CROCKER NAT. BANK II. PAGENS'1'ECHER.

705

ale

CROCKER NAT. BANK

v.

PAGENSTECHERet

(Cirouit Cow"'. D. Massachusetts. October 8, 1890.)

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FBDERAL COURTs-JmUBDIOTION-REMOVAL-FORBIGN ATTACHMENT.

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The provision of Aots Congo 1888, c. 866, § 1, (26 St. U. S. 4.'13.) that no suit shall be brought in the' circuit court" against any person by any origmal'process * * * in any other district than that whereof he is an inhabitant, "applies only to suit& commenced in that court; and it is no bar to the jurisdiction of the circuit court of a case removed to it from a state court that defendant was not a resident of the district. and that the state court hd acquired jurisdiction by foreign attachment, without any personal service.

At Law. Acts Congo 1887, C. 373, § 1, (248t. U. S. 552,) and Acts 1888, c. 866, § 1, (25 St. U. 8. 433,) provide that "no civil suit shall be brought before either of said courts [circuit or tlistrictcOl1rts] against any person by any original process or proceeding in any other district than he is an inhabitant; but, where the jurisdiction is founded mily 10n the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff' or the defendant. " William Gaston and Frederick E. Snow, for, plaintiff. Louis D. Brandeis, for defendants. CARPENTER, J. This is a motion to dismiss the action. for want of Jurisdiction. The action wRsbrought in the superior court ofthe state of Massachusetts on January 7,1890, and the writ was served by foreign attachment, the sheriff returning that he was not able to find the defendants., On the return of the writ, notice of the pendency of t4e action was given by publication in a newspaper, pursuant to the statute of Massachusetts and to lin order made in that behalf by the superior court. The action was then, on petition of the defendants, renloved into this court, "and the defendants file this' motion' to dismiss, for the reason"That at the time of the issuance of the writ and the commencement of proceedings herein the deiendants were not inhabitants, residents, or citizens of the ,state or district of Massachusetts, but then were, and for a long time previous had been, and now are, residents, inhabitants, and citizens of New Yorkj and that the defendants, or either of ,them, were not found within the state or district of Massachusetts. and no service of the writ or original process in this suit ever was. or ever has been, made upon or either of them. as appears by the return of the deputy-sheriff on the writ in this cause." The argument of the defendants is that the court has no jurisdiction, under the provisions of the statute, (St. 1887, C. 373, § 1; 24 St. 552; and St. 1888, c. 866, § 1; 25 8t. 433,) for the reasons,-Pirst, that the defendants are not residents of the district of Massachusetts, and. secondly, that no personal service of process has been made upon them. For the support of the proposition that the courts of the United States can in no case have jurisdiction of any action in which there is not personal service they rely on the decision of Judge COLT in Perkins v. Hendryx, 40 Fed. v.44F.no 10-45

706'

.. DJ)EBAI.;

REPORTER,

.vol. 44.

Rep. 657. It is, I suppose, clear that the judgment in that case could as is briefly not have been rendered without finding or assuming and broadly said in the opinion, the courts of the United States not in any case have "jurisdiction in suits founded on foreign attachment, and without personal service of process." But it is to be observed in the first place that the cllsesquoted in support of this proposition (Toland v. Sprague, 12 Pet. 800; Sad1rier v. Fallon, 2 Curt. 579; Chittenden v. Darden, 2 Woods, 437) are all cases in whicJ1 the action was originally brought in the circuit court, and they are decided, not on the broad ground that in no case can the courts of the United States have jurisdiction founded on foreign attachment without personal service, but on'the ground that an action so brought does not come within the jurisdictional provisions section of the statute, (St. 1789, c.20; 1 St. 73.) Those provisions prescribe the district in which suits. shall bebroug4t, and were so construed as to forbid,the original jurisdiction of the circuit courts over actions in which there was no personal service on the defendthe question was not raised nor decided as to whether those provisions also control the jurisdiction in causes removed to the circuit c,?prt. was this question apparently raised in Per/r41/,8 v. Hendryx. The contention in that case seems to have been over the question "whether the act of the in appearing in the state court, for the purpose of removing the case to this court, constitutes a wltiver of any irregularity II.S to service of process." The opinIon tacitly assumes that there is no distincijon in this regard between. cases originally brought in the circuit rourt. iuld removed thereto, and therefore cannot be faken as an a,uthority for ,the proposition on which the defendants rely. That this proposition of the defendants was not argued or decided in Perkin8 v,. Hendryx seems also abundantly clear from the fact that the opinion ot Mr. Justice GRAY in: Amsinck v. Balderston, 41. .Fed. Rep. 641, is not cHssed or cited. In that case it is distinctly held that the provisions of law the district in which a suit shall be brought "apply only to actions commenced in a court of the United States," and that quentlythe prohibitions therein implied have no application to cases removed into those courts. I agree with the reasoning of that decision, and,thereupon" no than on the au thority of the case, l conclude that t.I:leimotion of the defendants defect of jurisdiction,and must accordingly be denied and dismissed.

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UNITED S1oATES: '!1; .WAN LEE.

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.(lHlltrict OO'Ur4 D. WasMnaton,

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N.' D. December 15, 1800.)

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COUI\TII-DlWlllQN OpDISTRIOT-JuRo_

The act BubdiViding the dilitrict ()f"Washitigton, and fixing the time,s and places fOr hOl,din,g, terms,ct, th,e" an,d (iliJtrict courts therein,' in e,trect lim,its th,e jur,iS,diotion so that orimes committed within in the courts, for the re$pectivedivisions wbi9h include 'the places of their commission; and jurors be'drawn trom the'oount.iesconstitut.ingthe divi!ilon for whion the' term is (",blch they are serve.

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At P. ]L.

for breach Of customs laws; And P. O. SuUivan, Asst. U. S. Atty. W.O. Whitt,' for defendant;' ,' , ,

S.

, HANFoRD,J;:Tbe'defendant w,lts'irldicted at the present term of this court for thecrijhe of conceli.Hng SID1Jggled opium, umier section 3082, Rev. St. Hrlyingentered hilfplea of not guilty to the indictment, the case was broughton for trial, and 'thereupon, when the jury was called, the defendant interposed a challenge to the array on the ground that all the petit jurors in attendance at this term had been drawn and summoned from the nortnerndivision of this district, and not from the district at large. The court having 'denied tDischallenge;' and the jury having been sworn to try the case, the defendant now objects to the introduction of any testimony, on the ground that the indictment is illegal and void upon its !ace,' for that it qoes not purport to have been found by a lawful grand jury. The point of the objection is that the grand jurors were drawn exClusively from the northern division of the district, and they' are desoribed in the indictmE'nt'as"The grand jurora of the United States of America, in and for the northern division oftha district of WashiJlltton. duly impaneled, sworn, and charged to inquire of all offenses against the laws of the United States committed within the northern division of the district of Washingt,on aforesaid." It has been the practice, as the records show,to draw the jurors for each term of court from a jury-boxpl'epared for each division of the district, nameS selected from inhabitants only of that division of the district for which the box is used; and the grand juries at each term have, under the instructions of the court, confined their inquiries to offenses committed within the division,or upon the high seaB outside of the li'rnits of any jUdicial district of the United States. It ib claimed that this' practice is erroneous, and is founded upon a misconstruction of the ,aet 'of congress providing for the terms of the United States circuit 'and district courts in this district. By the act of oongress fixing the times and places or: holding the United States courts in the state of Washington, (26 St.p. 45,) the is declared to eonstitute one judicial district. 'For: the:purpose of holding terms of court, this district is subdivided into f6fi1 divisions. Certain named counties constitute the northern division so denominated in the act,and the eolil'ts'