Page:Harvard Law Review Volume 9.djvu/481

WHAT ARE DECREES IN PERSONAM? 453 ceptance " by the defendant ; and the quoted remarks of the dis- tinguished jurist in Merrill v, Beckwith, though weighty of course, are too brief to be a discussion. The questioner may still say, " But passing the question of compulsory acceptance, has the court any jurisdiction even to say that the uncited foreigner ought to accept and perform ? " The answer is, ** Yes, just so far as the attached Vendome represents him, — just so far as at law to say he ought to pay a debt out of the attached property." But Judge Fletcher (Spurr v. Scoville) says, " The person named as defendant is not before the court, nor within its jurisdiction, and the attachment can avail nothing in this case." That was so because the relief sought there was to compel a defendant to exe- cute a deed. But is it true that, where an attachment of the Ven- dom.e exists capable of satisfying the whole equitable claim for the cash relief, that there is no lis pendens at all? If so our contention is extinguished. Has the court no power to help the plaintiff? If so, why our attachment laws and provisions for constructive notice to absent defendants? How is it at law in the collection of debts against foreigners? Is there really no lisf A lawsuit is started on a foreigner's bond, his realty attached, and the statute notices duly given. He is defaulted. Why? Judgment for the penal sum for breach of the bond is entered upon said default. Then follows an ex parte hearing to see how much ** equity and good conscience" shall say ought to be paid. Here is a jurisdic- tion concerning the absentee's duty. This hearing is by the court, and sometimes by a jury, if anybody wants a jury, and later execu- tion is awarded. All this looks like a lis peiidens. It is a lis pendens, with the peculiarity that the relief is enforceable only out of the attached property. It is not a proceeding in rein. The res is t^e Brunswick. The attachment is on the Vendome. Thus there are judgments in personam which are unobjectionable, even if the persona is out of jurisdiction. So there are equity decrees against foreigners equally unobjectionable; e. g. in case of attach- ment of property here belonging to a foreign trustee of cash funds. The lawsuit above is then a suit in personam with relief qualified. The names of two parties appear in the docket and record. In Boyd V. Urquhart et al.. Judge Sprague styles the proceeding " a libel in personam!' No process on Urquhart et al. was served, as they were out of jurisdiction. An attachment of a vessel was made. Judge Sprague says it is no process in rem, and he ascer-