Page:Federal Reporter, 1st Series, Volume 9.djvu/204

 BLACK V. SCOTT. 189 �Berved by leaving a copy of the subpœna at his Usual place of aLode, in Ohio. The bill also alleges that the plaintiff is a citizen of Illinois, and it alleges the transfer of the notes for a valuable consideration, before due, to parties who were citizens of Pennsylvania and Illinois ; that these notes are due and unpaid, and that since their execution and that of the deed, John W. Scott had assigned- all his property for the benefit of his creditors. The bill prays an account, and an order that the defendant Scott pay, and in def ault that the court order the property to be sold. �Section 738 provides that — �"When any defendant, in a suit in equity to enforce any legal or equitable lien or claim against any real or personal property within the district where the suit ia brought, is not an inhabitant of nor found within said district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur to the complainant's bill at a certain day therein to be designated. And the said order shall be served on the absent defendant, if practicable, wherever found ; or, where it is impracticable, publication may be made. And, upon proof of the service or publication, it shall be lawful for the court to entertain jurisdiction of such suit in the same manner as if such absent de- fendant had been served with process within the district. But the adjudica- tion shall afEect the property of such defendant within such district only." �The general nature of this suit is clearly one to enforce a lien against real estate within this district. The plaintiff is a citizen of Illinois, and the defendant, in whom the legal title is vested, is a citi- zen of Ohio. The court bas clearly, then, jurisdiction of the subject- matter, and the party in whom the legal title rests ; and the f act that one who may be a proper party may not be an inhabitant of the etate or a citizen of it, or may not be found within it, cannot oust the jurisdiction, for under section 738 he may be served personally out of the state, or may be brought in by publication. The plea, therefore, of the defendant John W. Scott is adjudged insufficient. �The plea of the defendant Charles A. Coble substantially states that John W. Scott, before the bringing of the suit, had made an assignment of all his property, including that described in the bill, to him, for the benefit of his creditors ; that he had accepted the trust, and had qualified before the probate court of Athens eounty, Ohio, and had procnred an order for the sale of said property, and was pro- ceeding to sell the same ; and that by virtue of these proceedings the probate court had acquifed complete and exclusive jurisdiction of the subject-matter of this suit, and therefore this court cannot entertain jurisdiction of this cause. The proceedings set out in the plea were ��� �