SPRAGUE, District Judge.
The libellant claims the possession of this vessel, which he avers is wrongfully withheld from him; and being out of possession he must maintain his claim, by showing a better right than these respondents, who held possession at the time of filing the present libel. His claim is founded upon a sale made by a sheriff, under the provisions of the Revised Statutes of This state, for the sale of property, when expenses of keeping it. would be great and disproportionate. The statute provides for an application for such sale to be made to the sheriff, who is to give notice thereof to the parties interested. Chapter 185 of the Acts of 1837 provides that such notice, in case the defendant is not within the commonwealth, and has no attorney therein, shall be in writing, and left at his last and usual place of abode within the commonwealth, if he has any, otherwise it shall be left at the dwelling-house or place of business of the person who had possession of the' property at the time of the attachment; and that such notice, so served, shall be sufficient notice to the defendant to authorize an appraisal and sale. Where the defendants are not within the commonwealth, in the absence of personal notice, compliance with this provision of the statute is necessary, to render the subsequent proceedings of ap-praisement and sale of any validity. This is a sale by an executive officer, not by the order of any court, and it is necessary that he should have complied with the requirements of the statute, in order to confer a title. His decision is not a judicial determination, but ministerial, and does not preclude this court from going behind his return, and inquiring into the regularity of his proceedings. I am not prepared to say that the cabin of a deserted vessel, which comes into the state temporarily, can be properly called the last and usual place of abode of the master, within the meaning of the stat-' ute. The mate was no party to the suit, was not in possession of the property at the time of the attachment, and had left his temporary boarding-house before the notice was left there. The third person to whom personal notice was given, the officer returns as a “supposed” agent; but it does not appear that he was correct in his supposition, and that notice to him availed anything. The defendants were not within the state, and no notice was given them of this contemplated appraisal and sale of their property. Yet the sheriff returned that they had neglected to appoint an appraiser, and proceeded to appoint one in their behalf. I have great doubts whether the proceedings under the statute were regular, so that a sale by the sheriff could confer a title.
I do not think it necessary, however, to decide this point, which rests upon the construction of a state statute, because I am of opinion that the respondents had previously acquired a good title, under a sale by order of this court, and no subsequent sale by the sheriff could impair such title. I will state my reasons for this opinion.
The sheriff held this vessel by a writ of attachment, sued out in common form by a creditor, merely to secure an ordinary debt. It was not to enforce any lien or title. The marshal had a warrant from this court to enforce a lien for securing wages, a-paramount right, having legal precedence over the claims of creditors. In order, therefore, that this paramount right should be duly assert[37]*37ed, it was proper that the sheriff should yield to the marshal the possession and control of the vessel, so that he could truly make return that he had executed his warrant, and held the vessel pursuant to its precept. This has often been done. But in other cases, where the sheriff has refused to permit the marshal to take possession, the marshal, instead of using force to execute his warrant, has acquiesced in such refusal, and stated it in his return. And thereupon proceedings here were suspended, until the adverse possession by the sheriff had ceased, and the marshal could execute his warrant. This court has never been called upon to decide whether such acquiescence by the marshal was rightful. The libellants in such cases have not moved the court for any order upon the marshal, or instituted any proceedings against him. But the course practically has been to wait until the custody of the sheriff had terminated, and then for the marshal to execute his precept by an actual arrest of the vessel, and for the court then to proceed in the exercise of its jurisdiction. In such cases it has been held that no proceedings by the sheriff, not even a sale on execution, could defeat the paramount right of the seaman's lien, or prevent this court from ordering a sale of the vessel in satisfaction thereof. The purchaser under the sheriff’s sale, could take only the right of the debtor, subject to all prior liens and incumbrances. See The Gazelle [Case No. 5,289]; The Havana [Id. 6,226]. As there stated, the question what are the rights and duties of the sheriff and marshal in such cases, is a very important one. On the one hand, it may be said that being mere executive officers, holding precepts under distinct sovereignties, exercising distinct jurisdiction, they stand on equal ground, and the first in possession is to be deemed the first in right, and must retain possession, until the exigency of his writ has been satisfied. This view is attended with the practical convenience of preventing conflict between executive officers, or the necessity of their forming an opinion, as to which of the claims which they are commanded to enforce, has legal precedence or priority. On the other hand, it may be urged that the convenience of the executive officers is not to be consulted, at the expense of the legal and substantial rights of the parties; that questions of the legal right of such officers to arrest persons and property very frequently arise, which they must solve in the performance of their duty, ’and that the question between a seaman’s lien and a creditor’s attachment is less difficult than many which executive officers must encounter. Then, as to the argument that they are acting under distinct sovereignties, exercising distinct jurisdiction; it may be replied that j the jurisdiction of the United States and of a state are in some respects distinct, but in no sense affecting the present question. They are distinct, so far as the constitution | | of the United States has made them so. Within the sphere prescribed by the constitution, the sovereignty and jurisdiction of the United States extend over and control the territory and the people of every state. A law of the United States is not only the law, but the paramount law in Massachusetts. By the express terms of the constitution, it is “the supreme law of the land,” . . . “anything in the constitution or laws of any state to the contrary notwithstanding.” The whole people of a state, with all the sovereignty they possess, have no right to impair or impede such law, and can confer no power to do so upon any of its officers. Now the law which gives to a seaman a paramount right to wages, and the jurisdiction of the courts of the United States authorized, as it is, by the express words of the constitution, are universally admitted. Const, art 3, § 2. How, then, can a subordinate state officer have a right to defeat or obstruct the enforcement of such law, under the authority of such courts? This would be going even beyond the doctrine of nullification. That doctrine never insisted that a valid law of the United States could be resisted, either by a state or its officers, but only that where its validity was doubtful, a state had the right to decide the question of its constitutionality, and that such decision would justify its people and officers in resistance.
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SPRAGUE, District Judge.
The libellant claims the possession of this vessel, which he avers is wrongfully withheld from him; and being out of possession he must maintain his claim, by showing a better right than these respondents, who held possession at the time of filing the present libel. His claim is founded upon a sale made by a sheriff, under the provisions of the Revised Statutes of This state, for the sale of property, when expenses of keeping it. would be great and disproportionate. The statute provides for an application for such sale to be made to the sheriff, who is to give notice thereof to the parties interested. Chapter 185 of the Acts of 1837 provides that such notice, in case the defendant is not within the commonwealth, and has no attorney therein, shall be in writing, and left at his last and usual place of abode within the commonwealth, if he has any, otherwise it shall be left at the dwelling-house or place of business of the person who had possession of the' property at the time of the attachment; and that such notice, so served, shall be sufficient notice to the defendant to authorize an appraisal and sale. Where the defendants are not within the commonwealth, in the absence of personal notice, compliance with this provision of the statute is necessary, to render the subsequent proceedings of ap-praisement and sale of any validity. This is a sale by an executive officer, not by the order of any court, and it is necessary that he should have complied with the requirements of the statute, in order to confer a title. His decision is not a judicial determination, but ministerial, and does not preclude this court from going behind his return, and inquiring into the regularity of his proceedings. I am not prepared to say that the cabin of a deserted vessel, which comes into the state temporarily, can be properly called the last and usual place of abode of the master, within the meaning of the stat-' ute. The mate was no party to the suit, was not in possession of the property at the time of the attachment, and had left his temporary boarding-house before the notice was left there. The third person to whom personal notice was given, the officer returns as a “supposed” agent; but it does not appear that he was correct in his supposition, and that notice to him availed anything. The defendants were not within the state, and no notice was given them of this contemplated appraisal and sale of their property. Yet the sheriff returned that they had neglected to appoint an appraiser, and proceeded to appoint one in their behalf. I have great doubts whether the proceedings under the statute were regular, so that a sale by the sheriff could confer a title.
I do not think it necessary, however, to decide this point, which rests upon the construction of a state statute, because I am of opinion that the respondents had previously acquired a good title, under a sale by order of this court, and no subsequent sale by the sheriff could impair such title. I will state my reasons for this opinion.
The sheriff held this vessel by a writ of attachment, sued out in common form by a creditor, merely to secure an ordinary debt. It was not to enforce any lien or title. The marshal had a warrant from this court to enforce a lien for securing wages, a-paramount right, having legal precedence over the claims of creditors. In order, therefore, that this paramount right should be duly assert[37]*37ed, it was proper that the sheriff should yield to the marshal the possession and control of the vessel, so that he could truly make return that he had executed his warrant, and held the vessel pursuant to its precept. This has often been done. But in other cases, where the sheriff has refused to permit the marshal to take possession, the marshal, instead of using force to execute his warrant, has acquiesced in such refusal, and stated it in his return. And thereupon proceedings here were suspended, until the adverse possession by the sheriff had ceased, and the marshal could execute his warrant. This court has never been called upon to decide whether such acquiescence by the marshal was rightful. The libellants in such cases have not moved the court for any order upon the marshal, or instituted any proceedings against him. But the course practically has been to wait until the custody of the sheriff had terminated, and then for the marshal to execute his precept by an actual arrest of the vessel, and for the court then to proceed in the exercise of its jurisdiction. In such cases it has been held that no proceedings by the sheriff, not even a sale on execution, could defeat the paramount right of the seaman's lien, or prevent this court from ordering a sale of the vessel in satisfaction thereof. The purchaser under the sheriff’s sale, could take only the right of the debtor, subject to all prior liens and incumbrances. See The Gazelle [Case No. 5,289]; The Havana [Id. 6,226]. As there stated, the question what are the rights and duties of the sheriff and marshal in such cases, is a very important one. On the one hand, it may be said that being mere executive officers, holding precepts under distinct sovereignties, exercising distinct jurisdiction, they stand on equal ground, and the first in possession is to be deemed the first in right, and must retain possession, until the exigency of his writ has been satisfied. This view is attended with the practical convenience of preventing conflict between executive officers, or the necessity of their forming an opinion, as to which of the claims which they are commanded to enforce, has legal precedence or priority. On the other hand, it may be urged that the convenience of the executive officers is not to be consulted, at the expense of the legal and substantial rights of the parties; that questions of the legal right of such officers to arrest persons and property very frequently arise, which they must solve in the performance of their duty, ’and that the question between a seaman’s lien and a creditor’s attachment is less difficult than many which executive officers must encounter. Then, as to the argument that they are acting under distinct sovereignties, exercising distinct jurisdiction; it may be replied that j the jurisdiction of the United States and of a state are in some respects distinct, but in no sense affecting the present question. They are distinct, so far as the constitution | | of the United States has made them so. Within the sphere prescribed by the constitution, the sovereignty and jurisdiction of the United States extend over and control the territory and the people of every state. A law of the United States is not only the law, but the paramount law in Massachusetts. By the express terms of the constitution, it is “the supreme law of the land,” . . . “anything in the constitution or laws of any state to the contrary notwithstanding.” The whole people of a state, with all the sovereignty they possess, have no right to impair or impede such law, and can confer no power to do so upon any of its officers. Now the law which gives to a seaman a paramount right to wages, and the jurisdiction of the courts of the United States authorized, as it is, by the express words of the constitution, are universally admitted. Const, art 3, § 2. How, then, can a subordinate state officer have a right to defeat or obstruct the enforcement of such law, under the authority of such courts? This would be going even beyond the doctrine of nullification. That doctrine never insisted that a valid law of the United States could be resisted, either by a state or its officers, but only that where its validity was doubtful, a state had the right to decide the question of its constitutionality, and that such decision would justify its people and officers in resistance. But it was to be resistance only to enactments held by the state to be void, and not law, because transcending the limits of the constitution. The fatal infirmity of the doctrine was in holding that the state had a constitutional right to make such decision. But in the present case, nobody pretends that the law which the marshal was attempting to enforce was not valid, or, that the court that issued the precept, had not jurisdiction. Who, then, could rightfully obstruct the execution of his warrant? It might be added that this court would preserve the right of the sheriff, and by its final decree order a restoration to him of such part of the property as should remain, after satisfying the paramount claims of the seamen. Such are the views that may be presented of this question. But in the case now before me, I am not called upon to determine what measures the marshal might have resorted to, or what would have been within the power of the court, if the sheriff had, by resistance to the marshal, prevented the service of his warrant. The consideration we have given to the laws under which the sheriff and marshal acted, and their respective duties, may aid us in determining what should be the construction and effect of their acts. (The judge here went into an exarn- | ination of the evidence, and concluded by | saying:) In my judgment, there was, with the tacit acquiescence of the sheriff, such arrest and custody of this vessel by the marshal, as gave the court complete jurisdiction over her, and the sale made by the marshal [38]*38{rave a perfect title to the purchaser. The libel is therefore dismissed with costs.
See acc. Poland v. The Spartan [Case No. 11, 246]: Certain Logs of Mahogany [Id. 2,559]; Riggs v. The John Richards [Id. 11,827]; The Flora, 1 Hagg. Adm. 298, with the remarks of Taney, C. J., thereon [Taylor v. Carryle],—20 How. [61 U. S.] 608.—and his opinion.—Id. 600-617; The Florenzo [Case No. 4.886]; Taylor v. The Royal Saxon [Id. 13.803]; contra. S. C., 24 Pa. St. 259; 20 How. [61 U. S.] 583. See, also, The Taranto [Case No. 13,751].