Page:Federal Reporter, 1st Series, Volume 5.djvu/529

SHAiNWAiiD v.'t^ms. 517 �defendant to the payment of his debts. By the wdi'ds "legal or equitable lien oi claim against real or personal property,*' côiigresB ihtended to reacli every case in which there sho'uld be any sort of charge upon à 'spçcinc pieee of prçperty, capa- ble of being enfôrcëd by a courf of equity. This is manifest to tny mind from the section as it stands'; bt^t Wjien we look to the act of March ^3, I8i5, -vfrhich was evidently intended as a substitute for sectioji '738, aU doubt vàriishës. Such ex- pressions as were obscure in the lutter section are by the former made clear. �Section 8 of thô act of l'8i5 provides "that when ;n any suit commenced in any circuit court of the, United States to enforce any legal or equitable lien upon, or clàim to, of.tp feûiove any encumbrance or lien or cloud iipon, the title to real or personal property within the district," etc.; foUowing the language substantially of section 738, "with a provision that the adjudication shall only affect the property "which shall have been the subject of the suit." �Nothing, it seems to nie, can be plainer' than this. In case the absent defendant does not appear, it is only the property "which shall have been the subject of the suit" which is to be affected. I must hold thaj; there is nothing in these sec- tions, which helps the plaintiff here. Indeed, this latter sec- tion limits the jurisdiction, such as it is, to suits in the circuit court. Having reached the conclusion that since the ap- pearance of the defendant to object to the jurisdiction this court cannot proceed further, there is no need to go. on. and decide the other pôinis made on the motion. But I am con- strained to say that it has seemed to me the assignee is not in a position to maintain this bill, which is a creditors' bill, he not having exhausted his legal remedy in this jurisdiction. That he has a legal remedy on the California judgment seems plain. An action will lie at law upon it, a judgment can be obtained here, and an execution can be issued against the property of the defendant now in the hands of the receiver;- that is, there is no legal impediment to such a course. What- ever difficulties arise to prevent a successful pursuit of legal remedy corne from the fact that Lewis is not a resident. ����