Page:Federal Reporter, 1st Series, Volume 9.djvu/427

412 FEDERAL REPORTER. �reEpondent, the attachment must be set aside. The retum in the present case, it is true, alleges "diligent search and inquiry," which was not alleged in the former case. But the facts in this case, as in that, are substantially undisputed upon the affidavits submitted. In the former case there was no attempt at all to serve the resporid- ent. In the present case the only attempt was by inquiries for the respondent's husband at his place of business, a hundred miles from her home, and a place where there was no reason to suppose she could be found or had ever been; while she was not sought at her home in Saugerties, of which the marshal was sufficiently informed, which there was no reason to suppose she had left, and where she might eaaily have been served. This is not entitled to be oonsidered any attempt at personal service. When the respondent is a married woman, having no place of business or of customary resort other than her home, which there is no reason to suppose she has left, an omis- sion to seek her there, or at her usual or last-known place of resi- dence, must be held a failure of any proper endeavor to make per- sonal service. When the affidavits present any important disputed question of faot relative to the marshal's endeavor to make service, the persons aggrieved must be remitted to their remedy by action against him for a false return, (The International, etc., v. Dill, supra; Harriman v. Rockaivay, etc., 5 Fed. Eep. 461;) but where it is clear from the undisputed facts that the proeess, through the want of any proper effort to make personal service, has been in effect used in an unauthorized manner, such misuse should be correeted on motion without involving the parties and the officer in the expense or delay of an action for false return. �For these reasons the attachment should, in this case, be set aside. As the marshal's return does not import any seizure of the tug (Bren- nan v. The A. P. Don, 4 Fed. Eep. 459) no costa seem to have been incurred. ��� �