5 F. Cas. 1154 | U.S. Circuit Court for the District of Louisiana | 1871
On the 24th day of March, 1803, Robert Anderson, a citizen of the state of New York, and a general in the United States army, brought an action in the United States provisional court for the state of Louisiana, against John G. Cocks. The plaintiff in that suit alleged that defendant was indebted to him in the sum of $8,840, being the balance due on certain promissory notes executed by defendant, and of which plaintiff w'ai the holder, and including certain costs incurred by plaintiff for which defendant was bound. The citation was returned “served on defendant at his last place of residence, No. 192 Canal street.” A Ration was also served on Charles Hyllested, who the petitioner averred was the duly authorized agent of the said defendant, and authorized to represent him and stand in judgment for and against him. Defendant having made default on the 30th day of May, 1SC3, judgment was rendered against him in favor of the plaintiff for $S,440. Upon this judgment a writ of fieri facias wras issued on the 25th day of November, 1SC4, which was levied on two improved lots in the city of
In support of prayer, the complainant in his bill alleges: 1. That the said United States provisional court was not a legal court, and that, therefore, the judgment and proceedings thereunder were absolutely void. 2. That no legal service of the citation in the case of Anderson v. Cocks was made on complainant. 3. That, at the sale of the property by the marshal of the provisional court, the defendant, Izard, gave out that he was bidding on said property on account of the complainant, for which reason persons who were in attendance refrained from bidding, because, they did not desire to compete with complainant, whereby competition was prevented and the property sold at rates greatly disproportioned to its actual value. 4. That, after the sale, Izard promised to reconvey the property to complainant upon reimbursement of his advance and charges, which conveyance he has failed to make.
I do not understand that the first ground on which the prayer for relief is based, is still insisted on by complainant: that, in the case of The Grapeshot, 9 Wall. [76 U. S.] 129, the supreme court of the United States has held that the United States provisional court of Louisiana was a lawful and constitutional court. We may, then, consider that point as out of the case. But it is claimed that no service of the citation or summons was made upon Cocks, the defendant in the suit before the provisional court, nor upon his agent duly authorized to receive service by the state law. It appears from the record that the citation was twice served — once, as the return of the marshal shows, by leaving a copy at the last place of residence of said Cocks, No. 192 Canal street, and once by delivering a copy to Charles Hyllested, the agent of said Cocks. The attempted service at the domicil is clearly ineffectual and void. The Code of Practice (section 189) requires that when service of citation is made at the domicil, it shall be by copy left at the usual domicil or residence of the defendant. The return of the marshal does not show that the citation was so served, and the proof shows clearly that the house No. 192 Canal street was not the dom-icil or residence of Cocks. It is admitted, however, that service was made on Charles Hyllested, who, defendants aver, was duly authorized to receive service from Cocks. If Hyllested was the duly-authorized agent of Cocks to receive service or process, or to defend suit, the service upon him might be a good service. Section 196 of the Code of Practice provides that if the person absent has an attorney in fact, whose name appears in the petition, the sheriff shall make service on the attorney in fact But complainant says that the procuration, or power of attorney held by Hyllested, did not authorize him to receive service, or appear and defend suits against his principal. I have examined this power with some care, and am clear that the authority to appear and defend suits against the principal is conferred upon the agent. It appoints Hyllested as the true and lawful attorney in fact of Cocks, giving him full power an'd authority to manage and transact, all and singular, the affairs, business, and concerns of the principal in the city of New Orleans and state of Louisiana, of every nature and kind, without any exception or reservation whatever; to open and answer letters, sign and indorse the name of the principal on promissory notes or bills of exchange; to appear before all courts of law and equity, there to do and prosecute, as occasion shall require, or to compromise, compound, or agree in the premises by arbitration or otherwise; and, generally, to do and perform all and every other act, matter, and thing whatsoever, as shall or may be necessary or requisite, touching or concerning the affairs, business, and concern of the principal, as fully, amply, and effectually, and to all intents and purposes and with the same validity as if all and every such act, matter, or thing were or had been particularly stated, expressed, or especially provided for, as he, the said principal, could or might do if personally present. It is difficult to see how broader powers could be conferred on an agent, or to escape the conclusion that Cocks intended to authorize his attorney in fact to appear and defend actions against him. In Fuselier v. Robin, 4 La. Ann. 61, it was held by the supreme court of this state that the power to represent a principal in the defence of actions must result from the express terms of the instrument, or from an implication so clear as to be irresistible. I think, in this case, the implication is irresistible. But complainant says that, at the time of service on his attorney in fact, he was within the confederate lines; that communication with his agent, who was within the federal lines, was forbidden, and, therefore, the agency ceased, and to support this view cites article 2996, Civ. Code.
This article provides that procuration expires by change of the condition of the principal, or the seclusion or interdiction of the agent or principal. I do not think that this
But another question still remains in this branch of the case, namely: Can an alien enemy be sued in the courts of the country in which his own is at war? For, if a suit would not lie against Cocks on account of his enemy's character, if he were present in person, and personally served with process, a fortiori, it would not lie when the service was upon his attorney in fact. There has been some slight conflict of authorities on the question whether an alien enemy could sue in the courts of the enemy country. But it appears to be now well settled that he can sue, and, as a consequence, that he can be sued. In Sparenburgh v. Bannatyne, 1 Bos. & P. 163, it was held in the common pleas at AVestminster that an alien under the king’s protection, even if he were a prisoner, might sue and be sued. This point has long before been decided in Wells v. Williams, 1 Ld. Raym. 282. So in Clarke v. Morey, 10 Johns. 69, it was held by Kent, C. J., upon a plea of alien enemy, that an alien or subject of Great Britain, who came to reside in the United States after the breaking out of the war between the United States and Great Britain, might, during the war, sue and be sued, as in time of peace. If an alien enemy is served with process, or submits to the jurisdiction of the court, there is no rule of public policv which forbids a suit against him. The policy of the laws of war forbids any intercourse between the belligerents, or that money or other resources shall be transferred so as to strengthen the enemy. But when an alien enemy has left an agent upon whom process can be served, there is no reason why suit should not be brought against him; for it does not necessitate intercourse, nor does it tend to strengthen the enemy. On the contrary, its effect is in the other direction.
I am of opinion, therefore, that the power of attorney from Cocks to Hyllested continued in force, notwithstanding the war; that the power of attorney authorized Hyllested to receive service of process for his principal, and to defend actions brought against them, and that, under the Code of Practice of this state, the service upon Hyllested, the attorney, was a good service upon his principal. It follows, therefore, that the judgment of the provisional court in favor of Anderson, and against Cocks, was a valid judgment. Nevertheless, if Izard, being the tenant of Cocks, gave out and let it be understood that he was bidding for the property sold under the judgment of Anderson at the time of the auction, for account of Cocks and in his interest, and persons in attendance, who were ready and willing to bid more for the property than the price at which it was sold to Izard, refrained from bidding, not willing to compete in bidding with Cocks or any person who was understood to represent him, and thus competition was prevented and the property sold for a grossly inadequate price, then the sale was a fraudulent one and ought to be set aside. It has been so decided by the supreme court of the United States. Cocks v. Izard, 7 Wall. [74 U. S.] 559. So that the question is presented for decision: Does the proof establish the alleged fraudulent practice of Izard? The answer of Izard is under oath. It is true that the bill waives an answer under oath; but such waiver is not authorized by any rule of the United States courts sitting in equity, nor has there been any order of this court directing that the answer of the defendant be received without oath. Under these circumstances, the defendant has the right to