Steam Stone-Cutter Co. v. Sears

• Decision Date: 11 October 1881
• Citation: 9 F. 8
• Parties: STEAM STONE-CUTTER CO. v. SEARS.
• Court: U.S. District Court — District of Vermont

9 F. 8

STEAM STONE-CUTTER CO. v. SEARS.

United States Circuit Court, D. Vermont.

October 11, 1881

Prout & Walker, for orator.

E. J Phelps and Wm. Batchelder, for defendant.

WHEELER D.J.

The orator, as owner of a patent, brought a bill in this court against the Windsor Manufacturing Company, for infringement and obtained a decree establishing the title to and validity of the patent, the fact of infringement, and for an account of profits. After this decree, on application of the orator a writ of sequestration, in the nature of an attachment, to create a lien for satisfying the decree, was issued, and served by attaching the real estate of that defendant in accordance with statutes of the state of long standing, which enable the courts of chancery of the state to issue such process and create such liens. After this attachment, that defendant conveyed to this defendant, who had full knowledge of the attachment, a portion of the estate so attached. The orator obtained a final decree for the payment of money in the original cause, took out execution thereon, and caused it to be levied upon that estate, and caused the estate to be set out to the orator in satisfaction of so much of the execution as it would apply to, at its appraised value agreeable to the statutes of the state in relation to levy of execution upon real estate. The defendant refuses to recognize the validity of the attachment and levy, and claims to hold the land against them. This bill is brought to confirm and enforce the orator's attachment and levy, and to obtain possession of the estate, and the cause has been heard upon bill and answer.

No question is made about the propriety of regularity of the writ of attachment issued in this case, if there was authority to issue such a writ at all; nor about the regularity of the attachment upon the writ, or the levy of the execution and setting out the estate by the marshal, according to the laws of the state, if the attachment could effectually be so made, or the estate be so levied upon in any case in equity. The only questions made are as to whether the court has the power to issue such writs, and whether the service of such a writ in that manner created a lien that will hold until decree. It has been the practice of the court for about 30 years to issue such writs, upon cause shown, in this manner, some of which have been served by attaching real estate in this manner, but doubts have arisen latterly in respect to the legality of this course. In no case has the question arisen, so far as is known, except upon the application for the writ, and not then so as to involve appearance for the opposite party or argument. It is presented now for the first time for debate, and has been argued with thoroughness and ability upon each side.

An attempt has been made to rest these proceedings upon the general authority, usage, and practice of courts of chancery. That such courts have issued writs of sequestration from the earliest times is abundantly shown. Hind. 127; Colston v. Gardiner, 2 Ch.Cas. 44; Francklyn v. Colhoun, 3 Swanst. 276; Peck v. Crane, 25 Vt. 146. But these writs were always issued in the nature of distresses to compel appearance or performance of some decree or order, and not for the purpose of creating a mere lien upon property to be held for the satisfaction of a money decree. These proceedings must be maintained, if at all, by the force of the statute of the United States, the rules and practice of the courts in pursuance thereof, and the laws of the state adopted thereby; although the practice of courts of chancery, both ancient and modern, is to be looked into for the purpose of understanding and applying these statutes and rules.

The statutes of the United States make a distinction between common-law causes and equity and admiralty causes as to provision for process, and forms and modes of procedure. For the former, the practice, proceedings, and remedies by attachment and execution of the courts of the states are adopted. Rev. St. Secs. 914, 915, 916. For the latter, it is merely provided that--

'The forms of mesne process, and the forms and modes of proceeding in suits of equity and admiralty and maritime jurisdiction, in the circuit and district courts, shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts respectively, and to regulation by the supreme court, by rules prescribed from time to time to any circuit or district court, not inconsistent with the laws of the United States. ' Rev. St. Sec. 913.

-- And that the circuit and district courts shall have power to issue all writs necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. Section 716. There are no provisions in the statutes for execution upon decrees in equity or admiralty causes, and none for liens thereby, except that it is provided that-- 'Judgments and decrees rendered in a circuit or district court, within any state, shall cease to be liens on real estate or chattels real in the same manner and at like periods as judgments and decrees of the courts of such state cease, by law, to be liens thereon. ' Section 967.

Still decrees in equity and in admiralty, in the circuit and district courts, become liens upon the lands of defendants therein in states where like decrees of the state courts become such liens, the same as the decrees of the state courts do. Ward v. Chamberlain, 2 Black, 430. And suits in personam in admiralty may be commenced by attachment of the property of the libelee, to be held to answer the demand. Manro v. Almeida, 10 Wheat. 473. These remedies rest upon the principles and usages which belong to such courts, and the rules of the courts respectively, and not upon any express provision of the statutes. And in giving construction to the statute prescribing those principles and usages as guides of procedure, reference is to be had to the practice of those courts in this county as grafted upon the English practice. This was expressly laid down as to admiralty proceedings, in Manro v. Almeida. The form of the writ of execution in equity cases, upon decrees for the payment of money, has been provided by the supreme court, in equity rule 3, and no other provision is made in those rules in regard to such executions. All the rest is left to the circuit and district courts. This court provided, by rule 11, that 'the creation, continuance, and termination of liens and rights created by attachment of property, or the arrest of a defendant, shall be governed by the laws of this state. ' This state has, and has had almost from its organization as a state, the English equity system with its jurisdiction vested in courts of chancery, and those courts have had the power from nearly as early a period to issue writs of attachment like the one in question, having the force and...