Campbell v. Morris

Chase, J. (absent the chief judge,) delivered the following opinion of the court: The case before the court is acknowledged to be of great importance, and has been fully and ably argued, and they have endeavoured to form a right judgment upon it, after considering it in the best manner they are able. The court are of opinion that upon the return of an attachment, the defendant cannot appear without bail, if cause of bail appears on the proceeding, and cause of bail must appear, if the act of assembly has been pursued, because there must be proof of the debt before the attachment can issue. The attachment is to' compel the appearance of the defendant.

When the defendant comes in on the return of the attachment to appear, he is in the same situation he would have been in if taken on a capias ad respondendum, and cannot appear without bail. For any apparent defect in the proceedings before the court, the attachment may be quashed upon suggestion of such defect to the court, either by the defendant himself, or a third person claiming an interest in the property attached. Such suggestion calls the attention of the court to the defect appearing upon the proceedings before them® ⁵⁵³ Before the appearance of the defendant, which cannot be but upon giving bail, which will be a dissolution of the attachment, no evidence is admissible which relates to ' , the merits of the dispute between the parties 1 but the attachment, being a summary proceeding, and not changing its nature until there is an appearance with bail, every fact is cognisable by the court which will show the attachment issued irregularly, or to show the property attached does not belong to the defendant 5 and evidence dehors or extrinsic the proceedings may be lesorted to, and the proof is to be made to the court, because the proceeding is summary, and without the intervention of s jury* In this case a fact is said to exist which, if material, the defendant could never avail himself of, unless proof is admissible at this stage of the proceeding; that is, that Robert Morris, the defendant, is a citizen of Pennsyha nia s and the court are of opinion that proof of that fact can be received on the attachment. As to the question whether the act of 1795 contravenes the constitution of the United States, and is incompatible with it: By the second section of the fourth article of the constitution of the United States, the citizens of each state shall- be entitled to all the privileges and immunities of citizens of the several states.

Privilege and immunity are synonymous, or nearly so® Privilege signifies a peculiar advantage, exemption, immunity 1 immunity signifies exemption, privilege. The peculiar advantages and exemptions contemplated under this part of the constitution, may be ascertained, if not with precision and accuracy, yet satisfactorily. By taking a retrospective view of our situation antecedent to the formation of the first general government, or the confederation, in which the same clause is inserted verbatim, one of the great objects must occur to every ⁵⁵⁴ person, which was the enabling the citizens of the several states to acquire and hold real property in any of the states, and deemed necessary, as each state was a sovereign independent state, and the states had confederated only for the purposes of general defence and security, and to promote the general welfare. It seems agreed, from the manner of expounding, or defining the words immunities and privileges, by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one.

It is agreed it does not mean the right of election, the right of holding offices, the right of being elected. The court are of opinion it means that the citizens of all the states shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected. It means, such property shall not be liable to any taxes or burdens which the property of the citizens is not subject to. It may also mean, that as creditors, they shall be on the same footing with the state creditor, in the payment of the debts of a deceased debtor.

It secures and protects personal rights. The way to expound a clause in the general government or constitution of the United States, is by comparing it with other parts, and considering them together; and to lay’ a foundation for a right exposition in the present case, it will be proper to suggest a few plain principles. 1st. That congress can exercise no power as a legislative body but what is vested in them by the constitution^ it being under and by virtue of that instrument alone they derive their power. 2d. All power, jurisdiction, and rights of sovereignty, not granted by the people by that instrument, or relinquished, are still retained by them in their several states, ⁵⁵⁵ ■arid in their respective state legislatures, according to their forms of government.

Uniformity of laws in the states is contemplated by the general government only in two cases, on the subject of bankruptcies and naturalization. The legislative powers of congress are particularly defined in. the 8th section of the 1st article. Those powers do not interfere with, or abridge, the power of the states to make local regulations, the operation of which'is confined to the state. The restrictive clauses in the 10th section of the 1st article, limiting the powers of the states, are confined to certain enumerated cases, none of which comprehend the subject under consideration: the power of regulating process for the more effectual recovery of debts.

A restriction of the power of the state legislatures to establish modes of proceeding for the recovery of debts, is not to be inferred from the clause under consideration. The mode of proceeding for the recovery of debts, is variant in the several states, and congress, has not established a uniformity of proceeding in the circuit courts, but in each state the proceedings are pursuant to the laws of the state in which the. suit is instituted. This proceeding by attachment is to compel an appearance, and the attachment, by the defendant’s appearing and giving bail, would be dissolved; and he would be in the same situation with any citizen of this state taken on a capias ad respondendum, who appears and gives bail to the suit, and so will his property. It would be a strange complaint for a citizen of Pennsylvania to make, that he was not allowed the same immunities and privileges with a citizen of Maryland, which he is informed he may enjoy by conforming to the laws of the state, in appearing and giving bail to the suit commenced against him.

The law of congress, 1789, c. 20. in my opinion, does aot prohibit or discountenance this proceeding, but if any ⁵⁵⁶ inference can be made the one way or the other, rather warrants it by not allowing the jurisdiction of the state courts to be ousted except where the debt claimed exceeds five hundred dollars, and by the defendant’s complying with certain requisites. Section 11. gives the circuit courts concurrent jurisdiction with the state courts, in suits between citizens qf different states, where the sum exceeds five hundred dollars. Section 12. provides for the removal of a suit, brought by a citizen in the state court against a citizen of another state, to the circuit court, if the sum exceeds five hundred dollars, upon petition and giving security to give bail to the suit in the circuit court, if the suit requires bail, and the defendant is at liberty in this case to make his election, and may remove this suit to the circuit court upon complying with the law of congress. This, then, is the only case in which there is an interference with the original jurisdiction of the state courts as to the recovery of debts.

The latter part of the clause recognises the mode of proceeding 'in some of the states by attachment, as a compulsory process to oblige the party to appear, and allow the party to hold the goods or estate attached to answer the final judgment, in the same manner as by the laws of the state they would have been holden. This law, then, takes notice of the proceeding by attachment, to compel the appearance of the defendant, and warrants it % and the court are of opinion that the act of 1795 does not contravene the constitution, and is not incompatible with it. As to the question whether the lands, goods and chattels, &c. of the defendant, not in the hands of a third person, are attachable: the court are of opinion the lands, goods' and chattels of the defendant may be attached wherever they are found, within the reach of the process of the state, and may be condemned, unless the de ⁵⁵⁷ fendant comes in and gives bail, and thereby dissolves the attachment. The court are also of an opinion that an equitable interest cannot be attached, for a plain and obvious reason.

It is an incorporeal right, not in its nature tangible, and cannot be attached and taken into the custody of the law. The cestui que use was no longer tenant of land at law, nor was the land liable to be subjected to his encumbrances, as dower, executions, &c. 1 Bl. Rep. 135. An ejectment will properly lie for nothing of which the sheriff cannot deliver possession under an execution ; therefore, incorporeal hereditaments, things lying merely in grant, qua nec tangí nee mderi possunt, are not properly objects of this action.

The reason is, because they cannot be taken in execution. Esp. 427. Bull. 99. As to the question whether the legislature of Maryland had any jurisdiction over the district or territory of Columbia, at the time of passing the act of 1795, under which this attachment has issued.

In considering this question it is proper to take into view the 8th sect, of the 1st arÁ -le of the constitution of the United States, the acts of the assembly of 3Iary-land., and the acts of congress.. By the constitution, congress is to exercise exclusive legislation over such district, as by cession of particular states, and acceptance by congress, may become the seat of government of the United States. By the act, of congress in July, 1790, a district of territory to be located (Columbia) is accepted for the permanent seat of government. By the act of assembly, 1791, c. 45. a cession is made of the part of Columbia within this state, pursuant to the constitution of the United States, with a proviso that the jurisdiction of the laws of this state over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until ⁵⁵⁸ congress shall bv law provide for the government thereof, in manner provided by the constitution. ^ ^aw congress accepting the cession, there is a proviso that the operation of the laws of the state within such district shall not be affected by the acceptor until the time fixed for the removal of the government thereto, and until congress shall otherwise by law provide.

By the 5th section of the said law, the city of Philadelphia is made the temporary seat of the government until the first Monday of December, 1800. By the 6th section, on the first Monday in the year 1800, the seat of the government of the United States shall be transferred to the district of Columbia, and all offices attached to the said seat of government shall be removed thereto, and cease to be exercised elsewhere after the said day. It is plain, upon considering the article of the constitution of the United States which relates to this subject, with the law of congress, that the district of Columbia cannot become the seat of the government of the United States until the first I^onday in December in the year 1800, and it is equally plain that the laws of the state within such district shall not be affected until the said time, and until congress shall otherwise provide. It is undeniable that congress cannot exercise exclusive legislation over the said district until it becomes the seat of government.

The act of assembly of this state making the cession, must receive such construction as will correspond with the plain intent and meaning of the constitution of the United States and the law of congress ; wherefore the court are of opinion, that the jurisdiction of the state of Maryland, and of its laws over such part of the district of Columbia as lies within the limits of the state, will not cease and determine before the first Monday in December, in the year 1800. Another reason may be subjoined in support of this opinion. ⁵⁵⁹ of the court. 1'he legislature of Maryland could not transfer or suspend the power of legislation over the said part of the district which lies within the limits of the state but in pursuance of, and in conformity to, the constitution of the United States, under which alone such power of transmitting or suspending the legislative authority is derived. The returns made upon the said attachments by the sheriffs of Prince Geo>ge's and Frederick counties were quashed by the court. Three bills of exceptions were taken.

First exception. In the case of the return from Prince George's county, the plaintiff offered in evidence a deed to Robert Morris and John Nicholson, for the lands and tenements mentioned in the return from James Greenleaf, dated the 13th of May, 1796, being for a number of square lots in the city of Washington, in the county of Prince George's, to be held by them as tenants in common, and not as joint tenants, subject to liens created by mortgages. Whereupon the plaintiff, William Campbell, prayed judgment that a moiety of all the following lands and tenements mentioned in the return of the sheriff of Prince George's county, on the attachment issued in this cause, should be condemned to satisfy the debt aforesaid of the said William, Campbell. The defendant, to show that the said William Campbell, the plaintiff, was not entitled to the judgment aforesaid, offered in evidence to the court, the attested copy of a deed from the said Robert Morris, John Nicholson and James Greenleaf, to Thomas Law, dated the 4th September, 1795, conveying the said squares, among others, to the said Thomas Law, and which said deed recites that Morris, Nicholson and Greenleaf were jointly and severally bound to Thomas Law, in the sum of 100,000/.

Pennsylvania currency, with a condition to convey ⁵⁶⁰ 2,400,000 square feet of land in the city of Washington to secure the payment of which money, or the convey* ance sa^anc^ deed, by way of mortgage, was executed. The defendant also offered in evidence three other deeds, one from James Greenleaf to John Nicholson, dated the 6th of August, 1795, for sundry lots in the city of Washington, subject to mortgages made to Thomas Law. One other deed from James Greenleaf to Robert Morris, dated the 7th of August, 1795, for sundry lots in the city of Washington; and another deed from the said James Greenleaf to the said Robert Morris, for sundry lots in the city of Washington, subject to mortgages to Thomas Law and Wihiam, M. Duncanson. The plaintiff then offered in evidence to the court, a deed from Thomas Law to Robert Morris, John Nicholson and James Greenleaf dated the 5th of October, 1797, being a release of sundry squares, Jots, &c. in the city of Washington, before then mortgaged to secure the payment of 100,000/.

Pennsylvania currency, or to convey 2,400,000 square feet of land in the city of Washington. The defendant then offered in evidence to the court, a deed from Robert Morris, John Nicholson and James Greenleaf, dated the 26th of June, 1797, conveying to Henry Pratt, Thomas Francis, John Miller, John Ashley and Jacob Baker, all interest and estate of Robert Morris, John Nicholson and James Greenleaf, in the squares mentioned. The defendant then offered evidence that William Hammond Dorsey, Esq. who was authorized to protect the interest of the said Pratt, Francis, Miller, Ashley and Baker, in the aforesaid property, did, before the execution of the deed from Thomas Law> give notice to him that the said deed had been executed 'to the said Pratt, Francis, Miller, Ashley and Baker, and cautioned the said Law not to execute the said deed; but the said Law said, that the making of the deed, thereby rendering the said property liable to the attachment of ⁵⁶¹ the plaintiff, would tend to the improvement of the New-Jersey avenue, as the plaintiff had promised to expend a sum of money thereon, provided he succeeded in the said attachment. That the said Morris, Nicholson and Greenleaf were, at all the times aforesaid, absent out of the state, and had no person authorized to accept of any deed in their name.

Whereupon the Court (Chase, J. and Duvall, J.) were of opinion, that the said Robert Morris had not such an estate in any of the squares above mentioned, whereof the plaintiff could have judgment of condemnation. To this opinion the plaintiff excepted. Second exception. In the case of the return from Prince George’s county, the plaintiff showed in evidence the deed to Robert Morris and John Nicholson, from James Greenleaf of all the lands and tenements in the return in this case ; and prayed'judgment that a moiety of all the lands and tenements mentioned in the return of the sheriff of Prince George’s county onxthe attachment issued in this cause, should be condemned to satisfy the debt aforesaid.

The defendant, to show that the plaintiff was not entitled to the judgment aforesaid, offered in evidence to the court, the said deed from Robert Morris, John Nicholson and James Greenleaf to Thomas Law, dated the 4th of September, 1795, which deed conveys the squares mentioned in the return. The defendant also read the three deeds mentioned in the first exception from Green-leaf to Morris and Nicholson. Whereupon the Court (Chase, J. and Duvall, J.) were of .opinion that Robert Morris, the defendant, had only an equitable "interest, and not such an estate in the lands and tenements mentioned in the return aforesaid, and of ⁵⁶² which judgment is prayed, whereof the said William Campbell can have judgment as aforesaid ; and the said court did so adjudge and determine. In the Court of Appeals.

Shaafffor the plaintiff in error. This appeal arises on an attachment issued by the chief justice of the general court on the 20th oí April, 1797. There were duplicate attachments, and among others to Prince George’s and to ⁵⁶³ Frederick counties; upon the return of which all the present questions have arisen. ⁵⁶² To this opinion the plaintiff excepted. Third exception.

In the case of the return from Fre~ derich county. The plaintiff prayed judgment that all the lands and tenements mentioned in the return of the sheriff of Frederick county, on the attachment issued in this cause, may be condemned to satisfy the debt aforesaid of the plaintiff. The defendant, to show that the súdWilliam Campbell was not entitled to the judgment aforesaid, offered in evidence a patent under the great seal, dated the 12th of April, 1787, to a certain John Harvie, granting unto him lots mentioned in the return of the said attachment; and also another patent dated on the 12th of November, 1787, to Joseph Wood, granting lot No. 85. also mentioned in the said return. The plaintiff offered no further evidence deriving title to the defendant from the patentees.

Whereupon the Court, (Chase, J. and Duvall, J.) having read the said patents, were of opinion, and so adjudged, that the said Sobert Morris had not such an estate in the said lands and tenements, whereof the said William Campbell could have judgment of condemnation as aforesaid prayed. To this opinion the plaintiff excepted. The plaintiff brought a writ of error, and the proceedings were removed to the court of appeals. ⁵⁶³ In the case of the attachment from Prince George’s, the process was laid on certain property in the district of Columbia, and returned as the land and tenements of Robert Morris. On calling the attachments Robert Morris was permitted to appear, and alleged that-'he was a citizen of Pennsylvania, and the plaintiff a citizen of Maryland; that by the constitution and laws of the United States> his lands, &c. ought not to have been attached; that by the act of assembly under which the attachment issued, it could not affect any property in the district of Columbia ; that he had no legal estate in any of the property attached, either in Frederick or Prince George’s county, but only an equity of redemption.

Both these attachments were quashed by the court. Robert Morris, to show that he had only an equitable interest, produced a deed from Morris, Nicholson and Greenleaf, to Thomas Lazo, dated the 4th of September, 1795, mortgaging this property to Law. There are three other deeds from James Greenleaf to John Nicholson, and Robert Morris, separately, dated the 6th and 7th of Augustj 1795, which it is not necessary to state or consider, as the principles upon which the propriety of the court’s opinion must depend, are involved in the consideration of the deeds from Morris, Nicholson and Green-leaf to Law. The plaintiff below showed a deed from James Green-leaf to Robert Morris and John Nicholson, dated the 13th of May, 1796, for all the property in question; also a deed from Thomas Law to Morris, Nicholson and Green-leaf, releasing a great part of the property, dated 5th October, 1797.

Morris offered a deed from Morris, Nicholson and Greenleaf, to Henry Platt arid others, dated 26th of July, 1797, for all their interest in the property in question; ⁵⁶⁴ that they gave notice to Law that this deed had been executed, and that he said that the plaintiff had agreed to spend money in case he succeeded in the attachments, on the New-jfersey avenue, and that Morris, Nicholson and Greenleaf.\ at that time, resided out of the state, and had no person to receive the deed. On the return of the attachment from Frederick county, Morris showed a patent for the land to another person* and the plaintiff did not derive any title from the patentee. In this case the court were of opinión that Robert Morris had not such an estate whereof condemnation could go; that Robert Morris had only an equitable interest, not liable to attachment; that the attachment from Frederick should be quashed, because the plaintiff did not show a title in Morris, from the patentee ; to which opinions of the court, separate exceptions were taken. The propriety of the opinion of the general court will depend on the decision of four different questions.

First. Can the act of 1795, c. 56. have the effect to make the property in this state, of a citizen of a different state, liable to attachment, in a case where the property of a citizen of Maryland would not be ? Second. Is property in the territory of Columbia belonging to Robert Morris, not residing in the state, attachable since the act of 1791, c. 45.?

Third. Can the court, on the attachment, examine