U. S. District Court.-Gaines v. Travis.

There is no pretence that any parol notice was given by the holders of the note, to the endorsers, in the case of the Cayuga County Bank vs. Warden & Griswold. That was not done. The notice served was partly printed and partly written, and in the language of Judge Mullett, in the case of Dole vs. Gold, "that must speak for itself. A copy of the note and notice are before the reader; each one of whom is fully competent to decide, whether the note for the recovery of the money mentioned, in which the endorsers were sued, was or was not described in the notice of protest, or whether another or different, or some imaginary or supposed contract was described.t

The conclusion is inevitable, either the case of the Cayuga County Bank vs. Warden & Griswold, was decided wrong, or the holder of an endorsed note is not bound to describe the note in the notice of protest to charge the endorser with the payment of it.

LEGES.

[Much interest has been excited in the profession, particularly in the Admiralty Courts, as to the effect and operation of the non-imprisonment acts of Congress in this state on process in personam, issuing out of these Courts; we have obtained for publication two decisions made on the subject by the U. S. District Court of this district, and propose to publish them for the information of the Bar. One of the cases appears in this number. The other will appear in our next. The cases are referred to in Marshall v. Bazin, 7 N. Y. Leg. Obs. 342.]

U. S. District Court.

Southern District of New-York.

[IN ADMIRALTY.]

Before the Honorable SAMUEL R. BETTS.

LEVI GAINES V. JOHN H. TRAVIS. 22 January, 1849.

PERSONAL ARREST UNDER U. S. PROCESS.-POINTS OF PRACTICE, &C.

It is not necessary for either party to give other notice of a final decree than by using the proper means for enforcing it.

It is not incumbent upon a party to notify another, when the time for appealing will expire. In case of surprise or misapprehension the court will always interfere and enlarge the time for appealing and will stay execution to that end.

A stipulator under his stipulation, is by the rules of the Supreme Court of the United States placed in a situation where a decree against the principal may at the same time be final against him, and nothing be left open for him to question as between the original parties, after a decree on the merits.

* N.Leg al Observer, vol. 7,

p. 247.

+ Id. 114.

U. S. District Court.-Gaines v. Travis.

The term "summary' as applied to process, means 'immediate, instantaneous,' as contradistinguished from the ordinary intermediate applications and delays; the court, however, possesses full authority over it while in course of execution.

Under the rules of the Supreme Court, a direction to arrest the person, in case no property can be found, may be [combined with a fi. fa.—the stipulator becomes subject to the same process with his principal by virtue of those rules and regulations.

The acts of Congress, passed Feb. 28th, 1839, and Jan. 14th, 1841, (4 L. U. S. 321—410,) abolishing imprisonment for debt on process issuing out of Courts of the U. S., considered in connexion with the laws of New-York, relating to non-imprisonment (1 R. S. 807, § 1,) in force at the time of their enactment, do not apply to proceedings in Courts of Admiralty: their practice remains as regulated by the Acts of Congress, 1789 and 1792 and 1793, and as altered by the courts, under the authority of those and a subsequent statute. The intention of the Act of Congress, passed August 23d, 1842, (4 L. U. S. 516, § 6,) was carried out and embodied by the rules and regulations of the Supreme Court, January term, 1845, and they fully authorize the form of process and arrest, employed in the present case. The 153 Section of the Code of Procedure, passed April 12th, 1848, would give to defendants in Courts of Admiralty the same exemption as defendants have under process from courts of law and equity, but for the Act of Congress, passed August 23d, 1842, in connexion with the rules of the Supreme Court of January, 1845, which prevent its application to Admiralty process.

The unquestioned and uninterfered-with practice under those rules, for some years within the notice of the Supreme Legislature, furnishes a strong inference, that the existing form of practice is pursuant to the intention of the law and regulations under which it has been continued.

The facts of the case appear in the opinion.

Mr. Nash, for Plaintiff.

Mr. Sanxay, for Defendant.

Per Curiam.-This is a motion, on behalf of McKee, the stipulator for the respondent in the cause, to set aside all proceedings therein subsequent to the final decree, and also to discharge McKee from arrest on a capias ad satisfaciendum issued upon the decree.

It appears upon the papers and minutes of court, that the cause was brought to hearing upon proofs taken in court, in September term

last.

The matter in contestation, was the liability of the respondent to pay to the proctor of the libellant, the taxable costs which had accrued in the cause.

Circumstances intervened after the argument, which prevented the court considering and deciding the cause until November term last, when a decree was rendered in favor of the libellant.

Early in December, his proctor served on the proctor of the respondent, a copy of the bill of costs, with due notice of taxation.

This bill was returned by the respondent's proctor, in a written note, stating that he "had not yet received any notice of any decision in the case, and when I do, if it is against me, I shall, I think, most certainly appeal." This note was dated December 5th. The libellant's proctor proceeded notwithstanding, to tax his costs, and having perfected his decree, issued a writ of execution thereon.

The decree entered was against the respondent and McKee, his bail or stipulator, for the amount of taxed costs, and on the execution, McKee was imprisoned.

U. S. District Court.-Gaines v. Travis.

These proceedings, it is charged, are without warrant of law and wholly irregular; first, because the decree was inoperative against the respondent, until a copy, with notice of its entry, should be served on the proctor of the respondent; and secondly, because the libellant took a final decree summarily, at once against the bail or stipulator, without any process against him or notice, and followed such decree by pre-emptory process of arrest.

It is further contended, that if the proceeding to final decree and execution is supported by the court, the respondent and his surety, are by the laws of the United States exempt from imprisonment, and that the bail is accordingly entitled to his discharge.

The first objection is not tenable. This court does not pursue the practice of the English Admiralty and Ecclesiastical Courts, in the particular of edicts and monitions to parties to appear in court, and hear sentence, or perform it, or to admonish their fidejussors to do so. 2 Br. Civ. and Ad. 407, 429, 356. Clarke's Praxis, 63, 64, 65.

The multifarious proceedings connected with the progress of a cause, through its different stages in those courts, are here dispensed with, and after issue, an admiralty cause is put upon the calendar, brought to hearing and disposed of, substantially in the same manner as suits in the common law courts. (Betts' Pr. 98.)

There is nothing in the rules of this court, or of the Supreme Court, rendering it necessary for either party to give the other notice of a final decree, otherwise than by the proper means for enforcing it; nor does it appear that there are traces of such practice in any of the United States Courts. (Dunlap's Ad. P. 301. Conklin's Ad. Pr. 703.)

If the case is appealable, the decree cannot be executed in this court, within ten days after it has been rendered; (rule 152,) but it is not incumbent upon the party obtaining the decree to admonish the other when that period of delay will expire.

The entry "apud acta" is notice to all parties. The delay of execution, is for no other purpose than to further the party's right to appeal.

In case of surprise or misapprehension the court will always interfere and enlarge that time and stay execution until a reasonable opportunity is afforded to perfect an appeal. Except to that end, the practice in this court extends no indulgence or privilege to the parties to the suit, to be notified or advised in respect to the final decree. The libellant accordingly committed no irregularity in not serving a copy of the decree on the respondent or his proctor.

In the present case, it is proved and admitted, that the respondent's proctor was informed by the deputy clerk, that the decree was rendered before he received the bill of costs with notice of taxation, which of itself was sufficient intimation to put him on inquiry.

The proceeding excepted to by the second objection is comparatively a novel one in the practice of this court, and therefore deserves more critical attention.

Under the standing rules and usage of the court, it had formerly been necessary, in order to enforce the undertaking of stipulators, to

U. S. District Court.-Gaines v. Travis.

proceed by independent orders and notices, after the lapse of ten days, to bring them before the court to show cause why execution should not issue against them. (Rule 145. Betts' Pr. 98.)

But not only the obligation of stipulators fixed by the rules of this court, but also the remedy against them have been essentially altered by the rules of the Supreme Court.

The bond or stipulation in this case was taken under those rules. (Sup. Court, rule 3,) and the condition prescribed by that rule is, that the respondent will appear in the suit, and abide by all orders of the court interlocutory or final in the cause and pay the money awarded by the final decree rendered in court. And the rule provides that upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties by the court, to enforce the final decree."

It appears this is a well-considered direction of the court, for the same language is repeated in Rule 4.

The practice in the Massachusetts courts had been long in conformity with those rules, (Dunlap Pr. 301-3,) and in this court, since 1838, execution issued summarily against stipulators, if the original decree was not satisfied (Rule 59,) although the stipulators were charged by distinct proceedings. (Rule 145.)

Under the U. S. Supreme Court rule, however, execution goes against stipulators upon the decree against the principal. The sureties subjecting themselves by force of their undertaking to abide and fulfil the decree against the principal. (Conkling Ad. Pr. 459, 774.) This perhaps does not go beyond the familiar practice in all courts, of placing parties having a common interest, by their private agreements or stipulations, or by express order of the courts, in a situation that all shall abide the litigation with one, and in such cases, a judg ment or decree against that one, is made to have the like effect against all.

The stipulator binds himself to pay the money decreed against the principal.

There is nothing left open for him to question, as between the original parties, after a final decree fixing the liability of the principal. If admonished or cited by sci. fac. he could not be permitted to set up error of any kind in the decree, or surrender the principal, or invoke prior execution upon his property, and all the advantage of such after proceeding would be to afford longer delay to him in producing the money to be paid.

The court, however, accepts his undertaking as placing him in a common predicament with his principal, and as submitting himself to the same processes upon the decree. (Conkling Pr. 774.)

The execution taken out in this case was therefore authorized by Rule 4, and is in conformity with the directions of Rule 21, and the objection to this method of proceeding cannot therefore be supported.

The term summary, when used in relation to process, means immediate, instantaneous. This in no way interferes with the authority of the court over it whilst in progress of execution, but it issued summa

U. S. District Court.-Gaines v. Travis.

rily in contradistinction from the ordinary course, by emanating and taking effect without intermediate application or delays.

The last point raised is, as to the effect of the non-imprisonment acts of Congress and this state, and whether the stipulator in the cause is subject to arrest and imprisonment upon the final decree against him.

A question was made as to the regularity of process of execution against the stipulator, it combining a fi. fa. against the property, with direction to arrest the person in case no property was found to satisfy the decree.

This objection is not tenable. Under Sup. Court Rule 3, the stipulator becomes subject to the same decree and process with his principal, and this execution is in the form authorized by Supreme Court Rule 21.

The two acts of Congress abolishing imprisonment for debt on process issuing out of the Courts of the United States were passed, February 28th, 1839, and May 14, 1841 (4 Laws U. S. 321, 410.)

The second act is supplementary to and declaratory of the first, and directs it to "be so construed as to abolish imprisonment for debt on process issuing out of any court of the United States in all cases whatever, where, by the laws of the State in which the said Court shall be held, imprisonment for debt has been, or shall hereafter be abolished." The act of 1839, in terms applied only to the laws of the State existing at the time of its enactment.

The Revised Statutes of New-York, in force, when both acts of Congress passed, direct that no person shall be arrested or imprisoned on any civil process issuing out of any court of law, or any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree, founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages from the non-performance of any contract. (1 R. S. 807 § 1.)

Regarding the State Statute as made part of the act of Congress in all its language, it is manifest that it does not in terms reach proceedings in the courts of admiralty.

Civil process issuing out of a court of law, would not embrace an execution issuing out of a court of equity, and accordingly it was necessary specially to interdict imprisonment on the latter, to carry out the intention of the legislature.

The distinction between courts of law, equity and admiralty, is pointedly marked in the constitution and laws of the United States. (Const. Art. 3. Process acts of Congress of 1789, 1792 and 1828. 1 Stats. U. S. 93, 276.) The forms of writs, executions and other process and the forms and modes of proceeding in suits in those of common law, shall be the same in each State as used or allowed in the Supreme Court thereof, in those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively as contradistinguished from courts of common law.

VOL. VIII.

7