Atkins v. Disintegrating Company
85 U.S. 272

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U.S. Supreme Court

Atkins v. Disintegrating Company, 85 U.S. 18 Wall. 272 272 (1873)

Atkins v. Disintegrating Company

85 U.S. (18 Wall.) 272

Syllabus

1. An entry on the record of an admiralty case that, on the return of a process of attachment, Mr. B. "appears for the respondent, and has a week to perfect an appearance and to answer" is an appearance, the entry being followed by the execution by the respondent or his agents of different bonds, reciting "that an appearance in the case had been entered."

2. A district court of the United States, when acting as a court of admiralty, can obtain jurisdiction to proceed in personam against an inhabitant of the United States not residing within the district (within which terms a corporation incorporated by a state not within the district is meant to be included), by attachment of the goods or property of such inhabitant found within the district.

Atkins filed a libel in the District Court for the Eastern District of New York in a cause civil and maritime against the Fibre Disintegrating Company, styling it "a corporation duly incorporated," but not saying by what state incorporated nor anything else about it, the company having in fact been incorporated by the State of New Jersey, a state not within the limits of any Judicial District of New York, but on the contrary forming in itself the Judicial "District of New Jersey."

The libel was on a charter party of the ship Hamilton, executed in New York, and was to recover:

1. Freight due the ship for bringing a cargo from Kingston and Port Morant in the Island of Jamaica.

2. For demurrage for the ship while getting a cargo.

3. For damage to the ship by getting on a reef at Port Morant.

Page 85 U. S. 273

It alleged that the company had chartered the ship to proceed to Kingston, a deep-water and safe port for a full cargo, freight to be paid at a price named; that twenty running lay days were allowed for loading, and, for any delay beyond that, $100 per day demurrage; that if a full cargo should not be provided at Kingston, then the company had the privilege of sending the vessel to a second safe port; that the company, in violation of the charter, had sent the ship to Port Morant, an unsafe port, whereby the vessel was delayed and, by the unsafeness of the port, got aground and was damaged.

It prayed for process and a citation to appear, and if the defendants should not be found, that an attachment might issue against their property in the district.

Process according to the prayer issued accordingly, June 14, 1866, returnable June 20th, 1866.

The process was returned as follows:

"Respondents not found in my district, and I attached all the property of respondents found in their factory in Red Hook Point, in the City of Brooklyn."

"A. F. CAMPBELL, United States Marshal"

"June 20, 1866"

The record, under date of this same 20th of June, noted a return of the service, with an entry thus (Mr. Beebe being a proctor of the court):

"Mr. Beebe appears for the respondent, and has a week to perfect appearance, and to answer."

And on the same day with Mr. Beebe's action, the said 20th, a motion was made on the part of the defendants, with stay of proceedings, to show cause why the property attached should not be discharged, the ground of this motion being that the business of the company was carried on at Brooklyn, in the Eastern District of New York, and that its officers were all at its factory there during business hours, and that service of process could have been made on them, but that such service had purposely not been made in order to attach property. The hearing of the motion being deferred,

Page 85 U. S. 274

the defendants, by consent, were allowed to give stipulations for value and to take the property attached, without prejudice to the motion already made, and with an agreement that if the motion to discharge the property should be granted, the stipulations should be cancelled.

The stipulation for costs, acknowledged July 6, 1866, contained a recital that "an appearance had been filed in the cause by the said Disintegrating Company." The stipulation for value, which was signed by the president of the company and two of the directors and which was acknowledged July 7, 1866, contained a recital that an appearance had been duly filed by said Fibre Disintegrating Company, and provided for notice of the final decree to Beebe, Dean, and Donohue, proctors for the claimants of the property attached, and the defendant, and the papers were signed and endorsed "Beebe, Dean, and Donohue, proctors."

The motion to discharge the property attached was never decided. But a motion was made in March, 1867, to set aside and vacate the clause of attachment contained in the motion and all proceedings under it, this motion being based upon this clause in the eleventh section of the Judiciary Act:

"And a CIVIL SUIT shall be brought before either of said courts against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ."

The ground of the application was that the respondents at the time of the issuing and serving the process were nonresidents of the Eastern District of New York, and had not been found therein at the time of serving the writ.

The motion was opposed by the libellants, who argued that a cause in the admiralty was not a "civil suit" within the meaning of the clause relied on, and therefore that the clause did not apply, while for the rest, that the proceeding by attachment against an absconding, absent, or nonresident debtor was one, they argued, inherent in courts of

Page 85 U. S. 275

admiralty and practiced from the earliest times. In support of this view, reliance was had on Clerke's Praxis, an old but authoritative book of the time of Elizabeth, and on Browne's Civil Law and Law of Admiralty. Clerke's Praxis, translated, read thus:

"SECTION 24. If the defendant so conceals himself, or perhaps he is absent from the Kingdom, that he cannot be arrested, then if he shall have any goods, wares, or ship, or any part of a ship, or boat upon the sea or within the flow and reflow of the sea, then a warrant is to be taken out to this effect to arrest such goods or such a ship &c., belonging to N. -- that is, to the defendant debtor -- in whosesoever hands they may be, and to cite, with such goods, N., the debtor, specially, and all others generally who have or pretend to have any right or interest in the raid goods, to appear on such a day to answer the plaintiff in a certain civil and maritime cause."

Browne's language [Footnote 1] was thus:

"Let us lastly suppose that a person against whom a warrant has issued cannot be found, or that he lives in a foreign country; here the ancient proceedings of the admiralty court provided an easy and salutary remedy. . . . They were analogous to the proceedings by foreign attachment under the charters of the Cities of London and Dublin. The goods of the party were attached to compel his appearance."

Opposed to this, it was said that the present cause was palpably a "civil suit;" that the clause of the eleventh section relied on, therefore, did apply. But that if this were otherwise, and if there were no statutory prohibition, that the attachment ought to be set aside; for that while the ancient usage of the admiralty allowed the process of attachment if the defendant concealed himself, or had absconded, or were an alien nonresident -- to which cases the language of Clerke and Browne, as of other writers, applied -- neither such ancient practice nor any proper practice allowed it, nor would the language of either of the authors cited justify it in application to a case where the defendant was not alien

Page 85 U. S. 276

to the United States (in whose courts the case was), had not concealed himself, and had not absconded, but contrariwise was a person (an artificial person), incorporated by one of the United States, owing and paying allegiance to the government, and neither absent nor concealed nor absconding, but contrariwise again, at its own home in an adjoining judicial district of the United States, the District of New Jersey, in the Third Federal Circuit, where by crossing the Hudson it could be sued just as well as, and much more properly and effectively than, where it had been sued, to-wit, in the Eastern District of New York, in the Second.

The district court denied the motion to vacate and set aside the attachment. [Footnote 2]

The defendants then put in their answer averring performance of the charter party and the acceptancy of the cargo; that the second port had been voluntarily accepted as a safe port by the master, and also setting up that they were a foreign corporation, incorporated under the laws of New Jersey, and not residents of the Eastern District of New York, and that the libel did not allege that they resided or were in the district.

The district court, after full argument, considering that the company, so far as the proceeding against it individually was concerned, had by the appearance and action of its proctor come into court, and considering further that the merits were with the libellants, decreed against it individually for $13,302, an amount found due by a master; and considering also that the proceeding was not "a civil suit" within the meaning of the clause in the eleventh section and that, independently of the prohibition there contained, the ancient usage of the admiralty did authorize the attachment as an inherent power of the court, decreed against the property seized; or to speak, in this particular case, more literally, decreed that the stipulators should cause the stipulations which they gave on the discharge of the property from seizure, to be performed.

Page 85 U. S. 277

On appeal, the circuit court reversed the decree.

As to the matter of appearance -- remarking that it was according to the ancient practice in admiralty in cases of attachment not to recognize anything as an appearance but putting in of bail -- it thought that what had been done by Mr. Beebe was not to be regarded as a general appearance; that, on the contrary, he had been allowed time "to perfect an appearance," and had immediately moved to set aside the proceeding as unauthorized; that this motion being denied and the respondent compelled to answer, the answer was made by setting up again an invalidity; and that the libellants had stipulated expressly that the subsequent bond for value should not operate as a waiver of the respondent's motion.

Upon the other and greater question -- whether a court of admiralty in one judicial district of the United States can obtain jurisdiction against an inhabitant of another district by an attachment of his goods -- the circuit court also disagreed with the district court, and accordingly the whole decree was reversed. [Footnote 3]

From that reversal the case was now on appeal here, there being in this Court less dispute perhaps about the merits and about whether there was a sufficient "appearance" to authorize a decree in personam against the corporation than whether the proceeding was a "civil suit" within the meaning of the clause already quoted of the eleventh section of the Judiciary Act, and if it was not, whether the inherent power of the court of admiralty authorized an attachment in a case like that here issued, and where the defendant was not an alien, nor absent from his own home, nor absconding, nor anywhere concealed.

What answer should be given to the first part of this chief question, it was admitted on both sides, was a matter which received light from certain provisions in the Constitution and also from enactments of Congress other than the exact clause of the eleventh section, on which the question turned.

Page 85 U. S. 278

Some of these may be recited.

The Constitution, as sent forth by the Convention of 1787, and as adopted, in the same article [Footnote 4] which ordains:

"That the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction:"

Ordains also:

"The trial of all crimes, except in cases of impeachment, shall be held in the state where the said crime shall have been committed."

And as amended in 1789, by the first Congress: [Footnote 5]

"In criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed."

Passing now to legislative enactments. The "Act to establish the Judicial Courts of the United States," commonly called the Judiciary Act, and passed September 29, 1789, [Footnote 6] enacts:

"SECTION 9. That the district courts shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses that shall be cognizable under the authority of the United States, committed within their respective districts, . . . where no other punishment than whipping &c., is to be inflicted:"

"And shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost . . . where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas. . . ."

"And shall also have exclusive original cognizance of all seizures on land or other waters than as aforesaid made, and of all suits for penalties incurred under the laws of the United States:"

"And shall also have cognizance concurrent with the courts of the several states or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States: "

Page 85 U. S. 279

"And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue and the matter in dispute amounts, exclusive of costs, to the sum or value of $100:"

"And shall also have jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls, except for offenses above the description aforesaid:"

"And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury."

Next in order of matter comes the eleventh section, in which is found the clause upon which the case turned:

"The circuit courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, when the matter in dispute exceeds, exclusive of costs, the sum or value of $500 and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state."

"And shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein; but no person shall be arrested in one district for trial in another, in any civil action, before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ."

Then follows:

"SECTION 21. From final decrees in a district court, in causes of admiralty and maritime jurisdiction where the matter in dispute exceeds the sum or value of $300 . . . an appeal shall be allowed to the next circuit court to be held in such district."

"SECTION 22. Final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the sum or value of $50, . . . may be reexamined and reversed or affirmed

Page 85 U. S. 280

in a circuit court holden in the same district upon a writ of error."

So far as to the Judiciary Act.

"An act to regulate processes in the courts of the United States" -- a temporary Process Act -- passed September 29, 1789, [Footnote 7] five days after the passage of the Judiciary Act, enacted:

"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 mode of process, and rates of fees, . . . in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used . . . in the Supreme Court of the same."

"And the forms and modes of proceeding in causes of equity and of admiralty and maritime jurisdiction shall be according to the course of the civil law."

And "An act for regulating processes," &c. -- the Permanent Process Act -- of May 8th, 1792, [Footnote 8] enacts:

"SECTION 2. That the forms of writs, executions, and other process, . . . and the forms and modes of proceeding in suits:"

"In those of the common law shall be the same as are now used in the said courts respectively in pursuance of the act entitled 'An act to regulate processes in the courts of the United States' [the last above-quoted act]:"

"In those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules, and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law, except so far as may have been provided for by the act to establish the judicial courts of the United States, subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient or to such regulations as the Supreme Court of the United States shall think proper from time to time by rule to prescribe to any circuit or district court concerning the same."

By an Act of 23d August, 1842, [Footnote 9] in the nature of a process act, it is enacted:

Page 85 U. S. 281

"That the Supreme Court of the United States shall have full power . . . to prescribe, regulate, and alter the forms of writs, and other process to be used and issued in the district and circuit courts, . . . and the forms and modes of framing and filing libels, bills, and answers, and other proceedings, and pleadings in suits at common law, or in admiralty, or in equity, and generally to regulate the whole practice of the said courts."

Under the power given by these acts, the said court, by its second Rule in Admiralty, provided that:

"In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant in the nature of a capias; or 'by a warrant of arrest of the person of the defendant, with a clause therein that if the cannot be found to attach his goods and chattels,' &c., or by a simple monition in the nature of a summons to appear and answer. "

Page 85 U. S. 296

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