The courts of the United States, proceeding as courts of
admiralty and maritime jurisdiction, have jurisdiction in cases of
maritime torts,
in personam as well as
in
rem.
The courts of the United States, proceeding as courts of
admiralty and maritime jurisdiction, may issue the process of
attachment to compel appearance both in cases of maritime torts and
contracts.
Under the Process Act of 1792, ch. 137, sec. 2, the proceedings
in cases of admiralty and maritime jurisdiction in the courts of
the United States are to be according to the modified admiralty
practice in our own country engrafted upon the British practice,
and it is not a sufficient reason for rejecting a particular
process which has been constantly used in the admiralty courts of
this country that it has fallen into desuetude in England.
The process by attachment may issue wherever the defendant has
concealed himself or absconded from the country and the goods to be
attached are within the jurisdiction of the admiralty.
It may issue against his goods and chattels and against his
credits and effects in the hands of third persons.
The remedy by attachment in the admiralty in maritime cases
applies even where the same goods are liable to the process of
foreign attachment issuing from the courts of common law.
It applies to the case of a piratical capture, and the civil
remedy is not merged in the criminal offense.
In case of default, the property attached may be condemned to
answer the demand of the libellant.
It is not necessary that the property to be attached should be
specified in the libel.
It seems that an attachment cannot issue without an express
order of the judge, but it may be issued simultaneously with the
monition, and where the attachment issued in this manner and in
pursuance of the prayer of the libel, this Court will presume that
it was regularly issued.
This was a libel filed in the district court by the appellants,
resident merchants of Baltimore, against the respondent, Almeida,
charging him with having forcibly and piratically taken from on
board a certain vessel, off the capes of the Chesapeake, and within
the territorial limits of the United States, the sum of $5,000 in
specie belonging to the appellants and converted the same to his
own use without bringing it into any port or place for
adjudication. The libel further stated that the said Almeida had
absconded from the United States and fled beyond the jurisdiction
of the court, and that no means of redress remained for the
libellants unless by process of attachment against the goods,
chattels, and credits of the said Almeida, which were also about to
be removed by his orders to foreign parts. The libel also prayed a
personal monition, and likewise
viis et modis, and that
the respondent might answer the premises on oath, and be compelled
to pay the appellants the said sum of $5,000, and damages, and in
default thereof that his goods, chattels, and credits, when
attached, be condemned to answer the premises, &c. The marshal
returned that he had attached certain goods and chattels of the
said Almeida; that the said Almeida was not to be found within the
district and that he had left a copy of the monition at the late
dwelling house of Almeida, and had affixed it at the public
exchange
Page 23 U. S. 475
and on the mast of the vessel containing the goods and chattels
attached by him. But although the transcript of the record
contained a petition for the sale of the attached goods and an
order of the court denying the prayer of the petition, yet it did
not appear by the record by what authority the attachment issued.
But it appeared by the admission of counsel at the hearing that the
attachment had been issued by the clerk of the district court as a
process of course, without any particular order of the judge. The
respondent appeared by a proctor of the court and demurred to the
libel. On the argument of the demurrer, the district court
dismissed the libel and ordered that the goods, chattels, and
credits attached should be restored with costs. This decree being
affirmed
pro forma by the circuit court, the cause was
brought by appeal to this Court.
Page 23 U. S. 484
MR. JUSTICE JOHNSON delivered the opinion of the Court.
The record in this cause sets out the libel, the demurrer, and
the decision of the court upon the demurrer. So far the case is
consistent and intelligible, but the record contains also a
petition for the sale of certain attached goods, a survey of the
goods, and a decision against the petition, but no exhibition of
the process or mode by which these goods came into the custody of
the marshal. As the decision of the court sustains the demurrer, we
are left at a loss upon the record to discover how process of
attachment came to be issued. To obtain such process is the very
prayer of the libel, and the decision of the court is against that
prayer.
All the solution that the case presents is to be
Page 23 U. S. 485
found in the argument of counsel and their mutual
admissions.
The clerk, it seems, issued the attachment as process of course,
and the respondent, instead of moving to quash it for irregularity,
appeared to the libel, filed his demurrer, and was content to let
the regularity of the attachment abide the decision of the court
upon the general questions raised upon the libel. The court appears
to have treated the subject under the same views, since the decree
of the district court after dismissing the libel, contains an order
"that the goods, chattels, and credits attached, be restored, with
costs," which decree was affirmed
pro forma in the circuit
court.
Upon this state of the case, the cause has been argued as one
bringing up to this Court a question on the regularity of the
process issued by the clerk, and if the process so issued, and the
return of the marshal upon it and a motion to quash the writ had
been set out on the record, there is no question that the appeal
would have brought up the whole subject. But as the record is
deficient in these particulars, we do not perceive how we can take
notice of that part of the judge's decision which orders the
restoration of the goods attached.
We must therefore confine ourselves to the questions raised on
the libel and demurrer.
The immediate question presented is whether the court below
erred in refusing to the libellant the process of attachment on the
case made out in his libel.
Page 23 U. S. 486
And this resolves itself into two questions -- the first arising
on the right, the second on the remedy of the case. It must be here
noticed that the legality of the seizure made by Almeida is not now
in question; that question may be undergoing adjudication, for
aught we know, in a court of competent jurisdiction, and we are not
to be understood as prejudging the influence which the decision of
a foreign tribunal may have upon the final adjudication between
these parties. The defendant has demurred under protest, and the
only question now is whether the libellant has made out
prima
facie a good cause for relief in the admiralty.
The ground of complaint is a maritime tort, the violent seizure
on the ocean of a sum of money, the property of the libellants.
That the libellant would have been entitled to admiralty process
against the property had it been brought within the reach of our
process no one has questioned. The only doubt on this part of the
subject is whether the remedy
in personam, for which this
is a substitute (or, more properly, the form of instituting it) can
be pursued in the admiralty.
On this point we consider it now too late to express a doubt.
This Court has entertained such suits too often without hesitation
to permit the right now to be questioned. Such was the case of
Maley v.
Shattack, 3 Cranch 458. Such is the principle
recognized in
Murray v. Charming
Betsey, 2 Cranch 64, where the Court decrees
damages against the libellant.
Page 23 U. S. 487
Such also was the principle in the case of
The
Apollon, 9 Wheat. 362, in which the libel was
directly
in personam and damages decreed. We consider that
question, therefore, as not to be stirred.
The remedy by attachment, also, to compel appearance, has very
respectable support in precedent. In the District Court of South
Carolina during the administration of a very able admiralty judge,
it was resorted to habitually, both in cases of tort and contract.
Bee's Adm. 141. The case of
Del Col. v.
Arnold, 3 Dall. 333, is the only one we know of in
which any view of this question appears to have been presented to
this Court. And there, undoubtedly, the exception taken was not to
the issuing of the attachment in the abstract, but to the issuing
of it against a prize made from a friendly power, before the
property had been devested by condemnation. The response of the
court on this point would seem to imply something more, since their
decision is reported to have been
"that whatever might originally have been the irregularity in
attaching the
Industry and cargo, it is completely
obviated, since the captors had a power to sell the prize, and by
their own agreement they have consented that the proceeds of the
sale should abide the present suit."
Still there is nothing to be deduced from this case which can
affect the question now under consideration. The point as stated to
have been presented to the Court in argument was certainly one of
which a captor could not avail himself,
Page 23 U. S. 488
and the original owner of the prize was not in court. And
although the Court would appear to have had the present question in
view when disposing of that point, yet it is only noticed
arguendo, as they pass on to take a ground which precluded
the necessity of considering the point made in argument.
We therefore consider this altogether a new question before this
Court.
The jurisdiction of the admiralty rests upon the grant in the
Constitution, and the terms in which that grant is extended to the
respective courts of the United States. The forms and modes of
proceeding in causes of admiralty and maritime jurisdiction are
prescribed to the courts by the second section of the Process Act
of 1792. In the Process Act of 1789, the language made use of in
prescribing those forms implied a general reference to the practice
of the civil law, but in the act of 1792, the terms employed are,
"according to the principles, rules, and usages, which belong to
courts of admiralty, as contradistinguished from courts of common
law."
By the laws of Maryland, the right of attachment may be asserted
in the courts of common law, and the court below appears to have
considered the libel in this instance as an attempt by the
libellant to avail himself in the admiralty of the common law
remedy by attachment. The forms of the libel must determine this
question, and there we find the prayer expressed in these
words:
"To the end, therefore, that your libellants
Page 23 U. S. 489
may obtain speedy relief in the premises, they pray process of
attachment against the said goods, and chattels and credits of the
said J.A. which may be found within the jurisdiction of this
honorable court and the process thereof according to the just
course of the admiralty, and that monition
viis et modis
be made accordingly . . . to compel an answer,"
and
"finally, that the said goods, and chattels, and credits, when
duly attached, may by a decree of this honorable court be condemned
to answer the premises."
There can be little doubt as well from the objects embraced in
this prayer as from the argument that the identity of the remedy in
the common law and admiralty courts appears to have been in the
mind of the party libellant. Yet this was no ground for the total
refusal of the relief prayed for; the writ should have been granted
and the question as to ulterior proceedings under it retained to be
disposed of afterwards. The prayer of the libel contemplates two
purposes -- first to compel appearance; secondly to condemn for
satisfaction. Now although the latter may be only incidental and
not the primary object of the attachment, yet if it be legal for
the purpose of compelling appearance, the demand for the one
purpose was no ground for refusing it for the other.
In giving a construction to the act of 1792, it is unavoidable
that we should consider the admiralty practice there alluded to as
the admiralty practice of our own country, as grafted upon the
Page 23 U. S. 490
British practice; it is known to have had some peculiarities
which have been incorporated into the jurisprudence of the United
States. We had then been sixteen years an independent people, and
had administered the admiralty jurisdiction as well in admiralty
courts of the states as in those of the general government, and if
in fact a change had taken place in the practice of the two
countries, that of our own certainly must claim precedence.
On the subject particularly under consideration, it appears from
an English writer that the practice of issuing attachments had been
discontinued in the English courts of admiralty, while in some of
our own courts it was still in use, perhaps not so generally as to
sanction our sustaining it altogether on authority, were we not of
opinion that it has the highest sanction also, as well in principle
as convenience.
It is a mistake to consider the use of this process in the
admiralty as borrowed from or in imitation of the foreign
attachment under the custom of London. Its origin is to be found in
the remotest history as well of the civil as the common law.
In the simplicity of the remote ages of the civil law, the
plaintiff himself arrested the defendant and brought him before the
pretor. But as the sanctuary of his own habitation was not to be
violated, if he came not abroad, a summons was attached to his door
posts citing him to appear and answer. Hence our monition
viis
et modis. If he still proved recusant after three
Page 23 U. S. 491
times repeating this solemn notice, a decree issued to attach
his goods, and thus this process of the admiralty had a common
origin with the common law mode of instituting a suit by summons
and distress infinite. If the defendant obeyed, he could only
appear upon giving bail, and thus again the analogy was kept up
with the appearance at common law, which was synonymous with filing
special bail.
Thus, this process has the clearest sanction in the practice of
the civil law, and during the three years that the admiralty courts
of these states were referred to the practice of the civil law for
their "forms and modes of proceeding," there could have been no
question that this process was legalized. Nor is there anything in
the different phraseology adopted in the act of 1792 that could
preclude its use. That it is agreeable to the "principles, rules,
and usages which belong to courts of admiralty" is established not
only by its being resorted to in one at least of the courts of the
United States, but by the explicit declaration of a book of
respectable authority and remote origin, in which it is laid down
thus:
"If the defendant has concealed himself or has absconded from
the kingdom so that he cannot be arrested, if he have any goods,
merchandise, ship, or vessel on the sea or within the ebb or flow
of the sea and within the jurisdiction of the Lord High Admiral, a
warrant is to be impetrated to this effect,
viz., to
attach such goods or ship of D., the defendant, in whose hands
soever they may be, and to cite the said
Page 23 U. S. 492
D. specially as the owner, and all others who claim any right or
title to them, to be and appear on a certain day to answer unto P.
in a civil and maritime cause."
Clerke's Praxis by Hall, part 2. tit. 28.
I have cited the passage at length in order to facilitate a
reference which must be made to it on several other points in this
opinion. And
1. It appears from this authority that where a defendant has
concealed himself or absconded from the kingdom, this process may
issue. In this particular, the averments in the libel conform
literally to the authority.
2. It is required that the goods and effects to be attached
should be within the jurisdiction of the admiralty. To this the
libel conforms also, for the prayer is for process against
"the said goods, and chattels, and credits, of the said J.A.
which may be found within the jurisdiction of the court and the
process thereof according to the just course of the admiralty."
3. It is required that the attachment issue against any goods,
merchandise, ship, or vessel, on the sea, &c. The only
deviation in this particular is that the process prayed for is
against the credits as well as the goods and chattels, &c.,
within the jurisdiction of the court.
On this part of the prayer, the question is raised as to what
goods and chattels the attachment may issue, where situated, and
whether against credits and effects in the hands of third persons,
but not tangible or accessible to the marshal.
Page 23 U. S. 493
This question arises from a comparison of the tit. 32, 70,
Clerke's Praxis by Hall, with the 28th before cited. The language
of the 28th would seem to confine the operation of the attachment
to goods and chattels "on the sea, or within the ebb and flow of
the sea." But by reference to the 32d, it appears that it is
consistent with the practice of the admiralty also, in cases where
there is no property which the officer can attach by manucaption,
to proceed to attach goods or credits in the hands of third persons
by means of the simple service of a notice.
To all the questions which may be supposed to arise on this part
of the case, we give one general answer,
viz., that as
goods and credits in the hands of a third person, wherever
situated, may be attached by notice, there cannot be a reason
assigned why the goods themselves, if accessible, should not be
actually attached; and although it is very clear that the process
of attaching by notice seems given as the alternative, where the
officer cannot have access to the goods themselves, yet all this
may be confided to the discretion of the judge who orders the
process, and if the party libellant was entitled to the process at
all, the court was not justified in refusing it altogether.
4. The libel prays that the articles attached may be condemned
to answer the demand of the libellant.
On this subject it is very clear that the primary object of the
attachment is to obtain an appearance.
Page 23 U. S. 494
But it is equally clear that upon the third default in personal
actions, the goods arrested were estreated, and, after a year,
finally abandoned to the plaintiff. But as this proceeding was too
dilatory for the movements of the admiralty, the condemnation and
sale, after proof of the cause of action, was substituted for it.
There was therefore nothing incorrect in uniting the prayer for
condemnation with the acknowledged end of forcing an appearance,
and if there had been, it was no ground for refusing relief as far
as the claim was sustainable in the admiralty.
It may be remarked here that the case is somewhat embarrassed by
the state of the pleadings, inasmuch as, after appearance, it is
hardly conceivable on what ground the attachment could be granted.
It would seem that the defendant, for some cause, had been
permitted by the court to appear and plead without giving bail to
the action. There are such causes known to the practice of the
civil law, and we are compelled to take the case as we find it.
It has been further argued that as the libel alleges the
trespass complained of to have been piratically done, the civil
remedy merges in the crime. But this we think clearly cannot be
maintained. Whatever may have been the barbarous doctrines of
antiquity about converting goods piratically taken into droits of
the admiralty, the day has long gone by since it gave way to a more
rational rule, and the party dispossessed was sustained in his
remedy to reclaim the
Page 23 U. S. 495
property as not devested by piratical capture. It is hardly
necessary to quote authority for this doctrine, but it will be
found to have been the rule of justice as early as the reports of
Croke and Ventris.
If the party may recover his property, why not recover the value
of it from any goods of the offender within reach of the admiralty?
We think the doctrine of merger altogether inapplicable to the
case. Even at common law, it was confined to felonies, and piracy
was no felony at common law.
On the question whether the property to be attached should have
been specified in the libel or process, we have before remarked
that as neither the process nor return is before us, we can express
no opinion respecting its form. The libel contains no specification
of the articles to be attached, and if this were fatal, the
demurrer might have been sustained. But, pursuing the analogy with
the civil law process to compel appearance, we can see no reason
for requiring such a specification. There is no reason to conclude
that the decree for attachment issued against the recusant at the
civil law was otherwise than general. And although the other course
may be pursued and might be most convenient and satisfactory, yet
we know of no imperative rule upon the subject. The authority on
which the libel was filed sanctions the general language in which
it is couched.
The last point made in argument was whether the process of
attachment could issue without an
Page 23 U. S. 496
order of the judge. But here again we have to remark that we can
take no notice of the circumstances under which the writ actually
did issue. And looking to the libel, it appears to have been its
express object to obtain such an order from the court. That the
process of attachment at the civil law did not issue of course is
very well known. It was obtained for contumacy after monition, and
analogy as well as public convenience would seem to render the
judge's order necessary. Yet we see no objection to pursuing the
prayer of the libel and issuing it simultaneously with the
monition; the purposes of justice would seem to require that
course.
Upon the whole, we are of opinion that for a maritime trespass,
even though it savors of piracy, the person injured may have his
action
in personam and compel appearance by the process of
attachment on the goods of the trespasser according to the forms of
the civil law as engrafted upon the admiralty practice. And we
think it indispensable to the purposes of justice and the due
exercise of the admiralty jurisdiction that the remedy should be
applied even in cases where the same goods may have been attachable
under the process of foreign attachment issuing from the common law
courts. For it will necessarily follow in all such cases that a
question peculiarly of admiralty cognizance will be brought to be
examined before a tribunal not competent to exercise original
admiralty jurisdiction, and that as a primary, not an incidental,
question, since the whole proceeding will have
Page 23 U. S. 497
for its object to determine whether a maritime trespass has been
committed, and then to apply the remedy.
Judgment reversed and the cause remanded for further
proceedings.