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Galpin v. Page.

[No. 12.

Vol. 1.]

was a cardinal principle which pervaded all its judicial proceedings. And when the articles of compact contained in the Ordinance of 1787, for the government of the Northwest Territory, declared that its inhabitants should always be entitled “ to judicial proceedings according to the course of the common law,” it was believed by them that they had in that guarantee the assurance of full protection to all their private rights ; and that the language was not used “ mainly for ornamental purposes,” having a certain "rotundity of sound which is pleasing to the ear,” but leaving " no definite impression upon the understanding." Hahn v. Kelly, supra. The common law recognized no such proceeding as a personal judgment without the appearance of the party, and probably in no other case than Hahn v. Kelly were proceedings to outlawry ever cited as a mode "amounting or equivalent to constructive service," by which a common law court obtained jurisdiction. “By the strict rules of the common law,” says the supreme court of New Jersey in He88 v. Cole, 3 Zab. 116, “it was necessary in every suit, not only that the defendant should be served with process, but that his appearance to the action should be effected. Every student is familiar with the cumbrous machinery and complicated process by which the courts sought to compel the appearance of the defendant. He is familiar also with the principle, that if the defendant was contumacious and refused to appear to a mere civil action, the proceedings were at an end. No judgment could be rendered. Every common law record shows upon its face that the defendant was either in custody, or was summoned or attached to answer to the action. And, however inconvenient may have been the strictness with which the principle was applied, and the extent to which it was enforced in ancient common law proceedings, the principle itself is by no means peculiar to the common law. It pervades, in fact, every code of law and every well regulated system for the administration of justice.”

The opinion in Hahn v. Kelly is not only singular in its reference to proceedings to outlawry for want of appearance of a party ; but the citations from Blackstone, to show that the courts of chancery would proceed to judgment upon a constructive service of process at all analogous to service by publication, establish nothing of the kind; and only seem to do so because they are detached from their context in the volume. They relate to proceedings to compel the appearance of parties after service of the subpoena, which is the original process in chancery, as any one will see who will read the whole page in Blackstone from which the citations are taken.

Service of the subpæna could indeed be made by leaving a copy at the actual residence of the defendant, as well as by delivering a copy to him personally. And in special cases where an absent or absconding defendant had appointed a person to act as his agent in the matter litigated, substituted service upon such agent in lieu of the principal was, upon application to the court, sometimes allowed. Adams Equity, 324; Hobhouse v. Courtney, 12 Simons, 130. But it was not until the statute of 5th George 2, c. 25, that proceedings could be taken by publication, without service in one of the modes indicated. That statute authorized proceedings by proclamation published in the London Gazette, and read in the parish church, and posted in the Royal Exchange, where a defendant had absconded to avoid service. It did not apply to a citizen or subject of another government who had never been in the realm. VOL. I.

35

(No. 12.

Vol. I.]

GALPIN v. Page.

Passing from Hahn v. Kelly, we proceed to consider the other positions taken by the defendant to defeat a recovery. It is contended by her counsel : 1st. That the cases of Gray and Eaton were suits in rem, and that the decree in the consolidated suit bound the property without reference to the defective service of summons upon the infant; 2d. That the district court had authority to appoint a guardian ad litem for the infant without previous service upon her; and 3d. That the decree in the consolidated suit was not reversed as to the widow Matilda.

1st. Suits in rem may be divided into four classes : 1st. Those which are directed primarily against particular property, and are intended to dispose of it without reference to the title of individual claimants; 2d. Those which are instituted to determine the status of particular property or persons ; 3d. Those which are, in form, personal suits, but which seek to subject property brought by existing bien or by attachment, or some collateral proceeding, under the control of the court, so as to give effect to the rights of the parties; and 4th. Those which seek to dispose of property, or relate to some interest therein, but which touch the property or interest only through the judgment recovered. Proceedings in admiralty for the forfeiture of a vessel or goods are instances of the first kind; the suit is there brought against the vessel or goods directly, without reference to the rights of persons, and all parties are notified to appear by a designated day and assert their claims or the property will be condemned. Proceedings in the probate court upon the validity of a will are instances of the second kind; the judgment, when rendered, operating directly upon the status or condition of the instrument, determining its validity or invalidity. Proceedings by attachment against the property of debtors, or to foreclose a mortgage, or other lien upon property, or to partition real estate, are instances of the third kind. Proceedings to compel the execution or cancellation of a conveyance of real property in the state, and proceedings to wind up and dispose of partnership property, are instances of the fourth kind. The third and fourth classes mentioned are not strictly proceedings in rem ; but so far as they affect property in the state, they are treated as substantially such proceedings.

In proceedings in rem notice of some kind is required, but as all property is supposed to be in the possession of its owner, either in person or by agent, a seizure of property is, of itself, considered to impart notice of the proceeding to the owner. Therefore, where the property is, at the outset, taken into the custody of the court, the law is less strict in requiring further notice, either generally by proclamation to all persons, or specially to the reputed owner. But where the property to be affected is not thus at the outset taken into custody, there is no constructive notice given by the proceeding; and the same notice, as provided by law, must be given to the defendant, as in actions where a personal judgment for damages is alone sought. “A proceeding,” says the supreme court of Vermont, in Woodruff v. Taylor, 20 Vermont, 65, where the law on the subject of suits in rem is stated with great clearness, “ professing to determine the right of property where no notice actual or constructive is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It will be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court."

Vol. I.)

GALPIN O. PAGE.

No. 12.

obiche authority a guardian geen an infancan no morrisdom in ters, through

the one Cases majority, between am ingan be appoinvice or share

The suits of Gray and Eaton were partly in personam, and were, at the same time, intended to subject property in the state to the disposition of the court; but as the property was not taken into custody at the outset, there was no constructive notice given to the owners or claimants by the proceeding, and the absent and non-resident defendants could only be brought before the court by publication of summons, as provided by statute, and this, as the supreme court held, was never done, so far as the infant Franklina was concerned.

2d. As to the authority of the district court to appoint a guardian ad litem for the infant without previous service upon her, it is sufficient to observe that the supreme court of the state, on appeal, decided that no such authority existed. The statute requires service of summons on all infants before a guardian ad litem can be appointed, and makes no difference in this respect between an infant of a few months, and one nearly attaining his majority, and the service can no more be dispensed with in the one case than in the other. Besides, there is wisdom in the provision requiring service even upon an infant in its cradle, for the papers, through its nurse or relatives, would almost be sure in such case to find their way into the hands of parties who would look after the interests of the child. Be this as it may, it is the proceeding required by the legislature before the jurisdiction of the court can attach ; and as Chief Justice Taney said of a mere formal objection which was insisted upon in the supreme court, nothing is unimportant or to be disregarded which the legislature has prescribed as a condition for exercising the jurisdiction of the court. Where personal service cannot be made by reason of the non-residence in the state or absence of the infant, service must be made by publication as in other cases. Such publication is the prescribed condition to the exercise of jurisdiction over the infant.

3d. The objection, that the decree of the district court in the consolidated action was not reversed as to the widow Matilda is not founded upon fact. There was but one decree, though the court speaks in its opinion as though there were two separate decrees before it. This is an evident inadvertence in the language of the court, arising from the fact that the objections to the validity of the decree were taken to the separate proceedings had before their consolidation. The case was remanded för further proceedings; and on filing the remittitur, the question evidently arose as to what proceedings should be had, and after hearing counsel for the parties, the court ordered a new trial on all the issues as to all the parties. Upon this order the case remained on the calendar of the district court for trial for over a year, and was then dismissed. The order of dismissal was entered in the consolidated suit, and it would appear, for greater caution, in the separate suits also.

The decree as to the infant Franklina being void for want of jurisdiction in the district court over her, all proceedings founded upon such decree, so far as her rights are concerned, necessarily partake of the same infirmity. The purchaser of the premises being one of the attorneys of the plaintiff Gray, the law, as held by the supreme court, imputes to him knowledge of the defects in the proceedings which were taken under his direction and that of his partners. The conveyance of the undivided half to his law partner was made after the reversal of the decree, and the latter

infirmity: tif? Gray, the cits in the

Vol. I.]

GALPIN v. Page.

(No. 12.

also took his interest with similar knowledge of the defect. Independently of this fact, their title fell with the reversal of the decree. On this subject we can add nothing to what was said in the opinion of the supreme court, except that the doctrine of Reynolds v. Harris was reaffirmed in the late case of Reynolds v. Hosmer, reported in 45 California, 617.

As to the claim for rents, we are of opinion that the cost of filling up the water lot, which was a valuable and permanent improvement, is a just offset to the rents received or which might have been received by the defendant.

It follows from the views we have expressed that the plaintiff is entitled to judgment for the possession of the premises ; and such judgment will be entered upon the findings filed — with costs.

INDEX.

ADMIRALTY.
1. The rule is that a passenger cannot be a salvor, and any exception to it is to be ad-

mitted with the greatest caution. Brady v. Am. Steamship Co. 402.
2. Where a passenger, who was a master navigator, assumed command of a ship of great

value during a violent storm and after the master and other officers had been lost, and
rendered efficient service during the continuance of the storm : Held, that he was to

be regarded as a salvor. Ib.
3. But having acted as master after the subsidence of the storm such passenger was held

to have thereby detracted materially from the merit of his services, and the compensa-

tion was reduced accordingly Ib.
4. Maritime liens for necessaries supplied in England to a foreign ship have always

existed there. The Champion, 493.
5. The assignment of a claim under a maritime lien divests the lien. 1b.

AGENT.
See PRINCIPAL AND AGENT.
ALTERED CERTIFICATE.

See WARRANTY.

ASSESSMENTS.
Discussion of the mode of assessing railroads, especially as prescribed by the statute of
California. Huntington v. Cent. Pac. R. R. Co. 94.

ASSIGNMENT OF DEBT.
An assignment of a debt to arise for wages not yet earned, against any person by whom

the assignor may thereafter be employed, although followed by a subsequent notice of
the assignment to such an employer, is insufficient, without acceptance, to make a
valid transfer of the debt against the employer. Jermyn v. Moffitt, 367.

ATTORNEY.
The power, to disbar an attorney is possessed by all courts which have authority to admit
attorneys to practice. But the power can only be exercised where there has been
such conduct on the part of the party complained of as shows him to be unfit to be a
member of the profession ; and before judgment disbarring him can be rendered he
should have notice of the grounds of complaint against him and ample opportunity of
explanation and defence. In re Robinson, 326.

See ConTEMPT.

BAILOR AND BAILEE.
1. Where a livery-stable keeper undertakes for reward to receive a carriage and lodge it

in a coach-house, the case comes within the second class of the fifth sort of bailment
mentioned by Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym, at pp. 917, 918, viz., a
delivery to carry, or otherwise manage for reward, to a private person, not exercising a

public employment; and he is bound to take reasonable care. Searle v. Laverick, 174.
2. The obligation to take reasonable care of the thing intrusted to a bailee of this class

involves in it an obligation to take reasonable care that any building in which it is

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