United States v. Fifteen Hogsheads of Brandy.

THE UNITED STATES vs. FIFTEEN HOGSHEADS OF BRANDY.

A seizure case, triable by a jury in the District Court, cannot be reviewed in this court on an appeal, but can be reviewed only on a writ of error. Where such a case is, by agreement of parties, tried by the District Court without a jury, the record should be made up in form, as in the case of a writ of error, with the proper exceptions to the admission or rejection of testimony, or to the instructions of the Court to the jury.

(Before NELSON, J., Northern District of New York, November, 1862.)

In this case a libel of information was filed in the District Court, for the forfeiture of fifteen hogsheads of brandy, for undervaluation. The case was tried in the District Court, by the Court without a jury, under an agreement between the parties that the Court should determine the law and render a verdict and judgment. This was done, and the Court gave judgment for the libellants, and the claimants took an appeal to this Court. The libellants now moved to dismiss the appeal.

NELSON, J. A seizure case, such as the present one is, in which the parties are entitled to a trial by jury, can only be reviewed on a writ of error. And, if a writ of error had been taken in this case, this Court could not have entertained it, because there is no bill of exceptions; and there could have been none, as the Court below was made the judge of both the law and the fact. The record should have been made up in form, as in the case of a writ of error, with the proper exceptions to the admission or rejection of testimony, or to the instructions of the Court to the jury.

The appeal is dismissed for want of jurisdiction, but with

out costs.

Barney v. Globe Bank, of Boston.

DANFORTH N. BARNEY

vs.

THE PRESIDENT, DIRECTORS AND COMPANY OF THE GLOBE BANK, OF BOSTON.

A suit commenced by summons in a State Court of New York, under the 135th section of the Code of Procedure of that State, against a foreign corporation having property in that State, followed by a warrant of attachment issued under section 227 and the following sections of the same Code, against the property of the defendants in that State, and duly served by attaching property, is "a suit," within the meaning of the 12th section of the Judiciary Act of September 24th, 1789, (1 U. S. Stat. at Large, 79,) providing for the removal of suits into this Court.

This Court has jurisdiction of such a suit, if properly removed, although it could not, by reason of the provisons of the 11th section of the same Act, have compelled the defendants, by compulsory process, to submit to its jurisdiction in a suit originally brought against them in this Court.

Such a suit can be removed by the foreign corporation under the provision of the said 12th section, which gives the right of removal to defendant who is a citizen of another State than that in which the suit is brought. A suit to recover damages from a corporation for its breach of an implied contract, in neglecting to protest and give notice in regard to certain drafts forwarded to it by a correspondent bank, such suit being brought by an assignee of the right of action, is not, within the meaning of the 11th section of the said Act, a suit to recover the contents of a chose in action in favor of an assignee. After the removal of a suit into this Court from a State Court, under the said 12th section, an attachment of property of the defendant, made before the removal of the suit into this Court, under a warrant of attachment issued by the State Court after the commencement of the suit, will continue to hold the property to answer the final judgment of this Court in the suit, as being, within the meaning of said 12th section, an attachment of such property by "the original process.

(Before SHIPMAN, J., Southern District of New York, November, 1862.)

This was a suit originally brought in the Supreme Court of the State of New York. The plaintiff was a citizen of that State, and the defendants were a corporation located in the State of Massachusetts. The action was brought by the plain

Barney v. Globe Bank, of Boston.

tiff, as assignee of the Merchants' Bank, of Cleveland, Ohio, to recover damages for an alleged breach of an implied contract. arising out of the course of business between the two banks. The alleged breach consisted in the neglect of the defendants to protest and give notice in regard to certain drafts, &c., forwarded to them by the Merchants' Bank. The action was commenced by summons, under the 135th section of the New York Code, which provides for the bringing of suits against foreign corporations having property in the State of New York. The defendants being non-resident and out of the State, no service could be made on them, except by the publi cation of the summons as provided for in that section. Subsequently, according to the provisions of the same Code, (secs. 227 et seq.,) the plaintiff obtained a warrant of attachment against the property of the defendants in New York, which was duly served and property was attached. Afterwards, the defendants entered an appearance in the State Court, and filed their petition, under the 12th section of the Judiciary Act of September 24th, 1789, ( U. S. Stat. at Large, 79,) for the removal of the case into this Court. The order of removal having been granted by the State Court, and the case entered in this Court, the plantiff now moved to remand the case to the State Court, for want of jurisdiction.

Benjamin. D. Silliman, for the plantiff.

Augustus F. Smith, for the defendants.

SHIPMAN, J. It is supposed, by the parties to this controversy, that the National and State Courts have laid down different rules of law, and come to different conclusions, in cases of like character, and that the result in this case may, therefore, depend to some extent upon the particular tribunal in which it shall be finally determined. This, although not affecting the grounds upon which it must be decided, renders, in their judgment, the disposal of this motion of unusual importance to the parties themselves. In coming, therefore, to the result which I have reached, I have not failed attentively

Barney v. Globe Bank, of Boston.

to consider the very learned and elaborate argument presented in support of the motion. The more prominent features of this argument are:

1. That this is not "a suit," within the meaning of the 12th section of the Judiciary Act, but a mere special statutory proceeding in rem, and therefore not within this section providing for a removal;

2. That if it be such a suit, still it is not subject to removal, because no cases can be removed from a State Court to the Circuit Court except such as could have been originally brought in the latter, and that this does not fall within that class of cases;

3. That the defendant, the Globe Bank, is not a citizen within the meaning of the 12th section of the Judiciary Act, and, therefore, cannot exercise the privilege of removal;

4. That the plaintiff sues as assignee of the Merchants' Bank, of Cleveland, Ohio, which latter could not have maintained a suit in this District against this defendant; that the plaintiff can bring no suit in this Court as assignee, which his assignor could not have brought; and that, therefore, the jurisdiction fails.

Upon the first of the series of propositions I have enumerated, it may be remarked, that the proceeding by which the action was commenced in the State Court, was, substantially, one of foreign attachment, the object of which is to take the property of a non-resident which is within reach of the process of the Court, and apply it to the satisfaction of the claim that may be judicially established against him, although his person may be beyond the reach of that process. The form of the proceeding under which the attachment was made in this case differs somewhat from that used in some of the other States. The warrant of attachment did not form a part of, or accompany, the summons, when that was issued, but was subsequently granted, on application of the plaintiff. This, however, was merely optional with the plaintiff. The Code provides, that he may have the warrant "at the time of issuing the summons, or at any time afterwards." Now, there is a

Barney v. Globe Bank, of Boston.

certain popular sense in which this may be said to be a proceeding in rem, inasmuch as it deals with the things or property of the defendant, whether it reaches his person by legal process or not. So is every proceeding by which the property of a defendant is attached and appropriated to the satisfaction of his debts. But how is this done, in actions at law? In all cases, by a judgment of a Court of law pronounced in the progress of the cause, adjudging him liable to the plaintiff on the cause of action set out in the declaration. The judgment is against him, in personam, and not against a specific piece of property, or thing, like a decree against a ship, or a bale of goods, in a Court of Admiralty. The liability of the defendant does not rest upon the fact that he is the owner of certain specific articles of property proceeded against, out of which springs an obligation against him, to be enforced by a seizure and condemnation of the things, in a proceeding strictly in rem. The only substantial difference between the character or legal effect of a judgment obtained through process of foreign attachment, and one obtained after personal service, is, that the defendant is not concluded by it. The proceeding by foreign attachment is a suit, and a suit at law, within the meaning of the Act of Congress under consideration. The exemption of the defendant from being personally concluded by it is one which he can waive by appearing in the suit and pleading to the issue. His appearance does not change the nature of the action. It enlarges the legal effect of the judg ment, so as to preclude him from further contesting it, except by way of revision, in the same, or some appellate tribunal.

The principle contended for in the second proposition, namely, that no case can be removed from the State Court to the Circuit Court unless it could have been originally brought there, is not of universal application.

It is contended, that the Globe Bank, being neither an inhabitant of, nor found within, the District, at the time of serving the writ, could not be sued in the Circuit Court. This objection rests upon a clause in the 11th section of the Judiciary Act, which provides, that "no civil suit shall be brought