Imatges de pÓgina

for the decision of the Court were, first, whether a District Court of Louisiana had any power to seize the property of a man who had never been within its jurisdiction; and, secondly, whether all which passed in that Court was not a gross and most scandalous fraud from beginning.' This is the substance of the complaint: the rest of the report is but a repetition of the same charges, clotbed in terms somewhat more exceptionable, but not meriting any particular attention on that account.

“ The Committee have no hesitation in saying, that a District Court of the State of Louisiana has the same right to seize the property of a man who has never been within its jurisdiction as any other Court possesses, to which the power is given by law of attaching the property of absent debtors. This power is granted by the Acts of April 10th, 1805, and of January 28th, 1817, and has been exercised by the Courts in Louisiana for twenty-two years past.

“ If a creditor finds the property of his debtor in this state, and the debtor be absent or conceal himself, so that the process of our Courts cannot reach him, his property may be attached." Whether the debtor has ever been here or not is immaterial; he can contract debts in the state without being in it; and the only question is, whether the relation of creditor and debtor exists between the plaintiff and defendant. Statutes similar to the attachment laws of this state are in force in Massachusetts, New York, Pennsylvania, and Maryland, and it is believed in most of the other States of the Union; and particular species of the property of absent debtors are subject to attachment under the customs of London, Bristol, and Exeter. Such customs of foreign attachment, particularly that of London, have for many years been recognized by the Courts of Westminster, as will be seen by reference to various books of Reports:-Roll's Reports, 106; Roll. Abr. 551, 620; Cro. Eliz. 598, 830; 2 Wm. Blackstone, 836; 3 East, 367; and more recently by the Court of Common Pleas, 5 Taunt. 228, 234, and 558, and by two of the very judges (Messrs. Park and Burroughs) who have animadverted with such severity upon the proceedings in question, i Bro. and Bing. 490. Wetten and Girtaner v. Rucker. By our laws the property of the debtor, of whatsoever nature it be, is subject to attachment; and the difference between them and the customs mentioned is merely artificial. If any property is subject to attachment, why should any be exempted from it? There is no more reason why funds in the hands of a correspondent should be liable to be attached at the suit of a creditor, than that a vessel should. This liability to, or exemption from attachment, is a question of expediency, which the legislature of every independent State alone is competent to decide.

The Committee, therefore, entertain no doubt whatever of the jurisdiction of the District Court of the State of Louisiana, in respect of the seizure of the Brig Speedwcll.

o As to the alleged fraud, the Committee, aware that they could not with propriety impeach the opinions of the English judges, unless they had before them the whole evidence upon which those opinions were founded, and as it is impossible to know what evidence was offered on the trial of the cause in the Court of Common Pleas, think it their duty

to state all the important facts of the case which, on a careful investigation, they have been able to collect.

“On the 3d of April, 1824, a Writ of Attachment issued from the District Court of the State of Louisiana, against the property of James Ritson residing in Liverpool, (England,) at the suit of Salkeld, Lloyd, & Co. (a highly respectable English House established here,) for the recovery of 1813 dollars and 21 cents. Under this writ, the sheriff seized the Brig Speedwell, belonging to the defendant.

“ On the 30th of April, Charles Ďaunay, Esq. a member of the Bar, and a gentleman of irreproachable character, was appointed by the Court, on the part of the defendant, under the statute of April 10th, 1805, which provides, amongst other matters, that the Court shall appoint some proper person to defend the interest of the debtor where property is attached, and that such delay may be granted in order to procure an answer, and make out a defence, as to the Court may seem just. Six months were allowed the counsel to correspond with Mr. Ritson.

“On the 6th of May ensuing, the following interlocutory order was made:

“On the motion of C. F. Daunay, the attorney appointed by the Court to defend the absent defendant, and in giving the Court to understand that the Brig Speedwell attached in this suit, the property of the defendant, is in a perishing situation, and that the damage she will sustain, by being detained for the period of time necessary to correspond with the said absent defendant, and the costs and expenses in detaining the same, will be a great injury to the said owner: and the Court having examined into the circumstances of the case, and heard the testimony of the sheriff, and the report of A. Seguin, a ship carpenter, and Thomas Watson, the master of the said vessel, and being satisfied therewith, do order that the sheriff proceed to sell the said vessel, after the usual advertisements; the terms to be seven hundred dollars cash, and the remainder at six months' credit; and that he hold the proceeds subject to the order of the Court.'

“ Under this order the Brig was sold. Sales of property attached, situated as this vessel was, have been ordered by our Courts since their organization. The authority to order the sale is necessarily inherent in the Court, under whose process the property is seized in order to avoid expense, or prevent its total loss or deterioration, and is alike advantageous to all parties interested. Our system of law is the civil law, and our Courts possess the same power over property which is under its process, as is exercised by the Courts of Chancery, and of the Admiralty, in the United States, and in England. Mr. Sergeant, in his Treatise on the Attachment Law of Pennsylvania, states, that where the goods attached are of a perishable or chargeable nature, the Court, on the same being shown, will, on motion, order them to be sold. When, therefore, the defendant's interest in a shallop was attached, the Court made an order, at the first term after a positive affidavit of the debt filed, that the shallop should be sold, being a chargeable commodity. i Dall. Rep. 379.

“The judge, it appears, before granting the order for the sale of the vessel, took the best means to have before him the best inforination as to her condition, in respect of which the testimony of a master ship-builder, who had examined, and the captain who had charge of her, was heard. Who could be so well acquainted with her condition as the master who had navigated her, and the ship carpenter who made it his business to ascertain it? Mr. Seguin, the master ship-builder who was exainined, and in whose testimony the fullest reliance must be placed by all who know him, is still of opinion, that had a jury been held on the Speedwell at that time, she would have been condemned. This opinion does not seem to clash with the fact exhibited by her register, that she was sold as a prize of war under a decree of the Vice Admiralty Court in Jamaica in the year 1800. The Court acted within its authority and with a laudable circumspection, and consulted the best interests of all concerned, according to the best information afforded; for it was evident, that were the vessel to have been detained on expenses during the summer months in this port, the result would be a sacrifice of her value. On the 22d of May, 1824, the vessel was sold at public auction at the Exchange Coffee House, the place where public auctions were held, and at an hour of the day when the greatest number of men of business are collected there, after ten days' public notice in two Newspapers—the mode of advertisement prescribed by law. Mr. Alexander Gordon (then of the British House of Gordon, Grant, & Co. at present of the House of Gordon, Fastall, & Co.) became the purchasers for the sum of 2000 dollars. The vessel had been appraised at that sum, and the Committee are satisfied it was as much as she was considered to be worth at that time.

“On the 7th of November, 1826, the cause was tried, and judgment rendered against the defendant, for the amount claimed by the plaintiffs, and the proceeds of the property attached were ordered to be paid over to them.

“ It has been erroneously stated, that the sum of 250 dollars was allowed to Mr. Daunay, who represented the defendant, for his professional services. Fifty dollars was the sum allowed him by the Court.

“ The Committee feel themselves bound to notice some irregularities in this business, which do not affect, however, the legality of the judicial proceedings, nor have they worked any injury to the interests of the defendant. The account filed by the plaintiffs in their suit is not stated with proper exactness; but there was a sum certain sworn to be due, and this sum, and even more, the Committee is satisfied was due; on the trial of the cause, after due proof, judgment was rendered for that sum only. By the order of sale of the 6th of May, 1824, the sheriff was ordered to hold the proceeds of the vessel subject to the order of the Court. Mr. Gordon, the purchaser, paid to the sheriff 303 dollars and 89 cents, the amount of charges and expenses on the vessel, and, besides, the sum of 333 dollars and 72 cents for seamen's wages privileged thereon, making the sum of 637 dollars and 61 cents, and gave his obligation to pay the balance of the purchase money when required.

The plaintiff directed the sheriff to call for no more payments. The purchaser afterwards paid over the balance of the purchase money to the plaintiff. If the parties contemplated a fraud in this transaction, such an irregularity as this would certainly have been avoided. No attempt at concealment has been made in relation to it. The return of the sheriff shows that the money was not received by him, and the Committee are at a loss to assign any other reason for this deviation from the directions of the Court, than the confidence of the parties in each other. They were all British subjects, having extensive commercial relations with merchants in Great Britain: the Speedwell was a British vessel. The gentleman who conducted the business of the plaintiff's house, and the purchaser, Mr. Gordon, have long been known in this country, and their characters are not only unimpeached, but distinguished for correctness and probity. They had no transactions or connexions in business together. The character of the sheriff forbids the idea, that any sale would be made by him which was not in all respects fair and legal.

“ Before the attachment was issued, a bond in double the amount of the debt as required by law, with security, then and still undoubted, was given to indemnify the defendant against any damage he might suffer in case the attachment should be wrongfully sued out, and the sheriff was authorised by law to deliver up the vessel on security being given for the debt. This bond, of course, remains in full force, and Ritson can at any time avail himself of it, provided there be any

fraud in the transaction.

The Committee, in this investigation, have been guided by the single desire of ascertaining the truth in respect to the proceedings in the case of the Speedwell, and submit the result to their brethren of the Bar.

" J. W. SMITH,

“ G. Eustes."
“ New Orleans, Nov. 23, 1827."



We have received the following letter from Mr. Humphreys, the author of the “ Observations on the English Laws of Real Property. It is with the greatest pleasure we insert a communication from so able a correspondent.

To the Editor of the Jurist.

The relevancy of the subject on which I am about to address you to the topics usually discussed in your valuable publication induces me to request your insertion of a few statements in reply to some charges of inaccuracy, partly in facts, and partly in reasoning, adduced against my “ Observations on the English Laws of Real Property”

in two recent publications; one of which is “ A Letter to the Lord Chancellor, by John Reddie, Esq. Advocate, F.R.S.E., &c. &c. and Doctor of Laws of Göttingen; and the other is “ An Account of Parliamentary Proceedings relative to the Defects in the Court of Chancery, &c. &c., by Mr. Cooper, of the Chancery Bar, and Author of the late “ Lettres sur la Chancellerie."

In perusing Mr. Reddie's pamphlet I at first felt somewhat discomposed at the discourteous manner in which both

my work and its author were named; but where I find it asserted, that “Mr. Bentham is ignorant of the Roman laws,”(a) that M. Rey mistakes flippancy for science, and turgid declamation for sober learning, (6) I am content to be placed under the writer's ban in such company as these.

The writer's main charges against myself may be reduced to two First, that, in correcting the Laws of Real Property (for of these alone I treated), I prefer codifying to partial corrections ; and, next, that the instances adduced by me in support of my arguments are unfortunately chosen ; alterations of all descriptions, whether in the civil or criminal departments of jurisprudence, are accumulated from all quarters, whether in point or not. The conclusions are seldom logically drawn, or the facts correctly stated.

On the former charge I have a preliminary observation to make. The first edition of my work appeared in 1826; the second in June, 1827. In the preface to this latter. edition, speaking of its alterations from the former, I have expressed myself thus :“ The author

gave utterance to the defects and the wrongs of our actual institutions under an acute sense of their practical evil ; but with little expectation of speedily exciting a correspondent feeling on the part of the public. Under this impression, he treated the page of reform as an album, on which he might freely inscribe his own notions of a pure system of landed property, accordant with our civil constitution. In the indifference and prejudice which he attributed to the public he has happily found himself deceived. This discovery has induced him to become more practical on his part, and to substitute for a speculative system, a closer approximation to the actual extent of reform, in which the public appear disposed to concur.

With this view he has introduced the following modifications of his original proposition:

“ The term code' proves unpalatable to the English public, as importing something revolutionary; at all events foreign and unconstitutional. The simplification, too, about to be proposed instead of the total abolition of the leading features of tenures,

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