Chaffee v. Hayward and Day v. Hayward.

The provisions of that section apply to the cases of jurisdiction founded on the citizenship of the parties. There is no reference in that section to suits at common law in which the Circuit Courts have jurisdiction over the parties by reason of their exclusive jurisdiction over the subject-matter. Most of the cases decided under that statute were cases where the jurisdiction depended solely on the citizenship of the parties, and were within the letter of the prohibition. (Picquet v. Swan, 5 Mason, 561; Richmond v. Dreyfous, 1 Sumner, 131; Toland v. Sprague, 12 Peters, 300.)

The case of Day v. The Newark India Rubber Manufacturing Company, 1 Blatchford, 628, was rightly decided, inasmuch as the mode of proceeding adopted in the commencement of that suit had not been adopted by the Circuit Court in New York; and it is submitted that it was not necessary to construe the eleventh section of the judiciary act as extending to a class of cases not referred to in that statute, and in which the jurisdiction does not depend on citizenship.

It is submitted that the Circuit Court in Rhode Island takes jurisdiction of cases under the patent laws, in the same manner that the Supreme Court of that State takes jurisdiction of any transitory action, and may use the same process to compel the appearance of the defendant, that could have been used by the State court at the date of the passage of the pro

cess act.

An objection to this view, taken by Mr. Justice Story in Picquet v. Swan, is, that the process act was not intended to enlarge the jurisdiction of the Circuit Courts as defined by the judiciary act. This objection is not tenable in a patent cause, because the jurisdiction of the court is enlarged by the patent laws, and the process acts are to be applied for the purpose of carrying into effect the jurisdiction so conferred, as well as that founded on citizenship.

Point III. This is a case of attachment of specific property, real and personal, which, by the Rhode Island statute at the date of the process act, is made a sufficient service to bring the cause to trial, and therein differs from all the cases decided under the eleventh section of the judiciary act, which were cases of foreign attachment. In Picquet v. Swan there was an attempt to attach the real estate of the defendant, but this attempted service was declared, by Judge Story, "defective and nugatory." The statute of Rhode Island in effect declares that a defendant is to be found in that State for the purposes of the jurisdiction of its courts, by his visible personal and real property, which can be seized and levied on by the sheriff. The decisions of the courts of the United States, in cases where

Chaffee v. Hayward and Day v. Hayward.

the jurisdiction rests exclusively on citizenship, declare that a defendant is not found in a district where one of his debtors resides. There is no conflict in maintaining both propositions.

If specific property cannot be attached when the owner resides out of the district, then an assignee under the bankrupt laws would be deprived of his remedy against a debtor of the bankrupt, in the Circuit Court of the district where his property might be found, although that court has jurisdiction of the subject-matter of the suit.

So, also, it would be impossible to commence a suit at law against an American residing abroad, for infringing a patent for a product by sales in this country, although he might have here warehouses full of goods.

Point IV. If the dictum in Toland v. Sprague, "that even in case of a person being amenable to process in personam, an attachment against his property cannot be issued against him, except as a part of or together with process to be served upon his person, is to be established as a rule for the service of process from the courts of the United States in all cases, then it is not possible to obtain security for a debt by attachment on original process from the Circuit Court in the district of Rhode Island.

An attachment cannot be made on original writ, if the debtor be within the marshal's precinct. He can attach goods and chattels only when he "cannot find the body of the defendant within his precinct," (Dig. of 1844, p. 113, sec. 3;) and real estate can be attached only when "the defendant's body or personal estate cannot be found within the State," (p. 115, sec. 11; Dig. of 1857, pp. 438, 439, secs. 4, 5, 15.) No provision is made in either case for personal service on the defendant. A copy of the writ is to be left at his last and usual place of abode, if he has any in the State, and, if not, notice is to be given by advertisement. But the form of the writ is such that if personal service can be made, no attachment can be made, and, when an attachment is made, no personal service is required or expected.

Many judgments have been rendered in the Circuit Court of Rhode Island, in suits commenced by attachment against citizens of Rhode Island who have been absent, in the belief that the process of that court was to be served like the process of the State courts, and with like effect. Property has been sold, and titles to real estate have passed, upon sales made on executions issued on judgments obtained by default. A decision against the validity of such attachments would not only unsettle the titles to property thus acquired, but would deprive suitors in the Circuit Court of the United States for that dis

Chaffee v. Hayward and Day v. Hayward.

trict of the most valuable portion of their remedial process against their debtors.

The counsel for the defendant in error referred to the following authorities:

No civil suit can be brought in a Circuit Court against the defendant in any district whereof he is not an inhabitant, or is not found at the date of the alleged service of the writ. (Judiciary act of 1789, sec. 11, Stat. at Large, vol. 1, p. 79; Hollingsworth v. Adams, 2 Dallas, 396; Pollard v. Dwight, 4 Cranch, 424; Picquet v. Swan, 5 Mason, 35, 48, 50; Richmond v. Dreyfous, 1 Sumner, 131, 132; Harrison et al. v. Rowan et ux., 1 Pet. C. C. R., 489; Toland v. Sprague, 12 Pet., 300, 328, 330; Com. and R. R. Bank of Vicksburg v. Slocumb et al., 14 Pet., 60; Levy v. Fitzpatrick, 15 Pet., 171; Louisville R. R. Co. v. Letson, 2 How., 556, 557; Herndon v. Ridgway, 17 How., 424; Sadlier v. Fallon, 2 Curtis, 579, 581.)

The law has been equally well settled in relation to service of process in patent suits. (Horace H. Day v. The Newark India Rubber Manufacturing Co., 1 Blatch., 629; Saddler et al. v. Hudson et al., 2 Curtis, 6.)

Mr. Justice CATRON delivered the opinion of the court. The question of law decided below, and which we are called on to revise, arises on the following facts: On the twenty-second day of October, 1855, the plaintiff in error sued out a writ in the Circuit Court of the United States for the Rhode Island district, against Nathaniel Hayward, styling him as "of Colchester, in the State of Connecticut, commorant of Providence, in the State of Rhode Island," for the recovery of damages alleged to have been sustained by the plaintiff in error, by reason of an alleged infringement of a patent right claimed by said plaintiff.

On the same day, the marshal of the Rhode Island district made return on the writ, that "for want of the body of the within defendant to be by me found within my district, I have attached," &c., (enumerating certain real estate lying in the city of Providence, in the State of Rhode Island,) and a still further return of having made further service of the writ, by attaching all the personal estate of the defendant in the India rubber factory of Hartshorn & Co., and in the store or warehouse No. 7, Dorrance street stores, &c., and "have left true and attested copies of this writ, with my doings thereon, with the city clerk of the city of Providence, and with John Sweet and William E. Himes, they being in possession of the premises, the defendant having no known place of abode within my district."

At the November term of the court, a declaration was filed,

Chaffee v. Hayward and Day v. Hayward.

containing the allegations of citizenship of the plaintiff and defendant, and that the defendant was commorant of Providence, as in the writ; and at the sanie term the defendant, in his own proper person, pleaded to the jurisdiction of the court, that he was at the time of the pretended service of the writ, and is, an inhabitant of the district of Connecticut, and not an inhabitant of the district of Rhode Island, nor was he at the time of the pretended service of the writ within the district of Rhode Island; praying the judgment of the court, whether it can or will take cognizance of the action against him.

To this plea the plaintiff, by his attorney, filed a general demurrer, on which the cause was heard, and at the June term the court overruled the demurrer and dismissed the case for want of jurisdiction; upon which, the plaintiff sued out a writ of error.

By the eleventh section of the judiciary act of 1789, it is provided, "That no civil suit in a Circuit or District Court shall be brought 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."

It has been several times held by this court as the true construction of the foregoing section, that jurisdiction of the person of a defendant, (who is an inhabitant of another State,) can only be obtained, in a civil action, by service of process on his person, within the district where the suit is instituted; and that no jurisdiction can be acquired by attaching property of a non-resident defendant, pursuant to a State attachment law. The doctrine announced to this effect, in the case of Toland v. Sprague, in 1838, (12 Peters, 327,) has been uniformly followed since, both by this court and at the circuits. (15 Pet., 171; 17 How., 424.)

It is insisted, however, for the plaintiff, that these rulings were had in cases arising where the jurisdiction depended on citizenship; whereas, here the suit is founded on an act of Congress conferring jurisdiction on the Circuit Courts of the United States in suits by inventors against those who infringe their letters patent, including all cases, both at law and in equity, arising under the patent laws, without regard to citizenship of the parties or the amount in controversy, and therefore the eleventh section of the judiciary act does not apply, but the process acts of the State where the suit is brought must govern; and that the act of Congress of May 8th, 1792, so declares.

The second section of that act provides, that the forms and modes of proceeding in suits at common law shall be the same as are now used in the Federal courts, respectively, pursuant

Day v. Union India Rubber Company.

to the act of 1789, ch. 21, known as the process act of that year.

This act (sec. 2) declares, 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 modes of process in suits at common law, shall be the same in each State, respectively, as are now used or allowed in the Supreme Court of the same. This was to be the mode of process, unless provision had been made by Congress; and, to the extent that Congress had provided, the State laws should not operate.

Now, the only statute of the United States then existing, regulating practice, was the judiciary act of 1789, (ch. 20,) which is above recited. The eleventh section is excepted out of and stands unaffected by the subsequent process acts, and is as applicable in this case as it was to those where jurisdiction depended on citizenship. It applies in its terms to all civil suits; it makes no exception, nor can the courts of justice make

any.

The judicial power extends to all cases in law and equity arising under the Constitution and laws of the United States, and it is pursuant to this clause of the Constitution that the United States courts are vested with power to execute the laws respecting inventors and patented inventions; but where suits are to be brought is left to the general law: to wit, to the eleventh section of the judiciary act, which requires personal service of process, within the district where the suit is brought, if the defendant be an inhabitant of another State.

This case, and that of Day against Hayward, depend on the same grounds of jurisdiction, and were both correctly decided in the Circuit Court; and the judgment in each is affirmed.

HORACE H. Day, Appellant, v. THE UNION INDIA RUBBER COMPANY.

The party defendants in the present suit have as much right to manufacture various articles of India rubber under Chaffee's patent, as the licensees in the case of Hartshorn v. Day, 19 How.

THIS was an appeal from the Circuit Court of the United States for the southern district of New York.

The case is stated in the opinion of the court.

It was argued by Mr. Clarence A. Seward and Mr. Jenckes for