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

Annotate this Case

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

APPEAL FROM THE CIRCUIT COURT FOR

THE EASTERN DISTRICT OF NEW YORK

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

MR. JUSTICE SWAYNE recapitulated the facts of the case and delivered the opinion of the Court.

The libel is founded upon a charter party and seeks to recover freight earned by the ship Elizabeth Hamilton in bringing a cargo of bamboo from Kingston and Port Morant, in the Island of Jamaica; for demurrage while the ship

Page 85 U. S. 297

was obtaining the cargo, and for damages to the ship by getting on a reef when leaving Port Morant.

The libel alleges that the respondents are a corporation and have property in the district, and prays for process against them and, if they were not found, that a foreign attachment issue against their property in the district, and for a decree for the amount claimed, with interest and costs. The libel was filed on the 13th of June, 1866. On the day following, a citation was issued with a foreign attachment clause. On the 20th of the same month, the marshal returned that the respondents were not found in his district and that he had attached all the property found in their factory at Red Hook Point, in the City of Brooklyn. In a journal entry of the same date, it is stated: "Mr. Beebe appears for respondent, and has a week to perfect appearance and to answer." On the 19th of July following, the respondents executed a stipulation for costs. It recited that "an appearance has been filed in said cause by said disintegrating company." On the same day, the proctors for the libellants consented that the property attached should be discharged from custody upon the respondents' giving a stipulation for its value in the sum of $25,000, and they agreed that in case the judge should grant the motion to discharge the property, the stipulation should be cancelled, and that "the stipulation for value is given without prejudice to such motion." The stipulation for value was thereupon filed. That also recited "that an appearance has been filed by said company." On the 3d of May, 1867, the respondents filed their answer. Among other things, it averred that they were a foreign corporation, created by the laws of New Jersey and were not residents of the Eastern District of New York, and that it was not alleged in the libel that they were either found in the district or resided in the district, and they craved the same benefit and advantage as if they had formally excepted to the libel. It does not appear that the motion to discharge the attachment was ever decided. But by an entry of the 22d of March, 1867, it appears that a motion had been made to vacate the attachment

Page 85 U. S. 298

clause in the monition and all the proceedings under it upon the ground that under the circumstances, the eleventh section of the Judiciary Act of 1789 denied jurisdiction to the court, and that the motion was overruled. The cause was heard in the district court upon the merits on the 16th of December, 1867. The court made an interlocutory decree disallowing the claim for damages to the ship, but referred the case to a commissioner to ascertain the amount which the libellants were entitled to recover in respect of their other claims. The commissioner made his report. No exception was taken by either party. The court confirmed the report and decreed accordingly. The libellants appealed from so much of the decree as refused them damages for the injury sustained by the ship in leaving Port Morant. The respondents appealed from the whole decree. The circuit court reversed the entire decree, and the libellants thereupon appealed to this Court. The case is thus brought before us.

The statement of the case which we have given shows that the defendants entered their appearance without reservation. If there could be any doubt upon the subject, it is removed by their repeated subsequent recognitions of the fact. This made their position just what it would have been if they had been brought in regularly by the service of process. In this aspect of the case, all defects were cured and the jurisdiction of the court over their persons became complete. [Footnote 10] This warranted the decree in personam for the amount adjudged to the libellants.

But the stipulation for value was entered into subject to the motion to discharge the property attached, the stipulation to be cancelled if the motion prevailed. Though this motion was not decided, the subsequent motion, founded upon the eleventh section of the Judiciary Act, took its place and had the same effect. The latter motion was overruled, and the decree required the stipulators to perform

Page 85 U. S. 299

their undertaking. The circuit court reversed the decree by reason of the facts relied upon in support of the motion to vacate. If the attachment clause was void for want of jurisdiction in the district court to issue it, the seizure of the property was a trespass, and the stipulation a nullity, irrespective of the reservation which it contained. These considerations render it necessary to examine the case both as to the merits and the jurisdictional question thus presented.

In regard to the merits -- after a careful examination of the record -- we have found no reason to dissent from the views of the learned district judge by whom the case was heard. [Footnote 11] However full might be our discussion, we should announce the same conclusions. They are clearly expressed and ably vindicated in his opinion. To go again through the process by which they were reached would be a matter rather of form than substance.

The question of jurisdiction is of a different character, and requires more consideration.

The Constitution [Footnote 12] declares that the judicial power of the United States shall extend to "all cases of admiralty and maritime jurisdiction."

The Act of Congress of the 24th of September, 1789, [Footnote 13] known as the Judiciary Act, provides that

"The district courts . . . shall have also original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under all laws of impost, navigation, or trade of the United States, 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."

The Short Practice Act of September 29, 1789, [Footnote 14] required that

"The forms and modes of proceedings in causes

Page 85 U. S. 300

of equity and of admiralty and maritime jurisdiction shall be according to the course of the civil law."

By the second section of the Practice Act of 1792, [Footnote 15] it was declared

"That the forms of writs, executions, and other process shall be, in suits in 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."

The Act of the 23d of August, 1842, [Footnote 16] authorized the Supreme Court "generally to regulate the whole practice" of the circuit and district courts in all their proceedings.

This controversy turns upon the eleventh section of the Judiciary Act of 1789. The importance of the section in this case induces us to set it out in full:

"The circuit court 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

Page 85 U. S. 301

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."

"Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. And the circuit courts shall also have appellate jurisdiction from the district courts, under the regulations and restrictions hereinafter provided."

The prohibition to bring a "civil suit" against an inhabitant of the United States in a district other than that whereof he is an inhabitant or in which he shall be found is the hinge of the controversy between these parties. The appellees maintain that a cause of admiralty jurisdiction is a "civil suit" within the meaning of this prohibition. The appellants maintain the contrary. Our views coincide with those of the appellants, and we will proceed to state succinctly the considerations which have brought us to this conclusion.

It may be admitted that an admiralty case is a civil suit in the general sense of that phrase. But that is not the question before us. It is whether that is the meaning of the phrase as used in this section. The intention of the lawmaker constitutes the law. [Footnote 17] A thing may be within the letter of a statute and not within its meaning, or within its meaning though not within its letter. [Footnote 18] In cases admitting of doubt, the intention of the lawmaker is to be sought in the entire context of the section -- statutes or series of statutes in pari materia. [Footnote 19]

Page 85 U. S. 302

The general language found in one place may be restricted in its effect to the particular expressions employed in another if such, upon a careful examination of the subject, appears to have been the intent of the enactment. [Footnote 20]

The first paragraph of the eleventh section defines the jurisdiction of the circuit court as extending to "all suits of a civil nature, at common law or in equity, where," &c. The criminal jurisdiction of the circuit court is next defined. Then follows the provision that no one shall be arrested in one district for trial in another "in a civil action" before a circuit or district court, and next the prohibition here in question.

Construing this section down to the second prohibition, inclusive, by its own light alone, we cannot doubt that by the phrase "civil suit," mentioned in this prohibition, is meant a suit within the category of "all suits of a civil nature at common law or in equity," with which the section deals at the outset. This view derives further support from the ninth, twenty-first, and twenty-second sections of the act. The ninth section gives to the district court its admiralty jurisdiction, its common law jurisdiction, and its criminal jurisdiction. With reference to that first named, the language is "of all civil causes of admiralty and maritime jurisdiction." As to the second, it is "of all suits at common law," &c. The twenty-first section allows appeals from the District to the circuit court "in causes of admiralty and maritime jurisdiction where the matter in dispute exceeds the sum of three hundred dollars." The twenty-second section provides "that final decrees and judgments in civil actions" where the matter in dispute exceeds fifty dollars, may be reviewed in the circuit court upon error. The distinction is thus made between admiralty and other civil actions, and the terms "causes of admiralty and maritime jurisdiction" are applied to the former, and the phrases "civil actions" and "suits at common law" to the latter.

Page 85 U. S. 303

We think the conclusion it inevitable that the terms civil suit, in the eleventh, and civil actions, in the twenty-second section, were intended to mean the same thing. The meaning of the phrase employed in the latter admits of no doubt. The language there is "civil actions," and it is used to distinguish them from "causes of admiralty and maritime jurisdiction," provided for in the preceding section. The twenty-first and twenty-second sections are in pari materia with the eleventh, and throw back a strong light upon the question arising under the latter. We think it dispels all darkness and doubt if any could otherwise exist upon the subject.

Our attention has been called to other instances in the laws of Congress where the same phrases are used for the same purposes of distinction between admiralty and other causes. It is unnecessary to refer to them in detail. The argument could not be strengthened by further support drawn from that quarter.

The use of the process of attachment in civil causes of maritime jurisdiction by courts of admiralty, as in the case before us, has prevailed during a period extending as far back as the authentic history of those tribunals can be traced. "Its origin is to be found in the remotest history of the civil as well as of the common law." [Footnote 21] The rules by which it was regulated in the English admiralty are found in Clerke's Praxis, a work still of authority, published in the time of Elizabeth.

Browne, in his Civil and Admiralty Law, [Footnote 22] says:

"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, though according to Huberus, not authorized by the example of the civil law; 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. . . .

Page 85 U. S. 304

This process of attachment went not only against those in the actual possession of himself, his factors or agents, but also against those in the hands of his debtors, since the maxim taken from the Justinian Code was debitor creditoris est debitor creditori creditoris."

As in the practice of our courts of admiralty, the attachment of the goods or credits gave jurisdiction, and the cause proceeded to decree whether the defendant appeared or not.

The Constitution, in the grant of the admiralty jurisdiction, refers to it as it existed in this and other maritime countries at the time of the adoption of that instrument. It was then greatly larger here than in England. The hostility of the common law courts there had wrought the reduction. [Footnote 23]

While the mode of proceeding in the admiralty courts of the United States was required by the Practice Act of 1789 to be according to the course of the civil law, the process of attachment to compel the appearance of an absent defendant had the sanction of that system of jurisprudence. [Footnote 24] It has the sanction of the Act of 1792, because it is according to the principles, rules, and usages which belong to courts of admiralty. It has also the sanction of the Act of 1842. Under that act, this Court, at the December Term, 1844, prescribed "rules of practice for the courts of the United States in admiralty and maritime jurisdiction on the instance side." The second of those rules is as follows:

"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 he cannot be found to attach his goods and chattels to the amount sued for, or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees

Page 85 U. S. 305

named therein, or by a simple monition in the nature of a summons, to appear and answer to the suit, as the libellant shall in his information pray for or elect."

The fourth and thirty-seventh rules relate to the same subject. The process in question in the case before us was issued according to the formula prescribed in the second rule, and that rule did not transcend the authority in pursuance of which it was framed.

This subject came under the consideration of the District Court of South Carolina, sitting in admiralty, in 1802. [Footnote 25] The court held, without qualification, that it had the power to issue the process of attachment to compel the appearance of an absent defendant, and proceeded accordingly.

In the case of The Invincible, [Footnote 26] decided in 1814, Mr. Justice Story said:

"The admiralty may therefore arrest the person or the property, or by foreign attachment the choses in action, of the offending party, to answer ex delicto."

The question was elaborately considered by this Court in Manro v. Almeida. [Footnote 27] It was unanimously held that the power existed as an established mode of admiralty procedure and an element of admiralty jurisdiction. This case was decided in 1825.

In 1841, in Clarke v. New Jersey Steam Navigation Company, [Footnote 28] Mr. Justice Story said: "Ever since the elaborate examination of this whole subject, in the case of Manro v. Almeida, this question has been deemed entirely at rest."

In the New Jersey Steam Navigation Company v. Merchants' Bank, [Footnote 29] determined by this Court in 1848, the defendant was a corporation foreign to the locality of the suit. Jurisdiction was obtained, as in the case before us, by attachment. Another question of jurisdiction was argued with exhaustive learning and ability, but the point here under consideration was not adverted to either by the Court or the counsel.

Neither in the rules of this Court nor in either of the cases

Page 85 U. S. 306

referred to is there any reference, express or implied, to the eleventh section of the Act of 1789. It does not seem to have occurred to anyone that the limitations in that section could have any application to proceedings in admiralty.

These facts are full of significance. They are hardly less effectual than an express authoritative negation upon the subject. [Footnote 30]

The case of Ex Parte Graham [Footnote 31] is relied upon by the counsel for the appellee. It was decided by Mr. Justice Washington in 1818. Graham was arrested in Pennsylvania under process for contempt, issued in a prize case pending in the District Court of Rhode Island. Mr. Justice Washington ordered his discharge upon two grounds: (1) that process would not run in such a case from Rhode Island into Pennsylvania; (2) that the prohibitions in the eleventh section of the Act of 1789, as to the locality of arrests and suits, applied as well to suits in admiralty as to other civil actions. It is a sufficient answer to the second proposition that it was clearly overruled by this Court in Manro v. Almeida. Mr. Justice Washington sat in that case, and must then have changed his opinion. His silent concurrence admits of no other construction.

The earliest case exactly in point, maintaining the proposition contended for by the appellee, to which our attention has been called, is Wilson v. Pierce. [Footnote 32] It was decided by the learned district judge of California in 1852. He adopted the view of Judge Washington, and ruled accordingly. This case was followed by two others, one of them being the case before us. [Footnote 33] The other one arose in the District of Connecticut, and is said not to have been reported. The cases upon the other side are numerous. We shall refer to but two of them: Cushing v. Laird [Footnote 34] and Smith v. Milne. [Footnote 35] The opinion of the court in each of these cases is learned

Page 85 U. S. 307

and elaborate. Two eminent American law writers have taken the same view of the subject. [Footnote 36] They hold that the prohibition in question does not apply to suits in admiralty.

Decree of the circuit court reversed and the case remanded with directions to affirm the decree of the district court.

NOTE

At the same time was argued the case of New England Mutual Insurance Company v. Detroit & Cleveland Steam Navigation Company, a case from the Circuit Court for the Northern District of Ohio and involving the question arising in the preceding case under the eleventh section of the Judiciary Act of 1789. It was decided in favor of the appellants, the court referring to the opinion above printed as controlling it. Dissenting, JUSTICES MILLER and STRONG. The briefs filed in this last case, by Messrs. Willey, Cary, and Terrill, for the appellants, and by Mr. G. B. Hibbard, contra, were, by leave of the Court, filed also in the preceding case.

[Footnote 1]

Volume 2, page 434; and see pages 333 and 433.

[Footnote 2]

1 Benedict 118.

[Footnote 3]

Of course, in the view taken in the circuit court, no discussion about merits was necessary.

[Footnote 4]

Article III, section 2.

[Footnote 5]

Amendment VI.

[Footnote 6]

1 Stat. at Large 73.

[Footnote 7]

1 Stat. at Large 93.

[Footnote 8]

Ib., 276.

[Footnote 9]

5 id. 517.

[Footnote 10]

Pollard v. Dwight, 4 Cranch 421; Knox v. Summers, 3 id. 496.

[Footnote 11]

Atkins v. Fibre Disintegrating Co., 2 Benedict 381.

[Footnote 12]

Article 3, § 2.

[Footnote 13]

1 Stat. at Large 76.

[Footnote 14]

Ib., 93.

[Footnote 15]

1 Stat. at Large 276.

[Footnote 16]

5 id. 517.

[Footnote 17]

United States v. Freeman, 3 How. 563.

[Footnote 18]

Slater v. Cave, 3 Ohio St. 85; 7 Bacon's Abridgment, title Statutes, 1, 2, 3, 5.

[Footnote 19]

Patterson v. Winn, 11 Wheat. 389; Dubois v. McLean, 4 McLean 489; 1 Cooley's Blackstone 59; Doe v. Brandling, 7 Barnewall & Cresswell 643; Stowel v. Zouch, 1 Plowden 365.

[Footnote 20]

Brewer v. Blougher, 14 Pet. 198, 39 U. S. 199; Miller v. Salomons, 7 Exchequer 546; Same Case in error, 8 id. 778; Waugh v. Middleton, ib., 356, 357.

[Footnote 21]

Manro v. Almeida, 10 Wheat. 473.

[Footnote 22]

Vol. 2, page 434.

[Footnote 23]

Manro v. Almeida, supra; 46 U. S. Clarke, 5 How. 455; New Jersey Steam Navigation Company v. Merchants' Bank, 6 How. 389; The St. Lawrence, 1 Black 527; The Genesee Chief, 12 How. 454; Insurance Company v. Dunham, 11 Wall. 24; Story on the Constitution § 1666.

[Footnote 24]

Manro v. Almeida, supra.

[Footnote 25]

Bouysson & Holmes v. Miller & Ryley, Bee 186.

[Footnote 26]

2 Gallison 41.

[Footnote 27]

Supra.

[Footnote 28]

1 Story 537.

[Footnote 29]

Supra.

[Footnote 30]

Edwards v. Darby, 12 Wheat. 206.

[Footnote 31]

3 Washington's Cir.Ct. 456.

[Footnote 32]

15 Law Reporter 137.

[Footnote 33]

7 Blatchford 555.

[Footnote 34]

3 American Law Times Reports 50.

[Footnote 35]

Abbot's Admiralty Reports 373.

[Footnote 36]

2 Parsons's Maritime Law 686, note; 2 Parsons' Shipping and Admiralty 390; Benedict's Admiralty § 425.

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