Manro V. Almeida. 1825. pearance. But, it is equally clear, that upon the third default in personal actions, the goods arrested were estreated, and, after a year, finally abandoned to the plaintiff. But as this proceedpro- ing was too dilatory for the movements of the may be con- admiralty, the condemnation and sale, after proof demned upon of the cause of action, was substituted for it. The perty attached a default. The remedy civil criminal of racy. There was, therefore, nothing incorrect in uniting the prayer for condemnation with the acknowledged end of forcing an appearance; and if there had been, it was no ground for refusing relief as far as the claim was sustainable in the admiralty. It may be remarked here, that the case is somewhat embarrassed by the state of the pleadings, inasmuch as, after appearance, it is hardly conceivable on what ground the attachment could be granted. It would seem, that the defendant, for some cause, had been permitted by the Court to appear and plead without giving bail to the action. There are such causes known to the practice of the civil law, and we are compelled to take the case as we find it. It has been further argued, that as the libel merged in the alleges the trespass complained of to have been fence of pi- piratically done, the civil remedy merges in the crime. But this we think, clearly, cannot be maintained. Whatever may have been the barbarous doctrines of antiquity about converting goods piratically taken into droits of the admiralty, the day has long gone by since it gave way to a more rational rule, and the party dispossessed was sustained in his remedy to reclaim the Manro property as not devested by piratical capture. It 1825. is hardly necessary to quote authority for this doctrine, but it will be found to have been the rule of justice as early as the reports of Croke and Ventris. If the party may recover his property, why not recover the value of it from any goods of the offender within reach of the admiralty? We think the doctrine of merger altogether inapplicable to the case. was confined to felonies, and piracy was no felony at common law. Even at common law, it v. Almeida. cessary that to be attached cified in the On the question, whether the property to be It is not neattached should have been specified in the libel the property or process, we have before remarked, that as should be speneither the process nor return is before us, we libel. can express no opinion respecting its form. The libel contains no specification of the articles to be attached, and if this were fatal, the demurrer might have been sustained. But, pursuing the analogy with the civil law process to compel appearance, we can see no reason for requiring such a specification. There is no reason to conclude, that the decree for attachment issued against the recusant at the civil law, was otherwise than general. And although the other course may be pursued, and might be most convenient and satisfactory, yet we know of no imperative rule upon the subject. The authority on which the libel was filed sanctions the general language in which it is couched. The last point made in argument was, whether the process of attachment could issue without an an Manro V. 1825. order of the Judge. But here, again, we have to remark, that we can take no notice of the circumstances under which the writ actually did issue. And, looking to the libel, it appears to It seems, that have been its express object to obtain such an Almeida ment issue attach cannot without order from the Court. That the process of atan express or tachment at the civil law did not issue of course, der of the may be issued ly against the Judge, but it is very well known. It was obtained for contusimultaneous-macy after monition; and analogy, as well as pubmonition lic convenience, would seem to render the Judge's defendant, and order necessary. Yet, we see no objection to And where the pursuing the prayer of the libel, and issuing it sued in this simultaneously with the monition; the purposes in pursuance of justice would seem to require that course. viis et modis. attachment is manner, of the prayer of the libel, Upon the whole, we are of opinion, that for a this Court will maritime trespass, even though it savours of pi presume ly issued. that it was regular-racy, the person injured may have his action in personam, and compel appearance by the process of attachment on the goods of the trespasser, according to the forms of the civil law, as ingraftThe remedy ed upon the admiralty practice. And we think in the admi-it indispensable to the purposes of justice, and time cases, the due exercise of the admiralty jurisdiction, where the that the remedy should be applied, even in cases by attachment ralty, in mari applies even sa me goods are liable to Where the same goods may have been attachable the process of at foreign under the process of foreign attachment issuing from the common law Courts. For it will neces tachment is suing from the Corrts of common law. sarily follow, in all such cases, that a question peculiarly of admiralty cognisance, will be brought to be examined before a tribunal not competent to exercise original admiralty jurisdiction; and that, as a primary, not an incidental question; since the whole proceeding will have for its object to determine whether a maritime trespass has been committed, and then to apply the remedy. Judgment reversed, and the cause remanded for further proceedings. 1825. The Gran Para. The GRAN PARA. [PRACTICE.] The Consul General of PORTUGAL, Libellant. Where the Court of Admiralty has parted with the possession of the property, upon bail or stipulation, and it is necessary, for the purposes of justice, to retake the property into the custody of the Court, the proper process against any person not a party to the stipulation, but who is alleged to have the actual or constructive possession, is a monition, and not an execution, in the first instance. THIS is the same case which was reported ante, vol. VII. p. 471. and was an appeal from proceedings had in the Court below, under the mandate of this Court in the original cause. The cause was argued by Mr. D. Hoffman, Feb. 24th. for the appellant, and by the Attorney General and Mr. Taney, for the respondent. But as the present determination of the Court was confined to the single point of practice, without affecting the other questions involved in the cause, it has 1825. The Gran Para. March 1st. not been thought necessary to report the arguments of counsel. Mr. Justice STORY delivered the opinion of the Court. This is an appeal from the Circuit Court for the District of Maryland, from proceedings had in that Court under the mandate of this Court in the original cause, which is reported in 7 Wheat. Rep. 471. The material facts are these: The original libel was against sundry quantities of gold and silver coin, and bullion, deposited by Daniels in the Marine Bank of Baltimore. A claim was interposed by one Nicholas Stansbury, asserting himself to be "agent and attorney, in fact," of Daniels, on behalf of the latter, and claiming restitution of the property as lawfully captured in war by Daniels. Pending the proceedings in the Court below, Stansbury made application for the delivery of the property upon stipulation, and thereupon the Court ordered, that J. D. Daniels be permitted to draw for, and the President and Directors of the Marine Bank be suffered to pay to Daniels, the money in controversy, provided, that Daniels should enter into a stipulation in 23,000 dollars, with such surety or sureties as might be approved of by the libellant's proctors, to abide such further order or decree, either interlocutory or final, as might be made by the Court in the premises. The libellant's proctors approved of Stansbury, and one Thomas Sheppard, and one Henry Didier, jun. as sure |