The Tug E. W. Gorgas. (Hall v. Fisher, Indeed, the lan whether by the laws of New York sheriffs can now, or in 1861 could, make such a deputation for the service of writs, since, as shown above, the marshals of the United States have, independently of any powers conferred on them by these particular statutes, the power to do so. The other answer to the objection is, that the State Statute itself (Code § 102) seems not to take away from sheriffs the power of deputing other persons to execute process, recognized by statute and the decisions of the courts of New York as an existing power of sheriffs. 1 N. Y. Rev. Stat. p. 379, § 73, which provides that "persons may also be deputed by any sheriff or undersheriff by an instrument in writing to do particular acts," has never been expressly repealed. The term “particular acts," clearly includes the service of writs. 9 Barb. 25; Hunt v. Burrel, ut supra.) guage of section 102 of the Code of Civil Procedure, relied on as importing that the sheriff or deputy-sheriff must personally serve all process, to wit: "A sheriff or other officer to whom a mandate is directed and delivered must execute the same according to the command thereof, and make return thereon of his proceedings under his hand," is simply a re-enactment of 2 Rev. Stat. p. 440, § 77, which provides that "every sheriff or other officer to whom any process shall be delivered shall execute the same according to the command thereof, and shall make due return of his proceedings thereon, which return shall be signed by him." This provision seems first to have appeared in the Revised Statutes of 1828, and has been in force ever since. The changes of phraseology in the Code are merely verbal, and do not indicate a purpose to require the service to be made by the sheriff personally. Moreover, this section, so far as it imposes the duty of serving all process on the sheriff or deputysheriff, was implied in 1 Rev. Laws of 1813, p. 423, § 10, and The Tug E. W. Gorgas. that same statute recognized the power of the sheriff to appoint another person, containing the following provision: "That no person who shall be deputed by any sheriff to do a particular act only, shall be required to take the oath to be taken by the deputies of sheriffs." (1 Rev. Laws 1813, p. 421, § 5.) The same Act also provides (p. 423, § 11) that in case resistance is made to any process of execution, the sheriff, "laying aside all other things and taking with him the power of the county, shall forthwith go in his proper person and do execution." This alone would strongly tend to show that in all other cases the sheriff is not required to go in his own proper person for the service of process. At any rate, the existence on the statute book from so early a time of these two provisions, one requiring the sheriff to execute all process, and the other empowering him to do a particular act through a deputy specially appointed in writing therefor, together with the judicial construction that has been put upon the latter provision as applicable under the statute to the service of process, is conclusive that section 102 of the Code has not the force contended for in this case. And it follows that under U. S. Rev. Stat. § 788, the marshal can make such a special deputation, because under the laws of New York the sheriff can do so. The construction, so clearly to be applied to these statutory provisions of the State of New York, also tends strongly to confirm the views above expressed as to the proper construction of the similar provisions in the statutes of the United States and the rule of the Supreme Court. The other objections to the record are not tenable. It is not essential to the jurisdiction that the marshal should continue his custody of the vessel. (The Rio Grande, 23 Wall. 463.) After decree certainly the act of the marshal will so far be presumed to be regular that the seizure will be pre The Tug E. W. Gorgas. sumed to have been made within his district, there being nothing to show the contrary. There is no rule or statute requiring the exclusion of Sundays in computing the fourteen days allowed for the return of process. The objection to the signature of the return is not sustained by the evidence. The objections to the jurisdiction must therefore all be overruled, and it is unnecessary to examine the question raised by the claimant's counsel whether the decree itself, importing the judgment of the court upon these several questions and a finding of the facts in favor of the jurisdiction, does not exclude all evidence impeaching the jurisdiction on these several grounds. It remains to consider whether the alleged fraud and collusion constitute any ground on which, in this suit, the decree or the title made under it can be attacked. As regards the allegations of fraud in procuring the title of the claimant under the decree, the averments of the amended libel are not sufficiently certain to make it proper to dispose of the issue on the offers of proof already made. There is a considerable weight of authority for the claim that even a domestic judgment in rem may be treated as a mullity when made the basis of a claim or defence by one who has procured it by means of a fictitious case imposed upon the court, or even by means of a case not in itself fictitious but used not for the benefit of the apparent plaintiff, but collusively with him for the benefit and defence of the party apparently hostile to him, and with a purpose on his part to injure or impair the rights of the party against whom the judgment is sought to be now set up as a bar. (Borden v. Fitch, 15 Johnson 145; 2 Smith's L. Cases, 7th Amer. ed. p. 822. See also Bradstreet v. Neptune Ins. Co., 3 Sumn. 604; The Storm King, unreported; Girdlestone v. Brighton Aquarium Co., L. R. 3 Exch. Div. 137 and S. C. on App.) Whether, The Tug E. W. Gorgas. however, the libellants' case can be brought within this principle and what are the proper limits of the principle itself, may more properly be left to be determined when the libellants have produced all their evidence tending to show fraud and collusion. The cause will stand for further hearing on the issue of fraud and collusion. Evidence having been taken on that issue, the court rendered the following opinion: CHOATE, J. The testimony having been now taken bearing on the questions of fraud raised by the libellants in impeachment of the title under the marshal's bill of sale, set up in the answers of the claimant, it is evident that no case is made out by the libellants for holding that the suit of Collins against the E. W. Gorgas was a fictitious suit or was procured to be commenced or carried on by the consent or with the connivance of libellant therein, for the benefit of any other party than himself. So far as the libellant Collins is concerned, the suit was prosecuted in good faith, for the purpose of collecting what he believed to be a valid claim, and all the steps taken in his name and behalf in the progress of the cause were taken in pursuance of his directions given to his proctors and the agent employed by him to collect the claim. It is, however, now insisted that the claimant George H. Dentz has been guilty of such a fraud towards the libellants in respect to said suit, and the sale of the tug under the decree therein, that he is estopped to deny their liens as still existing, notwithstanding the sale of the boat to him under the decree. It is also claimed on their behalf that a sale under a decree of an admiralty court to one who was the former owner of the vessel does not cut off The Tug E. W. Gorgas. the prior liens created through the acts or contracts of such owner, and that the same principle makes the title of the claimant, who was the master of the tug and representative of the owner at the time when the libellants' liens, if they ever had any, attached, subordinate to their liens. And it is insisted that the rule applies to such a case that the same person cannot be both vendor and vendee. As regards this latter point, it seems to me enough to say that a sale of a vessel by a Court of Admiralty, if properly subject to its jurisdiction, is a sale of the thing itself and not a transfer of anybody's title to it. A transfer by the marshal under the decree becomes a new and independent source of title, and all rights in and liens upon the thing sold are transferred and attach to the proceeds in the possession of the court. It differs essentially from a sale inter partes and from other judicial sales where the court undertakes to deal with and transfer only the interest or title of particular persons, parties to the suit before it. And there is no reason of public policy which incapacitates a former owner from buying at an admiralty sale on the same terms as regards the title he acquires with all the rest of the world. Indeed, sales in admiralty are so often submitted to, in practice, for the purpose of disentangling the title to the vessel from embarrassing claims and liens, and vessels so sold have been so frequently purchased by their former owners that this point, if valid, must long ago have been raised and sustained. There is no question that the former owner may buy and all existing liens will be cut off by the sale. Nor does this claimant stand in any worse position as a purchaser than any other person because he was master of the tug at the time libellants' boats were lost. Their claims against the tug, if any, are based wholly on the negligence of those in charge of the boat at the time of the disaster. He was then the master and presump |