Atkins v. the Disintegrating Company

• Decision Date: 01 October 1873
• Citation: 85 U.S. 272,18 Wall. 272,21 L.Ed. 841
• Parties: ATKINS v. THE DISINTEGRATING COMPANY
• Court: U.S. Supreme Court

85 U.S. 272

21 L.Ed. 841

18 Wall. 272

ATKINS v. THE DISINTEGRATING COMPANY.

October Term, 1873

APPEAL from the Circuit Court for the Eastern District of New York.

Atkins filed a libel in the District Court for the Eastern District of New York, in a cause civil and maritime, against the Fibre Disintegrating Company; styling it 'a corporation duly incorporated,' but not saying by what State incorporated, nor anything else about it; the company having in fact been incorporated by the State of New Jersey, a State not within the limits of any judicial district of New York, but on the contrary forming in itself the judicial 'district of New Jersey.'

The libel was on a charter-party of the ship Hamilton, executed in New York, and was to recover:

1. Freight due the ship for bringing a cargo from Kingston and Port Morant in the island of Jamaica.

2. For demurrage for the ship while getting a cargo.

3. For damage to the ship by gettting on a reef at Port Morant.

It alleged that the company had chartered the ship to proceed to Kingston, a deep-water and safe port for a full cargo, freight to be paid at a price named; that twenty running lay days were allowed for loading, and, for any delay beyond that, $100 per day demurrage; that if a full cargo should not be provided at Kingston, then the company had the privilege of sending the vessel to a second safe port; that the company, in violation of the charter, had sent the ship to Port Morant, an unsafe port, whereby the vessel was delayed, and, by the unsafeness of the port, got aground and was damaged.

It prayed for process and a citation to appear, and if the defendants should not be found, that an attachment might issue against their property in the district.

Process according to the prayer issued accordingly, June 14th, 1866, returnable June 20th, 1866.

The process was returned as follows:

Respondents not found in my district, and I attached all the property of respondents found in their factory in Red Hook Point, in the city of Brooklyn.

A. F. CAMPBELL, United States Marshal.

June 20th, 1866.

The record, under date of this same 20th of June, noted a return of the service, with an entry thus (Mr. Beebe being a proctor of the court):

'Mr. Beebe appears for the respondent, and has a week to perfect appearance, and to answer.'

And on the same day with Mr. Beebe's action, the said 20th, a motion was made on the part of the defendants, with stay of proceedings, to show cause why the property attached should not be discharged; the ground of this motion being that the business of the company was carried on at Brooklyn, in the Eastern District of New York, and that its officers were all at its factory there during business hours, and that service of process could have been made on them, but that such service had purposely not been made in order to attach property. The hearing of the motion being deferred the defendants, by consent, were allowed to give stipulations for value and to take the property attached, without prejudice to the motion already made, and with an agreement that if the motion to discharge the property should be granted, the stipulations should be cancelled.

The stipulation for costs, acknowledged July 6th, 1866, contained a recital that 'an appearance had been filed in the cause by the said Disintegrating Company.' The stipulation for value, which was signed by the president of the company and two of the directors, and which was acknowledged July 7th, 1866, contained a recital that an appearance had been duly filed by said Fibre Disintegrating Company, and provided for notice of the final decree to Beebe, Dean, and Donohue, proctors for the claimants of the property attached, and the defendant; and the papers were signed and indorsed 'Beebe, Dean, and Donohue, proctors.'

The motion to discharge the property attached was never decided. But a motion was made in March, 1867, to set aside and vacate the clause of attachment contained in the motion and all proceedings under it; this motion being based upon this clause in the eleventh section of the Judiciary Act:

'And a CIVIL SUIT shall be brought before either of said courts 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.'

The ground of the application was that the respondents at the time of the issuing and serving the process were non-residents of the Eastern District of New York, and had not been found therein at the time of serving the writ.

The motion was opposed by the libellants, who argued that a cause in the admiralty was not a 'civil suit' within the meaning of the clause relied on, and, therefore, that the clause did not apply; while for the rest, that the proceeding by attachment against an absconding, absent, or non-resident debtor, was one, they argued, inherent in courts of admiralty and practiced from the earliest times. In support of this view reliance was had on Clerke's Praxis, an old but authoritative book of the time of Elizabeth, and on Browne's Civil Law and Law of Admiralty. Clerke's Praxis, translated, read thus:

'SECTION 24. If the defendant so conceals himself, or perhaps be is absent from the kingdom, that he cannot be arrested, then if he shall have any goods, wares, or ship, or any part of a ship, or boat upon the sea or within the flow and reflow of the sea, then a warrant is to be taken out to this effect, to arrest such goods or such a ship, &c., belonging to N., that is, to the defendant debtor, in whosesoever hands they may be, and to cite, with such goods, N., the debtor, specially, and all others generally who have or pretend to have any right or interest in the raid goods, to appear on such a day to answer the plaintiff in a certain civil and maritime cause.'

Browne's language¹ was thus:

'Let us, lastly, suppose that a 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 . . .. 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.'

Opposed to this it was said that the present cause was palpably a 'civil suit;' that the clause of the eleventh section relied on, therefore, did apply. But that if this were otherwise, and if there were no statutory prohibition, that the attachment ought to be set aside; for that while the ancient usage of the admiralty allowed the process of attachment if the defendant concealed himself, or had absconded, or were an alien non-resident to which cases the language of Clerke and Browne, as of other writers, applied—neither such ancient practice nor any proper practice allowed it, nor would the language of either of the authors cited justify it in application to a case where the defendant was not alien to the United States (in whose courts the case was), had not concealed himself, and had not absconded, but contrariwise was a person (an artificial person), incorporated by one of the United States, owing and paying allegiance to the government, and neither absent, nor concealed, nor absconding; but contrariwise again, at its own home in an adjoining judicial district of the United States, the district of New Jersey, in the third Federal circuit, where by crossing the Hudson it could be sued just as well as, and much more properly and effectively than, where it had been sued, to wit, in the Eastern District of New York, in the second.

The District Court denied the motion to vacate and set aside the attachment.²

The defendants then put in their answer averring performance of the charter-party and the acceptancy of the cargo; that the second port had been voluntarily accepted as a safe port by the master; and also setting up that they were a foreign corporation, incorporated under the laws of New Jersey, and not residents of the Eastern District of New York, and that the libel did not allege that they resided or were in the district.

The District Court, after full argument, considering that the company, so far as the proceeding against it individually was concerned, had by the appearance and action of its proctor, come into court, and considering further that the merits were with the libellants, decreed against it individually for $13,302, an amount found due by a master; and considering also that the proceeding was not 'a civil suit' within the meaning of the clause in the eleventh section, and that, independently of the prohibition there contained, the ancient usage of the admiralty did authorize the attachment, as an inherent power of the court, decreed against the property seized; or to speak, in this particular case, more literally, decreed that the stipulators should cause the stipulations which they gave on the discharge of the property from seizure, to be performed.

On appeal the Circuit Court reversed the decree.

As to the matter of appearance—remarking that it was according to the ancient practice in admiralty in cases of attachment not to recognize anything as an appearance but putting in of bail—it thought that what had been done by Mr. Beebe was not to be regarded as a general appearance; that, on the contrary, he had been allowed time 'to perfect an appearance,' and had immediately moved to set aside the proceeding as unauthorized; that this motion being denied and the respondent compelled to answer, the answer was made by setting up again an invalidity; and that the libellants had stipulated expressly that the subsequent bond for value should not operate as a waiver of the respondent's motion.

Upon the other and greater question—whether a court of admiralty in one judicial district of the United States can obtain jurisdiction against an inhabitant of another district by an attachment of his goods,—the ...