debt, now existing by the laws of any State, shall be applicable to process issuing out of the courts of the United States therein, and the same course of proceedings shall be adopted as now are or may be in the courts of such States. But all such proceedings shall be had before some one of the commissioners appointed by the United States circuit court to take bail and affidavits." If the sum exceeds five hundred dollars, no warrant of arrest of either person or property can issue unless by the special order of the court upon affidavit, or other proper proof showing the propriety thereof.1 SECTION II. OF MESNE PROCESS BY ATTACHMENT OF GOODS. The next form of mesne process allowed by the second admiralty rule, is "a warrant of arrest of the person of the defendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for." This form of process applies only to the case where the party cannot be found. It has, therefore, been deemed necessary in the District of Massachusetts to provide for the case which may arise in consequence of the rule of the Supreme Court of 1850, relative to the arrest of the person of the defendant, and a rule was passed on the 27th of June, 1855, providing that where the defendant could not be legally arrested, the mesne process might be a warrant to attach his goods, etc., as in the Supreme Court rule. This rule was made prior to the decision of Mr. Justice Curtis, above referred to, and was probably made to meet the case of the defendant not being liable to arrest by virtue of the State law. The language of the rule is, however, sufficiently broad to cover all cases where the defendant cannot be legally arrested. The question as to the power of the court to grant an attachment of goods when the defendant was out of the jurisdiction, was elaborately considered in an early case as a new question, and the power was asserted by the Supreme Court, Mr. Justice Johnson giving the opinion. It has, however, been held that the 11th 17th Admiralty Rule. See ante, p. 389, n. 1. 'Manro v. Almeida, 10 Wheat. 471. section of the judiciary act of 1789,1 which provides that, "No civil suit shall be brought before either of said courts (the district and circuit 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," applies equally to suits in admiralty as to those at common law. But we do not consider this decision to be correct, 13 U. S. Stats at Large, 79. The case * Wilson v. Pierce, U. S. D. C. California, 1852, 15 Law Rep. 137. of Manro v. Almeida, 10 Wheat. 473, is explained on the ground that the defendant in that case was an absconding debtor and an inhabitant of the district in which the suit was brought. The decision in the case of Wilson v. Pierce was given by Judge Hoffman, and is of marked ability, and fully discusses the previous decisions. But we do not regard it as sound in principle, and shall briefly consider some of the objections to it. In the first place, is a suit in admiralty a civil suit within the meaning of that term in the 11th section? We are clearly of the opinion that it is not. The two sections immediately preceding the one in question provide for the jurisdiction of the district courts in civil causes of admiralty and maritime jurisdiction, and in some other peculiar cases. The 11th section, on the contrary, provides in the beginning that the circuit courts shall have original cognizance, concurrent with the State courts," of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," etc. Concurrent jurisdiction with the district court is also given of crimes and offences cognizable therein, and it also provides that "no person shall be arrested in one district for trial in another in any civil action before a circuit or district court." Then follows the clause which we have cited in the text. It is thus evident, we think, that this clause was confined solely to the subjects embraced in the first part of the section, viz.: "suits of a civil nature at common law or in equity." And this position we think is clearly supported on authority. It is true that the case of Manro v. Almeida, is strictly an authority only to the point that an attachment will issue when the party has absconded from the country, and has goods within the jurisdiction of the court; but that the same rule applied to the case in question was never doubted until the decision of Hoffman, J. The point arose in Clarke v. New Jersey Steam Nav. Co. 1 Story, 531, where a corporation doing business in New Jersey was sued in the Rhode Island district and their property in that district attached. Story, J., who was on the bench when the case of Manro v. Almeida was decided, said: "Neither has it been doubted that the process of attachment well lies in an admiralty suit against the property of private persons whose property is found within the district, although their persons may not be found therein, as well to enforce their appearance to the suit, as to apply it in satisfaction of the decree rendered in the suit. Ever since the elaborate examination of this whole subject in the case of Manro v. Almeida, this question has been deemed entirely at rest." The facts were the same in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, and it is somewhat singular, that, if the and have no doubt that a person who resides out of a certain district may be sued in admiralty in that district, if he has property there which can be attached. If goods are in possession of the marshal by virtue of a process issuing from the United States court, a State court cannot by a writ of replevin take them from the possession of the marshal; 2 but the marshal may be sued in trespass in a State court." SECTION III. OF FOREIGN ATTACHMENT. The second admiralty rule also provides that the warrant of arrest may contain a clause that if goods and chattels of the defendant cannot be found, "his credits and effects to the amount sued for in the hands of the garnishees named therein may be attached." The process of foreign attachment in admiralty is governed by its own rules and principles, and does not depend on, and is not derived from, the custom of London, or the local laws of the different States. Some question has been made whether process of foreign attachment can issue when the defendant is not an inhabitant of the district, but, for the reasons already stated, we are clearly of the opinion that a suit may be brought in the district court where the property is.5 By the Thirty-Seventh Rule of the Supreme Court, the garnishee is required, in cases of foreign attachment, " to answer on oath or solemn affirmation, as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant; and if he shall objection taken by Judge Hoffman is valid, the point should not have been noticed either by court or counsel, or by the three judges who dissented. See also Bouysson v. Miller, Bee, 186; King v. Shepherd, 3 Story, 349; Boyd v. Urquhart, 1 Sprague, 423. This view has been fully sustained by Benedict, J., in Atkins v. The Fibre Disintegrating Co. 1 Bened. Adm. 118. 2 Freeman v. Howe, 24 How. 450. Buck v. Colbath, 3 Wallace, 334. refuse or neglect so to do, the court may award compulsory process in personam against him. If he admit any debts, credits, or effects, the same shall be held in his hands liable to answer the exigency of the suit." It has been held that the warrant of arrest must contain a citation to the garnishee commanding him to appear, and that it is not sufficient to serve upon him a copy of the process, containing the foreign attachment clause, without a citation.1 1 Smith v. Miln, Abbott, Adm. 373. The defendant and the garnishee were both defaulted, and on an execution being issued against the "credits and effects" in the hands of the garnishee, he appeared and moved that all proceedings in relation to him be set aside for irregularity. And the court ordered it to be done for the reasons stated in the text. This case was decided in 1848, and in 1858 a somewhat similar question came before the district court in Massachusetts. Shorey v. Rennell, 1 Sprague, 418. The garnishee entered an appearance, but gave no stipulation, and put in no answer. After judgment against the defendant, he was called and was defaulted. The proctor for the libellant then filed an affidavit that the garnishee had admitted both before and after the suit was brought, that he owed the principal a certain amount, and moved for execution against the person and property of the garnishee. This was granted, but the execution was afterwards stayed by order of court on motion of the garnishee. The libellant then moved the court for an execution against the garnishee personally, and against his property generally, to the amount of the credits in his hands, as shown by the affidavit. The garnishee then offered his affidavit that he had no goods, effects, or credits of the principal in his hands, and prayed that he might make disclosure under oath, and to answer all interrogatories that might be propounded, and that thereupon he might be discharged. The case was considered at great length and the following conclusions arrived at: that the compulsory process mentioned in the rule was not a process against the trustee to compel him to pay to the creditor his debts to the extent of the credits alleged by the libel to be in the hands of the trustee, but that it was a process to compel him to perform the duty previously prescribed, namely, to answer. The learned judge was also of the opinion that if the garnishee chose to waive his right and submit to a default, it was not imperative upon the libellant to coerce an answer, but if he could, upon a default, show to the satisfaction of the court that the garnishee held debts, effects, or credits, there was no reason why an execution might not issue. It was also said that after such execution, and a refusal by the trustee to pay, he had not the right to make answer that he had not, when summoned, any debts, effects, or credits of the defendant in his hands, unless, perhaps, where there was some other cause than existed at the time of the commencement of the suit, as the discharge of the judgment against the principal by other means, or the destruction of the property in the hands of the garnishee without his fault. The circumstances of the case were somewhat peculiar, an affidavit having been put in stating that the proctor of the libellant had agreed that the garnishee need not make answer in It will be noticed by the second rule, that the garnishees must be named in the warrant of arrest, and a general order would not be sufficient. And interrogatories to the garnishees, it would seem, may be filed with the libel or afterwards. SECTION IV. OF THE MONITION IN SUITS IN PERSONAM. The Second Admiralty Rule of the Supreme Court goes on to provide, that the mesne process may be by a simple monition in the nature of a summons to appear and answer to the suit. The simple monition should be by service on the respondent, and it is issued only when neither an arrest nor an attachment is desired. In admiralty, we think, it is clear that residence does not give jurisdiction, and either the person or his property must be found in the district. If the person, then there may be an arrest or a monition. If the person cannot be found, then there may be an attachment. But the rules of the Supreme Court do not provide for an attachment of goods and a monition, unless the suit is in rem, and the reason, we think, is this. In suits in rem, all the world is bound, and notice should be given, and the rules so provide; but in suits in personam, where property is attached, only the interest of the respondent in the property is bound. Notice to the world, therefore, is not necessary, and it would seem that the attachment was intended to operate as a notice to the respondent. court, but that if judgment should be rendered against the principal, the answer might be sent to the proctor, and that the default was obtained without due notice. Under these circumstances the default was taken off, and the garnishee was allowed to answer on condition that his answer might be contested by the libellant, and that he should enter into stipulation with surety to pay whatever sums should be decreed against him. It was also stated on the authority of Clerke's Praxis, tit. 34, that ordinarily the sworn answer of the garnishee would be conclusive, although Mr. Benedict, in his Admiralty Practice, § 459, states that the libellant may reply to such an answer and the issue will be tried. Clerke also states that before the answer is sworn to, the libellant may be allowed to show, if he is able, that the garnishee has property of the defendant in his hands; but the court said that the libellant was deprived of this option by the 37th Admiralty Rule. See also McDonald v. Rennel, U. S. D. C. Mass., 21 Law Rep. 157. |