Where the court of admiralty has parted with the possession of
the property upon bail or stipulation and it is necessary for the
purposes of justice to retake the property into the custody of the
court, the proper process against any person not a party to the
stipulation, but who is alleged to have the actual or constructive
possession, is a monition, and not an execution, in the first
instance.
This is the same case which was reported at
20 U. S. 20 U.S.
471, and was an appeal from proceedings had in the court below
under the mandate of this Court in the original cause.
Page 23 U. S. 498
MR. JUSTICE STORY delivered the opinion of the Court.
This is an appeal from the Circuit Court for the District of
Maryland, from proceedings had in that court under the mandate of
this Court in the original cause, which is reported in
20 U. S. 7 Wheat.
471.
The material facts are these:
The original libel was against sundry quantities of gold and
silver coin and bullion deposited by Daniels in the Marine Bank of
Baltimore. A claim was interposed by one Nicholas Stansbury,
asserting himself to be "agent and attorney, in fact," of Daniels,
on behalf of the latter, and claiming restitution of the property
as lawfully captured in war by Daniels. Pending the proceedings in
the court below, Stansbury made application for the delivery of the
property upon stipulation, and thereupon the court ordered that J.
D. Daniels be permitted to draw for, and the President and
Directors of the Marine Bank be suffered to pay to Daniels, the
money in controversy, provided, that Daniels should enter into a
stipulation in $23,000, with such surety or sureties as might be
approved of by the libellant's proctors to abide such further order
or decree, either interlocutory or final, as might be made by the
court in the premises. The libellant's proctors approved of
Stansbury, and one Thomas Sheppard, and one Henry Didier, Jr. as
sureties,
Page 23 U. S. 499
and they accordingly gave a stipulation for the amount "for J.
D. Daniels, claimant." But Daniels himself was not a party to the
stipulation. By a subsequent order of the court, the money was
delivered by the Marine Bank to Stansbury, who signed a receipt for
the same as attorney for Daniels upon a certificate of the deposit
originally given by the cashier of the Bank to Daniels, and by him
delivered over to Stansbury.
A decree of restitution having passed in the Supreme Court,
after the mandate was brought into the circuit court, the libellant
prayed that execution might issue against Daniels to enforce the
performance of the decree, and that a monition or other proper
process might issue against the sureties to the stipulation. To
this course the proctor for the claimant objected, and the court
finally ordered admiralty process to issue against the stipulators,
but refused to make any further order under the motion of the
libellant. The case is now before us by appeal from that
decision.
Several points have been urged in the argument upon which, in
the present stage of the cause, it is not thought necessary to
express any opinion. Assuming Daniels to be a party to the cause in
virtue of the claim made in his behalf by Stansbury, it still
remains to show that the process of execution is in the first
instance to be issued against him. He is not a party to the
stipulation, and so far as any remedy is to be sought upon that, it
lies exclusively against the
Page 23 U. S. 500
sureties, since he, as principal, has not, personally, or
through the instrumentality of any agent, become bound by it. The
remedy against him for the property or its proceeds must be sought
solely upon the ground that he has the actual or constructive
possession of them in virtue of the delivery to his agent under the
order of the court below. If the property had remained in the
custody of the court, there is no pretense to say that he would be
liable for the restitution. It is the delivery to him or to his
authorized agent which can alone give rise to any liability on his
part, whether he be a party to the suit or only a custodian of the
property or its proceeds. In such cases, the usual proceeding in
the admiralty is not to award execution against the party, for that
would preclude him from showing in his defense that he never had
any actual or constructive possession or that he was discharged
from all liability. The proper course is to issue a monition to
Daniels in the usual manner, upon the return of which he may appear
and justify himself and interpose such allegations on the merits as
may bring all the matters fully before the court for judgment. This
is the constant practice of the admiralty, and the subsequent
proceedings are to be according to the common usage, upon which it
is unnecessary to comment.
It is therefore the opinion of this Court that the circuit court
was right in refusing to grant an execution against Daniels under
the circumstances, and that its decretal order ought to be
Page 23 U. S. 501
affirmed, but inasmuch as it appears that the principal question
between the parties has been whether any process whatsoever could
be awarded against Daniels, it is directed that the affirmation of
the order be without prejudice to the award of a monition against
Daniels in the common form of the admiralty.
DECREE. This cause came on, &c., on consideration whereof,
it is ORDERED, ADJUDGED, and DECREED that the decree of the circuit
court refusing to issue an execution against John D. Daniels as
prayed for by the libellant in his petition be and the same hereby
is affirmed with costs, without prejudice to the libellant to apply
to the said circuit court for a monition against the said John D.
Daniels in the premises according to the usage of the admiralty,
that being a process to which the libellant is entitled by law.