40 F. 432 | U.S. Circuit Court for the District of Eastern Wisconsin | 1889
(after stating the fads as above.) Undoubtedly, at common law, an unsealed writ was void. Insurance Co. v. Hallock, 6 Wall. 556. The rule grew' out of the conditions of society arid the necessities of the state. An original writ issued out of chancery, and in the name of the Icing, the “fountain of all justice.” It w'as a grant of jurisdiction from the sovereign to the court to which it was returnable; a sort of commission to the court of law' to hear the cause. It was called by Coke “the heart-strings of the common law'.” The seal to the writ w'as the symbol of sovereign power; the authentication to the king’s commission, the basis of all jurisdiction. Without the seal, the writ was void; conferring no right to the exercise of judicial authority, because the commission lacked the expression of royal sanction manifested by the great seal of state. Judicial writs were issued by the courts, and bore teste in the name of the chief justice of the court by which they were issued. The seal of the court authenticated the exercise of delegated judicial authority, not the grant of jurisdiction, and so possibly was of inferior consideration.
It ⅛ in the conditions of ancient society that we must search for the importance attached to the seal. In early times, with respect to all instruments, whether private or public, the seal w'as the chief and essential proof of the authenticity of the document. It was guarded with jealous care, to prevent its unauthorized use. One instance is recorded of a seal separable into four parts; the parts assigned to separate keepers, as additional security against its fraudulent employment. In that day the seal upon its face identified its owner. Writing was not common as now, and there was necessity to authenticate the execution of documents by some solemn act, speaking the consent of the party. The seal met that necessity; as to private writings, a substitute for the signature. It is, however, a long way from the speaking seal of that day to the “unsightly excrescence,” the meaningless, printed scroll, orwritten scraw'l, of the present. In the march of civilization and the diffusion of knowledge, the private seal has outlived its usefulness. That it still exists an essential to the validity of any private writing, is but another illustration of the truth that the customs of a people long survive the necessity which gave them birth. There is much sound common sense in the railing sarcasm of Judge Lumpkin upon the subject of the seal, in Lowe v. Morris, 13 Ga. 150,—carried, perhaps, too tar, when applied to official seals. Formality is yet a necessity in the administration of government. The compulsion of authority is still essential to the w'ell-being of society, and authority needs the concomitants that appeal to the senses, exacting obedience, commanding respect. The average mind yet needs mental crutches. These are found in ceremonial dress, giving
1 find no authority in England to amend the writ with respect to the seal. As early as the time of Henry VI., parliament intervened to mitigate the rigor of the law, and to prevent miscarriage of justice arising from the subtleties of the common-law lawyers, anil the mischievous errors of the clerks of courts, and by statute (8 Hen. VI. c. 12,) authorized the courts to amend writs and process issued by them, and to reform all therein arising from misprision of the dork. This act clearly, I think, did not apply to original writs, which theoretically were issued by the king himself, not out of courts of law, and were sealed with the great seal, — -never in the custody of the courts to whom power of amendment was granted by the act. I think, also, the statute had no reference to the seal to judicial writs, since its omission could not arise from misprision of the clerk, who was not its custodian. It was assumed otherwise, however, in Hunter v. Turnpike Co., 56 Ind. 213; but I am referred to, and have found, no decision in England which recognizes any authority to amend any writ, original or judicial, witli respect to the seal.
In this country, jurisdiction is vested by tho constitution. Tho matter of revenue is not present, to complicate the question; and the dork is custodian of the .seal of the courts. There would seem to be no reason why power should not inhere in the court to correct all errors in its proceedings caused by its officers, whether with respect to the seal to a writ, or otherwise. Cessat ratione legis cessot lex. The power to amend by requiring the omitted signature of the clerk to the writ is allowed, upon the principle that a court will not permit its suitors to suffer from the misprision of its officers. I fail to discover any greater sanctity in tho seal than in the signature of the official charged with the duty of issuing the writ. There are respectable authorities holding to the inherent power of courts to amend with respect to the seal. Jackson v. Brown, 4 Cow. 550; People v. Dunning, 1 Wend. 16; People v. Steuben, 5 Wend. 103; Dominick v. Eacker, 3 Barb. 17; Sawyer v. Baker, 3 Greenl. 29; Seawell v. Bank, 3 Dev. 279; Purcell v. McFarland, 1 Ired. 34; Clark v. Hellen, Id. 421; Cartwright v. Chabert, 3 Tex. 261; Lowe v. Morris, 13 Ga. 147; Arnold v. Nye, 23 Mich. 286, 293. In Bailey v. Smith, 12 Me. 196, the supreme court of Maine held the writ there not amendable with respect
The statutes of Wisconsin provide liberally for amendment of all errors. The courts are required to disregard any error or defect in any proceeding not affecting substantial right. Rev. St. Wis. 2829. Power is given at any stage of the action, before or-after judgment, in furtherance of justice, to amend any process by correcting a mistake in any respect. Section 2830. The court of final resort of the state has repeatedly construed those statutes to áuthorize the affixing of a seal to a writ omitted through mistake. Strong v. Catlin, 3 Pin. 121; Corwith v. Bank, 18 Wis. 560; Sabin v. Austin, 19 Wis. 421. A like liberal rule was applied to amendments of criminal warrants. Keehn v. Stein, 72 Wis. 196, 39 N. W. Rep. 372. In other states the same construction has been given to like curative statutes. Talcott v. Rosenberg, 8 Abb. Pr. (N. S.) 287; Murdough v. McPherrin, 49 Iowa, 479. The federal government, equally with the governments of the states, has sought to cure all formal errors. It provides (Rev. St. § 948) that the court at any time may allow amendment of any process returnable to or before it when the defect is not prejudicial, and (Id. § 954) that no writ shall be abated, arrested, quashed, or reversed for defect or want of form.
It is, however, insisted that, the writ being absolutely void-, under the rule of the federal court in Insurance Co. v. Hallock, supra, there was nothing to amend. If that-be so, an anomalous result would follow. .Here is a writ that, abiding in the state court, was not void, — merely defective, and amendable. Under the highest judicial authority of the state, it was a valid protection to the officer executing the writ. By the simple process of removal of the cause to the federal .court, because of the diverse citizenship of the parties, that which was valid and effective becomes void, and as though it had never been, — a mere waste piece of paper. The executive officer of the state court, who, prior to the removal of the cause, was justified in the execution of the writ, by the mere act of removal becomes a trespasser ab initio. It would require a precise declaration of superior and constraining authority to require me to hold to such absurdity. I do not so read the decision in Insurance Co. v. Hallock. There no question of inherent power to amend, or of curative statutes, was invoked. -Indeed, the statute authorizing amendment of process by the federal courts (Rev. St. 948) was enacted subsequently to that decision. The court, in its opinion, refers to the case of Overton v. Cheek, 22 How. 46, holding that a writ of error was void for want of a seal. Yet, since the statute, (17 St. 197,) it has been ruled by that court that a writ of error may be amended, where the seal td the writ is wanting. Semmes v. U. S., 91 U. S. 21, 24. The ruling of Pomeroys
It is not now practicable to cause the proper seal to be affixed to the writ, since the state court is divested of all jurisdiction of the cause. It would seem just, in the peculiar conditions, to enforce the equitable doctrine that the court will deem that done which ought to have been done. It will therefore be ordered that the writ stand amended, and be held valid and effectual, to all intents and purposes, as though the proper seal had been originally affixed thereto.
The pendency of the admiralty proceedings could not be well pleaded to the attachment suit. The one is a proceeding in rem, against the vessel; the other, an action in personam, against the owners. The two proceedings are also in different jurisdictions. Harmer v. Bell, The Bold Buccleugh, 22 Eng. Law & Eq. 62; Insurance Co. v. Wager, 35 Fed. Rep. 364.
But whether or not it is an abuse of process to levy an attachment in the action in personam, upon the res that was bonded in the proceeding in
This section provides, rater alia, that on removal of a suit from a state court, any a1 tachment. shall hold the goods in the same manner as by the laws oí the state it would have held them.