M'Grath v. Candalero , 16 F. Cas. 128 ( 1794 )

BEE, District Judge.

Out of this motion two points arise for discussion. 1st. Whether this court has jurisdiction to proceed, by attachment, for torts. 2d. Whether, even if they have not. exceptions to the jurisdiction are not now too late.

By the 9th section of tiie judiciary act this court has exclusive original cognizance of all civil causes of admiralty, and maritime jurisdiction. At common law, an action will lie for seizing, stopping or taking a ship upon the high sea. Le Caux and Eden. Our stale courts might, therefore, have exercised such jurisdiction; hut tiie act of congress vests it exclusively in this court, in the first instance. If, then, the present motion succeeds, there would be a right without a remedy. It is not denied that attachment will lie in matters of debt or contract. Why not in cases of tort? If an alien sue here for a tort under the law of nations or a treaty of the United States, against a citizen of tiie United States, the suit will be sustained. Shall it be otherwise, where the alien is the offender, and one of our citizens the party complaining? The object of the attachment is to secure redress out of the property of the party, when you cannot get at his person. If he comes in time, and gives security, his property may be discharged. In short, I can see no reason for granting what is sought by this motion, and many for refusing it. Even if it were a new question, I should think it one of the cases in which a good judge would choose “ampliare jurisdietionem.”

The second point is. whether after decree, and writ of error lodged, this application is not too late. I think it is. The parties themselves proposed to lodge this money as security, subject to tiie order of tiie court. At any rate it would have been liable, after the decree had passed. Even under the old practice of stipulation, body and goods were included. And if Hervieux were in custody on capias to fulfil the decree, he could have derived no benefit under the state law of insolvency, by which torts are excepted. It is laid down in Viu. Abr. tit. “Chancery-’ (Z,) par. IS. that “foi-getfulness or negligence of parties is no foundation for a bill of review.” "Matters which might have been put in issue in the original cause, shall never be examined on bill of review. Bill of review Is allowed only ou errors apparent upon the face of the record, or on new matter discovered since the decree.” Gilb. Eq. 184.