9:27 A.M.., February 27, 1941, and the attachment on the "Valmar" the previous day.
It is the respondent's contention that under these facts the foreign attachment was invalid and should be dissolved.
I am in agreement with that contention.
It is well settled that the sole requisite for issuance of a foreign attachment lies in the fact that the respondent may not be "found" within the district.
It is also well settled that under a process of foreign attachment, it is the duty of the Marshal to serve the party if he can be "found" in the district, and that the Marshal has no right to attach goods, chattels, etc., before endeavoring to find the partyf himself. See Benedict on Admiralty, vol. 1, 5th Ed., section 290. Of course, the Marshal is not required to so devote himself to a fruitless search for the respondent as to lose the opportunity of attaching his property.
In this connection, attention may be called to the fact that the "Valmar" was already in the custody of the Marshal as a result of an independent attachment in other litigation.
There are numerous authorities in support of the proposition that a foreign attachment will not lie if the respondent can be "found" in the district. See Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 85 U.S. 272, 21 L. Ed. 841; The Athanasios, D.C., 228 F. 558; Shewan et al. v. Hallenbeck, D.C., 150 F. 231.
The libellant relies on American Potato Corp. v. Boca Grande S.S. Co., D.C., 233 F. 542, 543. In that case the respondent was a Delaware corporation whose main office was in New Orleans. On the day that the vessel (a tramp coaster without a regular run) was attached in Philadelphia, while undergoing repairs and loading a cargo, the president of the respondent corporation was in charge of the vessel as its master. Respondent moved to set aside the attachment on the ground that it was "doing business" in Philadelphia and, further, that the master, as president of the corporation, was a proper official upon whom service of a monition could have been made, and that therefore no foreign attachment could lawfully be levied. Judge McPherson denied the motion to set aside on the ground that "The mere presence of Capt. Lawrence in Philadelphia was not equivalent to the presence of the corporation".
It is clear that Judge McPherson premised his decision on the fact that the presence in this district of an officer of the corporation was not the presence of the corporation itself. In the instant case the respondent Jones is an individual, and thus we have a different fact situation than in American Potato Corp.
Libellant strenuously contends that Judge McPherson's decision requires that the respondent not only be "found" in the district, but that he must be "doing business" in the district, in order to invalidate the foreign attachment.
I cannot subscribe to that contention. To do so would be to read into General Admiralty Rule 2 an utterly unwarranted meaning. Atkins v. Fiber Disintegrating Co., supra, is clearly dispositive of the libellant's contention that the respondent must not only be "found" in the district, but must also be "doing business" in the district.
For the reasons stated, the petition and motion to vacate and dissolve the foreign attachment is granted, and an appropriate order effecting such vacation and dissolution, and directing the Marshal to amend his return, will be entered upon submission.