Manro

V.

Almeida,

1825. 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.

The record in this cause sets out the libel, the demurrer, and the decision of the Court upon the demurrer. So far the case is consistent and intelligible; but the record contains, also, a petition for the sale of certain attached goods, a survey of the goods, and a decision against the petition, but no exhibition of the process or mode by which these goods came into the custody of the Marshal. As the decision of the Court sustains the demurrer, we are left at a loss upon the record, to discover how process of attachment came to be issued. To obtain such process is the very prayer of the libel, and the decision of the Court is against that prayer.

All the solution that the case presents, is to be

found in the argument of counsel, and their mutual admissions.

1825.

Manro

V.

The clerk, it seems, issued the attachment as process of course, and the respondent, instead Almeida. of moving to quash it for irregularity, appeared to the libel, filed his demurrer, and was content to let the regularity of the attachment abide the decision of the Court upon the general questions raised upon the libel. The Court appears. to have treated the subject under the same views, since the decree of the District Court, after dismissing the libel, contains an order, "that the goods, chattels, and credits attached, be restored, with costs;" which decree was affirmed pro forma in the Circuit Court.

Upon this state of the case the cause has been argued, as one bringing up to this Court a question on the regularity of the process issued by the clerk; and if the process so issued, and the return of the Marshal upon it, and a motion to quash the writ, had been set out on the record, there is no question that the appeal would have brought up the whole subject. But as the record is deficient in these particulars, we do not perceive how we can take notice of that part of the Judge's decision which orders the restoration of the goods attached.

We must, therefore, confine ourselves to the questions raised on the libel and demurrer.

The immediate question presented is, whether the Court below erred in refusing to the libellant the process of attachment on the case made out in his libel?

1825.

Manro

V.

Almeida.

The Courts

And this resolves itself into two questions; the first arising on the right, the second on the remedy of the case. It must be here noticed, that the legality of the seizure made by Almeida is not now in question; that question may be undergoing adjudication, for aught we know, in a Court of competent jurisdiction, and we are not to be understood as prejudging the influence which the decision of a foreign tribunal may have upon the final adjudication between these parties. The defendant has demurred under protest, and the only question now is, whether the libellant has made out, prima facie, a good cause for relief in the admiralty.

The ground of complaint is a maritime tort, of the United the violent seizure on the ocean of a sum of

States have je

risdiction, as

maritime ju

risdiction, in

cases of mari

proceeding in personam

Courts of ad money, the property of the libellants. That the miralty and libellant would have been entitled to admiralty process against the property, had it been brought time torts, an within the reach of our process, no one has questioned. The only doubt on this part of the subject is, whether the remedy in personam, for which this is a substitute, (or, more properly, the form of instituting it,) can be pursued in the admiralty.

as

well as in rem.

On this point we consider it now too late to express a doubt. This Court has entertained such suits too often, without hesitation, to permit the right now to be questioned. Such was the case of Maley v. Shattack, (3 Cranch, 458.) Such is the principle recognised in Murray v. The Charming Betsey, (2 Cranch, 483.) where the Court decrees damages against the libel

lant. Such, also, was the principle in the case of the Apollon, (9 Wheat. Rep. 362.) in which the libel was directly in personam, and damages decreed. We consider that question, therefore, as not to be stirred.

1825.

Manro

V.

Almeida.

of the United

risdiction, may

CPFS of atto

compel ap

of tort

and

The remedy by attachment, also, to compel ap- The Courts has very respectable support pearance, in proprece- States, ceeding as dent. In the District Court of South Carolina, Courts of admiralty and during the administration of a very able admi- maritime juralty Judge, it was resorted to habitually, both issue the proin cases of tort and contract. (Bee's Adm. Rep. Cachment 141. The case of Del Col v. Arnold, (3 Dall. pearance, Rep. 333.) is the only one we know of, in which both in cases any view of this question appears to have been contract. presented to this Court. And there, undoubtedly, the exception taken was not to the issuing of the attachment in the abstract, but to the issuing of it against a prize made from a friendly power, before the property had been devested by condemnation. The response of the Court on this point would seem to imply something more, since their decision is reported to have been, "that whatever might originally have been the irregularity in attaching the Industry and cargo, it is completely obviated, since the captors had a power to sell the prize, and by their own agreement they have consented that the proceeds of the sale should abide the present suit."

Still there is nothing to be deduced from this case which can affect the question now under consideration. The point, as stated to have been presented to the Court in argument, was certainly one of which a captor could not avail him

Manro

V.

1825. self, and the original owner of the prize was not in Court. And although the Court would appear to have had the present question in view when Almeida. disposing of that point, yet it is only noticed arguendo, as they pass on to take a ground which precluded the necessity of considering the point made in argument.

We, therefore, consider this altogether a new question before this Court.

The jurisdiction of the admiralty rests upon the grant in the constitution, and the terms in which that grant is extended to the respective Courts of the United States. The forms and modes of proceeding in causes of admiralty and maritime jurisdiction, are prescribed to the Courts by the second section of the Process Act of 1792. In the Process Act of 1789, the language made use of in prescribing those forms implied a general reference to the practice of the civil law; but in the act of 1792, the terms employed are," according to the principles, rules, and usages, which belong to Courts of admiralty, as contradistinguished from Courts of common law."

By the laws of Maryland, the right of attachment may be asserted in the Courts of common law, and the Court below appears to have considered the libel in this instance as an attempt by the libellant to avail himself in the admiralty of the common law remedy by attachment. The forms of the libel must determine this question, and there we find the prayer expressed in these words: "To the end, therefore, that your libel