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United States Supreme Court

23 U.S. 473

Manro  v.  Joseph Almeida Almeida

APPEAL from the Circuit Court of Maryland.

This was a libel filed in the District Court by the appellants, resident merchants of Baltimore, against the respondent, Almeida, charging him with having forcibly and piratically taken from on board a certain vessel, off the capes of the Chesapeake, and within the territorial limits of the United States, the sum of 5,000 dollars, in specie, belonging to the appellants, and converted the same to his own use, without bringing it into any port or place for adjudication. The libel further stated, that the said Almeida had absconded from the United States, and fled beyond the jurisdiction of the Court, and that no means of redress remained for the libellants, unless by process of attachment against the goods, chattels, and credits of the said Almeida, which were also about to be removed, by his orders, to foreign parts. The libel also prayed a personal monition, and likewise viis et modis, and that the respondent might answer the premises on oath, and be compelled to pay the appellants the said sum of 5,000 dollars, and damages; and in default thereof, that his goods, chattels, and credits, when attached, be condemned to answer the premises, &c. The Marshal returned, that he had attached certain goods and chattels of the said Almeida; that the said Almeida was not to be found within the District, and that he had left a copy of the monition at the late dwelling house of Almeida, and had affixed it at the public exchange, and on the mast of the vessel containing the goods and chattels attached by him. But although the transcript of the record contained a petition for the sale of the attached goods, and an order of the Court denying the prayer of the petition; yet it did not appear by the record by what authority the attachment issued. But it appeared by the admission of counsel at the hearing, that the attachment had been issued by the clerk of the District Court, as a process of course, without any particular order of the Judge. The respondent appeared by a proctor of the Court, and demurred to the libel. On the argument of the demurrer, the District Court dismissed the libel, and ordered that the goods, chattels, and credits, attached, should be restored with costs. This decree being affirmed, pro forma, by the Circuit Court, the cause was brought by appeal to this Court. Feb. 26th.

Mr. Hoffman and Mr. Mayer, for the appellants, argued, (1.) That on principle the process of attachment must be considered as peculiarly applicable in admiralty proceedings. As the Court acts habitually in rem, the proceeding by attachment very naturally became a part of its practice. Hence it was often resorted to in early times in England; but the Courts of common law, influenced by an illiberal and jealous spirit, have gradually encroached upon the admiralty judicature; and, we may readily believe, as we are told, that it has fallen into desuetude in that country. [a] But this does not prove that its legal existence is extinguished. It is still in use on the European continent, whence the local customs of London and Exeter were also derived; the principle being, that persons are to be reached by justice through the medium of their property, as well as by direct proceedings in personam; and though there are some exceptions to the application of this principle, yet it is universally applied to the case of absconding debtors. [b] Contrary to the opinion of Huberus, the proceeding by attachment was known to the civil law, and is expressly provided for by the Digest, in the case of an absconding defendant.

2. It has been said, that if the proceeding by attachment, in the Admiralty, be applicable to cases of contract, it cannot properly be applied to a tort such as the present. But there is no authority to sustain such a distinction. In Clerke's Praxis no distinction is laid down between tort and debt; but the course of proceeding is intimated in that book as applicable to both; and the language in 2 Bro. 434. includes all grievances and claims whether of contract or tort. [c] In this country, however, it has been expressly adjudged to extend to tort as well as debt. [d] It may be admitted, that where the tort is of so indefinite a character that it can be reduced to no certain estimate, attachment will not lie. But here there is an obvious standard for determining the amount of the wrong, and liquidating the damages. The property taken consisted of specie dollars. Where a tort can be thus defined, attachments have been allowed even from the Courts of common law. [e] Res non per se invicem sed per pecuniam estimantur, et non pecunia per res. Even before the statute of Marlbridge, for remedy in excessive distresses, where money was taken in such cases, trespass would lie; because money is the measure of its own value, and of every wrong concerning it. [f] There is then, here, as much certainty in the demand, from the nature of the wrong, as is required in debt. The appellants do not sue as for a tort, by that name; but they state their complaint, and leave it to the Court to give it the benefit of such technical forms as are appropriate to the case. Even at common law, they might have devested their claim of all the formal characteristics of tort, and given it the qualities of contract and the certainty of debt. The wrong concerning money exclusively, they might have brought indebitatus assumpsit for money had and received, instead of trespass for money taken and carried away. A Court of Admiralty, with its characteristic liberality, will regard their claim as having assumed this technical form, if it be necessary for the purposes of justice.

3. Even if the process issued irregularly in this case, for want of a previous special application to the Judge, it is now too late to object to the irregularity, since the appearance of the defendant cures all formal defects in the process. [g] But the equitable maxim, that what ought to be done will be considered as done, is applicable in a Court of Admiralty; and if the claim be so verified as that the process of attachment ought to have issued, the Court will consider it as having duly issued. Quod fieri non debet factum valet, is a maxim applicable to the omission of acts merely directory and formal in their nature. It may be that the course of the English High Court of Admiralty requires a previous application to the Judge to authorize the issuing an attachment, but such is not the practice in the United States. The irregularity might have been taken advantage of by an exception, in the nature of a plea in abatement, or by a motion to set aside the process, but not upon demurrer, as here attempted.

4. This is a complaint cognizable on the instance side of the Court, and not of prize jurisdiction. The libel alleges a capture within the territorial jurisdiction of this country, and, therefore, a violation of its neutrality. It is then not a case of ordinary belligerent capture, involving the rights of war, and requiring the cognisance of the Prize Court. A mere maritime tort is out of the sphere of the prize jurisdiction, which is confined to captures jure belli. The libel here charges a piratical taking, and not a capture jure belli. The act of 1794, c. 50. s. 6. authorizes the District Courts to take cognisance of all cases of capture within our waters. It brings them within the civil or instance jurisdiction of the Admiralty, and does not consider such cases as subjects of prize jurisdiction, which had already been vested in the District Courts.

5. The civil remedy in this case is not merged in the piracy charged as the wrong of which the appellants complain. [h] That doctrine only applies to cases of felony and treason; and takes its rise from the policy of the ancient common law, to compel the despoiled party to prosecute his appeal for robbery, and to prevent the compounding of felonies. Piracy is not felony at common law, nor has it all the common law incidents of felony, although in some cases it is expressly declared by statute to be felony. Although the stat. 28 Hen. VIII. c. 15. makes piracy triable according to the course of the common law, yet it has not been interpreted to place it on the footing, and give it the technical qualities, of felony. A pardon of felonies, since this statute, does not, ex vi termini, include piracy. [i] The act of Congress goes no farther, in identifying piracy with felony, than the statute of Henry does. An attachment against a pirate's goods, for a robbery committed by him, was known to the earlier periods of the law, and there was a writ from. Chancery to authorize it. [j] But, it is clear, that the doctrine of merger cannot be applied to the case of a pirate absconding from justice, and where the individual sufferer cannot prosecute him criminally. Such is understood to be the recently adjudged law in England, even in respect to a felony at common law.

6. It was unnecessary that the attachment should specify the goods to be attached. No rule of practice prescribes it, and no principle of convenience requires it. In the analogous case of distringas on mesne process at common law, no such specification is made. The party whose goods are attached may release them, by appearing and giving security; and if he suffers them to be condemned and sold by default, no more of the proceeds will be decreed to the libellant than is sufficient to satisfy his demand.

7. Nor is the locality of the territory or jurisdiction within which the property is attached material to the validity of the attachment, it being seized in the exercise of the Admiralty judicature upon a subject within its established jurisdiction, and the property taken, or the right to it, not being the immediate object of the suit, but only incidental to its prosecution. Clerke's Praxis (Pt. 2. tit. 28.) does, indeed, speak of goods within the ebb and flow of the tide, or on the sea, being subject to the attachment; but it evidently alludes to these instances only by way of exemplification, not of restriction. This is also evident from tit. 32. which authorizes the attachment of the defendant's goods and credits in the hands of a third person, without restriction as to locality.

Mr. Taney, contra, argued, (1.) that a civil suit could not be maintained for the injury complained of in the libel. The remedy is here sought in personam by a suit in the Instance Court. The attachment is a mere ancillary process to compel appearance. The property is out of the jurisdiction of the Court, and this is a proceeding against other property to compel an appearance. The wrong charged in the libel is a piracy. Can this be treated as a private wrong? There is no case in the records of the English Admiralty to authorize such a proceeding, and both principle and analogy are against it. The absence of all authority in adjudged cases is a strong argument that it is not law. It is said that piracy is not treason nor felony. In England it was treason, and is felony. It has been such since the stat. 25 Edw. III. c. 2. [k] The goods of pirates, not belonging to others, are forfeited to the crown, as in felony. [l] How, then, can these goods be made liable to satisfy the damages sustained by a private party?

But, it is said, that the injured party may waive the tort, and treat it as a contract. The only case where this may be done is, where, on a conversion of the plaintiff's goods, and a subsequent sale and receipt of the goods, the plaintiff may ratify what is done, and consider the goods as having been received by his authority. But that is in the case of a private tort, which may be waived: a wrong to the public cannot be waived. The authority of Dr. Browne is express, that in such a case the remedy is either criminally, as for a public crime, or in the Prize Court, as for a wrongful taking as prize. [m]

2. If the appellants can maintain a civil suit in such a case, can they do it in this form of proceeding? Will an attachment from the admiralty lie against the goods of an absent or absconding debtor? The power of proceeding in this manner once existed, and was analogous to the proceeding by foreign attachment according to the custom of London; but has long since been disused in England, [n] and, like many other usages in the admiralty, has become obsolete. [o] But the foreign attachment, according to the custom of London, only applied to cases of contract; and Sir. L. Jenkins claims the admiralty jurisdiction to be exercised in this manner only in cases of contract. [p] The practice, as it is laid down by Clerke, is plainly confined to contracts. The caption of tit. 28. part 1. is 'of the warrant to be impetrated in rem, where the debtor absconds,' &c. And tit. 32. states, that 'sometimes the person, who, by loan, or other maritime contract, is indebted to another,' &c. and then authorizes an attachment of the credits or goods of the debtor in the hands of a third person, upon the principle laid down in the code, that debitor creditoris est debitor creditori creditoris; all which evidently implies, that the whole proceeding is confined to matters of debt and contract. [q]

Although the proceeding by attachment has been occasionally resorted to in this country, yet it cannot be said to have gained a legal footing; and it would be an extremely inconvenient practice in our divided jurisdiction, where there may be as many different attachments issued at the same time as there are Districts in the Union. But, to prevent the abuses to which it is liable, it is indispensably necessary that this process should only issue by an express order of the Court. There is no precedent for its issuing of course, and as it cannot issue without an affidavit, the sufficiency of the matter contained in the affidavit, and the libel, are fit subjects for the determination of the Judge, and ought not to be confided to the discretion of a mere ministerial officer, such as the clerk. So, also, the property to be attached should be specifically stated in the warrant. This is required by Clerke, in the passages already cited. Tit. 28. authorizes 'a warrant to be impetrated to this effect, viz. to attach such goods or such ship of D., the defendant, in whose hands soever they may be; and to cite the said D. specially as the owner, and all others who claim any right or title to them,' &c. These errors were not cured by the defendant's appearance, because, if we resort to the analogy of common law proceedings, his appearance dissolved the attachment; and, in the present case, he appeared under protest, for the purpose of contesting the regularity of the proceedings. March 8th.

Mr. Justice JOHNSON delivered the opinion of the Court.


^a  2 Bro. Civ. and Adm. Law, 333.

^b  Van Leeuwen's Rom. Dutch Law, 542, 543. 546. 548.

^c  Hall's Adm. Pract. 60, 61. 63. 70. 78. 82. 89.

^d  Bee's Adm. Rep. 60. 64. 41. 186. 2 Gallis. Rep. 41. Del Cel v. Arnold, 3 Dall. 333. The Cassius, 3 Dall. 123. 2 Sir E. Jenkins' Works, 714. 754.

^e  Sergeant's Law of Attach. 44. 2 Bro. Pennsylv. Rep. 28. Appendix. 5 Serg. & Rawle, 450. 3 Term Rep. 338.

^f  2 Bac. Abr. tit. Distress. 1 Burr. 590. 2 Str. 281.

^g  3 Cranch, 496. 4 Cranch, 421.

^h  Co. Litt. 111, 112. 5 Term Rep. 175. 4 Bl Comm. 70. 268. 362. 14 Johns. Rep. 268. 2 Bro. Civ. & Adm. Law, 110.

^i  Bac. Abr. tit. Piracy. Pardon

^j  Fitzh. Nat. Brev. 114. 2 Gallis. Rep. 408, 409.

^k  4 Bl. Comm. 71.

^l  2 Bro. Civ. & Adm. Law, 462

^m  2 Bro. Civ. & Adm. Law, 113.

^n  2 Bro. Civ. & Adm. Law, 434.

^o  Hall's Adm. Pract. 62.

^p  3 Hall's Law Journ. 571. 2 Bro. Civ. & Adm. Law, 435.

^q  Hall's Adm. Pract. 60. 70.

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