David Josiah Brewer

“ Before considering the question of service, a preliminary matter is worthy of mention. This is an application to a court of equity to set aside deliberate proceedings of a court of superior jurisdiction, and is made more than 11 years after the matters complained of took place. There is no allegation that the subpoena was not in fact delivered to the plaintiff, or that he was ignorant of the proceedings in court, or of the possession taken and held by the defendant. ”

“ No excuses for this are given; the bill is absolutely silent as to any reasons for delay. But if this long delay will not of itself bar plaintiff's claim it at least compels any reasonable construction of language which will sustain the decree. Now, it is not averred in the bill that service was not made by the marshal, nor that Hays was not a general deputy. What relations he sustained to the marshal, what position he held under him, are not disclosed otherwise than by the return on the subpoena. ”