§ 470. Attachment of property. A Federal statute passed June 1, 1872, provides that "in common-law causes in the Circuit and District Courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the State in which such court is held for the courts thereof; and such Circuit or District Courts may, from time to time, by general rules, adopt such State laws as may be in force in the States where they are held in relation to attachments and other process: Provided, That similar preliminary affidavits or proofs, and similar security, as required by such State laws, shall be first furnished by the party seeking such attachment or other remedy."1 Most of the District Courts have adopted by their rules the State laws in force. within their respective districts. It has been held that such a rule need not be in writing; and that the court of review will presume that such a rule has been adopted by the trial court when there is no affirmative showing to the contrary. It has been held that an attachment cannot be obtained in a suit in equity, such as a suit to foreclose a lien on personal property, in an action at common law to recover the statutory penalties or liquidated damages for breach of copyright. 6 These rules and the statute do not give a District Court power thus to acquire jurisdiction over a person not a resident of the district nor served with process therein. But an attachment thus levied in a suit begun in a State court without personal service will not be vacated for that reason after removal, al § 470. 1 U. S. R. S., § 915; 17 St. at L., ch. 255, p. 197. See Schunk v. Moline M. L. S. Co., 147 U. S. 500, 37 L. ed. 255. 2 See, for example, the Common Law Rules of the U. S. D. C., S. D. N. Y. 3 Logan v. Goodwin, C. C. A., 104 Fed. 490. See also Citizens' Bank v. Farwell, C. C. A., 56 Fed. 570. 4 Bucyrus Co. v. McArthur, 219 Fed. 266. . 5 Ibid. 6 Dixon v. Corinne Runkel Stock Co., 214 Fed. 418. 7 Ex parte Railroad Co., 103 U. S. 794, 26 L. ed. 461; Sadlier v. Fallon, 2 Curt. 579; Nazro v. Cragin, 3 Dill. 474; Chittenden v. Darden, 4 Woods, 437; Anderson v. Shaffer, 10 Fed. 266; Boston El. Co. v. El. G. L. Co., 23 Fed. 838; Harland v. U. L. Tel. Co., 6 L.R.A. 252, 40 Fed. 308; Ex parte Railroad Co., 103 U. S. 794, 26 L. ed. 461; Smith v. Reed, 210 Fed. 968; Bucyrus Co. v. McArthur, 219 Fed. 266; Cleveland & Western Coal Co. v. J. H. Hillman & Sons Co., 245 Fed. 200. 8 Clark v. Wells, 203 U. S. 164, 51 L. ed. 138, modifying Wells v. Clark, though it may be upon other grounds. Subsequent service of process by publication, in accordance with the State statute, is sufficient to give the Federal court jurisdiction to enter a judgment that can be enforced against the property attached.10 In such a case, however, a personal judgment cannot be entered against a defendant who has not made a general appearance.11 It is doubtful whether the writ of attachment can be issued in a suit originally instituted in a Federal court, before jurisdiction has been obtained by service of original process. 12 It cannot be issued in a case where no personal service can be made and there has been no general appearance.13 Where there is personal service upon the defendant the action is personal and not in rem although property is attached.14 It was so held in a suit in a State court against the owners of a vessel for repairs where an attachment was issued under the State lien laws although there was no personal service and the defendant appeared especially to object upon the ground that the subject matter was exclusively cognizable in admiralty.15 A suit to enforce, the lien of an attachment or garnishee process, by collecting the debt that has been attached or garnisheed, may, if the necessary difference of citizenship exists and the claim exceeds the jurisdictional amount, be brought in a Federal court, which could not have taken jurisdiction of a suit by the 136 Fed. 462; Crocker Nat. Bank v. Pagenstecher, 44 Fed. 705; Blumberg v. A. B. & E. L. Shaw Co., 131 Fed. 608; Vermilya v. Brown, 65 Fed. 149; Hubbard v. Central of Georgia Ry. Co., 135 Fed. 256; Lebensberger v. Scofield, C. C. A., 139 Fed. 380; Missouri Valley Bridge & Iron Co. v. Blake, C. C. A., 231 Fed. 417. 9 Corbitt v. Farmers' Bank, 114 Fed. 602; Cleveland & Western Coal Co. v. J. H. Hillman & Sons Co., 245 Fed. 200. 10 Clark v. Wells, 203 U. S. 164, 51 L. ed. 138; Mercantile Nat. Bank of City of New York v. Barron, 165 Fed. 831. 11 Clark v. Wells, 203 U. S. 164, 51 L. ed. 138. 12 Quoted with approval in Smith v. Reed, 210 Fed. 970; Chittenden v. Darden, 4 Woods, 437. See Nazro v. Cragin, 3 Dill. 474; Treadwell v. Seymour, 41 Fed. 479; Cleveland & Western Coal Co. v. J. H. Hillman & Sons Co., 245 Fed. 200. 13 Big Vein Coal Company of West Virginia v. Read, 229 U. S. 31. 14 Rederiaktiebolaget Amie V. Universal Transp. Co., C. C. A., 245 Fed. 282; 159 Kentucky 414, amended. 15 Rounds v. Cloverport Foundry, 237 U. S. 303. original creditor against the defendant.16 It has been held that the United States Court for the Eastern District of New York has power to issue an attachment, and direct it for same to the marshal of any district in the State.17 As a general rule, actual physical possession is necessary to constitute a valid seizure under a writ of fieri facias or a writ of attachment, unless there be garnishee process, when service of papers on the garnishee suffices.18 Where the State statutes provided for successive levies under successive writs in the order in which the writs were received by the sheriff or other officers, and for a reference to ascertain the amounts and priorities of the several attachments it was held that a writ of attachment in the hands of the marshal of the United States might be levied sub modo upon property in the hands of the sheriff under a prior levy, without actual seizure by the marshal, but by a constructive seizure; and that the plaintiff, after sustaining his attachment and suit in the Federal court, might have to go into the court from which the first writ of attachment issued, and intervene to obtain the proper relief, and to assert such priority of lien as the laws of the State respecting attachment might permit.19 Where the State statute permits a writ of attachment to be amended by the addition of a seal, the writ may be so amended by the Federal court after a removal.20 The Federal court may permit an amendment of the affidavit on which the attachment was issued in a case where the State practice would not permit such an amendment.21 The decisions of the Supreme Court of a State construing and applying its attachment laws are, in so far as they are constitutional, rules of decisions in the Federal courts in like cases coming from that State.22 The Massachusetts statute providing that no trust imposed by law or declared by the parties shall prevent a creditor, without notice of the same, from attaching 16 Brandenstein v. Helvetia Swiss Fire Ins. Co., 159 Fed. 589, § 51. But see § 63, supra. 17 Treadwell v. Seymour, 41 Fed. 579. 18 Brooks v. Fry, 45 Fed. 776. 19 Brooks v. Fry, 45 Fed. 776778. See $ 56, supra. 20 Wolf v. Cook, 40 Fed. 432. 21 Erstein v. Rothschild, 22 Fed. 61; Booth v. Denike, 65 Fed. 43; Bowden v. Burnham, 59 Fed. 752, 754; supra, § 453. 22 Price v. Alder G. Con. Co., C. C. A., 71 Fed. 151. the land as if no trust existed, is enforced by the Federal courts there held.23 In the District of Connecticut the court followed the Connecticut decisions that where a deposit in a Savings Bank had been attached and thereafter before final judgment the depositor assigned the dividends and interests subsequently accruing and declared, the assignee and not the attaching creditors were thereto entitled.2 24 Where the State Statute gives the creditor of a non-resident the election either to bring an action at law, supported by an attachment, or to sue out an attachment and bring a suit in equity to establish his claim and enforce the lien, the latter proceeding may, when the non-resident is a citizen of a different State from the plaintiff, be removed to the Federal court and there continued in equity.25 The Revised Statutes provide: "Whenever any property owned or held by the United States, or in which the United States have or claim an interest, shall, in any judicial proceeding under the laws of any State, district or Territory, be seized, arrested, attached, or held for the security or satisfaction of any claim made against such property, the Secretary of the Treasury, in his discretion, may direct the Solicitor of the Treasury to cause a stipulation to be entered into by the proper district attorney for the discharge of such property from such seizure, arrest, attachment, or proceeding, to the effect that upon such discharge, the person asserting the claim against such property shall become entitled to all the benefits of this and the following section. Nothing herein contained shall, however, be considered as recognizing or conceding any right to enforce by seizure, arrest, attachment, or any judicial process, any claim against any property of the United States, or against any property held, owned, or employed by the United States, or by any Department thereof, for any public use, or as waiving any objection to any proceeding instituted to enforce any such claim." 26 "In all cases where a stipulation is entered into under the preceding section, and, in consequence thereof, the property is discharged, and final judgment is afterward given in the court of last resort to which the 23 McDermott v. Hayes, C. C. A., 197 Fed. 129. 24 Loewe v. Union Savings Bank, 230 Fed. 303. 25 Craddock v. Fulton, 140 Fed. 426. 26 U. S. R. S., § 3753. Secretary of the Treasury may deem proper to cause such proceedings to be carried, affirming the claim for the security or satisfaction of which such proceedings have been instituted, and the right of the person asserting the same to enforce it against such property by means of such proceedings, notwithstanding the claims of the United States thereto, such final judgment shall be deemed, to all intents and purposes, a full and final determination of the rights of such person, and shall entitle such person, as against the United States, to such rights as he would have had in case possession of such property had not been changed. Whenever such claim is for the payment of money, and the same is by such judgment found to be due, the presentation of a duly authenicated copy of the record of such judgment and proceedings shall be sufficient evidence to the proper accounting officers for the allowance thereof; and the same shall thereupon be allowed and paid out of any moneys in the Treasury not otherwise appropriated. The amount so to be allowed and paid shall not, however, exceed the value of the interest of the United States in the property in question."' 27 These statutes are designed for the protection of the Government alone and the immunity from attachment cannot be asserted from a contractor.2 28 "All property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof." 29 "Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or State, authorized and received as such by the President, or any domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void." 30 "Whenever any writ or process is sued out in violation of the preceding section, every person by whom the same is obtained or 27 U. S. R. S., § 3752; U. S. R. S., § 3754. See Opinion of Attor ney-General Knox, In the Matter of Cruiser Galveston, June 19, 1903; 24 Op. A. G. 679. 28 Missouri Valley Bridge & Iron Co. v. Blake, C. C. A., 4 Ct. 231 Fed. 417-418. 29 U. S. R. S., § 934. |