38 F. 144 | U.S. Circuit Court for the District of South Carolina | 1889
In this case a monition with warrant of arrest was issued, with this qualification: “In conformity with rule 2 of the supreme court in admiralty.” Afterwards, it appearing that the respondent was within this jurisdiction, and had been served with the monition, and was actually present in court ready to answer, so much of the order as directed his arrest was rescinded, and the question wras reserved as follows: “Whether in a case like this, in which the defendant, being within the jurisdiction, and served with process, and under the state law of force in this court, cannot be held in arrest, or made to give bail, it can properly be said that ‘he cannot be found’ for the purposes of arrest and therefore an attachment can issue against his goods. ” Counsel have been heard on this question so reserved. There can be no doubt that the warrant of arrest was rightfully rescinded. The forty-seventh rule in admiralty abolishes imprisonment for debt on process issuing out of the admiralty court in all cases where by the law of the state where the court is held imprisonment for debt has been, or shall be, abolished upon similar or analogous process issuing out of the state court. A person is imprisoned for debt who is arrested on mesne as well as final process. If arrested on mesne. process, he is held in the custody of the court until he gives bail. When released on bail, he remains in the custody of the bail, subject to arrest by the bail, and surrender into the custody of the court, at the option of the bail. He remains in custody, the bail being substituted for the sheriff or marshal. Stevens v. Meeds, 1 Mill, Const. 318; Glover v. Gomillion, 2 Rich. Law, 554; Code Civil Proc. S. C. §§ 209, 210. In South Carolina “no person shall be imprisoned for debt except in cases of fraud.” Const, art. 1, § 20. The Code of Civil Procedure, § 200, provides for arrest on warrant in six cases. The first four cover cases of fraud eo nomine; the fifth provides for the arrest of an absconding debtor though the debt be not yet due; the sixth authorizes arrest in an action for the recovery of damages in a cause of action not aris
The question remains, if the person.of the.respondent cannot be arrested, may his goods be attached, although he himself is within the jurisdiction, at his place of residence or of business, and actually served with process? The object of all process is to bring the defendant into court where he may, if he chooses, be heard in his own behalf, and the issues between him and the party complaining may be finally decided. There are two forms of process, — the monition for suits in personam, and the warrant of arrest for suits in rem.- The latter attaches the impersonal thing, res, and is usually accompanied by a monition directed to any one interested, — notice to the world. Ben. Adm. § 484. Where in suits in personam the simple monition is issued, it is the duty of the marshal to serve the respondent personally. Id. § 421. But frequently the respondent is a transient person, or the libelant wants some securily from him to respond to his demand by payment. The courts of admiralty exercised in these cases the powers similar to those which the courts of law exercised, and ordered the arrest of the respondent, who could release himself by giving bail for appearance, and, after appearing by giving-bail, to the action. As we have seen, this practico has ceased in this court under the rule 47 in admiralty, except in cases of fraud or fraudulent practice, and certain other cases stated above. But, in addition to the simple monition, and to the warrant of arrest thereon, there was further process against the defendant, with the same intent and purpose, however, to enforce an appearance and submission to the jurisdiction; that is, by attaching his goods, and, if there be none, his credits. In the form given by Benedict, page 638, the warrant authorizes this attachment as the alternative, “if the defendant cannot be found in your district.” And at , section 426 he says “ it is the duty of the marshal to arrest the party if he can be found in his district, and he has no right to attach goods, etc., before he has endeavored to find the party himself. * * * The marshal should by no means by devoting time to a fruitless search for the defendant lose the opportunity of attaching his property.” This process by attachment is of ancient usage in admiralty, and is sanctioned by courts of the highest authority. Manro v. Almeida, 10 Wheat. 473; Navigation Co. v. Bank, 6 How. 344; Miller v. U. S., 11 Wall. 287; Bouysson v. Miller, Bee, 186; McGrath v.,Candalero, Id. 64; Ben. Adm. § 431 et seq; Atkins v. Disintegrating Co., 18 Wall. 304.
The question is, is this process by attachment an original proceeding issuing out of the court, just as a monition or warrant of arrest issues, or is it an alternative process, to be used as a substitute for the warrant of arrest, in case, and only in case, the defendant be absent, or cannot be found personally to be served ?- Can it be used when the defendant is present, comes into court, appears, and offers to put in his answer? As we may see by the authorities above quoted, this proceeding by attach
“Paulus, libro 1, Edictum, says: Satis pcenrn subiré eum. Si non defend-atur et latitet certum est quod mittatur adversaries in possessionem bonorum ejus. Sed si aditum ad se preestet aut ex publico eonspiceatur reete in jus vocari licere.” 1 Corp. Jur. Civ. (Ed. Kriegel,) p. 81, § 19.
We thus see that under the Roman law the first step in a suit was to cite the defendant. That if he obeyed the citation well and good. If he resisted or attempted to escape he could be seized, and made to give security. If he concealed himself, his goods could be taken. Evidently, under the civil law, attachment of goods on mesne process was used only as an alternative in case defendant was absent or concealed himself. Judge Bee discussing the right to issue an attachment in the court of admiralty, in McGrath v. Candalero, Bee, 64, says:
“ The object of the attachment is to secure redress out of the property of the party when you cannot get at his person. If he comes in time and gives security his property may be discharged. ”
What he means by “get at his person” appears from the authority he uses. Clarke, Praxis, which he quotes with approval in Bouysson v. Miller, Bee, 187, says:
“If he is out of the kingdom, or so absconds that he cannot be arrested, then his goods may be attached.”
2 Browne, Civil & Adm. Law, 434, quoted in Atkins v. Disintegrating Co., says:
“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. * * * The goods of the party were attached to compel his appearance.”
This was the practice in admiralty when the practice act of 1789 was adopted. Atkins v. Disintegrating Co., supra. The supreme court, prescribing rules for the admiralty., in rule 2 says: In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant in the nature of a capias, or by a warrant of arrest of the person of the defendant, with a clause therein, “that if he cannot be found,” to attach his goods, etc. Rule 47 authorizes bail to be taken in those cases only in which it is required by the laws of the state where the arrest is made upon similar or analogous process, and, as we have seen, abolishes imprisonment for debt, either on mesne or final process. It is argued with much force that the words of the second rule,' “ if he cannot be found,” mean “if for any reason he cannot be arrested,” — “found for the purpose-of arrest.” And this -view is sustained by Judge Lowell in Insurance
There is another view of this subject which seems to have weight. It will be noted that these rules of practice are made by the supreme court under the authority of the act of congress of 8th May, 1792, (1 St. at Large, 276,) and that they have the force of law; that rule 2 makes provision for a warrant of arrest of the person, and is the authority for issuing such a warrant; that it deals with this subject only; and that in so dealing with it, it provides for an attachment in the case of the issuance of a warrant of arrest, and the inability to serve it because the de-