tachment. In Picquet v. Swan, 5 Mas., 561, there was an attempt to attach the real estate of the defendant, but this attempted service was declared by Judge Story "defective and nugatory." The Statute of Rhode Island, in effect, declares that a defendant is to be found in that State, for the purposes of the jurisdiction of its courts by his visible, personal and real property, which can be seized and levied on by the sheriff. The decisions of the courts of the United States, in cases where the jurisdiction rests exclusively on citizenship, declare that a defendant is not "found" in a district where one of his debtors resides. There is no conflict in maintaining both propositions.

Messrs. Charles S. Bradley and Joseph S. Pitman, for defendants in error.

The defendant in error contends that the judgment of the Circuit Court of Rhode Island was correct and should be affirmed, relying upon the following points:

1. No civil suit can be brought in the Circuit Court against the defendant in any district whereof he is not an inhabitant, or is not found at the date of the alleged service of the writ. Judiciary Act of 1789, sec. 11, Stát. at L., Vol. 1. p. 79; Hollingsworth v. Adams, 2 Dall., 396; Pollard v. Dwight, 4 Cranch, 424; Picquet v. Swan, 5 Mason, 35-48, 50; Richmond v. Dreyfous, 1 Sumn., 131, 2; Harrison v. Rowan et ux., 1 Pet., C. C., 489; Toland v. Sprague, 12 Pet., 300, 328, 330; Com. and R. R. B'k of Vicksburg v. Slocomb, 14 Pet., 60; Levy v. Fitzpatrick, 15 Pet., 171; Louisville R. R. Co. v. Letson, 2 How., 556; Herndon v. Ridgway, 17 How., 424; Sadlier v. Fallon, 2 Curt., 579, 581. The law has been equally well settled in relation to service of process in patent suits. Horace H. Day v. The Newark India Rubber Manufacturing Co.,'1 Blatchf., 629; Saddler v. Hudson, 2 Curt., 6.

for want of the body of the within defendant to be by me found within my district, I have attached," &c. (enumerating certain real estate lying in the City of Providence, in the State of Rhode Island), and a still further return of hav ing made further service of the writ, by attaching all the personal estate of the defendant in the India rubber factory of Hartshorn & Co., and in the store or warehouse No. 7, Dorrance Street stores, &c., and have left true and attested copies of this writ, with my doings thereon, with the City Clerk of the City of Providence, and with John Sweet and William E. Himes, they being in possession of the premises, the defendant having no known place of abode within my district."

At the November Term of the court, a declaration was filed, containing the allegations of of citizenship of the plaintiff and defendant. and that the defendant was commorant of Providence, as in the writ; and at the same term the defendant, in his own proper person, pleaded to the jurisdiction of the court, that he was at the time of the pretended service of the writ, and is an inhabitant of the District of Connecticut, and not an inhabitant of the District of Rhode Island, nor was he at the time of the pretended service of the writ within the District of Rhode Island; praying the judgment of the court, whether it can or will take cognizance of the action against him.

To this plea the plaintiff, by his attorney filed a general demurrer, on which the cause was heard, and at the June Term the court overruled the demurrer and dismissed the case for want of jurisdiction; upon which the plaintiff sued out a writ of error.

whereof he is an inhabitant, or in which he shall be found at the time of serving the writ."

case.

return and the facts it sets forth.

Lessee of Walden v. Craig's Heirs, 14 Pet., 152: Cutler v. Rae, 7 How., 731; Scott v. Sandford, 19 How., 401.

Mr. Justice Catron, delivered the opinion of the court:

The question of law decided below, and which we are called on to revise, arises on the following facts: On the 22d day of October, 1855, the plaintiff in error sued out a writ in the Circuit Court of the United States for the Rhode Island District, against Nathaniel Hayward, styling him as of Colchester, in the State of Connecticut, commorant of Providence, in the State of Rhode Island," for the recovery of damages alleged to have been sus tained by the plaintiff in error, by reason of an alleged infringement of a patent right claimed by said plaintiff.

On the same day, the Marshal of the Rhode Island District made return on the writ, that

It has been several times held by this court as the true construction of the foregoing section, that jurisdiction of the person of a defendant (who is an inhabitant of another State), can only be obtained, in a civil action, by service of process on his person, within the district where the suit is instituted; and that no jurisdiction can be acquired by attaching property of a nonresident defendant, pursuant to a state attachment law. The doctrine announced to this effect, in the case of Toland v. Sprague, in 1838 (13 Pet., 327), has been uniformly followed since, both by this court and at the circuits. 15 Pet., 171; 17 How., 424.

It is insisted, however, for the plaintiff, that these rulings were had in cases arising where the jurisdiction depended on citizenship; whereas, here the suit is founded on an Act of Congress conferring jurisdiction on the Circuit Courts of the United States in suits by inventors against those who infringe their letters pat ent, including all cases, both at law and in equity, arising under the patent laws, without regard to citizenship of the parties or the amount in controversy, and therefore the 11th section of the Judiciary Act does not apply. but the Process Acts of the State where the suit is brought must govern; and that the Act of Congress of May 8th, 1792, so declares.

The 2d section of that Act provides, that the forms and modes of proceeding in suits at comman law shall be the same as are now used in the Federal Courts, respectively, pursuant to the Act of 1789, ch. 21, known as the Process Act of that year.

This Act (sec. 2) declares, that until further provision shall be made, and except where by this Act" or other Statutes of the United States is otherwise provided," the forms of writs and executions, and modes of process in suits at common law, shall be the same in each State, respectively, as are now used or allowed in the Supreme Court of the same. This was to be the mode of process, unless provision had been made by Congress; and, to the extent that Congress had provided, the State laws should not operate.

Now, the only Statute of the United States then existing, regulating practice, was the Judiciary Act of 1789 (ch. 20), which is above recited. The 11th section is excepted out of and stands unaffected by the subsequent Process Acts, and is as applicable in this case as it was to those where jurisdiction depended on citizenship. It applies in its terms to all civil suits; it makes no exception, nor can the courts of justice make any.

The judicial power extends to all cases in law and equity arising under the Constitution and laws of the United States, and it is pursuant to this clause of the Constitution that the United States Courts are vested with power to execute the laws respecting inventors and patented inventions; but where suits are to be brought is left to the general law, to wit: to the 11th sec. of the Judiciary Act, which requires personal service of process, within the district where the suit is brought, if the defendant be an inhabitant of another State.

This case, and that of Day against Hayward, depend on the same grounds of jurisdiction, and were both correctly decided in the Circuit Court; and the judgment in each is affirmed.

Cited-20 How., 210; 20 Wall., 7.

ROBERT HUDGINS AND REBECCA P. HUDGINS, Executrix of ALBERT G. HUDGINS, Deceased,

v.

WYNDHAM KEMP, Assignee in Bank ruptcy of JOHN L. HUDGINS.

(See S. C., 20 How., 45-53.)

Judgment sustained, on question of fraudfraudulent grantee, not permitted to redeem on paying creditors—exceptions to report not taken below, not heard on appeal.

Judgment of the court below sustained on the question of fraud, on the facts. Court below did not err in ordering a sale of the property fraudulently conveyed without having first ascertained the debts of the bankrupt, or permitting the fraudulent grantee to redeem on paying them. Exceptions not taken in the court below, to the report of the master, will not be heard on appeal. Argued Dec. 30, 1857. Decided Feb. 10, 1857.

District of Virginia. by the assignee in bankruptcy of John L. Hudgins, against the appellants, to set aside a certain conveyance, charged to have been made by said Hudgins in fraud of his creditors.

The court below entered a decree in favor of the complainant, declaring said conveyance fraudulent and void as against creditors. The case is now here on appeal.

A further statement appears in the opinion of the court.

Messrs. James Lyons and Reverdy Johnson, for appellant:

The appellants insist that the decree is erroneous and ought to be reversed, because,

I. There is no proof of any fraud upon the part of Robert Hudgins, but on the contrary, the proof is clear and unquestioned that he paid the cash price which his deed calls for, to John L. Hudgins, which, with the charges upon the property, amounted to its full value. Neither is there any proof of fraud in this transaction by John L. Hudgins.

II. There is an abortive attempt at such proof. But if it were shown by the clearest proof that John L. Hudgins had acted with the most covinous and fraudulent design in mak ing his conveyance, that design would not af fect Robert Hudgins, unless it was shown that Robert Hudgins participated in it, or at least had knowledge of it.

III. Because a sale of property for valuable consideration, even by an insolvent, is not in fact or law a fraud upon any creditor who is merely a creditor at large, the fraud, if any be committed, consisting in the concealment or misapplication of the money arising from the sale; and no purpose was manifested or even entertained to defraud any judgment creditor, because the deed upon its face conveyed the property subject to the rights of the judgment creditor.

IV. Whether the deed was void as to creditors or not, it was good between the parties to it, and no decree should have been rendered vacating the deed and directing a sale of the property, until an account had been taken of the debts for the purpose of ascertaining whether there were any unpaid and recoverable; and if, upon the report of such account, it appeared that there were such debts, the defendant, Robert Hudgins, had a right to redeem his land by paying them, or so much of the land might then have been sold as would satisfy them. was error to sell the whole land without first ascertaining that there were debts sufficient to absorb it, and without allowing the defendant the privilege of redeeming it.

It

V. Because the judgment creditors had no right to do more than extend the lands, unless it was shown, as it was not, that the profits in a reasonable time extinguish the debts. But they had no right, because by proof of their debts before the commissioner, the lien of the judgment was extinguished.

VI. It was error to charge Robert Hudgins with rents and profits prior to the filing of the bill against him. Up to that time he held aud claimed property as his own, as a purchaser for valuable consideration, and the utmost that the plaintiff could claim of him would be the right of a judgment creditor, and his right to rents and profits is never extended retroactively

Messrs. Conway Robinson and John L. Patton for appellee:

Appellee's Points and Authorities in support of

And in respect to the profits. The defendant is charged with profits which there is no proof that he received.

VII. The plaintiff is seeking to recover debts, if he has any right at all, which were due primarily by Thomas Hudgins, for which John L. Hudgins was security. Thomas Hudgins, by the deed of the day of conveyed a large amount of property to trustees for the benefit of those creditors, giving them priority over other creditors who are also secured by the said conveyance. The creditors accepted the conveyance and took under it. The court should have required them to account for the property conveyed by that deed before it authorized them to take the property of John L. Hudgins, if the property in question was his; and still more, before it authorized them to take the property from another who claimed it as purchaser for valuable consideration, and certainly held it by a title valid against John L. Hudgins.

The property thus conveyed may have been sufficient to satisfy all the debts, and they may have been paid; the answers express the belief that they have been; an account of the trust fund only could determine the point. By accepting the deed and taking under it, the creditors as sumed the responsibility of fairly accounting for the property conveyed; they cannot sue, or hold subject to their use, the property of Thomas Hudgins, and yet claim that of John L. Hudgins or his vendor for the same debts.

VIII. The decree, which is final, takes no notice of the rights of Robert Hudgins as against John L. Hudgins, and makes no provision for the restitution to him of the surplus which might remain of the proceeds of the sales of the property after satisfying the debts; although there may be such surplus, and if there shall be, Robert Hudgins is certainly entitled to it, because his title, if not good against the creditors of John L. Hudgins, is good against everyone else.

IX. The court did not pass upon the exceptions to the depositions, and therefore admitted the testimony excepted to.

The following authorities are also relied

upon:

Shirley v. Long, 6 Rand., 735; Davis v. Turner, 4 Gratt., 422; Blow v. Maynard, 2 Leigh, 29; Fones v. Rice, 9 Gratt.,568; Ex parte Christy,

them.

1. The decree is right and ought to be affirmed. The deed from Robert Hudgins to John L. Hudgins was contrived of fraud with intent to defraud the creditors of the said John L. Hudgins of their lawful debts, and was therefore properly set aside in toto, under the Virginia Act, in 1 R. C., 1819, p. 372, c. 101, sec. 2: Chamberlayne, &c., v. Temple, 2 Rand., 395; Garland v. Rires, 4 Rand., 282; Shirley v. Long, 6 Rand., 735, and other cases cited in 1 Rob. Pr., old ed., 512, 554; and under the Bankrupt Act of 1841.

Sands, v. Codwise, 4 Johns., 559, also 582 to 600; Codwise v. Gelston, 10 Jolins., 517; Arnold, v. Maynard, 2 Story, 352; Hutchins v. Taylor, 5 Law Rep., 289; Cornwell's Appeal. 7 Watts. & S., 311; McAllister v. Richards, 6 Pa. St., 133.

For the assignee is not only vested by the law with all the rights of the bankrupt, but with the rights of the creditor also. He may set aside a fraudulent conveyance of the bankrupt, which the bankrupt himself could not do.

NcLean v. Lafayette Bank, 3 McLean, 189, 587; McLean v. Meline, 3 McLean, 199; Mc Lean v. Johnson, 3 McLean, 202; Everett v. Stone, 3 Story, 456; Peckham v. Burrows, 3 Story, 544 Freeman v. Deming, 3 Sandf. Ch., 332; Shanhan v. Wherritt, 7 How., 627; Buckingham, v. McLean, 13 How., 170.

2. There is no error as to the rents and profits. An account of rents and profits was decreed from the time of the Act of Bankruptcy in Sands, v. Codwise, 4 Johns., 589, 600. On the same principle it was proper here to decree rents and profits from the filing of the petition; for the " 'Act of Bankruptcy in England is tantamount to a filing of the petition under our Statutes."

McLean v. Meline, 3 McLean, 200. The pendency of the petition is constructive notice thereof to the grantee in the deed. Morse v. Godfrey, 3 Story, 391.

If there was before that time a right in Robert Hudgins to let the avails or annual income be expended at his discretion, without responsibility to any one, there could be no such right afterwards.

4 Johns., 588.

Under the voluntary system, the assignee derives as much right to rents and profits from the petition and decree, as he derives under the involuntary system from the Act of Bankruptcy and the decree.

3. Even if the decree of the Circuit Court were set aside, there should be a decree against Robert Hudgins for the purchase money re maining unpaid at the time of the bankrupt's petition, and the land held subject thereto, s well as to the liens of the judgment creditors of John L. Hudgins.

the court:

This is an appeal from a decree of the Circuit Court of the United States for the Eastern District of Virginia.

The bill was filed in the court below by the assignee in bankruptcy of John L. Hudgins, against Robert Hudgins and others, to set aside the conveyance of a large real estate charged to have been made by the bankrupt to the said Robert, in fraud of his creditors and of the Bankrupt Law of the 19th August, 1841. The deed of conveyance purports to have been executed on the 21st February, 1842, but was not recorded till the 8th August following; and conveyed, for the alleged consideration of $5,000, three tracts of land-one tract of 100 acres, one of 900, and another of 70 acres being, in the aggregate, 1,070 acres, situate in the County of Mathews, State of Virginia. The bankrupt's place of residence was upon one of the tracts. The deed of conveyance contained a clause that the lands should be subject to any judgments that then bound them by operation of law. J. L. Hudgins, the grantor, was heavily in debt at the time of the execution of the deed, and judgments to a large amount were soon after recovered against him. Executions were issued upon these judgments, and the defendant endeavored, by various ways and contrivances, to conceal his person and property from the reach of them. This was in the spring and summer of 1842.

On the 17th February, 1843, J. L. Hudgins presented his petition to the District Court for the benefit of the Bankrupt Act, annexing thereto a schedule of his debts and propertythe debts exceeding $12,000; property none, except a contingent interest in a deed of trust by T. Hudgins, for the benefit of creditors. On the 20th May, 1843, the petitioner was declared a bankrupt, and on the 19th September following, an order was made, providing for the creditors to show cause, on a given day, why the petitioner should not have granted to him a certificate of discharge from all his debts. The creditors appeared, and resisted the discharge. Much testimony was taken on their behalf, tending to establish the fraudulent transactions of the bankrupt with Robert Hudgins and others, which are now relied upon to set aside the deed in question. The opposition to granting the discharge resulted in the District Court adjourning several questions of law and fact to the Circuit Court, for its decision. What disposition was made of them in that court, we are not advised.

The defendant, Robert Hudgins, in order to prove the payment of the purchase money of the lands conveyed in the deed of the 21st February, introduced two receipts from J. L. Hudgins-one for $3,055, dated 6th August, 1844; the other, 12th August, same year, for $1,425-and proved the execution of the same by witnesses, who counted the money and saw it paid.

The several tracts of land conveyed were worth, as testified to by witnesses, over $10.000, double the amount of the purchase money. The possession and occupation of the same, subsequent to the sale, seems not to have been changed. Indeed, J. L. Hudgins, in his receipt of the payment of the $1,425, 12th

same as that upon which he resides, and has resided for years. He and his sons have cultivated and improved the arable land, cut and sold timber from the woodland, since the sale to the defendant, Robert, the same as before, the latter apparently exercising no control or acts of ownership over the property. In the fore part of July, 1842, some four months after the alleged conveyance, J. L. Hudgins made application to certain individ uals to borrow a considerable sum of money, to relieve himself from judgments and execu tions then pressing upon him, and proposed giving a deed of these same lands, in trust to the lenders, as security for the loan. The writings were prepared with a view to carry into effect this arrangement, and the defendant was present, assenting to it, without disclosing that a conveyance had already been made to him.

A good deal of other evidence was given in the case, bearing more or less upon the question of fraud, which it is not material to recite, and which will be found in the record.

The court below, on the 18th May. 1848, decreed that the deed of J. L. Hudgins, the bankrupt, to Robert, his brother, of the 21st February, was fraudulent and void as against creditors, and appointed the assignee in bankruptcy a receiver, to take possession of the property, and directed that a master should take an account of the rents and profits from the petition in bankruptcy to the time when the receiver took possession. The master subsequently reported the amount at the sum of $2,320.26, and on the 27th June, 1855, a final decree was entered. The cause is now before this court on an appeal from this decree.

It was scarcely denied on the argument, and, indeed, could not be, that J. L. Hudgins, the bankrupt, had been guilty of a fraudulent contrivance to hinder and defraud his creditors on the execution of the conveyance in question; but it has been strongly urged that Robert, the grantee, was not privy to the fraud, and hence was a bona fide purchaser for a valuable consideration. We shall not, therefore, deem it material to refer to any portion of the mass of evidence in the case, except so far as it bears upon the connection of the grantee with this question of fraud.

The answer of the defendant to the bill is not very satisfactory. The bill charges that the deed, though it bears date 21st February, 1842, was really executed on or about the 2d of July following, the time it was put on record; and that it was antedated in pursuance of the fraudulent purpose charged against the parties. The answer does not notice or deny this allegation. Again; the bill charges that the deed was not delivered at the time it bears date; nor, in fact, delivered at all to the grantee in any other way than the putting of it on record by the grantor himself. This charge is not noticed or denied; neither is the allegation denied, that the grantee remained in the possession and enjoyment of the property after the conveyance, the same as before. And this averment, besides being thus virtually admitted, is fully es tablished by the proofs in the case.

The consideration or purchase money agreed to be given for the three tracts of land con

veyed, was less than one half the value, as proved by uncontradicted testimony. The deed contained a clause, that the lands should be subject to any judgments that were then a lien upon them; and it was urged, on the argument, that these judgments should be taken into the account, on fixing the amount of the purchase money. But the answer is, that it does not appear, from any evidence in the case, that judgments existed against J. L. Hudgins at the date of the deed. We have examined the proofs attentively, and find none; nor have any been referred to in the briefs of the counsel. It also appears that Robert, the grantee, some four months after the date of his deed, and when the title to the land in question was in him, if the conveyance had been really made at its date, was present, and participated in a negotiation for a loan of money to J. L. Hudgins, and which was to be secured by a deed from him of these very lands, in trust, to the persons advancing the money.

The conduct of the defendant, Robert, in this instance, furnishes the foundation for a

It is also insisted, that the court below erred in decreeing the rents and profits of the lands in controversy against the defendant, Robert Hudgins, for the reasons that it is not shown that he was in the possession and enjoyment of the same; and also, that the court erred in decreeing these rents and profits from the filing of the petition in bankruptcy, instead of from the decree declaring J. L. Hudgins a bankrupt. The short answer to each of these objections is, that no such exceptions were taken to the report of the master, and are, therefore, not properly before us. That was the time and. place to have presented these questions, and the omission precludes any question here on the matter.

The decree of the court below, affirmed.

ELLIOTT W. HUDGINS AND JOHN L. HUDGINS, Appellants,

v.

then been executed and delivered, or, if it had been, that the grantee held it for the use and benefit of J. L. Hudgins, the grantor. In either view, the fact affords a well founded sus picion of the bona fides of the transaction between the parties.

In respect to the payment of the purchase money, of which very formal proofs have been given of the principal part of it, the effect in support of the conveyance is very much im paired by the fact that J. L. Hudgins, in the schedule of his estate annexed to this petition in bankruptcy, 23d February, 1843. takes no notice of this indebtedness to him, by Robert, the grantee, and the truth of the schedule is verified under oath. This was a year and two days after the date of the deed, and when the purchase money was unpaid, if the facts are true, as insisted by both the parties subsequent ly, upon the question of payment. They now admit this did not take place till August, 1844. No attempt has been made to account for or reconcile this inconsistency, if not worse, on the part of J. L. Hudgins. Without pursuing the examination of the proofs in the case further, we simply say, that after the fullest consideration of the facts in the case, we are satisfied with the conclusion arrived at by the court below upon this question.

But it is insisted that, admitting the convey ance to be void as it respects the creditors of J. L. Hudgins, the court below erred in ordering a sale of the property, without having first ascertained the debts of the bankrupt, and permitting the grantee in the deed to redeem on paying them, or directing only so much of the land to be sold as would be sufficient to pay the debts.

The answer to this is, that the defendant, Robert Hudgins, made no offer to pay the debts on ascertaining the amount, and, for aught that appears, the whole of the property will be no more than sufficient to pay the liabilities of the bankrupt. If there should, by chance, be any surplus, it belongs to the court in bankruptcy to dispose of it. Whether it should go to the bankrupt or to his grantee, will be for that court to determine.

of JOHN L. HUDGINS.

(See S. C., 20 How., 54, 55.) Exceptions not taken in the court below to the master's report, cannot be noticed in this court. Decided Feb. 10, 1858. Argued Dec. 30, 1857.

THE bill in this case was filed in the Circuit Court of the United States for the Eastern District of Virginia, by the assignee in bankruptcy of John L. Hudgins against the appellants, to set aside certain conveyances by said bankrupt to his son, charged to have been made in fraud of creditors. The court below, by its decree sustained one of the deeds in question, and declared the other fraudulent and void as against creditors.

The defendants brought the case here on appeal.

A further statement appears in the opinion of the court. See, also, the preceding case, which is similar to this, both depending upon substan tially the same evidence.

Mesers. James Lyons and Reverdy Johnson, for appellants. Messrs. Conway Robinson and John M. Patton, for appellee.

Mr. Justice Nelson delivered the opinion of the court:

This is an appeal from a decree of the Circuit Court of the United States for the Eastern District of Virginia.

The bill was filed by the assignee of the bank rupt, J. L. Hudgins, as in the preceding case, against E. W. Hudgins, a son, to set aside two deeds of conveyance of lands, as executed and delivered by the bankrupt to hinder and delay creditors; one dated 6th September, 1839, con veying 300 acres lying in the County of York; the other dated 1st March, 1842, conveying by estimation, 700 acres, in the same county-the latter for consideration of $3,000. This deed was made a few days after the one set aside in the case of the assignee against Robert Hudgins. The case depends upon substantially the same evidence. Portions of it, tending to connect this defendant with the conduct of the grantor,