Page:Federal Reporter, 1st Series, Volume 4.djvu/474

460 TEDEBAL EEPOETEU. �opinion and inferest among the owners in relation to the employment and management" of the tug alleged in the libel, and praying the court to prouounce against the libel. �In the answer it is alleged "that said tug now is, and has been during the season of navigation of 1875, engaged in her usual employment in and about the port of Erie, " etc. Again, it is alleged "that the said tug is now, and has been during the entire season of navigation, employed and run for the joint interest and profit of the owners," etc. �From the evidence now before the court it appears that the marshal did not arrest or take possession of the tug by virtue of said process. He was instructed by the libellant's proctors not to arrest her, but simply to serve a copy of tha writ upon Christian & Carse, and these instructions he obeyed. At the time the libel was filed the tug was in the possession of Christian, and she rema,ined in his possession as fully after the service of the writ &b, before; and down until May 12, 1877, the tug was run by Christian in and about the harbor of Erie, and upon the lake, in her ordinary business. Dur- ing ail this time no further step was taken in this suit. �On the night of May 12, 1877, the libellant, Brennan, hav- ing obtained possession of the tug, ran her out of the harbor of Erie and took her to Bulïalo, New York; and there, on May 14, 1877, filed a libel in rem, in the United States district court for the northern district of New York, for the sale of the vessel and distribution of the proceeds among the owners. Thereupon process issued and the boat was seized by the marshal of said last-named district. No answer having been interposed, an interlocutory decree in that suit was entered, and a final decree for the sale of the tug was made on July 25, 1877. Subsequently, E. F. Christian moved that court for an order opening his default and permitting him to defend the action, and vacating the decree and subsequent proceed- ings, and for an order dismissing the suit, on the ground that, in consequence of a prior action pending, the court had no jurisdiction in the premises. �The exemplification of the record of the United Statea dis- ����