Clarke v. New Jersey Steam Navigation Company. sion Acts, p. 103,) it is enacted, that "when any incorporated company, established without this State, shall be indebted or liable to any person or persons, the personal and real estate of such company shall be liable to be attached and held to answer any just debt and demand.” And the mode of serv ing the process is specially pointed out by the Act. The exemption of the corporation is sought to be established upon other grounds; first, upon the ground, that the State law is not applicable to an Admiralty suit, the State being incapable of conferring or taking away the jurisdiction of the Courts of the United States; and next upon the ground of the non-amenability of a foreign corporation to answer in any suit in any other State, than that, from which it derives its corporate existence and charter, upon the principles of the common law, which furnish a just authority or analogy for a similar rule in Courts of Admiralty. It may well be doubted, whether the principles of the common law, as to process and proceedings, can be properly imported into Courts of Admiralty, to regulate their process, or proceedings, or jurisdiction. It is plain, that the Supreme Court of the United States in Manro v. Almeida (10 Wheat. R. 473-490), repudiated any such doctrine, and treated it as a grave mistake to suppose, that the process of attachment in the Admiralty was borrowed from the foreign attachment by the custom of London; or, indeed, that it had any other origin than in the civil law. The But the argument, founded on the supposed analogies of the common law, is not as stringent, as has been supposed. process of the common law could not reach foreign corporations, for the plain reason, that they were not inhabitants of and had not any corporate existence within the realm. But this was equally true in respect to natural persons, not inhabitants of, or found within the realm. Foreigners, who were non-residents, could not be served with process to appear in Clarke v. New Jersey Steam Navigation Company. any of the Courts of Common Law, nor could their property be attached to compel their appearance. Whenever and wherever, in any such cases, process can be served upon the property, either of foreign corporations, or of foreign natural persons, who are non-residents, the authority to do so results either from special custom, or from statute provisions.1 The cases cited at the bar all turn upon this distinction. In Mc Queen v. The Middletown Manufacturing Company (16 John. R. 5), the only question was, whether a foreign attachment, under the foreign attachment Act of New York, lay against the property of a foreign corporation; and it was held, that no such attachment did lie upon the true interpretation of the Act; and, indeed, that it could not lie against a domestic corporation; for it could not conceal itself or abscond. The Court, upon that occasion, said, that a foreign corporation could not be sued in New York; for the process against a corporation must be served upon its head or principal officer within the jurisdiction of the sovereignty, where this artificial body exists. That is clear enough upon the principles of the common law, as already stated. The case of Peckham v. The North Parish of Haverhill (16 Pick. R. 274, 285, 286), merely affirms the same doctrine, that foreign corporations are without the jurisdiction of the courts of the State. But it so happens, that an opposite doctrine has been asserted, as to the operation of the local laws of Pennsylvania, in cases of the process of foreign attachment; and it has been there held, that foreign corporations are within the reach of that process. The decision in the case of Wilson v. Graham (4 Wash. Cir. R. 53), and that of Ex parte Graham (4 Wash. Cir. R. 211), turned upon other considerations. But the Court there affirmed a principle, which seems directly applicable to the 1 See Com. Dig. Attachment B. D. 2 2 Bushel v. Com'th. Insur. Company (15 Serg. & Rawle, 176). Clarke v. New Jersey Steam Navigation Company. present case; and that is, that it is essential to give jurisdiction to the District and Circuit Courts of the United States in any district, that the person or the thing, against which the proceedings are directed, should be within their local jurisdiction. Now, here the thing is within the jurisdiction, and it may be added, that even in suits in personam only, if a person, who is out of the jurisdiction, chooses to appear and defend the suit without objection, there is nothing to prevent the Courts of the United States from entertaining the suit, if otherwise unexceptionable; for his appearance without process is a waiver of the objection of the non-service of process within the district; and the case does not fall within the prohibitory clause of the 11th section of the Judiciary Act of 1789, ch. 20. This is clearly established. It was applied to the very case of a foreign attachment against the property of non-resident defendants, in the case of Pollard v. Dwight (4 Cranch R. 421), where it was held, that the appearance of the defendants was a waiver of all objections to the non-service of process upon them within the district, where the suit was brought. There is nothing in the nature or character of a corporation, which prevents it from falling within the scope of the same doctrine. The case of Flanders v. The Ætna Insurance Company (3 Mason R. 158), is directly in point, on this very question; for, there, the corporation was a foreign corporation; and it was held, that the jurisdiction attached, and the non-service of process within the district did not present any obstacle to the proceedings, as the corporation had appeared and defended the suit; and it was but a privilege to 1 See Harrison v. Rowan (1 Peters Cir. R. 489); Gracie v. Palmer (8 Wheat. 699); Pollard v. Dwight (4 Cranch, 421); Knox v. Summers (3 Cranch, 496); Logan v. Patrick (5 Cranch, 280). Clarke v. New Jersey Steam Navigation Company. the corporation to be sued within the district, where it was established, which it was at full liberty to waive. The supposed authorities, then, at the common law, which have been relied on, furnish no ground, on which the present objection can be sustained. They all turn upon this simple proposition, that a foreign corporation cannot be compelled to appear and defend a suit in any other State, than that, where it is created and established, unless the local law otherwise provides, and property or effects of the corporation can be found, and by the local law can be attached, to respond the exigency of the suit, or to compel an appearance thereto. If the local law provides such a remedy, then it is competent for the local tribunals to exert it against the foreign corporation. Now, it is precisely in this very view, that the jurisdiction of the Courts of Admiralty applies. That jurisdiction may be executed, not only against persons, found within the district, but also by attachment against their property, found within the district, although the persons are not there. This was the very point decided (as we have seen) in Manro v. Almeida (10 Wheat. 473). So that the jurisdiction is as complete, when the property is found within the district, as it is, when the person is there. What difference, then, can it make upon principle, whether the owner of the property be a natural person, or a corporation ? In each case, where the Court acts upon the property, it acts solely in rem; and it is at the option of the owner, whether he will appear and allow the proceedings to go on in personam, or not. What ground is there to say, that a foreign corporation may not appear and defend its rights of property, as well as a natural person in a foreign jurisdiction? In all proceedings directly in rem, this is the universal rule and practice. It is difficult to perceive, why it is not equally true, where the property is before the Court, to be subjected to its action; Clarke v. New Jersey Steam Navigation Company. for unless there is an appearance and a general defence, the decree of the Court ultimately binds and acts in rem only upon the thing, which is attached. But upon principle, what is the foundation of the objection? It is exceedingly clear, that a foreign corporation may sue in another jurisdiction. Not to multiply authorities upon so clear a point, I will simply refer to the case of The Bank of Augusta v. Earle (13 Peters R. 519, 520, 587, 588, 589, 590, 591), where Mr. Chief Justice Taney, in delivering the opinion of the Court, examined the subject, as well upon principle, as upon authority. If a foreign corporation may sue, it may also be sued in another jurisdiction, at least to the extent of subjecting its property, found within the jurisdiction, to the process and decree of the Courts thereof, upon the acknowledged principle, that all persons and all property found within the territorial limits of any sovereignty, are subject to its authority and laws. This is a well established doctrine of international law. Even the property of foreign sovereigns has not been deemed exempt from this territorial jurisdiction; and Courts of Admiralty have not unfrequently exerted their authority over such property.2 Bynkershoek and other jurists maintain, that the private property of foreign sovereigns, whatever may be the case as to public property, is subject to the local jurisdiction of the Courts, where it is found.3 Upon the whole, I find no sufficient authority upon principles of general law, or maritime law, or admiralty law, to maintain the distinction contended for between the cases of an 1 Story on Conflict of Laws, § 530 to § 618. 2 United States v. Wilder (3 Sumner R. 308, 314 to 317). 3 Bynk. De Foro Legatorum. ch. 3 and 4. S. P. cited 7 Cranch, 125, 126. The Prins Frederik (2 Dodson R. 458-462). Martin's Law of Nations, B. 5, § 9. |