Page:Federal Reporter, 1st Series, Volume 4.djvu/33

 BTBIGEB V. BONNi 1* �sent by the said Eckoff, nor by any one in bis behalf, and ît was, doubtless, forwarded by some one to brxng the defendant ■within this jurisdiction. �If the plaintiff, or any one acting in his behalf, was instru- mental in decoying him hither by the use of such a device, it must be held that the writ should be quashed and the suit dismissed. But if other persons, net connected with the plain- tiff, procured his attendance, even by these improper meth- ods, for any purpose, the plaintiff bas the right to avail him- self of the opportunity of serving the writ. The defendant is found in the district, in the sense in which the term is used in the eleventh section of the judiciary act, (section 739, Eev. St.,) and the plaintiff is not chargeable with any deception or fraud practiced by these oyer whom he had no control, and for whose actions he is not responsible. Such I under- stand to be the substance of the opinion of the court in the case of The Union Sugar Refinery v. Matheisson, supra. ' The question involved must be deeided by ascertaining upon which party the burden of proof lies. There is no pretence that the deputy marshal had any knowledge of the forged telegram. Do the undisputed facts make such à presump- tion against the plaintiff or his agent, who accompanied the officer, that he is called upon to rebut them with proof that he was not privy to the deception practiced upon the defend- ant? �I am of that opinion. The presumption of the plaintiff's participation in the deception is stronger here than in the case of Hevener v. Heist, SO Leg. Int. 46, and yet in that case the court set aside the writ. The defendant had been brought to Philadelphia from Bucks county, Pensylvania, by a forged telegram, and on his arival he was served with the writ by the deputy sheriff. Judge Sharswood thought the burden of proof was upon the plaintiff to explaiu how the officer knew that the defendant was coming. There was no evidence as to who sent the telegram, and yet the leamed jtidge held that the failure of the plaintiff to show that he did not direct thp officer in the service was fatal to the legality of the proceedings. "I am elearly of the opinion," he says, "that it was incumhent on the plaintiff to produce the sheriff 'sidep- ����