the service should have been by the marshal of this district, or by a person specially named in the order to make the service; and that the intervening petition is not such a proceeding as is contemplated by the act of March 3, 1875. This act provides that when any defendant in a suit in equity to enforce any equitable lien or claim against real or personal property in the district where the suit is brought is not an inhabitant of uor found within the district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear and plead, answer or demur, to the complainant's
FORSYTHV. PIERSON.
808
bill on a certain day therein to be designated; and the said order shall be served on such absent defendant wherevElr found, or where such personal service is not practicable shall be published in such manner as the court shall direot. If the absent defendant fails to appear and plead within the time limited, the oourt is authorized to entertain jurisdiction and proceed to the hearing of the suit. The act is silent on the subject of the evidence that will authorize the making of an order for substituted service. The marshal's return to a subprena that one or more of the defendants cannot be found within the distriot would, no doubt, authorize the court to enter such an order. But this is not the only evidence that will authorize the court to enter an order for substituted service. An affidavit such as was produced in this case is sufficient evidence that the defendants named in it are not inhabitants of the district. When it is made to appear at the commencement of the suit, or at any subsequent time, that a defendant is not an inhabitant of the distriot, and cannot be found within it, and will not, or does not, voluntarily appear to the suit, an order may be entered specifying a day for such defendant to appear and plead, answer or demur. It is not necessary to wait and see if the absent defendant will not voluntarily enter his appearance, or that he may be found and personally served with process in the district. It is urged that equity rule 17 fixes the appearance-day for defendants in all equity cases. "The appearanceday of the defendants," says this rule, "shall be the rule-day after the subprena is made returnable, provided he has been served with the process 20 days before that day. Otherwise his appearance-day shall be the next rule-day succeeding the rule-day.when the process is returnable." The act says the absent defendant shall be ordered to appear on a day to be designated in the order-not on a rule-day. And, furthermore, the order for the appearance of the absent defendant is not a subprena or process within the meaning of rule 17 or rule 15, which provides that the service of all process, mesne and final, shall be by the marshal of the district, or by his deputy, or by some other person specially appointed by the court for that purpose. The language of tQe act is: "And the said order shall be served on such absent defendant, if practicable, wherever found; or, when such service is not practicable, shall be published in such manner as the court shall direct." The order is nowhere referred to as process, and no particular service or proof of service is required. The residence of each of the absent defendants was given in Mr. Doolittle's
804
affidavit, and it was, therefore, practicable to serve each of tl1em personally with a copy of the order, which was done. I think the act has been sufficiently complied with to give the court jurisdiction over the property described in the bill, and the rights of the absent de· fendants thereto. If it becomes necessary, the question arising in connection with the intervening petition can be determined hereafter. Motion overruled.
UNITED STATES 1.
V.
RICHARDSON and others, .Ex'ra. January 23, 1882.) SURVrvAL OB'
(Uircuit Court, D. Massachusetts.
CONTRACTS - OFFER TO PAY - "ALL CLAIMS" - EXECUTORS CAUSES OF ACTION-PENALTIES AND FORFEITURES-DUTIES.
W., an importer, against whom a personal action was pending in the district court of the United States for penalties alleged to have been incurred on account of certain importations of tobacco, made an offer to the government to pay a certain SUill on the suit in the district court in settlement of all claims it had against him. The government agreed to settle all the known claims, specifying them, for that sum, requiring immediate payment, aud that part of the sum so paid be considered as having been paid for duties, and the remainder only as a penalty. Boon afterwards W. died; before either he had paid the money or the government had tendered him a release. In an action against his executors, in which both parties agree that all suits and causes of action for penalties and forfeitures died with W. , and that the right of action for duties survived, it was held: (1) that the acceptance conformed to the offer; (2) that as no tender of a release had been made by the government before the death of W., and after that occurred the occasion for a release had passed, the contract was not binding upon the executors.
At Law. Geo. P. Sanger, U. S. Atty., and Prentiss Cummings, for the United States. Sydney Bartlett and Hem?! D. Hyde, for defendants. LOWELL, C. J. Action of contract. The first count of the declaration alleges that in May, 1872, a suit for penalties was pending in favor of the United States against Way, the testator of the defendants, in the district conrt at Boston; that claims were made for penalties and duties in respect to certain importations 8f tobacco; that the testator offered to pay the plaintiffs $55,000 in settlement of all said claims and causes of action; that upon due report by the district attorney, and upon the recommendation of the solicitor of the treasury, the secretary of the treasury accepted said offer, May 29, 1872; that the acceptance was notified to Way, June 1, 1872, and