James L. v. Carryl

61 U.S. 583, 15 L. Ed. 1028, 20 How. 583, 1857 U.S. LEXIS 490

• Court: Supreme Court of the United States
• Decided: May 18, 1858
• Status: Published

Opinions

Mr. Justice CAMPBELL

delivered the opinion of the court.

This. cause comes before this court by writ of error to the Supreme Court of Pennsylvania, under the twenty-fifth section of the judiciary act of the 24th September, 1789.

The defendants (Ward & Co.) instituted an action of replevin in the Supreme Court of Pennsylvania, for the barque Royal Saxon.

Upon the trial'of the cause at nisi prius, it appeared that the-barque arrived at the port of Philadelphia in October, 1847, on a trading voyage, and was the property of Robert McIntyre, of Londonderry, in Ireland. In November, 1847, she was seized-by the sheriff of Philadelphia county, under a writ of foreign attachment that was issued against her owner and another, at the suit of McGee & Co., of New Orleans, .from the Supreme Court; and at the saíne time her captain was summoned as a garnishee. On the 15th January, 1848, those. creditors commenced proceedings in the Supreme Court, to obtain-an order of sale, because the barque was of a chargeable and-perishable nature, suffering deterioration from exposure to the weather, and incurring expenses of wharfage, custody fees, &c., &c. This application was opposed by the captain of the .barque, but was allowed by the court on the 29th of January, 1848. The vessel was duly sold by the sheriff" under this order, the 9th February, 1848, to the plaintiffs in the replevin, Ward & Co.

On the 21st January, 1848, while the writs of attachment were operative, -and a motion for the -sale of the barque was pending in the Supreme Court-, the seamen on board the barque filed their libel in the. District Court of the United States for the eastern district of Pennsylvania, sitting in admiralty, for the balances of wages' due to them, respectively, up to .that date, and prayed, for the process of attachment against the barque, according to the practice of the court. This was issued, and, on the same day, the .marshal returned on the writ, “Attached the barque Royal Saxon, and found a sheriff’s officer on board, claiming to have her in custody. ” The captain appeared to this libel, and filed an answer admitting the demands of the seamen.

On the 25th January he exhibited a petition to the District Court, in which he represented the pendency of the suits in attachment and in admiralty; that the barque was liable to him for advances; that she was subject to heavy charges, and could not be employed to carry freight; and therefore he, with the approbation of the British consul, which accompanied the petition', solicited an order of sale for the benefit of all persons in-' terested. This order was granted by the District Court, after due inquiry, on the 9th February, 1848, and was executed the 15th of Fébruary, 1848, by the marshal of the court, at which time the defendant in the replevin was the purchaser, who took the possession of the vessel, and held her until retaken in this replevin suit of Ward & Co.. Upon the trial of the replevin cause at nisi prius, the defendant solicited i'nstructions'to the jury, which were refused by the court; and the court instructed the jury unfavorably to his title. From the instructions asked,- and the charge delivered, a selection is made, to exhibit the questions decided. The court was requested to charge—

3. “That when the lien of-a mariner for wages is sought to be enforced in the admiralty by libel, and the marshal has attached the vessel under such proceedings, the vessel so attached is in the exclusive custody of the admiralty until the claims of the libellants have been adjudicated, or the vessel relieved by order of the court, on stipulation or otherwise; and such exclusive custody exists, notwithstanding a previous foreign attachment from a court of law served on the vessel by the sheriff.”

5. “ That a foreign attachment is not properly a proceeding in rem; but an attachment from the admiralty on a libel' for mariners’ wages is in rem; and the legal possession acquired by the sheriff, on service of the writ of foreign attachment, is ended, superseded, or suspended, by the service of such attachment from the admiralty.”

8. “That when, on the 21st of January, 1848, the ¡Royal Saxon was attached under the process issued on the libel for mariners’ wages, she came by virtue of that attachment into • the exclusive custody of the court of admiralty; and such exclusive legal custody continued from the 21st January, 1848, until the sale by the marshal, by order of that court, on the ■ 15th'February, 1848.”

• 10. “ That the legal possession of the vessel being exclusively-in the admiralty court from the 21st January, 1848, till the sale made, by order of that court, on the 15th February, 1848, the sale by the sheriff on the 9th February, 1848, gave no title to the purchaser as against the sale by the marshal.”

The court refused so to instruct the jury, but charged them:

“ That the court of admiralty could not proceed against the vessel while she remained in the custody of an independent and competent jurisdiction; that the presence of the marshal on the ship did >not prove his custody, for the sheriff’s officer was there before him; that the marshal did not dispossess the sheriff' but prudently retired himself, and informed the cdurt in his return that the vessel was in the custody of the sheriff; that if the sheriff first took possession of the vessel, and main-. tained it until she was sold to the plaintiffs, they had the better title; and that the fact of the continuing possession of the sheriff was for the jury.” A verdict was returned- in favor of the plaintiffs, upon which a judgment was rendered in the Supreme Court in their favor, confirming the opinion of the judge as expressed to the jury at nisiprius.

The judgment of the District Court allowing the order of sale proceeded upon the grounds: “That the suits in attachment in the Supreme Court applied to alleged interests in the vessel, not to the vessel itself. . The attachment creditor, if he succeeds in.his suit, obtains recourse against'the thing attached just so far as his defendant had interest in it, and no farther. The .rights of third parties remain in both cases unaffected. The bottomry creditor, residing,-it may be, in a foreign country, is no party to either proceeding, and.loses none of his rights. His contract was with the thing, not the owner, and it is therefore not embarrassed, and cannot be, by airy question or contest of ownership. So, too, seamen, whoever owns the vessel, or how often soever the'ownership may be changed, wherever she may go, whatever may befall her — so long as a plank remains of her hull, the seamen are her first creditors, and she is privileged to them for their wages,” &c., &c. ,

Again: “"What interest in the ship,” asks the District Court, “does the sheriff propose to áell? Not.a title to it, but the defendant’s property in it, whatever it. may be. Not so in the admiralty. Here the subject-matter,of the controversy is the res itself. It passes into the custody of tbb court. All the world are parties, and the decree concludes all outstanding interests, because all are represented. Here they are marshalled in their order of' title and privilege. There is no difficulty in allowing an arrest by the admiralty, notwithstanding the vessel or some interest in it. has passed into the. custody of the sheriff. He retains all his rights, notwithstanding the marshal’s intervention. The proceedings against the vessel, the thing, the subject of the property or title, may still go on in the admiralty.' The sheriff’s vendee of the ship may intervene there, as the defendant might have done in this court; he may make defence to the proceeding there as the successor to the defendant’s rights, and may be substituted ultimately before the judge of the admiralty as a claimant of the surplus fund.”

This cause has been regarded in this court as one of importance. • It has been argued three different times at the bar, and has received the careful consideration of the court. The deliberations of the court have resulted in the conviction that-the question presented .in the cause is not a new question, and is not determinable upon any novel principle, but that the question has come before this and other courts in other forms, and has received its solution by the application of a comprehensive principle which has recommended itself to the courts as just and equal, and as opposing no hindrance to an efficient administration of the judicial power.

In Payne v. Drew, 4 East., 523, Lord. Ellenborough said: “It appears to me, therefore, not to be contradictory to any cases nor any principles of law, and to be mainly conducive to public convenience and to the prevention of fraud and vex- ■ atious delay in these matters, to hold that where there are several authorities equally competent to bind the goods of a party, when exechted by the proper officer, that they shall be considered as effectually and for all purposes bound by the authority which first actually attaches upon them in point of execution, and under which an execution shall have been first executed.”

This rule is the fruit of experience and wisdom, and regulates the relations and maintains harmony among the various superior courts of law and of chancery in Great Britain.

Those courts take efficient measures to maintain their control over property .within their custody, and support their officers in defending it with firmness and constancy; The court of chancery does not allow the possession of its receiver, sequestrator, committee, or custodee, to be disturbed by a party, whether claiming by title paramount or under the right which they were appointed to protect, (Evelyn v. Lewis, 3 Hare, 472; 5 Madd., 406,) as their possession is the possession of the court. (Noe v. Gibson, 7 Paige, 713.) Nor will the court.allow an interfering claimant to question the validity of the. orders under which possession was obtained, on the ground that they were, improvidently made. (Russell v. East Anglien R. Co., 3 McN. and Gord., 104.) The courts of law uphold the right of their officers to maintain action's to recover property withdrawn from them, and for disturbance to them in the exercise of the duties of their office.

But it is in this court that the principle stated in Payne v. Drew has received its clearest illustration, and been employed most frequently, and with most benignant results. It forms a recognised portion of the duty of this court to give preference to such principles and methods of procedure as shall.serve tó conciliate the distinct and independent' tribunals of the States and of the Union, so that they may co-operate as -harmonious members of a judicial system coextensive with the United States, and submitting to the paramount authority of the same Constitution, laws, and Federal obligations. The decisions of this court that disclose such an aim, and that embody the principles and modes of administration to accomplish it, have go'he -from the court with authority, and have returned to it, .bringing the 'vigor and strength that is always imparted to magistrates, of whatever. class, by the approbation and confidence of those submitted to their government. The decision in the ease of Hagan v. Lucas, 19 Pet., 400, is of this class. It was a ease in which a sheriff had seized property under valid process from a State court, and had delivered it on bail to abide a trial of the right to the property, and its liability to the execution. The same property was then seized by the marshal; under process against the same defendant. This court, in their opinion, say: “ Where a sheriff has made a levy, and' after-wards‘receives executions against the same defendant, he may appropriate any surplus that shall remain, after satisfying, the first levy by the -order of the court. But the. same rule does not govern when the executions, as in the present case, issue -from different jurisdictions. The marshal may apply moneys .collected under different executions, the same as. the sheriff. But this cannot be done as between the marshal and the sheriff; a most injurious conflict of jurisdiction would be likelvjoftén to arise between the Federal and the State courts,JiNhe final process of the one could be levied'on property-Which had been taken on process of the other. The marshal or the sheriff, as the case may be, by a levy acquires a special property in the .goods, and may maintain an action for them. But if the same goods may be taken in execution by the marshal and the sheriff, does this special property vest'in the one or the other, or both of them ? No such case can exist ; property once levied on remains in the custody of the law, and is not liable to .be .taken by another execution in the hands of a different officer, and especially by. an officer acting under another jurisdiction.” The principle contained in this .extract froffi the opinion of the court was applied' by this court to determiné the conflicting pretensions of creditors by judgment in a court of the United States, and' ah administrator who has declared the insolvency of his estate,' ’ and was administering it under the orders of a probate court; (8 How. S. C. R., 107,) in a controversy between receivers and trustees holding under a court of chancery, and judgment creditors seeking their remedy by means of executory process, (14 How. S. C. R., 52, 368,) and to settle the priorities of execution creditors of distinct courts. (Pulliam v. Osborn, 17 How., 471.)

In.a casé not dissimilar in principle from the present, the principle was applied in favor of the Executive' department, having property in custody whose possession was disturbed by a State officer .under judicial process. An attachment from a State court was levied upon merchandise imported, but not ' .entered.át the .custom-house, and the validity of the levy was the question involved. (Harmar v. Dennie, 3 Pet., 292.) The court say: “From their arrival in port, the goods are, in legal contemplation, in. the custody of the Ignited States. An attachment. of such goods 'presupposes a right to take the possession and custody, and to make su'ch possession and custody exclusive."• If the officer' attaches upon mesne process, he has the right-to hold the possession to answer the exigency of the .writ. * The act of -Congress recognises no such authority, and ' a'dmjts of no such exercise ’of right.”' To the- argument, that the United States might-hold for the purpose of collecting du- , ties,- and the' sheriff might attach the residuary right,' subject ’.to the prior-claim,-the court say:,, “ The United States have nowhere recognised or provided for a concurrent possessionor custody by.any such officer.”

A recognition of the same principle .is to be found in Peck v. Jenness, 7 How. S. C. R., 612. An act Of; Congress had conferred, bn the courts ofithe United States exclusive jurisdiction.“ of all - suits" and. proeeedings of bankruptcy-,”:'and had provided, that thé act.should not-be held to impair or destroy existing rights, liens, -mortgages, &c., &b.,-;on-the estate of . the bankrupt; . .' A District Court of..the UnitecLStates decided tW dts jurisdiction extended to' administer the entire éstate of the bankrupt Court, and that thé lien's on the property, whether judicial or consensual, milst ‘be ‘asserted exclusively in that court, and that all other jurisdictions had been, superseded. This court denied’the pretension of the- District Court, and. affirmed, (‘That when a court-has jurisdiction, .it has a right to decide éwery question which óceurs in- the cause? and whén the jurisdiction bf the- court and , the' right of the plaintiff to prosecute his suit has once attached, that right cannot be arrested dr .taken away by proceedings in another'suit. • These rules have their foundation not merely in comity, but in necessity; for if one may enjoin, the other may retort, by injunction, and thus the parties be without remedy, being liable to a process for contempt in one, if they dare to proceed .in the other, Neither can one take property from the custody Of the other by replevin, or any other procéss, for this would,produce a conflict extremely embarrassing to the. administration of justice.”

The legislation of Congress, in organizing the judicial powers of the United States, exhibits much circumspection in avoiding occasions for placing the tribunals of the States and of the Union in any collision. A limited number of cases exist, in which a party sued in a State court may obtain the transfer of the cause to a court of the United States, by an application to the State court in which it was commenced; and this court, in a few well-defined cases, by the twenty-fifth section of the judiciary act of 1789, may revise the judgment of the tribunal of last resort of a State. ' In all other respects the tribunals of the State and the Union are independent of one another. The. courts of the United States cannot issue “an injunction to stay proceedings.in any court of a State,” and the judiciary act provides that “writs .of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of authority of the United States, or are committed '.for trial before some, court of the same, or are necessary to be. brought into court to testify.” “ Thus, as the law now stands,” say this court, “-an individual who may be indicted in a Circuit Court for treason against the United States is beyond the power of the Federal courts and judges, if he be in custody under the authority of a State.” (Ex parte Dorr, 3 How. S. C. R., 103.) And signal instances are reported in verification of the above statement. (Ex parte Robinson, 6 McLean R., 355.)

is inquiry will not be considered as irrelevant to the question under the consideration of the court. The process of foreign attachment has been for a long time in use in Pennsylvania, and its operation is well defined, by statute as well as judicial precedents. The duties of the sheriff, under that process, are identical with those of a marshal, holding an attachment from the-District Court sitting in admiralty. “The goods and chattels of ■ the defendant, in, the attachment, '(such is the language' of the statute,) in -the hands of the garnishee, shall, after such service, be bound by such writ, and be in the officer’s power; and if susceptible of seizure or manual occupation, the officers shall proceed to secure the same, to answer and abide the judgment of the court in that ease, unless the pei’son having the same shall give security. (Purdin’s Dig., 50, sec. 50; 5 Whar., 125; Carryl v. Taylor, 12.)

it follows, by an inevitable induction from the cases of Harmar v. Dennie, 3 Pet., 299; Hagan v. Lucas, 10 Pet., 400; and Peck v. Jenness, 7 How., 612, that the custody acquired through the'“ seizure or manual occupation ” of the Royal Saxon, under the attachment by the sheriff of Philadelphia county, could not legally be obstructed; by the marshal, nor could he properly assert a concurrent right with him in the property, uni ss the court of admiralty holds some peculiar relation to the State courts or. to. the property attached, which authorized the-action or right of. its marshal. The relation of the District Courts, as courts of admiralty, is defined with exactness and precision by Justice Story in his Commentaries on the Constitution. He gays: “ Mr. Chancellor Rent and Mr. Rawle seem to think that the admiralty jurisdiction given by the Constitution is, in all cases, necessarily exclusive. But it is believed that this opinion is founded, on mistake. It is exclusive in all matters of prize, for the'reason that, at the common law, this jurisdiction is vested in the courts of admiralty, to the exclusion of the . courts .of common law. But in cases where the jurisdiction of common law and admiralty are concurrent, (as in cases of possessory-suits, mariners’ wages, and marine torts,) there is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive; and there is no. better ground, upon general reasoning, to contend for it. The reasonable interpretation,” continues the commentator, “would seem to be, that.it conferred on the national judiciary the admiralty and maritime jurisdiction exactly according to the nature and extent and modifications in which it existed in the jurisprudence of the common law. "When the jurisdiction was exclusive-, it remained so; when it was concurrent, it remained so. Hence the States could have no right to create courts of admiralty as such, or to confer on their own pourts the cognizance', of such cases as were exclusively cognizable in .admiralty courts. But the States might well retain- and exercise the jurisdiction in cases of which the cognizance was previously concurrent in the courts of common law. This latter class of cases, can-be no more deemed cases of admiralty and maritime jurisdiction than-cases of common-law jurisdiction.” (3 Story’s Com., sec. 1666, note.)

In conformity with this opinion, the hahit of courts of common law has been to deal with ships as -personal property, subject in the main, like other personal property, to municipal authority, and liable to their remedial. process of attachment and execution, and the titles to them, or contracts and torts relating to them, are cognizable in those courts.

It has not been made a question here that the Royal Saxon could not be attached, or that the title could not be decided in replevin. But the District Court seems to have considered that a ship was a juridical person, having a status in the courts of admiralty, and that the admiralty was entitled to precedence whenever any question arose which authorized a judicial tribunal to call this legal entity before it. The District Court, in describing the source of its authority, says of the contract of bottomry, that “ it is made with the thing, and not the owner,” and that the contract of the mariners is similar; -that the res “represents” in that court all persons having a right and privilege, while the rights of the owner are treated there as something incorporeal, separable from the res, and which might be seized by the sheriff) even though the res might be in the ad miralty.' This representation is not true in matter of fact, nor in point of law. Contracts with mariners for service, and other contracts of that kind, are made on behalf of owners who incur a personal responsibility; and if lenders on bottomry depend upon the vessel for payment, it is because the liability of the owner is waived in the contract itself. “In all causes of action,” says the judge of the admiralty of Great'Britain, “which may arise during the ownership of the' persons whose ship is pro eeeded against, I apprehend that no suit could ever be main- . tained against a ship, where .the owners were not themselves personally liable, or where the liability had not been given up.” (The Druid, 1 Wm. Rob, 399.) And the opinion of this court in The Schooner Freeman v. Buckingham, 18 How., 183, was to the same effect.

In courts of common law, the forms'of action limit a suit to the persons whose legal right has been - affected, and those who have impaired or injured it. In chancery, the number of the parties is enlarged, and all are included who are interested in the object of the suit; and as the parties are generally known, they are made parties by name and by special notice.

In admiralty, all parties who have an interest in the subject of the suit — the res- — may appear, and each may propound independently his interest. The seizure of the .res, and the publication of the monition or invitation to appear, is regarded as equivalent to the particular service of process in the courts of law and equity. But the res is in no other sense than this the representative of the whole world. Bút it follows, that to give jurisdiction in rem, there must have been a valid seizure and an actual control of the ship by the marshal of the court; and the authoritiés are to this effect. (Jennings v. Curson, 4 Cr., 2; 2 Ware’s Adm. R., 362.) In the present instance, the service was'typical. There was no exclusive custody or control of the barque by the marshal, from the 21st of January, 1848, to the day of the sale; and when the order of sale was* made in the District Court, she was in the actual and legal possession of the sheriff.

The case of the Oliver Jordan, 2 Curtis’s R., 414, was one of a vessel attached by a sheriff in Maine, under process from the Supreme Court. She was subsequently libelled in the District Court of the United States, upon the claim of a material man. The District Court sustained the jurisdiction of the court. But on appeal the exception to the jurisdiction was allowed, and the decree of the District Court reversed. Mr. Justice Curtis observed: “This vessel being in the custody of the law of the State, the marshal could not lawfully execute the warrant of arrest.” In the case of the ship Robert Fulton, 1 Paine C. C. R., 620, the late Mr. Justice Thompson held that the warrant from the admiralty could not be lawfully executed under similar circumstances, and that the District Court could not proceed in rem. . The same subject has been considered by State courts, and their authority is to the same effect. (Keating v. Spink, 3 Ohio R., N. S., 105; Carryl v. Taylor, 12 Harris, 264.)

Our conclusion is, that the District Court of Pennsylvania had no'jurisdiction over the Royal Saxon when its order of sale was made, and that the sale by the marshal was inoperative.

The view we have taken óf this cause renders it unnecessary for us'to corfsider any question relative to the respective liens of the attaching creditors, arid of the seamen for wages, or as to the effect of ,the sale of the property as chargeable or. As-perishable upon, them.' , .

Our opinion is, that there is no error in so much of the record of the Supreme Court of -Pennsylvania as is .brought before this court by the writ of error, and-the judgment of the court ■ is consequently affirmed.

Mr. Chief Justice TANEY, Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CLIFFORD, dissented. Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CLIFFORD, concurred with Mr. Chief Justice TANEY in the following dissenting opinion: