Page:Federal Reporter, 1st Series, Volume 3.djvu/916

the fact, if^indeed; ît isTaily evidenbel fîis vôluntàry àppfear- ance would be a waiyer of the affidavit if the want of it #aa ,a m'ere irregularity. His appearing aad sùbmitting the case arenot inconsistent with' the absence of an affidavit; there- fore they do not amount to an admission on his part that there -was an affidavit. The justice, and the attorney for the plaintiff in the suit before the justice, were both examined as witnesses on the trial of this suit, and whatever weight the fact that this libellant appeared and made no objection might be enti- tled to, if any, as evidence of the making of the affidavit, is overborne by the circumstance that these witnesses were ex- amined, and, having the means of testifying to this essential fact, if it existed, gave no testimony upon it. The docket of the justice was also produced, and does not show any affida- vit. The judgment of. the justice must therefore be held to be a nullity, because it is not shown that he had jurisdietion of the cause. , , ' . ' -' �The next question to be determined is whether the libel- �ilant's title under the marshàrs sale is. a good title as agaihst �Philip Dutcher, assuming that he was the owner of the 4)oat �at the time of the decree «f this court under which that sale �-was made. The objections taken to this title are that PhiHp �ïDutçher is not bound by th6decree, nor bis interest ciil; off �by the sale, because,' asthe respondent eôntends, he did'not �appeafin.the stiit,- hbr. have actual or constructive notice of �ibe same. On the eighteenth'of July, 1874, adibel was filed �by William Murtagh against the caaal-boat Noxon, in this �court, for a towage service, for the sum of $42. On the sàHiQ �day process was issued, and the marshal seized the canal- �boat A. Noxon under the monition, and made return on July �21, 1874, that he had, in obedience to the monition, attached �i,he canal-boat Noxon, her tackle, etc. �On the twenty-third of July, 1874, a libel was filed by the New York & Amboy Towing Company against the canal- boat A. Noxon, for towage service amounting to $271.45, and process was issued returnable August 11, 1874, on which tho marshal returned August 11, 1874, that he had attached the «anal-boat Noxon. ����