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form of law, which bond (or stipulation) is herewith CHAP. 5. returned.
But it is necessary now to revert, momentarily, to the rule of December Term, 1850, mentioned at the beginning of this chapter.
This rule, it will be observed, extends as well to final as to mesne process. In the districts comprised within the states where imprisonment for debt has been abolished by law, the change introduced by it is highly important. To ascertain the precise extent of this change in any particular district, recourse must be had to the state law. Thus, for example, in the districts of New-York, in which the state statute, after forbidding the arrest of any person in civil action, except as therein prescribed, proceeds to specify the cases in which the defendant
be arrested, the question in any given case in admiralty will be whether it is one of those designated in the act.
It was not, however, I imagine, intended by the new rule to require the courts of admiralty to follow the direction of the state laws regulating the exercise of the right of the plaintiff to hold the defendant to bail. For example: the statute of New-York enjoins .it
upon the judge, to whom application is made for the required order for the arrest of the defendant, to exact a written promise on the part of the plaintiff
, with or without sureties, to pay all costs that may be awarded to the defendant, together with all damages he may sustain by reason of the arrest. Now, although it may be proper for the courts of admiralty to exact the like security of the libellant in the form of an admiralty stipulation-a practice,
as we have seen in the last chapter, by no means new in a court of admiralty-yet the state law is not supposed to be, by the new rule, rendered obligatory in this respect. The rule simply adopts the principle of partial exemption from arrest, as defined by the laws of the several states where it prevails, leaving the national courts to follow the dictates of their own judgments as to the most suitable modes of carrying it into effect. In the districts where the rule is operative, to warrant the arrest of the defendant, in any case, whether of contract or of tort, there must, of course, be a judge's order, founded on an oath, showing the case to be within the purview of the state law. But, as we have seen, an affidavit and order were previously required as a pre-requisite to the issue of a warrant of arrest for a sum exceeding five hundred dollars, and the effect of the new rule will be to extend this pre-requisite to all cases, without regard to amount, in which, by the state law, the right of arrest exists.
2. WARRANT TO ARREST THE PERSON OF THE DEFENDANT, WITH A
CLAUSE, IF HE CANNOT BE FOUND, TO ATTACH HIS GOODS AND
This, it will be perceived, is a threefold and highly effective form of process. The admissibility of the attachment as an authorized form of civil law and admiralty procedure for the purpose of compelling
(a) This latter clause is denominated a foreign attachment; that against the goods and chattels of the defendant, simply an attachment.
an'appearance by the defendant, or rather, virtually, chap. 6. as a mode of instituting an admiralty suit, when the defendant could not be found, was first established by the Supreme Court of the United States in the before the case of Manro v. Almeida(a), in which its regularity and propriety were vindicated in an elaborate opinion delivered by Mr. Justice JOHNSON(). It was conceded, however, that according to the civil law
tion of the rule.
(a) 10 Wheaton's R., 473 (6 Curtis's Decis. S. C., 485).
(6) Mr. Justice Johnson mentions the remark of an English writer, whom he does not name, that this form of process is no longer in use in England. He doubtless refers to the following passage in Browne's Civ. and Adm. Law (vol. 2, pp. 434, 435), relative to the action in personam in the English Court of Admiralty: “Let us, lastly, suppose that the 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. By this means, if a foreigner owed money in England, and any ship of his came into a British harbor, or any goods of his were found in these realms, they were seized by his creditors; and by this means the English creditor had an easy remedy for his debt, and the foreign merchant acquired more credit in England, when it was so easy to find a remedy against him: for this process of attachment of goods 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 Justinian's Code, was debitor creditoris est debitor creditori creditoris. This salutary proceeding has in latter times gone into disuse in England, and great is the mischief accruing to commerce from the want of it. It still prevails in many parts of Europe, and gives to foreigners an evident advantage.”
It was probably under these views of the great utility of the process of attachment, that the Supreme Court thought proper not only to adopt it, but to increase its efficiency by directing its incorporation, in the first instance, with the warrant of arrest.
VOL. 2 practice, it did not issue as of course, nor in the first
instance, but only by order of the court for contumacy
after monition and the failure of the defendant to appear; but the Supreme Court, referring to the practice known to have prevailed to some extent at least, in this country, was of opinion that the attachment might be issued simultaneously with the monition, an express order for that purpose having first been obtained. And, although the primary object of the attachment was considered to be to compel the defendant to appear, it was nevertheless held that the District Court might lawfully proceed, without such appearance, to adjudicate
upon the rights of the libellant; and having, for sufficient cause shown, inade a decree in his favor, might subject the property attached to condemnation and sale, in satisfaction of the decree.
Such is the form of procedure by attachment as indicated by the second rule, and as correctly described, according thereto, in the first edition of this work. Being in itself convenient and adapted to all cases, there was no necessity for inquiring whether the prescribed mode of resort to this remedy was designed, according to the maxim expressio unius exclusio est alterius, to forbid the use of other modes sanctioned by previous usage. But the new rule mentioned under the last preceding head may render this a question of considerable importance, though it may not be one of much difficulty; for if the mode prescribed by the second rule is to be taken as exclusive, and if, according to the true interpretation of the new rule, it is to be considered
Quere, as to the effect of the rule of December Term, 1852.
as forbidding by implication, as the seventh rule CHAP. 5. does in terms, the issue of the warrant of arrest except in cases where it may be lawfully executed as such, the result will be that the right to resort to an attachment has also become limited to the like extent. But such a consequence can hardly be supposed to have been actually intended, and it may reasonably be expected that the rules in question will, if possible, be so interpreted by the courts as to avoid it. To permit the warrant of arrest still to issue as a mere vehicle for the attachment clause, in a case where the right to arrest the person of the defendant no longer exists, might savor of evasion; but no valid objection is perceived to considering the right to issue an attachment, in connection with a monition(a) which unquestionably existed prior to the promulgation of the rules of admiralty procedure, as still subsisting unimpaired by the second rule.
This decision was pronounced in 1825, and has since furnished the only authoritative rule upon the
(a) Or even alone, when the owner of the property is shown to have absconded or not to be within the district. Manro v. Almeida, 10 Wheaton's R., 473; Clark v. The N. J. Steam Navigation Co., 1 Story's R., 513. But in Wilson v. Pierce (5 M. Law Rep., 137), decided in the District Court of California, it was held by Judge HOFFMAN, after a full and able review of the authorities on the subject, that the provision contained in the 11th section of the Judiciary Act of 1789, ordaining that no civil suit shall be brought before a circuit or district court of the United States 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, embraces suits in admiralty as well as at common law, and forbids the institution of a suit by libel and process of attachment against the property of a person who is a citizen of another state, and at the time domiciled therein.