Albany City Insurance v. Whitney , 1873 Pa. LEXIS 2 ( 1873 )

The opinion of the court was delivered, January 9th 1873, by

Sharswood, J.

The declaration was in assumpsit upon an agreement by the defendants in consideration of the delivery to them of the cargo of a certain wrecked vessel by the plaintiffs, who were the salvors, to pay them such proportion of the expenses incurred as should be apportioned upon the said cargo, and averring an adjustment accordingly. To this the defendants pleaded in abatement that the cause of action originated on the great lakes, and within the marine jurisdiction of the United States, and being a claim for salvage, was exclusively the subject of investigation in a court of admiralty. To this plea, as far as appears by the record, there was neither replication nor demurrer. Upon it there was, therefore, no issue either of law or fact. Yet the court proceeded to enter judgment. No objection has been made on this ground here, and it is mentioned only to say that we disapprove of such loose practice. Had it been assigned for error it would have been sufficient ground itself for the reversal of the judgment.

Assuming, however, that the plea was orally demurred to, and so the case has been presented and argued here, we think that the learned court below erred in sustaining the plea, and entering the judgment quashing the writ and the subsequent proceedings. The cases of The Moses Taylor, 7 Wall. 411, and The Belfast, 7 Id. 624, have settled that the common-law courts cannot exercise any portion of the admiralty jurisdiction, which is vested by the Constitution of the United States and the 9th section of the Judiciary Act of September 24th 1789 (1 Story’s Laws U. S. 56) exclusively in the Federal courts. But these cases also establish that the distinguishing and characteristic feature of a suit in admiralty, so far at least as the jurisdiction is intended to be exclusive, is that the vessel or thing proceeded against itself is seized and impleaded, and is judged and sentenced accordingly. On the other hand, by the common-law process property is reached only through some person as a defendant, and then only to the extent of his title. What is peculiar to admiralty and exclusive are proceedings in rem. Remedies in personam are concurrent wherever a ground can be laid sufficient to maintain a common-law action. It may be that such an action would not lie for salvage without a promise to pay, because being a voluntary service, performed without previous request, there is no sufficient consideration to support an implied assumpsit. But a benefit conferred or service rendered, though purely voluntary, is sufficient consideration to support an express promise: Graves v. McAllister, 2 Binn. 591; Clark v. Herring, 5 Binn. 33; Cunningham v. Garvin, 10 Barr 366; Lycoming v. Union, 3 Harris 166. The 9th section of the Federal Judiciary Act of 1789 contains an express “ saving to suitors in all cases of the right of a common-law remedy, where the common law is competent to give it.” This saving indeed does not authorize a proceeding in rem to enforce a maritime-lien in a common-law court. It is not any remedy in a common-law court which is saved, but only a common-law remedy. But surely no one will pretend that covenant, debt or assumpsit will not lie at common law on a charter-party, bill of lading, shipping articles or policy of insurance. Yet these are "all within the admiralty jurisdiction. The Supreme Court of the United States have affirmed the broad doctrine of Mr. Justice Story in De Lovio v. Boit, 2 Gallison 398; Ins. Co. v. Dunham, 11 Wall. 1, holding that the contract of marine insurance is a maritime contract within the admiralty and maritime jurisdiction, though not within the exclusive jurisdiction of the United States courts. The proceeding below, though commenced by the process of foreign attachment, was not instituted to enforce a maritime lien. It would, not have been so had the cargo saved been attached. That which was attached was the schooner Grace Whitney, as the property of the defendants. Foreign attachment is but a process by which to commence a personal action. It seizes property to compel an appearance. It can be dissolved upon entering bail, and when dissolved, the judgment against the defendant is in personam. ' It is followed by a proceeding against the garnishee by writ of scire facias, in order to subject the property attached to execution as the property of the defendant. The garnishee may plead nulla bona, and show that it is not the property of the defendant, but of himself or some third person. In this case the attachment was dissolved by the entry of security for the demand of the plaintiff. It was therefore a common-law remedy, the same as if it had been commenced by a summons— an action of assumpsit upon a parol contract, pursued in personam, and strictly within the saving of the 9th section of the judiciary Act of 1789.

Had there been a demurrer to the plea in abatement, the proper judgment would have been a judgment of respondeat ouster. We remand the record with & procedendo, in order that a demurrer may be properly filed, and judgment of respondeat ouster entered thereon, unless the defendants should prefer to withdraw their plea.

Judgment reversed, and procedendo awarded.