Lapas attēli
PDF
ePub

The Blanche Page.

their said stipulations, and that the clerk, after deducting the taxed costs of the officers of the Court in the action, distribute the proceeds in satisfaction of the decree. In each case the claimant took an appeal to this Court from such final decree. In each case the claimant, with Edward K. Godfrey and Asa D. Dickinson, as sureties, executed a joint and several bond to the libellant, on appeal, conditioned that the libellant should prosecute said appeal with effect, and pay all damages and costs which should be awarded against him as appellant, if he should fail to make such appeal good. The bond in the Phillips case was dated May 22d, 1872, and was in the penalty of $4,000. The bond in the Markee case was dated September 19th, 1871, and was in the penalty of $3,000. This Court made a final decree in each suit on the 2d of January, 1875, affirming the decree of the District Court. In the Phillips suit the decree further provided, that the libellant recover against the vessel $3,015 39, the amount of the decree of the District Court, and $562 27 interest thereon, and $195 05 as costs of this Court, amounting in all to $3,772 71; that the vessel be condemned therefor; and that, in pursuance of the Act of March 3d, 1847, a summary judgment be and was entered against the vessel and the claimant and the said sureties, on the bond given on the appeal, for the sum of $4,000, the amount of said bond. In the Markee suit the decree further provided, that the libellant recover against the vessel $2,347 78, the amount of the decree of the District Court, and $548 69, interest thereon, and $197 05, as costs of this Court, amounting in all to $3,093 52; that the vessel be condemned therefor; and that, in pursuance of the Act of March 3d, 1847, a summary judgment be and was entered against the vessel and the claimant and the said sureties, on the bond given on the appeal, for the sum of $3,000, the amount of said bond. The claimant took an appeal, in each suit, to the Supreme Court of the United States, from such final decree of this Court. In each case the claimant, with Edward K. Godfrey and James C. Hartt, as sureties, executed a joint and several bond to the libellant, on appeal, conditioned

The Blanche Page.

that the appellant should prosecute said appeal to effect and answer all damages and costs, if he should fail to make his appeal good. The bond in each case was dated January 15th, 1875. That in the Phillips case was in the penalty of $7,500. That in the Markee case was in the penalty of $6,200. The Supreme Court made a decree in each suit, affirming the decree of this Court, with costs, and interest until paid, at the same rate per annum that decrees bear in the Courts of the State of New York. It further decreed, in each case, that the libellant recover against the claimant $144 75, costs of the Supreme Court. On the 25th of July, 1878, on the presentation to this Court of the mandate of the Supreme Court in each case, a decree was made by this Court, in the Phillips case, that the libellant recover the said sum of $3,772 71, and interest thereon from January 2d, 1875, amounting to $957 26, together with $144 75, costs, amounting, in all, to $4,874 72, and that a summary judgment be and was entered against the claimant, (the principal,) and Edward K. Godfrey and James C. Hartt, (the sureties,) on the bond on appeal to said Supreme Court, for the sum of $7,500, the amount of their bond, and that execution issue thereon; and a decree was made by this Court in the Markee case, that the libellant recover the said sum of $3,093 52, and interest thereon from January 2d, 1875, amounting to $756 09, together with $144 75, costs, amounting, in all, to $3,994 36, and that a summary judgment be and was entered against the claimant, (the principal,) and Edward K. Godfrey and James C. Hartt, (the sureties,) on the bond on appeal to said Supreme Court, for the sum of $6,200, the amount of their bond, and that execution issue thereon.

It is now shown to this Court, on behalf of the libellants, that the said Cassidy has died during the pendency of said appeals; that the said Dickinson has removed to Michigan; that, on the 19th of August, 1878, executions were duly issued to the marshal of the United States for this District, and have been returned wholly unsatisfied; that the said Hartt resides in the State of New Jersey, and owns real property

The Blanche Page.

there, but carries on business in the city of New York; that the said Godfrey resides in the city of New York; that the said Moran resides in the State of New Jersey; and that the said Dickinson resides at Detroit, in the State of Michigan. On the foregoing facts, and on notice to said Godfrey and said Hartt, and the proctors for the claimant, the libellants now move this Court, "that James C. Hartt and Edward K. Godfrey, sureties upon the stipulations entered into herein, and sureties upon the appeal to the Supreme Court of the United States, be ordered to appear before this Court for examination concerning their property, according to the laws and practice of the State of New York," and "that they be ordered to disclose all information concerning their property, with a view to the sequestration thereof, and that they be directed to convey all of their property to a sequestrator to be appointed by this Court, and that the said James C. Hartt and Edward K. Godfrey be punished for their contempt in not performing their said stipulations, and failing to comply with the provisions of said decrees, and for such other order or relief as may be just."

(1.) As to so much of the motion as asks that the sureties be ordered to appear before this Court for examination concerning their property, according to the laws and practice of the State of New York. There is no statute of the United States which authorizes or requires such an examination in a suit in Admiralty. Sections 914, 915 and 916 of the Revised Statutes apply solely to common law suits. Section 941 provides for such stipulations for value as were given in these cases, and enacts that judgment thereon, against both the principal and sureties, may be recovered at the time of rendering the decree in the original cause. Rule 21, in Admiralty, provides, that, "in all cases of a final decree, for the payment of money, the libellant shall have a writ of execution, in the nature of a fieri facias, commanding the marshal, or his deputy, to levy and collect the amount thereof out of the goods. and chattels, lands and tenements, or other real estate, of the defendant or stipulators." There is no other Rule as to the

The Blanche Page.

enforcing a decree in a suit in rem. That Rule is one of a series of Rules made by the Supreme Court under § 6 of the Act of August 23d, 1842, (5 U. S. Stat. at Large, 518,) now § 917 of the Revised Statutes, which provides that the Supreme Court shall have the power to prescribe the forms of process, the modes of proceeding to obtain relief, and generally to regulate the whole practice in suits in Admiralty, by the Circuit and District Courts. Nothing is found which authorizes what is asked for under the first branch of the motion.

(2.) As to so much of the motion as asks that the sureties be ordered to disclose all information concerning their property, with a view to the sequestration thereof, and that they be directed to convey all of their property to a sequestrator, to be appointed by this Court. There is no statute which confers on a Court of Admiralty of the United States those powers of sequestering property which appertain to a Court of equity, nor is there any Rule which does so. The libellants have judgments, and, after executions have been issued and returned unsatisfied, they can resort to the proper Court to reach any property which the debtors may have. But this Court, sitting in Admiralty, is not such Court. The fact that the libellants could not recover judgments on the stipulations or bonds in any other Court than the Admiralty Court, does not prevent their resorting to other Courts, where they have obtained judgments in the Admiralty Court, to enforce such judgments. The judgments have then become like any other judgments in personam in any Court. In a suit in rem, where the Court has acquired jurisdiction of the res, and has not voluntarily yielded possession of it, and has a right to recall it to its custody, it may proceed to do so, as against those who have it or have taken it; but that is not the present case. (Rule 38.) The libellants are general creditors, by judgment in personam, of the sureties. The stipulations and bonds are merely to pay money, and the judgments are money judgments. The stipulators for value could not now perform the condition of their stipulation, by bringing the vessel into Court.

The Blanche Page.

(3.) As to so much of the motion as asks that the sureties may be punished for contempt in not performing their said stipulations and failing to comply with the provisions of said decrees. At most, the stipulations, bonds and decrees create a debt from the sureties to the libellants. The decrees are decrees for the payment of money, and only for that. Prior to the December Term, 1861, of the Supreme Court, Rule 21, in Admiralty, read thus: "In all cases where the decree is for the payment of money, the libellant may, at his election, have an attachment to compel the defendant to perform the decree, or a writ of execution in the nature of a capias and of a fieri facias, commanding the marshal, or his deputy, to levy the amount thereof of the goods and chattels of the defendant; and, for want thereof, to arrest his body to answer the exigency of the execution. In all other cases, the decree may be enforced by an attachment to compel the defendant to perform the decree; and, upon such attachment, the defendant may be arrested and committed to prison until he performs the decree, or is otherwise discharged by law, or by the order of the Court." At the December Term, 1861, the Supreme Court abolished that Rule and substituted the following in its place, as Rule 21: "In all cases of a final decree for the payment of money, the libellant shall have a writ of execution in the nature of a fieri facias, commanding the marshal, or his deputy, to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipulator." It is quite clear that the Supreme Court intended to abolish attachments to compel the performance of general money decrees.

Although this Court has, under § 725 of the Revised Statutes, power to punish, as a contempt of its authority, the disobedience of any party, or other person, to any lawful writ, process, order, rule, decree or command made by it, yet it cannot properly punish, as such a contempt, the failure of these sureties to pay these money judgments. By Rule 48, in Admiralty, made at the December Term, 1850, of the Supreme Court, it is provided as follows: "Imprisonment for

« iepriekšējāTurpināt »