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The appellants, argue that the statute, under which the warrant of attachment was issued, is in conflict with the Constitution and laws of the United States, and void. Hence, they argue, the bond upon which the action is brought is also void, and all the proceedings in the action, including the judgment, are void and without effect. The decision in The Josephine (39 N.Y., 19) is cited as controlling this case.
In that case, arising under the act of 1862, the facts were as follows: The vessel was enrolled at the custom-house in New
York, and adjudged to be in a domestic port. The plaintiffs, having furnished supplies for the vessel, which was then plying between New York and Monmouth, New Jersey, issued a warrant of attachment against said steamboat, under the act aforesaid. The sheriff seized her, and made his return of the seizure. The owners obtained an order to show cause why the attachment should not be vacated, on the ground that the State courts had no jurisdiction to enforce a lien based upon claims of that character; that such power was vested exclusively in the courts of the United States having admiralty jurisdiction. The judge at Special Term made an order vacating the warrant, on the ground mentioned. Upon an appeal to the General Term of the first district, this order was reversed. The owners thereupon appealed to the Court of Appeals, where the order of the General Term was reversed, and that of the Special Term affirmed, upon the ground there taken. The head-note in the 39th New York gives the result in these words: "A proceeding against a steamer, by name, authorized by the Laws of 1862, chapter 482, is a proceeding in the nature and with all the incidents of a suit in admiralty. The District Courts of the United States are, by the Constitution and laws thereof, vested with exclusive original cognizance in all cases involving admiralty and maritime jurisdiction. State laws conferring jurisdiction in such cases upon State courts are in conflict with the Constitution and laws of the United States, and void."
The respondents argue that the present case is to be distinguished from that of The Josephine, in these respects:
1st. The proceeding in the case of The Josephine was not on the bond, but was an attachment in rem. This is true. That the fact will alter the result is not, however, apparent. In each case an attachment was issued against a vessel in a domestic port, for supplies furnished to the vessel in that port, and was levied upon the vessel. The same basis of jurisdiction was claimed, under similar statutes, and upon an identical state of facts. In the one case the question was met at its first stage, on a motion to vacate the attachment. In the
other, it is raised as a defence to the bond given to vacate the attachment. If the attachment was void and of no effect, a bond given to enforce it or to discharge it is also void. The owner of the vessel had the right to its possession, free of the incumbrance of the attachment. The bond was obtained by duress and illegal compulsion.
2d. It is said that the decision in the Josephine, referred to the act of 1862, while the act in this case, was a part of the Revised Statutes. The warrant of attachment against the brig Jachin, was issued on the first day of July, 1859. The brig was at once levied on, and on the second day of the same month, the bond in question was given to procure her release. By the act of March 30th, 1859, to take effect on that day, the Revised Statutes, on this subject, had been altered in many respects, and the provisions of the act of 1859, to a great extent, substituted in their place. (Laws 1859 ch. 79, p. 228.) There is quite a difference in the details of the act of 1859, and those of 1862, but none whatever in the principles and main features of the two acts. The difference consists mainly in the extension of the act of 1862, to more numerous cases, and the omission of many exceptions. Both acts provide that whenever debts, amounting to fifty dollars on sea-going vessels shall be contracted by the master of any ship or vessel, on account of such a service done, materials, supplies or articles furnished within this State, or for such provisions or stores furnished within this State as may be fit and proper for the use of such vessel, the same shall be a lien upon the ship and vessel. It is further provided, in each of said acts, that the lien shall cease, unless within a given time, specifications of the lien shall be filed in the county clerk's office. In each of the said acts, provision is made for the issuing of a warrant of attachment and the discharge thereof, by giving a bond for the payment of the amount that shall thereafter be ascertained to be due, for the cause alleged. On the question of the conflict of jurisdiction, whether these statutes are an interference with the exclusive admiralty jurisdiction of the United States courts, the two Statutes are the same. If the Statute of 1862
is void for this reason, no degree of ingenuity can rescue the Statute of 1859 from the same condemnation. (See Laws 1862, ch. 482, p. 956; Laws 1859, ch. 79, p. 228.)
The respondents urge, in the third place, that the Revised Statutes on this subject, have been repeatedly before the court, and judgments on bonds given under it, have been repeatedly affirmed. The cases cited by the respondents' counsel fully sustain this assertion. It is undoubtedly true. I have examined all the cases referred to, and find that in none of them was the question before us raised. The question arose upon the construction of the Statute, assuming its validity. In none of them is the point in question alluded to, in the most remote manner. Any number of such authorities would not justify the overruling of an express and deliberate decision of the Court of Appeals, where the precise question was distinctly presented for their adjudication.
It is said further, that this court should not adhere to the decision in the Josephine, inasmuch as a different doctrine has been since held in the United States Court. To this point theBelfast is cited (7 Wallace, 624). The judge delivering the opinion in that case, makes suggestions which may be taken as favoring to some extent the respondents' view. The point of the decision was that the law of Alabama, creating the lien on the Belfast, was unconstitutional. There is nothing in the case overruling the previous decision of that court on the point before us. We should not be justified on this authority in overthrowing or in weakening the decision as recently made in the highest court of this State.
It is urged, also, that although the attachment proceeding is void, the bond is voluntary; that if a man chooses to give such a bond he shall be bound by it. Such is not the law. The bond is not voluntary. It is in invitum, compulsory, given to obtain a release of his property. If the attachment is void, the bond falls with it. (Homan v Brinckerhoff, 1 Den., 184.)
In that case Brinckerhoff had sued out an attachment in a justice's court against one Davis, without giving the proper
bond, and had levied it upon the property of the plaintiff Homan. To obtain the release of the property, Homan gave the bond provided for by the statute. The justice gave judgment in favor of the plaintiff in the original suit.
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The appellants, argue that the statute, under which the warrant of attachment was issued, is in conflict with the Constitution and laws of the United States, and void. Hence, they argue, the bond upon which the action is brought is also void, and all the proceedings in the action, including the judgment, are void and without effect. The decision in The Josephine (39 N.Y., 19) is cited as controlling this case.
In that case, arising under the act of 1862, the facts were as follows: The vessel was enrolled at the custom-house in New
York, and adjudged to be in a domestic port. The plaintiffs, having furnished supplies for the vessel, which was then plying between New York and Monmouth, New Jersey, issued a warrant of attachment against said steamboat, under the act aforesaid. The sheriff seized her, and made his return of the seizure. The owners obtained an order to show cause why the attachment should not be vacated, on the ground that the State courts had no jurisdiction to enforce a lien based upon claims of that character; that such power was vested exclusively in the courts of the United States having admiralty jurisdiction. The judge at Special Term made an order vacating the warrant, on the ground mentioned. Upon an appeal to the General Term of the first district, this order was reversed. The owners thereupon appealed to the Court of Appeals, where the order of the General Term was reversed, and that of the Special Term affirmed, upon the ground there taken. The head-note in the 39th New York gives the result in these words: "A proceeding against a steamer, by name, authorized by the Laws of 1862, chapter 482, is a proceeding in the nature and with all the incidents of a suit in admiralty. The District Courts of the United States are, by the Constitution and laws thereof, vested with exclusive original cognizance in all cases involving admiralty and maritime jurisdiction. State laws conferring jurisdiction in such cases upon State courts are in conflict with the Constitution and laws of the United States, and void."
The respondents argue that the present case is to be distinguished from that of The Josephine, in these respects:
1st. The proceeding in the case of The Josephine was not on the bond, but was an attachment in rem. This is true. That the fact will alter the result is not, however, apparent. In each case an attachment was issued against a vessel in a domestic port, for supplies furnished to the vessel in that port, and was levied upon the vessel. The same basis of jurisdiction was claimed, under similar statutes, and upon an identical state of facts. In the one case the question was met at its first stage, on a motion to vacate the attachment. In the
other, it is raised as a defence to the bond given to vacate the attachment. If the attachment was void and of no effect, a bond given to enforce it or to discharge it is also void. The owner of the vessel had the right to its possession, free of the incumbrance of the attachment. The bond was obtained by duress and illegal compulsion.
2d. It is said that the decision in the Josephine, referred to the act of 1862, while the act in this case, was a part of the Revised Statutes. The warrant of attachment against the brig Jachin, was issued on the first day of July, 1859. The brig was at once levied on, and on the second day of the same month, the bond in question was given to procure her release. By the act of March 30th, 1859, to take effect on that day, the Revised Statutes, on this subject, had been altered in many respects, and the provisions of the act of 1859, to a great extent, substituted in their place. (Laws 1859 ch. 79, p. 228.) There is quite a difference in the details of the act of 1859, and those of 1862, but none whatever in the principles and main features of the two acts. The difference consists mainly in the extension of the act of 1862, to more numerous cases, and the omission of many exceptions. Both acts provide that whenever debts, amounting to fifty dollars on sea-going vessels shall be contracted by the master of any ship or vessel, on account of such a service done, materials, supplies or articles furnished within this State, or for such provisions or stores furnished within this State as may be fit and proper for the use of such vessel, the same shall be a lien upon the ship and vessel. It is further provided, in each of said acts, that the lien shall cease, unless within a given time, specifications of the lien shall be filed in the county clerk's office. In each of the said acts, provision is made for the issuing of a warrant of attachment and the discharge thereof, by giving a bond for the payment of the amount that shall thereafter be ascertained to be due, for the cause alleged. On the question of the conflict of jurisdiction, whether these statutes are an interference with the exclusive admiralty jurisdiction of the United States courts, the two Statutes are the same. If the Statute of 1862
is void for this reason, no degree of ingenuity can rescue the Statute of 1859 from the same condemnation. (See Laws 1862, ch. 482, p. 956; Laws 1859, ch. 79, p. 228.)
The respondents urge, in the third place, that the Revised Statutes on this subject, have been repeatedly before the court, and judgments on bonds given under it, have been repeatedly affirmed. The cases cited by the respondents' counsel fully sustain this assertion. It is undoubtedly true. I have examined all the cases referred to, and find that in none of them was the question before us raised. The question arose upon the construction of the Statute, assuming its validity. In none of them is the point in question alluded to, in the most remote manner. Any number of such authorities would not justify the overruling of an express and deliberate decision of the Court of Appeals, where the precise question was distinctly presented for their adjudication.
It is said further, that this court should not adhere to the decision in the Josephine, inasmuch as a different doctrine has been since held in the United States Court. To this point theBelfast is cited (7 Wallace, 624). The judge delivering the opinion in that case, makes suggestions which may be taken as favoring to some extent the respondents' view. The point of the decision was that the law of Alabama, creating the lien on the Belfast, was unconstitutional. There is nothing in the case overruling the previous decision of that court on the point before us. We should not be justified on this authority in overthrowing or in weakening the decision as recently made in the highest court of this State.
It is urged, also, that although the attachment proceeding is void, the bond is voluntary; that if a man chooses to give such a bond he shall be bound by it. Such is not the law. The bond is not voluntary. It is in invitum, compulsory, given to obtain a release of his property. If the attachment is void, the bond falls with it. (Homan v Brinckerhoff, 1 Den., 184.)
In that case Brinckerhoff had sued out an attachment in a justice's court against one Davis, without giving the proper
bond, and had levied it upon the property of the plaintiff Homan. To obtain the release of the property, Homan gave the bond provided for by the statute. The justice gave judgment in favor of the plaintiff in the original suit. The plaintiff then brought suit against Brinckerhoff upon the bond thus given by him, and recovered before the justice. Brinckerhoff insisted that the attachment not having been authorized by law was void, and that the bond given to procure its discharge was also void. The Supreme Court say that, by the appearance of Davis before the justice, jurisdiction in the attachment suit was obtained, and the judgment rendered in that suit was valid. But it is added, "that will not aid the plaintiff; he did not hold the property under the judgment. * * Although the plaintiff had got a valid judgment, he had no other hold upon the property than such as the attachment gave him, and that, as we have seen, was utterly void for want of jurisdiction to issue it." The judgment in favor of Brinckerhoff was therefore reversed. This case is a precise and pointed answer to the argument, that the plaintiff waived or lost the right to object to the want of jurisdiction by giving the bond to obtain a release of his property.
In the matter of Faulkner (4 Hill, 598), the same principle was decided. An attachment was issued against Faulkner as an absconding or concealed debtor. He afterward presented a petition stating that he was not such a debtor, and had a reference to the New York Common Pleas, where the matter was decided against him. Afterwards trustees were appointed, and a report was made to the Supreme Court. Faulkner then moved, on special grounds, to set aside the appointment of trustees, which was denied. After all this, the debtor moved to set aside the attachment and all subsequent proceedings for want of jurisdiction. It was objected, among other things, that by his motions and proceedings, he had waived the point of jurisdiction and was not now at liberty to claim it. This objection was overruled, BRONSON, J., saying; "But this was not a proceeding in personam, where a voluntary appearance
would be sufficient to confer jurisdiction on the person, though not regularly served with process. It was a proceeding in rem,
and the debtor only came in to save his property. He undertook to prove that he was not an absconding or concealed debtor, for the purpose of having the warrant discharged. But I do not see how that could confer jurisdiction on the judge who had previously issued the warrant." (Page 601.) I do not think he would have been able to see how the giving a bond to obtain a discharge of the vessel here, could confer jurisdiction on the judge who had previously issued the warrant.
It is argued further that, by not raising the question of jurisdiction at the trial and there asking a ruling upon it, the defendant has lost his right to raise it now.
Reducing the case to its original questions, the matter stands thus: In a suit upon this bond, if the defendant had desired to contest it, and had interposed the defence he now seeks the benefit of, what would have been its form?
Under the case of Homan v. Brinckerhoff, supra, his answer would have been that the bond was obtained by duress; that he was compelled to give it to obtain a restoration of his property; that that compulsion was under an illegal assumption of authority, and that the bond was void. In the case of Homan v.Brinckerhoff the defendant did so allege and prove, and his defence was sustained. In the case before us the record contains no such allegation. No such suggestion was made at the trial, nor was there even a motion for a nonsuit on the general ground that the facts proved did not constitute a cause of action. In short, it nowhere appears that the attention of the court below was called to the point or that they were asked to rule upon the question, or upon any point which by the most liberal construction can be held to embrace it. There is no decision for us to review, and reviewing decisions of the courts below is the sole and exclusive duty of this court.
In a criminal case the interests of society are involved, and jurisdictional questions cannot be waived. Thus in Cancemi's
case (18 N.Y.R., 128), where there was an express stipulation
of the prisoner's counsel that the trial might proceed with eleven jurors, and a verdict of guilty was rendered, the Court of Appeals set aside the verdict. A man may not stipulate that he may be hung in certain contingencies or upon the proof of certain facts. He cannot dispose of his life by arbitration. If his life is taken, except upon proof of the facts constituting the crime of murder, and before a tribunal qualified by law to determine the question, it is murder.
That case, however, makes the distinction between criminal and civil cases. In the latter class of cases it is said that the party may stipulate away all his rights, questions of jurisdiction, as well as others. As in other cases, they may do this by express stipulation, by failure to appear, or by an omission to present the proper points, or by acts inconsistent with that objection. Thus the Constitution secures the right of trial by jury in the cases in which it has been heretore used. A party may, however, waive this right and proceed by reference. (Lee v. Tillotson, 24 Wend., 337.) So where the creditors of an insurance company received dividends under an assignment, which was unconstitutional and illegal as to them, but which cut off the claim against stockholders of those creditors in regard to whom it was legal, it was held that by receiving dividends under the unconstitutional assignment they were estopped to allege its unconstitutionality, and could not enforce their claims against the stockholders. (Van Hook v. Whitlock, 26 Wend 43.) So where persons were authorized to build a dam across a river, provided they should execute a bond conditioned to pay such damages as each person might sustain in consequence thereof, and that any person might apply to a county judge for the appointment of a justice of the peace to ascertain his damages, etc., it was held among other things, that by accepting the grant the builders had waived the objection that the proceedings were not according to the course of the common law, and that they had thereby waived the right of trial by jury. (People v. Murray,
5 Hill., 468.) So again, a constitutional provision which authorizes the corporation of the city of New
York to appropriate the whole of a lot, where only part of it is required for public use, is unconstitutional. But where the proceedings are taken with the consent of the owner, express or implied, and where the damages under the award are received by him, he is held to have renounced the benefit of the constitutional provision, and a good title is obtained under such authority. (Embury v. Conner, 3 Comst., 511.)
Under these authorities it is clear that the unconstitutionality of the act, under which the bond was given, was capable of being waived by the obligor. By failing to raise it or to present it in any form for the consideration of the court below, he waived it as effectually as he could have done by express stipulation. There is no proceeding known, in a civil case, by which questions can be presented for review in the Court of Appeals, which have not been presented to the court below and there decided, although the facts upon which it might have been presented sufficiently appear. (Lake v. Gibson, 2 Comst., 188;Gridley v. Daggett, 6 How, Pr. R., 280; Perkins v.Farnham, 10 Ib., 120; Oldfield v. N.Y. and H.R.R., 4 Kern., 310; Codd v. Rathbone, 19 N.Y., 37; Morris v. Husson, 4 Seld., 204.)
Judgment should be affirmed with costs.