lease, or for damages for breach of the contract, is an in personam action against the defendant, and not within the scope of § 118.'
The plaintiff in the present suit is asking for a money judgment against the defendants for services that he performed in their behalf. The action is aimed basically at the defendants and secondarily at the fund. That is, the action is primarily brought to compel the defendants to pay the fee claimed; and it points out the fund in the Registry is a 'res' out of which satisfaction may be obtained. But this 'satisfaction' or action against the fund must be predicated upon an established claim against these defendants. Thus, the action is essentially aimed or directed against the defendants and is, therefore, a proceeding 'in personam.'
This leads to a determination of the second question -- does the plaintiff have a 'lien' or 'claim' within the meaning of the statute?
The only theory advanced by the plaintiff by which he could claim any kind of a lien is that he has an arbitrator's lien. In the plaintiff's opposition to the present motion of the defendant, he writes as follows: '3 Am.Jur. 926, Arbitration and Award, Sec. 97 -- Lien for Fees -- 'It is uniformly held that Arbitrators have a lien on their award for their fees and may withhold it from the parties until payment is made or the matter of fees is determined by a court." Conceding that what the plaintiff states is correct but without determining whether it is a lien within the meaning of Title 28 U.S.C. § 1655, the plaintiff in the present case does not have any such lien. The section from which the plaintiff quotes goes farther and states: 'Such action by the arbitrators will not invalidate an award, even though it is withheld beyond the period fixed for its delivery. The lien is a possessory one, however, and terminates if the award is relinquished by the arbitrators.' (Emphasis supplied).
In the case of Flanagan v. Northern Lumber Co., D.C., 17 F.R.D. 432, 28 U.S.C. § 1655 was involved in a determination of the suit. The Court, at page 434, writes:
'At best, Northern is a contract creditor of the transferor of the property mentioned here. Its rights are well expressed in the quotation from Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 497, 43 S. Ct. 454, 455, 67 L. Ed. 763.
"But an unsecured simple contract creditor has, in the absence of statute, no substantive right, legal or equitable, in or to the property of his debtor. This is true, whatever the nature of the property, and although the debtor is a corporation and insolvent. The only substantive right of a simple contract creditor is to have his debt paid in due course."
And at page 435:
'* * * it is sufficient to conclude that the great weight of authority is to the effect that the moving party is entitled to the order sought only when the lien or claim sought to be enforced exists prior to the commencement of the action. There must be a specific lien or claim against specific property.'
In the case of Vidal v. South American Securities Co., 2 Cir., 276 F. 855, the court discussed the word 'claim' as used in § 57 of the Judicial Code, which was a re-enactment of § 8 of the Act of March 3, 1875, and in turn, a forerunner of the present § 1655. The Court writes at page 871:
'The term 'claim,' as used in the section, is the right to lay claim to specific property which is in another's possession * * *
'As quoted by Jacobs from Plowden, giving the definition of Chief Justice Dyer, it is 'a challenge of the ownership of property that one hath not in possession but which is detained from him by wrong.' In Silliman v. Eddy, 8 How.Prac., N.Y., 122, 123, the word 'claim' is defined to mean 'a demand of anything that is in the possession of another.' The term 'claim' must be construed in the light of the context, and so construed it cannot be understood as giving to a mere general creditor a right to sue a nonresident in any district in which he can find any property belonging to his debtor when he himself has no lien and no claim of ownership in the property to assert. It has been held that where the plaintiff has no special claim against the property, or any right in or to it different from any other general creditor of the defendant, or any one having a right to sue the defendant in tort, he cannot use the existence of the property within the district as a basis for bringing his suit within it against a defendant who is not an inhabitant of the district or found in the district or does not voluntarily appear therein. George v. Tennessee Coal, Iron & R. Co., C.C., 184 F. 951.
'In Ladew v. Tennessee Copper Co., C.C., 179 F. 245, 251, Judge Sanford, construing section 57 and the words 'claim to * * * property', said that --
They are evidently used in contrast to liens or incumbrances upon property and are the only words in the section under which a claim to the direct ownership of property may be included, these words relate only to claims made to the property in the nature of an assertion of ownership or proprietary interest, or other direct right or claim to the property itself, such, for example, as the claim of ownership of an undivided interest in the property upon which a suit for partition may be based, * * * and do not include the assertion of a right which is not based upon an interest in the property itself, but seeks merely to enforce a restriction which the law imposes upon the owner of the property in reference to its proper use.'
In the cited case, the plaintiff alleged that under an agreement with one Bright, he, the plaintiff, was entitled to thirty percent of the profits to be realized by Bright from the sale which Bright made of a railroad concession granted by Uruguay to one Juan Castro. The trial court found for the complainant, but the appellate court reversed with directions to dismiss the complaint and cross-bills for want of jurisdiction.
Here, although the plaintiff has a claim against the defendants for services rendered, it is not a claim within the meaning of the statute. He stands in no better position than a contract creditor whose claim has been determined to be short of that required by Title 28 U.S.C. § 1655.
As stated previously, this Court concludes that this action is 'in personam' and this precludes the invoking of the statute in question, and the Court also finds that the plaintiff does not have a claim or lien within the meaning of the statute.