CHAPTER XVII. FINAL PROCESS. THE old Twenty-First Admiralty Rule of the Supreme Court provided that "In all cases where the decree is for the payment of money, the libellant may, at his election, have an attachment to compel the defendant to perform the decree, or a writ of execution in the nature of a capias and of a fieri facias, commanding the marshal or his deputy to levy the amount thereof of the goods and chattels of the defendant, and for want thereof to arrest his body to answer the exigency of the execution. In all other cases the decree may be enforced by an attachment to compel the defendant to perform the decree; and upon such attachment the defendant may be arrested and committed to prison until he performs the decree, or is otherwise discharged by law, or by the order of the court." In 1862, this rule was abolished, and the following rule substituted for it: "In all cases of a final decree for the payment of money, the libellant shall have a writ of execution in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipulators." 1 This rule seems more particularly applicable to suits in personam, for in suits in rem the process is a decree of sale, directing the marshal to sell the property and to pay the proceeds into court. We have already considered the liability of stipulators, and also whether a defendant or stipulator can be arrested if imprisonment for debt is abolished or modified in the State by the law of the State, and only remark here that final process by arrest in any case seems to be taken away by the abolishment of the TwentyFirst Rule and the passage of the new rule. 1 1 Black, 6. 2 See ante, p. 414, 415. See ante, p. 388-390. How far this rule is modified by the act of 1867, may perhaps be questionable.1 It was at one time doubted whether an execution could run against the land of the defendant or stipulator,2 but this is now provided for by the rule above cited. It is provided by statute that judgment or decrees rendered after the fourth day of July, 1840, in the circuit and district courts of the United States within any State, "shall cease to be liens on real estate or chattels real in the same manner and at like periods as judgments and decrees of the courts of such State now cease by law to be liens thereon." 3 Executions obtained for the use of the United States in any of the courts of the United States, in one State, may run and be executed in any other State, or in any of the Territories of the United States, but shall be issued from and made returnable to the court where the judgment was obtained. And all writs of execution, upon any judgment or decree, obtained in any of the district or circuit courts of the United States, in any one State, which is or may be divided into two judicial districts may run and be executed in any part of such State, but shall be issued from, and be made returnable to the court where the judgment was obtained.5 Interest is allowed on all judgments in civil cases recovered in the circuit or district courts, in all cases where, by the law of the State in which the court is held, interest may be levied under process of execution on judgments recovered in the courts of such State, tó be calculated from the date of the judgment, and at such rate per annum as is allowed by law on judgments recovered in the courts of such State.6 It seems hardly necessary to state that if the property sued in rem is not sufficient to pay the amount due, other property of the owner cannot be attached.7 1 See ante, p. 389. See ante, p. 414. Act of 1840, c. 43, § 4, 5 U. S. Stats. at Large, 393. CHAPTER XVIII. OF APPEALS. SECTION I. OF APPEALS FROM THE DISTRICT TO THE CIRCUIT COURT. THE act of 17891 provided, "That from final decrees in a district court in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeds the sum or value of three hundred dollars, exclusive of costs, an appeal shall be allowed to the next circuit court to be held in such district." The second section of the act of 1803 2 provides, "That from all final judgments or decrees, in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the circuit court next to be holden in the district where such final judgment or judgments, decree or decrees may be rendered; and the circuit court or courts are hereby authorized and required to receive, hear, and determine such appeal." This section then provides for an appeal from the circuit court to the Supreme, and after using the word "appeal" in the singular several time, provides "that such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error; and that the said Supreme Court shall be and hereby is authorized and required to receive, hear, and determine such appeals." The question is whether this clause applies to appeals from the district court to the circuit, and whether such appeals are subject to the rules prescribed for writs of error. If it were not for the last part of the preceding clause, it might well be argued that the 1 Act of 1789, c. 20, § 21, 1 U. S. Stats. at Large, 83. * Act of 1803, c. 40, § 2, 2 U. S. Stats. at Large, 244. use of the word "appeal" in the singular, in speaking of an appeal from the district court to the circuit, and from the circuit to the Supreme Court, and then the use of the word "appeals" in the plural, showed conclusively that all appeals were to be subject to the rules prescribed for writs of error. The last part of the clause gives the Supreme Court jurisdiction over "such appeals." This cannot mean appeals from the district court to the circuit, but must be limited to appeals from the circuit to the Supreme Court, and hence it follows that the provision in regard to the rules prescribed for writs of error applies only to appeals from the circuit to the Supreme Court. It is also to be noticed in confirmation of this view that under the act of 1789, only civil cases were taken from the district court to the circuit, by writs of error, while admiralty cases were taken from one court to the other by appeal. The only effect then of the act of 1803 on the act of 1789, in regard to appeals to the circuit court is to reduce the sum or matter in controversy from three hundred to fifty dollars.1 In accordance with this view, it has been held that the appeal must be made to the next circuit court,2 and that an appeal may properly be entered at the term of the circuit court which is begun next after the entry of the decree in the district court, although the term of the district court during which the decree was entered had not ended when the term of the circuit court began.3 This appeal must, unless there is a special rule of the court to the contrary, be taken in open court, and before the adjournment of the court without day. But a party is not bound to appeal till the decree is regularly drawn up and entered, and if it is not drawn up till vacation, the court cannot have it entered as of the 1 There is a dictum to this effect in United States v. Nourse, 6 Pet. 470, 496. On the authority of this dictum Mr. Justice Curtis, in United States v. Certain Hogsheads of Molasses, 1 Curtis, C. C. 276, said a question respecting an appeal from the district to the circuit court must depend on the construction of the 21st section of the Judiciary Act of 1789. * United States v. Brig Glamorgan, 2 Curtis, C. C. 236. United States v. Certain Hogsheads of Molasses, 1 Curtis, C. C. 276. Norton v. Rich, 3 Mason, 443. The Forty-Fifth Admiralty Rule provides that "all appeals from the district to the circuit court must be made while the court is sitting, or within such other period as shall be designated by the district court by its general rules or by an order specially made in the particular case." preceding term, but should continue it till the next term, as unfinished business.1 The Forty-Fifth Admiralty Rule allows, as we have seen, the district courts to provide rules for the regulation of the time of appeals, and also allows the court to make a special order in a particular case. By an old rule of the district court in Massachusetts, appeals might be claimed at any time within ten days after the decree was entered. The practice under this rule in the district court was to include Sundays within the ten days; but in one case, where the appeal was refused because not claimed within. ten days including Sundays, Mr. Justice Woodbury, in the circuit court, held that it should have been allowed, and, on appeal, the Supreme Court were equally divided.2 To settle the matter, the district court made a new rule in accordance with their former practice, including Sundays within the ten days. Mr. Conkling is, however, of the opinion that the act of 1803, · prescribing the rules applicable to writs of error, applies to appeals from the district to the circuit court; and Mr. Justice Nelson, misled by Mr. Conkling, fell into the same mistake, but afterwards retraced his steps.5 If the appellant deserts his appeal, the circuit court may remit the case to the district court, or may retain it and affirm the decree of the district court.6 If an appeal is wrongfully disallowed in the district court, the 1 Steamboat New England, 3 Sumner, 495. 'Reed v. Peck, United States Sup. Ct. Dec. T. 1852. This case has never been reported. 32 Conkling, Adm. 2d ed. 397. In The Ellen, 4 Blatchf. C. C. 107, it was held that no citation was required by these statutes in case of an appeal from the district to the circuit court; and that a written notice by the proctor of the appellant to the proctor of the adverse party was all the notice that was required by the rules of the court. Nelson, J., said: "The 21st section of the Judiciary Act of 1789, provided for appeals in admiralty from the district court, but made no provision for a citation. This section was amended by the 2d section of the act of March 3, 1803, which reduced the amount necessary to the right of appeal, but made no change as to the mode of practice in bringing it. On a careful examination of that act, I am satisfied this is the true construction of the 2d section, so far as it applies to an appeal from the decree of the district court." • Privateer Montgomery, v. Schooner Betsey, 1 Gallis. 416. |