,TREADWELL , ; 0'
·SEYMOUR. , .1
,:
D. Ne1O· York. March 11,,1890.)
p.'O.
York wer.,toi88ue. an. atta.Cbment, a.Dd direct.the,.same .to the'lIlarsha.l.oftheUnited State!! for allY Qthel'distri,?t the state of New )Cork. " i ' , , ' , ",;
At .JAW;" (Ql'
attachment. . .. "
"
Gum.bel' '(.Pitkin. 8. 151,8Sqp. Ct. HYde.llO;U. S. Ct. Rep. 27: Bates v, 17 Fed. Rep. 167; GUi(lon v.li'ontailJe. T. (N.. S.)502: Lamaster v. Keelel',123 U. 8.389.8 Sup. Ct.,Rep· .I97; McCracken v. Hayward. 2 How. 608: ErtJ . parte Rail1'oad C()·· 103U.S. 794; Society,v. Ford.1HU. S. 635. 5 Sup. Ct. Rep. 1104;' Erstei'l) v. }J,oth"chUd.22 Feu. Rep. 61; T:ilton. v. Cofteld.93 U. 8.163; Fit$patrick v·. Jll((ln'fl,agan.l06 U. S. 648. 1 Sup. Ct. Rep. thews v. Densmore. 109 U. 8.216.3 Sup. Ct. Rep. 126.
Ed; Hamilton Oahil, for defendant, .cited:
,
Spear. Fed; Jud.661; 2 Abb. U. S. Pr.166; Binns v;'W'iUiams. 4 McLean. 580: 'PioqUet v. Swan. 5 Mason. 35; Tolandv. Sptague. 12 Pet. 327; ErtJ parte Graham. 8 Wash. e. ,C. 456; .Day v. Manufaeturing Co·· 1 Blatehf. 630; U. EJ.v.. WilUams. 4 CrilDch. e. e. 372; Reft"igerator Co. v. Bouthar.d. 12 LACOMBE, J. This waB commenced by plaintiff, a citizen of NewiYorkand resident of Brooklyn, in the Ne\v York supreme court, in Kings county, and was removed into the circuit court for the eastern district of New. York by the defendant, a citizen and resident of New Jersey. Subsequently, issue was joined by the service ofan answer.. The action is one COmmon law. On February 10,1890, plaintiff procured from the judge. circuit court in the eastern district a warrant of attachment. against defendant's property, addressed: "To the MarshllJ of the UnitedStateEl for any District within the State of New York." Levy has been made under the ,warrant by the United Stlltes marsh1l1 for the southern district upon property of the defendant found in New York city. Defendant does not question the regularity or the sufficiency of the papers on this warrant was issued, if tested by the rules or practice oithe state c.Gurt. He moves, however, to vacate the attachment on the ground that the circuit court for the eastern district of New York has neither power nor jurisdiction. to issue an attach.ment, and .direct the same to the Imtrshal of the United states ,for any other district within the state of :New York. The case chiefly relied upon by the defendant is Toland;v.Sprague, 12 Pet. 800. In that case,plaintiff was a citizen of Pennsybania; defendant, a citizen of Massachusetts, dOllliciled, for eome time. prior to tbe commencement of the suit,.without thelimits.of the, United ' The tlctionwas commenced. by prOc.ess of foreign at-
FEDERAL REPOR'ITEB-,VOI.
41.
tachment, whereby certain property of the defendant found in Pennsylvania was garnished; defendant himself not being served. Defendant insisted that the court had no jurisdiction of an action begun by foreign attachment. rohe court, by BARBOUR, 1:;, expressed thl3ppinion that"The ,conrt of each district sits ,Within andfor that district, and Is bounded byItsJooallirriits; ,Wbatever mllY bl;l the extent of thejrjurisdiction over the,: subject-matter ofsults, in respect to persons and property, it can only be within the limits of the district. Congress might have authorized civil process from any circuit court to run into any state of the Union. It has not done so. It has not interrus auth<)rized any original civil process to run into any other district, with the, singleexcpptio.n ,of subpamas a limited distance; In regard to final process, there are two cases, and two' only, in which writs of execution can nowj by law, be served in any other district than that in which the j\ldgment was rendered,one, in favor of private persons, in another district of the same state; and the other, in favor of the United States, in any part of the United States. We think that the opinion of the Is thus manifested to be that the process of ,a circuit court cannot be served without the district in which it is established withOut 'the special 'authority of law therefor."
After commenting upon the case Picquet v. Swanl,5 Mason, 35, and thlleleventh sectiOl,l. of thejudiciary act of 1789, (chapter 20,) providing that no civil shall, be brought befqre a United States circuit or distriGt court" by any original process, in any:other districtAhan that of which the defendant is an inhabitant,ior shall be found at the time of serving the writ, the supreme court, in 1'oland v. Sprague, announced:: (1) That, by the general provisions of the laws of the United States, the bircuit (Jourt,s Can ISSue no processbeY'ond the limits of their districts; (2) that; indepen'dently of positive legislation, their process can oi)ly be served on persons within the same districts; (3) that the acts then in force (Act Sept; 29, 1789, c. 21; Act May 8, 1792,c/36) adopt the form and modes ()f service in use in state courtS ,dn11so far as the/?ersons are rightf.tilly within the reach of such process', and were not intended to enlarge the jurisdiction oftha cir{Juit coul'ts;(4) that the right to attach property tocompel:the appearance of persons can only be used in:cases wheresllch persons a:re amenable to the process of the court in p&rBlmam; (5) that, in· the casebefote it, the· circuit court ,hnd jurisdictionover the pavtiesandthe subject-ma.tter of thesuit,and the defendant's objections, though sound, related only to a. personal privilege or exemption whioh it was competent forhin:lto he had waived by appearing and plMding. This case of Tolandv. Spraf/ue was deCided in 1838. At that'time the only 'special provisions of federal statute authorizing the issue of process to run without the district were those regulating certain executions, and referred tO'in the excerpt from theopinion,' 8upra. They are found inAct March 3, 1797, and Act May 20,1826, (now sections 985,986, of the'United SUites Revised Statutes.) Since 1838, there has been further' special legislatIon of a similar ·JActs Fe-b. :28,1;889, and March 3, 1863, (now section 615, Rev. St.;)· Act Feb. 25;r1873, (now scction'654, Rev. fSt.) The· particular
TREADWELL,,; SEYMOIDt.
581
provision of statute relied upon by the plaintiff as specially authorizing thecissuance of mesne process of attachment without the district" if within the state, IS the sixth section of the practice act of June 1, 1872. Rev. St. §'915: ' "l:lee.9l5. In common-law causes in the circuit and district courts, the plaintiJfshall be entitled to similar remedies, by attachment or other process, against tJ1e property of the defendant, which lue now prOVided by the laws o,f the such court is held for theqourts thereof; and snch,circuitor district 'couits may from time to time, by general rules, adopt such state Jaws as may btl hi force in the states where they are held. in relation to attachments and other process: prOVided, that similar preliminary affidavits or proofs, and similar security. as required by such state laws, shall be first furnished by the party·aeeking such attachment or otHer remedy."
clause ofthis seotion gives the right specified therein. in abs()lute terms, on the basis of state laws existing when the section was adopted., The second clause authorizes the circuit and district courts to adopt any state laws relating to the subject that may be subsequently enacted. Spear, Fed. Jud. 660. When this act was adopted, (1872,) the Code· of Procedure of the state of New York (Code, § 231) provided that a· warrant of attachment should be directed to the bheriff of the county where property of the defendant might be, and that, where prop.. erty of the defendant was situated indifferent counties, a warrant might be issued to each county simultaneously. A similar remedy by ment, against property of a defendant sued in a federal court, in a state containing more than one district, could be secured to the plaintiff in such action Gnly by extending the attachment to property of the defendant without the district, but within the state; and such seems to be the plain meaning of these two acts, federal and state, (act of 1872; Code, § 231,) when collated. The positive legislation, therefore, specially au'thorizingthe issue of process beyond the district, which the supreme court, in: %land v. Sprague,held to be essential, but·not then in existence,is foUnd in the act of 1872, unless other provisions of statute, or the principles of interpretation approved by the federal courts, operate to restrict its meaning. This act has'been construed. in Chittenden v. Darden, 2 Woods, 437; SaddllJr v. HudsO'Ii, 2'Curt.6; Nazro v. Cragin, 8 Dill. 474; & parte Railway Gl., 103 U. S. 794, Anderson v. Shaffer; 10 Fed. Rep. 266. These cases hold that it does not confer upon the Unit;. ed States courts jurisdiction to institute suits by the process of foreign attachment, and that it authorizes attachment only when the court has acquired jurisdiction of the person of the defendant. The reasoning, however, by which the conclusions are reached, is the same as that of Toland v. Sprague, aupra. From the passage of the original judiciary act down, there .has been in an express proviso peremptorily restricting the jurisdiction of the circuit and district courts to cases where the defendaIl.t is. an inhabitant of. the distriot; or found therein, at the time ofservirigthe writ. Judiciary Act 1789, §11; Rev. St. U.S. § 739. (The Illodification contained in the act of 1887 ianot to the qqesti9n raised bere.) The authorities cited, both prior s.n(l subsequent to the.act of 1872, hold that this proviso is not affected by general