dence as prima facW valid sales." The same article of the constitution declares that, prior to the sale of property for taxes,the delinquent shall have notice which shall not be by publication, except in case of unknown owner, and that the property shall be advertised for sale in the manner provided for judicial sales. The act of 1888 presumes notice and advertisement, and, as a healing act, it dispenses with the constitutional requirements to a valid tax-sale. The act is retrospective with regard to assessments and adjudications prior to 1888. See article 8, Rev. Civil Code; article 155, Const. La. It purports, in terms, to cure defects that under the settled jurisprudence of the state are absolute nullities. It is a legislative declaration on the part of the state of title in itself. These objections are so serious that at present I am not prepared to give full effect.to said act in this case, nor, in fact, any more effect to defendant's deeds of sale as evidence than the constitution of the state declares deeds of sale made by collectors of taxes shall have. The case may be prepared for final hearing, and then submitted to a full bench. In the mean time, the injunction pendente may issue on complainant's 'giving bond, with security, in the sum of $2,000.
Wor.F et ale tI.
(OtrcuU Court, E. D. Wisconsin. November 25, 1889.)
Rev. St. Wis. §§ 2829, 2830, require the courts to disregard any errors not aft'ectiDgsubstantial right, and give power to amend any process by correcting mistakes. at any stage in the proceedings. Rev. St. U. S. §§ 948, 954, provide that the courts may allow amendment of any process when the defect is not prejudicial, and that. no writ shall be abated or quashed for want of form. Section 646 provides that on removal of a suit from the state court any attachment shall hold the goods, the same as under the state laws. that where a seal is omitted by mistake from a writ. of attachment issued in a suit begun in a Wisconsin court, but removed to the federal court, the latter court will regard the writ as amended in that particular, as it would have been 80 amendable under the state laws. 'I. SAME-W AlVER. " By mOVing to set aside the levy on other grounds, and failing to object to the defective writ before filing the statutory bond for the release of the property, defendants waive ail objection to.tbEl writ.
AMENDlllENTS-WRIT Oll', ATTAOHlllENT.
By giving bond and receiving restitution of the property seized, defendants waive . the objection that the property was not subject to attachment.
PLEADING-PENDENCY Oll' PRIOR SUIT.
Pendenc;y of a libel in admiralty aga.inst a vessel is no bar to an attachment suit at law agalDst the owners, for the same cause of action. Whether the levy of an attachment in an action in personam upon the r611 bonded In a proceeding in rem for the same debt Is abuse of process, quwre.
AB'l1SE Oll' PROCESS.
At Law. In 'May, 1889, the plaintiffs brought suit in the circuit court of Milwaukee county, to recover an alleged balance of account of $14,999.41, for servicr-s, materials, and moneys furnished the defendants between
WOLF fl. COOE:.
October 1, 1887. and June 16,1888. At the institution of the suit a writ of attachment was issued against the property of the defendants, as nonreflidents of the state, by virtue whereof the sheriff of Milwaukee county, on the 20th day of May, 1889, seized the steam propeller Huron City, then at the port of Milwaukee, as the property of the defendants. On the 23d of May, the attached property still remaining in the custody of the sheriff, the defendants moved the court to set aside the levy under the writ, because, as alleged, the vessel seized was not subject to attachment in the action. This motion proceeded upon the ground that in June, 1888, the plaintiffs filed their libel in the district court of the United States for the district of Indiana against the propeller Huron City, for the same debt sought to be recovered in this suit, and claimed to be a lien upon the vessel, enforceable in the admiralty. In that admiralty proceeding, process was issued, under which the vessel was seized by the marshal,.and held in custody until the filing of the usual stipulation by the claimants (defendants in this action) in the sum of $25,000, with surety, conditioned to abide and pay the money awarded by the final decree in such admiralty proceeding, when the vessel was released and surrendered into the possession of the claimants, (defendants in this suit.) It was also alleged that the amount claimed by the libel is the same liabilityand claim sought to be recovered in this action. The libel alleges repairs and supplies furnished the Huron City at the port of Milwaukee between October 1, 1887,. and June 16, 1888, and a balance due therefor of $15,149.23. It is conceded that the claim here includes, with other charges, the claim preferred in the libel. The admiralty proceeding is still pending. On the 24th day of May the state court overruled the motion to set aside the levy. On the next day the defendants duly delivered a bond, pursuant to statute, conditioned to pay such judgment as might be rendered in the suit; and thereupon the vessel was released. On the 19th day of June, upon the ex parte application of the defendants, the state court ordered that the defendants' application to vacate the levy "stand for a rehearing," and lIsfligned such rehearing for June 29th. The motion upon which that order was granted alleges for cause that the property attached was not subject to seizure, and. is grounded upon the same facts and records considered upon the original hearing of the motion. The only bew fact disclosed is the giving of the bond, and the release of the vessel, subsequently to the order of May 24th. Upon the 22d day of June the defendants filed in the state court their petition and bond for the removal of the cause to the federal court: and such order was made, accordingly, on that day. The defendants' now here renew the motion pending in the state court at the time of the removal of the cause, for the release of the levy under the writ of attachment. 'fhey reassert here the grounds upon which the motion there was based, and urge the further ground that the writ of attachment was void upon its face, and no lawful levy could btl made thereunder. It appears from the record that the writ issued out of circuit court, but, by misprision of the clerk, was sealed with the seal of the superior court; both courts having the same clerk. The plaintiffs, on their part, move to amend v.40F.no.8-28
the writofa:ttachment byattbdng the proper seal of the state circuit court. by the defendants, who assert that the writ is without seal,· and therefore a mere nullity, and not amendable. Goo. D.VanDyke, for plaintiffs. E. P. Smith and Geo. P. MiUer,·,for defendants. JENKINs,J" (after statingthejact8as above.) Undoubtedly, at common law, an unsealed writ was void. Intmrance Cb. v.HaUock, 6 Wall. 556. The rule grew out of the conditions of society and the necessities of the state. An original writ issued out of chancery, and in the name of the king, the" fountainof all justice." It was a grant of jurisdiction from the sovereign to the court to which it was returnable; a sort of commission to theoourt of law to hear the cause. It was called by Coke "the heart-strings of the common law.» The seal to the writ was the symbol of sovereign power; the authentication to the king's commission, the basis of all jurisdiction. Without the seal, thlt writ was void; conferring no right to the exercise of judicial authority, because the commission lacked the expression orroyal sanction manifested by the great seal of state. Judicial writs were issued by the courts, and bore te8te in the name of the chief justice of the cOUTt by which they were issued. The ·seal of the court authenticated the exercise of delegated judicial authority,notthegrant of jurisdiction, and so possibly was oIinferior consideration. It is in the conditions of ancient society that we must search for the importanceattMhed to the seaL In early timesjwith respect to all instruments, whether private or public, the seal was the chief and essential proof of the authenticity oftbe document. It was guarded with jealous care, to prevent its unauthorized use. One instance is recorded of a seal separable into four parts; the parts assigned to separate keepers, as additional securitY's.gainst its fraudulent employment. In that day the seal upon its face identified its owner. Writing was not common as now,and there was necessity to authenticate the execution of documents by some solemn aot, speaking the consent of the party. The seal met that necessity; as to priva.te writings, a substitute for .the signature. It is, however, a long way from the speaking,seal of that day to the" unsightly excrescence, II the meaningless; printed scroll, or written sorawl, of the present. In themareh of civilization and the diffusion of knowledge, the private seal has'outlived its usefulness. That it still exists an essential to the validity of any private writing, is but another illustration oftha. truth that the customs of a people long survive the necessity which gave them birth. ·'There is much sound common sense in the railing sarcasm of Judge LUMPKIN upon the subject of the seal, in Lowe v. Morria, 13 Ga. 150,-carried, perhaps, too·far, when applied to officialseills. Formality is yet a necessity in theadtninistration of government. Theicompulsion of autO()rity is stillessentialto the well-being of societY,iand authority needs the concomitantS' tMt appeal t<> the senses,exacting obedience,'commanding respect.' The· average mind yet needs mental.erutches.These are found in ceremonial dress, giving
WOLF tI. COOK.
solemnity anll impressing the imagination.·· Without any undue reverence for formality, it is. to my thinking, still most necessary and proper that judicialprocess, and the proceedings of judicial tribunals. should be characterized by such adherence to form and ceremony as shall secure decorum, and add dignity and impressiveness to the administration of justice. But formality should never be permitted to work injustice, or deny substantial right. The importance attached to the seal to writs was founded, not only in the reverence paid to all manifestations of kingly authority, and in the customs of society, but also in the necessities of the state. The seals of courts were lodged with custodians appointed by the king, and the sealing of the writ had to be purchased. This was a profitable source of revenue to the crown, and may have been the chief reason for the stringency of the rule. r find no allthority in England to amend the writ with respect to the seal. As early as the time of Henry VI., parliament intervened to mitigate the rigor of the law, and to preveut miscarriage of justice arising from the subtleties of the common-law lawyers, and the mischievous errors of the cler1ql of courts, and by statute (8 Heti. VI. c. 12,) authorized the courts to amend writs and process issued by them, and to reform all therein arising from misprision of the clerk. This act clearly, I think, did not apply to original writs, which theoretically were issued by the king himself, not out of courts of law, and were sealed with the great seal,-never in the custody of the courts to whom power of amendment was granted by the act. r think, also, the statute had no reference to the seal to judicial writs, since its omission could not arise from misprision of the clerk, who was not its custodian. It was assumed otherwise, however, in Hunter v. Turnpike 00.,56 Ind. 213; but I am referred to, and have found, no decision in England which recognizes any authority to amend any writ,. original or judicial, with respect to the seal. In this country, jurisdiction is vested by the constitution. The matter of revenue, is not present, to complicate the question; and the clerk is custodian of the seal of the courts. There would seem to be no reason why power should not inhere in the court to correct all errors in its proceedings caused by its officers, whether with respect to the seal to a writ, or otherwise. CMSat ratione legi8 CeB8at lex. The power to amend by requiring the omitted of the clerk to the writ is allowed, upon the principle that a court will not permit its suitors to suffer from the misprision. of its officers. I fail to discover any greater sanctity in the seal than in tbe signature of the official charged with the duty of issuing the writ. There are respectabl", authorities holding to the inherent power of courts to amend with respect to the seal. Jackson v. Brown, 4 Cow. 550; People v. Dunning, 1 Wend. 16; People v. Steuben, 5 Wend. 103; Duminick v. Eacker, 3 Barb. 17; Sawyer v. Baker,S Greenl. 29; Seawell v. Bank, 3 Dev.279; Purcell y. McFarland,l Ired. 34; Olark v. Hellen, Id. 421; Cartwright v. Ohabert, 8 Tex. 261; Lowev. M()rns,' 13 Ga. 147; A.r1\9ld v. Nye, 23.Mich. 286, 293. InBailey v. smith, 12 Me. 196, the l\upremEl cpUl'tof Maine held the writ there not 8:mendable with resvect
to a seal, because an original writ, and therein distinguished its former decision in Sawyer v. Baker, supra, involving a final writ. It must be that the writ in Bailey v. Smith was a writ of error, this being the only original writ remaining. I wholly fail to appreciate the distinction drawn, since all writs, with us, emanate from the court. In People v. Steuben, supra, and Lowe v. Morrill, supra, a writ of error was, however, held amendable. The right to amend here need not, however, be rested upon any question of inherent power. The statutes of Wisconsin provide liberally for amendment of all errors. The courts are required to disregard any error or defect in any proceeding not affecting substantial right. Rev. St. Wis. 2829. Power is given at any stage of the action, before or after judgment, in furtherance of justice, to amend any process by correcting a mistake in any respect. Section 2830. The court of final resort of the state has repeatedly construed those statutes to authorize the affixing of a seal to a writ omitted through mistake.. Strong v. Oatlin, 3 Pin. 121; Ccrrwith v. Bank, 18 Wis. 560; Sabi.n v. Austin, 19 Wis. 421. A like liberal rule was applied to amendments of criminal Ke.ehn v. Stein, 72 Wis. 196, 39 N. W. Rep. 372. In other states the same construction has been given to like curative statutes. Talcott v. Rosenberg, 8 Abb. Pro (N. S.) 287; Murdaugh V. McPherrin, 49 Iowa,479; The federal government, equally with the governments of the states, has sought to cure all formal errors. It provides (Rev. St. § 948) that the court at any time may allowamendment of any process returnable to or before it when the defect is not prejudicial, and (ld. § 954) that no writ shall be abated, arrested. quashed, or reversed for defect or want of form. It is, howe\rer, insisted that, the writ being absolutely void, under the rUle of the federal court in Insurance Co. v. Hallock, 8Upra, there was nothing to amend. If that be so, an anomalous result would follow. Here is a writ that, abiding in the state court, was not void,-merely defective, and amendable; Under the highest judicial authority of the state, it was a valid protection to the officer executing the writ. By the simple process of removal of the cause to the federal court, because 0;' the diverse citizenship of the parties, that which was valid and effective 'becomes void, and as though it had never been,-a mere waste piece of paper. The executive officer of the state court, who, prior to the removal of the cause, was justified in the execution of the writ, by the mere act of removal becomes a trespasser ab initio. It would require a precise declaration of superior and constraining authority to require me to; hold to such absurdity. I do not so read the decision in Insummce 00. v. Hallock. There no question of inherent power to amend, or of amendcurative statutes, was invoked. Indeed, the statute of process by' the federal courts (Rev. St. 948) was enacted subsequently to that decision. The court, in its opinion, refers to the case of Overton v. Cheek, 22 How. 46, holding that a writ Of error was void for want of a.seal. Yet, since the statute, (17 St. 197,) it has been ruled by that court that a writ of error may be amended, where the seal to the writ is wanting; Semmes V. U. S., 91 U. S. 21, 24. The ruling of Pomeroy's
WOLF tl. COOL
Leaseev. Bank, 1 Wall. 592, cited in Insurance 00. v. Ha71ock, thata bill of exceptions must be under the seal of the judge, would seem overruled by Generes v. Oamphe71, 11 WalL 193, but upon other grounds than here considered. In Tilton v. Oofield, 93 U. S. 167, the court cites approvingly the case of Talcott v. Rosenberg, supra, holding that a writ may be amended by adding the seal. The power so to amend has been nized in otherfederal courts, (Peaslee v. Haberstm, 15 Blatchf. 472; Dwight v. MerriU, 4 Fed. Rep. 615; Paper Co. v. Paper Co., 19 Fed. Rep. 252,) and is clearly within the intendment of the conformity act, (Rev. St. § 914.) The question affects the legality of a writ authorized by a state statute, and issued out of a smte court, and its reformation under the laws of that state. Under the statutes of that state, as ruled by its highest tribunal, the writ was voidable,-not void,-and was amendable as to the seal. In such case the federal courts follow the construction of the state statute, declared by its court of last resort. Bacon v. I'TUW!." anee Co., 131 U. S. 258, 264,9 Sup. Ct. Rep. 787. Removal proceec:. ings possess no quality to invalidate what was valid. The case come:. here as it stood when jurisdiction was yielded by the state court. Duncan v. Gegan, 101 U. S. 810. Whatever was valid there is valid here. Rev. St. § 646/ (18 St. 470.) Whatever was amendable there can be corrected here. Whatever defect was waived there is waived here. The removal is not effectual to work destruction to valid but defective process of the state court. It would be gross perversion of justice to permit it. I know of no federal authority, properly read, that would sane-tion it. The defendants cannot now complain of the defective writ. They waived all objection on that score by moving in the state court to set aside the levy thereunder upon other grounds, and by failure to raise the objection· prior to lhe release of the property to them upon filing bond for the debt. Rev. St. Wis. §§ 2742-2744; Dierolfv. Winterfield, 24 Wis. 143; Bank v. KUder, 124 U. S. 721, 728, 8 Sup. Ct. Rep. 718. It is not now'practicable to cause the proper seal to be affixed to the writ, since the state court is divested of all jurisdiction of the cause. It would seem just, in the peculiar conditions, to enforce the equitable to have been doctrine that the court will deem that done which done. It will therefore be ordered that the writ stand amended, and be held valid and effectual, to all intents and purposes, as though the proper seal had been affixed thereto. The pendency of the admiralty proceedings could not be well pleaded to the attachment suit. The one is a proceeding in rem, against the vessel; the other, an action in personam, against the owners. !fhe two proceedings are also in different jurisdictions. Harmer v. Bell, The Bold Buccleugh, 22 Eng. Law & Eq. 62; Insurance Co. v. Wager, 35 Fed. Rep. 364. But whether or not it is an abuse of process to levy an attachment in the action in personam upon the·res that was bonded in the proceeding in
lTbis section provides, 'Inter alia, that on removal of a suit from a state court, any attachmentshall hold the goods in the same manner 88 by-the laws of the state it would have held them.
remfdrthesa'me debt is'quiteanClther question. By her discharge in the admiralty UpOh stipulation to meet the decree, the.veasel is freed of the lien. sought to be enforced against her in that proceeding. 'fhe libelants could not have reCQurs.e .to .the ship again for the same claim, except, possibly.; as they might have17esort to any other property of the And, while, technically, the right may exist to proceed against the owner in personam for the sattle debt, and in tll.at action to attach the vessel,. I inclined to the opinion that courtsshould view such a ptoceedingwith great distrust, as burdensome and oppressive, and an abuse of the process of the court. The Bold Buccleugh, supra, holds not to the contrary. There, in. admiralty, in a proceeding in rem, there was a plea Of lis alibi pencle:rt8 of a suit in personam in Scotland. The court rightly held this plea not sustained. No question of abuse of pr<r cess was preferred. It is also to be noted that at once, upon the filing of the libel, instructions were sent to abandon the foreign proceedings; and the answer to the plea was that there was no longer any suit pending, There is strong intimation in Insurance Co. v. Alexandre, 16 Fed. Rep. 279, 282, that such addition'll attachment of property in a subsequent suit ought not to be permittpd, except for good cause shown. I am,however,relieved from determining this question by the act of the defendants. Upon their application. the state court granted rehearing of their motion to set aside the levy.. This vacated the order of May 24th, and left the motion pending. The condition of the case as it came to this court then was that,pElJ;ldiag a motion to set aside the levy, the defendants gave bond, and received rel'ltitutioll of the property seized. Tl1at act operated as a waiver of the motion, a waiver of any irregularity or defect in the process, and a waiver of any claim that the property attachedcould not rightfully be subjected to seizure. ,Bank v. Mixter, 124 24 Wis. 143. U. S. 721, 728, 8 Sup. Ct. Rep. 718; Dierolf v. It is true that since the Iast-cited decision the laW' has been .amended to which the writ permit a traverse, aftar bond given, of issued, (Laws Wis. 1881, o. 329;) but in all other respects the bond is a substitute for the attachment, and !'the action shall thenceforward proceed as ifnowritoi attachment had been issued," (Rev. St. Wis. § The giving oithe bond waived every right to object to the writ, and the proceedings thereunder,-the .writ not being vQid,-.,.except the right to traverse the facts al1E'ged as grouad for issuing .the writ. The defendants, therefore,; by their own act .recognized that the vessel was rightly under the writ, and cannot nQw be heard to the, consubject trary. An order will be entered, .granting theplaintitrs' motJ,on to amend, and denying the defendants' motion to set aside the levy under the writ.
DOGGETT, BASSETT It HILLS CO. tI. BLACK.
CO. 'l1. BLACK
(Circuit Oourt, D. Indiana..
November 8, 1889.)
AQcidental destruction of the property by fire is no defense to an action on the deli,very bond author,ized by Rev. St. Ind. § 924, providing that defendant in attach· ment may keep the property by executing an undertaking that the property shall be properly kept and taken care of, and shall be delivered on demand to satisfy judg· ment, or that he will pay the appraised value of the property.
Morria, Newburger (Jurtis, for plaintiff. <JlaIypooZ Ketcham, for defendants.
GRESHAM, J. The plaintiff, the Doggett, Bassett & Hilts Company, brought a suit in attachment in this court against the defendant William D. Black, to recover a debt, and on the 1st day of November, 1883, the marshal, under the writ which had issued to him in the suit, seized a stock of dry goods, the property of Black. Black executed a delivery bond, in whkh his co-defendant in this suit joined as surety, and the goods remained in Black's possession. The obligation of the bond ,was that the attached property "shall be delivered up to said marshal * * *' upon demand, when said officer may be ready to receive the same, in as good condition as the same is at this date, to be sold by said marshal by virtbe ofanyexecution or judgment which may be rendered in said action against said Black. Further,that said Black may sell said propertyat private sale; and when so sold shall pay the cash value thereofto said marshal, to be applied on said execution." The goods were afterwards destroyed by fire, without fault or negligence on Black's part; and on the trial()fthe suit the plaintiff obtained for $2,222, and the attachment was sustained. Not being able to get the attached; goods or other property on demand. to satisfy the execution that 'had' issued to the marshal, he returned it unsatisfied, and this suit was brought on the bond against the prinoipal and surety. The latter answered'in several paragraphs, in the second of which he averred the los8 of the property, as already stated, to whioh the plaintiff demurred. Section 924 of the Revised Statutes of Indiana provides that "the defendantor other person having posi'ession of property attached may have the same, or any part thereof, delivered to him by executing * * * a written undertaking, * *. payable to the plaintiff, to the effect, that slichproperty shallb& properly kept and taken care of, and shall be delivered to the sheriff on demand, * * * to satisfy any judgment which may be recovered against him in the action, or that he will pay the appraised "alue of the property." The defendants were not prevented from fulfilling their obligation by the act of God, or the conduct of theJ)laintiff; its fulfillment was not made impossible by law; and th6 attachment was not dissolved. The sole ground of defense set up in the paragraph of the answer demurred to is that the attached property was