Julius F. Vogle v. The New Granada Canal and Steam Navigation Company of New York

Julius F. Vogle v. The New Granada Canal and Steam Navigation Company of New York. A foreign corporation is not liable to a foreign attachment under the statute in regard to such attachments. A corporation cannot put in special bail to the action, or be surrendered to bail when it appears, if its appearance could be compelled in this mode; and the Legislature having made no provision by which this can be done, the remedy of the writ does not apply to a foreign corporation. This was a foreign attachment case against a corporation out of the State. The defendant obtained a rule upon the plaintiff to show cause wherefore the attachment should not be stricken off, or otherwise should not be dissolved on the defendant’s entering a common appearance to the action. They afterwards, at the same term, on an affidavit filed, alleging that they had reason to believe that Mr. Patterson, who had appeared as attorney and counsel for the defendants in the attachpaent, had no authority from the defendants to appear as such counsel, obtained a rule upon the counsel to show cause wherefore he should not produce his warrant and authority to appear as counsel in the cause for the defendants. Patterson, for the defendants, now showed cause on the latter rule. Any creditor of the party attached, or attorney of this Court, as amicus curiae, may appear, and has a right to be heard before the Court, to show that its process has been abused, or has been irregularly or improperly issued, and should be set aside, and the Court will hear him for that purpose. Serg. on Attachm. 144, 147. It is not necessary, however,, that I should shelter myself under this general principle of law and practice; for, independent of this, I am prepared to prove that I have a good and valid authority for appearing as counsel and attorney in the case for the defendants. He then called Daniel M. Bates, Esq., as a witness, by whom he proved his authority. D. M. Bates, for the defendants, now showed cause on the first rule. The first question to be considered is this: Can a foreign attachment be issued against a foreign corporation ? This is a new process, unknown to the common law, and a mere creature of the statute, and must therefore be in strict conformity with its provisions. 19 Wend. 49. But the question may arise in the argument and consideration of the case, whether such an attachment will lie by the custom of London; and I maintain that it has never been so decided and that it will not. Serg. on Attachm. 61; 1 Mod. 212; 2 Show. 372. But, whatever may be the custom of'London on this point, I shall contend that it is not material in this case, because it depends solely on our own statute in regard to attachments, which does not include foreign corporations; for the word person, employed in the statute, does not and was not intended to embrace corporations, or any other than natural persons. 4 Serg. & Rawle, 563; Rev., Code, chap. 101. Domestic attachments, under our law, have no application to domestic corporations; and, if so, there is no reason why foreign attachments under it should have any application to foreign corporations. That they are not within the letter of the law, will hardly be disputed; but it may be insisted that they come within the spirit and policy of it. On this point I shall refer to the well-settled rule of construction, to be found in Dwar. on Stat., 10 Law Libr. 703. Foreign corporations are not contemplated or embraced in the remedy provided by foreign attachment. Ang. & Ames on Corp. 395; McQueen v. The Middletown Man. Co., 16 Johns. 4. On the second and alternative branch of the rule, in case the Court, should be of opinion that the attachment will lie, the defendants have a right to enter a common appearanee, and thereby dissolve it, because the object is merely to compel an appearance by a defendant who is out of the reach of the process of the Court. 1 Bac. Abr. 689; Serg. on Attachm. 1, 6, 130; 2 Serg. & Rawle, 224. Why is it provided that foreign attachment in all cases may be dissolved on entering special bail? It is because the only cases contemplated in our attachment law, and also by the custom of London, to which they shall apply, are cases of indebtedness, in which special bail could be required if the debtor was within the jurisdiction of the Court. It is true that our recent statute on the subject goes further than the former act, and seems to contemplate cases in which special bail could not be required, if the defendant was within the jurisdiction of the Court, and' to include cases in which a copias ad respondendum could not issue, and in which a summons only would lie, and in which only an appearance by attorney could be compelled, as in the case of a corporation. The Court cannot impose on this corporation any other or more stringent conditions of appearance than it can impose on its own citizens, without infringing that provision of the.Federal Constitution which secures to the citizens of each State the privileges and immunities of the citizens of the several States. 3 Story on the Const., secs. 1799, 1800; 2 Howard, 568; Ang. & Ames on Corpor. 400. But the Court has no power under our statute to compel these defendants to give security, or to impose any other terms upon them than on a domestic corporation; and as the Court could not oblige a domestic corporation to give security, or to enter into special bail, it cannot do it in the case of a foreign corporation. 2 Binney, 264. The death of the defendant after interlocutory judgment destroyed the attachment, because there is no party defendant in Court, and because executors and administrators are not liable to enter special bail, and because no foreign attachment can issue against them. Serg. on Attachm. 133. Again, the rule is, wherever on a copias the Court would order common bail, they will dissolve the attachment. Serg. on Attachm. 135. L. E. Wales, for the plaintiff: The defendants in this attachment are involved in debt, and much embarrassed, and since this writ was sued out to which they object so strenuously, they have assented to the issuing of other foreign attachments against them out of this Court, at the suit of other creditors for whom they have a preference, and to which they have entered a common appearance, had them dissolved, and then confessed judgment in favor of those creditors for the amount of their demands; and the object now is to get rid of this attachment, which was issued prior to the others, for the benefit of these preferred creditors. A foreign attachment will lie against a foreign corporation, and can only be dissolved on giving bail to secure the condemnation-money and costs. 1 Mod. 212; Serg. on Attachm. 70; 15 Serg. & Rawle, 173; Ang. & Ames on Corp. 336. If the defendants in this case cannot be permitted to give special bail, it is their misfortune. It is a privilege to be allowed to enter into special bail, and if they are not entitled to the privilege under our attachment law it is a casus omissus in that respect, but does not prevent or defeat the attachment. The process is a proceeding in rem, to compel the appearance of a non-resident debtor, and to give security for the debt. 4 Serg. & Rawle, 567; Lock on Attachm. 2, 55. McCaulley, on the same side: The first objection raised to this process is, that foreign corporations are not within our attachment law. Now, the word person may include corporations, unless they are expressly, or by necessary construction and implication excluded, because they are artificial persons, and are rapidly multiplying in every State of the Union. The right to dissolve the attachment undoubtedly applies in all cases where the writ may issue; but how is this to be done? By appearing and giving special bail to the action. The object of the attachment is'to secure the payment of the debt, out of the property attached, and to give the attaching creditor a title to the property by operation of law. 2 Kent’s Com. 401. A statute which restrains all persons from doing any act, applies to corporations as well as natural persons. 15 Johns. 358. Patterson, for the defendants: The rule is that when persons are mentioned in a statute, corporations are included, if they fall within the general design and objects of it. But the phraseology of our attachment law, which provides for the affidavit on which a foreign attachment is to issue, cannot possibly apply, and was never intended to apply, to artificial persons or corporations; for the form of the affidavit requires that the -plaintiff" shall swear, or affirm, that the defendant is indebted to him in a sum exceeding fifty dol-. lors, and resides out of the State, blow, how can these latter terms be applied with any propriety to a foreign corporation, for who can say, much less swear, where the stockholders of a foreign corporation reside, whether in or out of this State ? If such corporations were intended to be included in the act, a form more appropriate would have been prescribed to suit the case. But it is impossible for the defendants to come into court and enter into special bail, which is certainly the primary if not the sole object of the statute and the process; for a corporation can only appear by attorney, and cannot enter into special bail, which imports an actual personal appearance. It is therefore manifest that the Legislature never intended to include foreign corporations in the purview or provisions of the statute, because it would be unreasonable to suppose that it would require of any body, natural or artificial, foreign or domestic, to perform an impossibility. [MAJORITY — By the Court:] By the Court: It has always been our opinion, and in this, we believe the bar of the State has generally concurred, that our act of Assembly in regard to foreign attachments does not extend to foreign corporations. It is true that the word person, occurring in the act, may and would embrace a corporation, as an artificial, though not a natural person, if there was nothing in the act itself, or in the mode of proceeding, or in the remedy authorized and prescribed by it, to preclude its application to the case of a foreign corporation. It is not the object or policy of the law, however, to seize and appropriate the property of any debtor without a hearing and an opportunity of defence against the demand, and therefore one of the principal objects, of all attachment process, under the act in question, is to compel the appearance of a debtor beyond the jurisdiction of the court, and to secure special bail to the plaintiff’s action, on which the attachment is to be dissolved and the property attached to be discharged; and the action is then to proceed to trial and judgment in the usual form. But a corporation cannot put in special bail or be surrendered to bail when it appears, if we could compel it in this mode to appear; and as the Legislature has made no provision by which a foreign corporation can put in special bail, or enter into security to the plaintiff to defend and abide the result of the action, when it appears to the attachment, it must be held and considered that the statute does not contemplate or include the case of a foreign corporation. The writ of foreign attachment in this case must therefore he stricken off, and the first branch of the rule made absolute.