Inbusch vs. Farwell. refusal of the court to instruct the jury as requested, and to the instructions given, as more fully set forth in the transcript. I. It is not denied that the defendants in the attachment suit were partners, as alleged in the declaration; and it is equally clear that the suit was brought to recover a debt due the plaintiff from the partnership, and that the property attached by the marshal was partnership property. But it is insisted by the defendants that the judgment recovered in that case was not in terms a judgment such as is described in the bond, and that they, the present defendants, being sureties, have a right to stand upon the letter of their contract. On the other hand, it is insisted by the plaintiff that the suit was well prosecuted, under the circumstances stated, against the administrator of the deceased defendant, and that the judgment, although against but one of the partners, yet being a judgment upon a partnership debt in a case where the other partners were out of the jurisdiction of the court, the effect of the judgment was to bind the property attached by the marshal, so that it would have been his duty, if no bond had been given, to have sold the same, and appropriated the proceeds to the payment of the execution issued upon such judgment. Jurisdiction in the Federal courts is not defeated by the suggestion that other parties are jointly liable with the defendants, provided it appears that such other parties are out of the jurisdiction of the court; but it is expressly provided by the act of the 28th of February, 1839, that the judgment or decree rendered in the case shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer. 5 Stat. at Large, 32; D. Arcy vs. Ketchum et al., (11 How., 165;) Clearwater vs. Meredith et al., (21 How., 492.) Under that law, therefore, without more, it is clear, that if Buchanan and Eastman had not been made parties to the suit, it might have been regularly prosecuted against the other defendant in his lifetime, and after his decease might have been. revived and prosecuted against his administrator; and it is Inbusch vs. Farwell. equally clear, that by the law of the State, and the rule of the court adopting the same, it was competent for the plaintiff, under the circumstances, to discontinue as to Buchanan and Eastman, and proceed against the administrator of the other partner. Sess. Laws, 1856; see Code, Sec. 25, p. 10. It is not questioned that the administrator voluntarily appeared in the case, and the record shows that the proceeding reviving the suit was regular and according to law. These considerations lead necessarily to the conclusion, that the judg ment against the estate of the deceased partner was a valid judgment, and that the only question of any importance in the case is as to its effect upon the rights of those parties. II. Some light will be shed upon the question by referring more definitely to the course of proceeding under which the bond was given, and the property attached released. By the law of the State, it is provided, that whenever the defendant shall have appeared in the action, he may apply to the officer or to the court for an order to discharge the attached property; but to secure that right, he must deliver to the court or officer an undertaking executed by at least two sureties, residents and freeholders in the State, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking. Appearance was accordingly entered in the case by the attorney of the defendants in compliance with that requirement, and for the purpose of procuring the discharge of the property held by the marshal. Attachments are made for the benefit of creditors, but the provision for the discharge of the property attached is made for the benefit of debtors. They may demand as matter of right, on complying with the requirements of the law in that behalf, to have their property discharged from attachment, and that a bond with sureties be accepted in its place. Under those circumstances, it is quite obvious that the bond becomes a substitute for the property released; and where there are no special circumstances to render the case an exceptional one, it must be held that any judgment that would Inbusch vs. Farwell. have bound the property, if it had remained under attachment. in the hands of the marshal, will bind the obligors of the bond in a case like the present, where the suit was commenced against the partnership upon a partnership contract, and the property attached was partnership property. Discontinuance as to the partners, not within the jurisdiction of the court, was properly allowed under the law of the State and the practice of the court. Beyond question, therefore, it was a valid judgment upon a partnership debt; and although it was against the estate of but one of the partners, still, if the property attached had not been released, it would have been the duty of the marshal, under the law of the State and the practice of the court, to have sold the same, and appropriated the proceeds to the payment of the execution issued upon the judgment. Rev. Stat. Wis., 1849, Sec. 41, p. 539. ners. Although the other partners were not prosecuted to judgment, because they were out of the jurisdiction of the court, still the judgment was rendered upon a partnership debt, to which it would be the duty of the marshal to apply partnership property in preference to the debts of the individual partSureties in the bond were sureties for the partnership for the purpose therein described, and if compelled to pay the amount they clearly have a right of action against all who composed the firm at the time they assumed the liability. Gay vs. Johnson et al., (32 N. II., 167;) Story on Part., Sec. 375; Collier on Part., 3d ed., Sec. 713, p. 630; Benedict vs. Stevens, (25 Conn., 392.) Judgment was recovered, therefore, in this case for the partnership debt, and if the property attached had not been discharged it must have been appropriated to liquidate the judgment, and we think the bond must be regarded as a substitute for the property, and consequently that the rulings and instructions of the District Court were correct. Judgment of the District Court affirmed. The Propeller Commerce. THE PROPELLER COMMERCE-Transportation Company, Claimant; Fitzhugh et al., Libellants. 1. To bring a case of collision within the admiralty jurisdiction of the Federal courts, it is not necessary to show that either of the vessels was engaged in foreign commerce or commerce between the States. 2. The admiralty jurisdiction is not taken away by the fact that the collision or other tort was committed within the body of a county. 3. Locality is the test of jurisdiction. If the collision occurred on those navigable waters which empty into the sea, or into the bays and gulfs which form a part of the sea, the maritime courts have jurisdiction. 4. A suit in rem for a marine tort may be prosecuted in any district where the offending thing is found. Appeal from the Circuit Court of the United States for the southern district of New York. This was a libel filed in the District Court by Henry Fitzhugh, De Witt C. Little, John Peck, and James Peck, against the steam propeller Commerce, (claimed by the Commercial Transportation Company as owners,) averring a collision on the Hudson river with the libellants' lake boat, the Isabella, by which the latter vessel was sunk, causing an injury to boat and cargo of $17,000. The cargo, it seems, did not belong to the libellants, but was in their custody as common carriers. The allegations of the libel, the defence set up in the answer, the facts of the case as they appeared in evidence, and the points of law raised in the argument, are stated in so much fulness by Mr. Justice Clifford, that they need not be repeated here. The libel was dismissed by the District Court; but on appeal to the Circuit Court, a decree was passed in favor of the libellants for $11,443 15, and thereupon the claimants appealed to this court. Mr. Benedict, of New York, for claimants. Mr. Grant, of New York, for libellants. The Propeller Commerce. Mr. Justice CLIFFORD. This was a libel in admiralty in a cause of collision, civil and maritime, and the case comes before the court on appeal from the decree of the Circuit Court of the United States for the southern district of New York. Recurring to the transcript, it will be seen that the libel was in rem against the steam propeller "Commerce," and that the suit was instituted by the appellees, as the owners of the lake boat Isabella; but the record shows, that after the process was issued, and the vessel was taken into custody, the appellants, on motion, had leave to appear, and having waived publication of notice and entered into stipulation, with sureties, both for costs and value, the vessel was discharged by consent, the stipulators agreeing, that in case of default or contumacy of the claimants, execution might issue for the amount of the stipulation against their goods, chattels, and lands. No change, however, was made in the form of the libel, and the whole proceedings in the suit were as in rem against the vessel. Reference will only be made to such portions of the pleadings as seem to be indispensable to a full understanding of the several questions presented for decision. Among other things, the libellants alleged, that the Isabella left the port of New York on the nineteenth day of August, 1852, for the port of Albany, fully laden with merchandise; that she, with certain other boats and barges, was in tow of the steam-tug Indiana during the voyage, and at the time the collision occurred; that the steam-tug was well manned, tackled, apparelled, and furnished, and in all respects competent for the business in which she was engaged; and that the craft composing the tow had on board the proper complement of officers and men for their protection and management. Two of the barges were attached to the steam-tug, one on the larboard and the other on the starboard side; and to show that there was no fault in the arrangement of the tow, they alleged that the Isabella was securely attached to the larboard side of another barge, and that both were towed astern of the steamtug, at the usual and proper distance, by means of a hawser; and, in respect to the immediate circumstances of the colli |