such as owe their existence to the Federal | stituted the essential features of the cusgovernment, its national character, its Con- tom of London. stitution, or its laws. [For other cases, see Constitutional Law, IV. a, 1, in Digest Sup. Ct. 1908.] [No. 99.] Parker, 6 Houst. (Del.) 544, 553; Duke Locke, Foreign Attachm. 3; Reybold v. of York's Laws, p. 10; Sergeant, Foreign Attachm. pp. 24, 25; Martin v. Drydon, 1 Ill. 211; Watson v. Noblett, 65 N. J. Argued November 18, 1920. Decided April L. 506, 47 Atl. 438; Goldmark v. Mag IN 11, 1921. N ERROR to the Supreme Court of the State of Delaware to review a judgment which affirmed a judgment of the Superior Court for Newcastle County, in that state, in favor of plaintiffs in an action of foreign attachment. Affirmed. See same case below, 7 Boyce (Del.) 297, 105 Atl. 838, 849. The facts are stated in the opinion. Mr. Louis Marshall argued the cause and filed a brief for plaintiff in error: The essential elements of due process, namely, the right to appear and to be heard in defense of the action in which Ownbey's property was attached, are lacking here. People ex rel. Eckerson v. Haverstraw, 151 N. Y. 75, 45 N. E. 384; Rochester v. Holden, 224 N. Y. 396, 121 N. E. 102; Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841; McVeigh v. United States, 11 Wall. 259, 20 L. ed. 80; Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Roller v. Holly, 176 U. S. 398, 44 L. ed. 520, 20 Sup. Ct. Rep. 410; Central of Georgia R. Co. v. Wright, 207 U. S. 127, 52 L. ed. 134, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Londoner v. Denver, 210 U. S. 385, 52 L. ed. 1112, 28 Sup. Ct. Rep. 708; Denver v. State Invest. Co. 49 Colo. 244, 33 L.R.A. (N.S.) 395, 112 Pac. 789; Wetmore v. Karrick, 205 U. S. 141, 51 L. ed. 745, 27 Sup. Ct. Rep. 434; Ochoa v. Hernandez y Morales, 230 U. S. 161, 57 L. ed. 1437, 33 Sup. Ct. Rep. 1033; Riverside & D. River Cotton Mills v. Menefee, 237 U. S. 189, 59 L. ed. 910, 35 Sup. Ct. Rep. 579; Pennington v. Fourth Nat. Bank, 243 U. S. 270, 272, 61 L. ed. 714, 715, L.R.A.1917F, 1159, 37 Sup. Ct. Rep. 282; Saunders v. Shaw, 244 U. S. 317, 61 L. ed. 1163, 37 Sup. Ct. Rep. 638; Coe v. Armour Fertilizer Works, 237 U. S. 413, 59 L. ed. 1027, 35 Sup. Ct. Rep. 625; Greig v. Ware, 25 Colo. 184, 55 Pac. 163; Riglander v. Star Co. 98 App. Div. 101, 90 N. Y. Supp. 772. The Delaware statute, as interpreted, does not provide the safeguards that con nolia Metal Co. 65 N. J. L. 341, 47 Atl. 720; Cord v. Newlin, 71 N. J. L. 428, 59 Atl. 22; 1 Shinn, Attachm. & Garnishment, §§ 95, 191, 221, 442, 449; 20 Laws of England (Halsbury) p. 286; London Corp. v. London Joint Stock Bank, L. R. 5 C. P. Div. 505, L. R. 6 App. Cas. 393, 15 L. J. Q. B. N. S. 594, 45 L. T. N. S. 81, 29 Week. Rep. 870; Pennsylvania Steel Co. v. New Jersey Southern R. Co. 4 Houst. (Del.) 578. If the general course of legislation on a particular subject may of itself be regarded as justifying an argument in suplation (Capital Traction Co. v. Hof, 174 port of the constitutionality of such legisU. S. 43, 43 L. ed. 888, 19 Sup. Ct. Rep. 580; Lemieux v. Young, 211 U. S. 493, 53 L. ed. 299, 29 Sup. Ct. Rep. 174; Rast v. Van Deman & L. Co. 240 U. S. 363, 364, 60 L. ed. 689, 690, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455), then an equally potent argument in favor of the unconstitutionality of a statute may be deduced from the fact that it is opposed to the general trend of legislation on the subject-matter to which it relates. In any event, there is such a repugnancy between the Delaware statute, as interpreted, and the 14th Amendment, that the latter must be regarded as having modified the statute so as to eliminate the unconstitutional features of the law. Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; Ex parte Yarbrough, 110 U. S. 665, 28 L. ed. 278, 4 Sup. Ct. Rep. 152; Guinn v. United States, 238 U. S. 363, 59 L. ed. 1348, L.R.A.1916A, 1124,_35 Sup. Ct. Rep. 926; Kentucky R. Tax Cases, 115 U. S. 321-334, 29 L. ed. 403417, 6 Sup. Ct. Rep. 57; East St. Louis v. Amy, 120 U. S. 600, 30 L. ed. 798, 7 Sup. Ct. Rep. 739; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 162, 64 L. ed. 202, 40 Sup. Ct. Rep. 106; Municipal Gas Co. v. Public Service Commission, 225 N. Y. 97, P.U.R. 1919C, 364, 121 N. E. 772. The Delaware statute deprived the plaintiff in error of the equal protection of the laws, since, under the interpretation given to it, he was debarred from appearing and defending without first giving special bail, whilst, under the express terms of the statute, a foreign corporation may appear and answer without the necessity of giving bail. ceedings begun by foreign attachment, only by putting in special bail. Cunningham's Dict. London, 1771; Tidd, Pr. 8th ed. pp. 100, 105-107, 109, 112, 124, 240; Bohun, Institutio Legalis, 19, 24, 25; Anonymous, 1 Salk. 100, 91 Eng. Reprint, 92; Collier v. Hague, 2 Strange, 1270, 93 Eng. Reprint, 1174; Anonymous, 4 Harr. & McH. 159; Hartmann v. Purcell, 1 Wend. 303; Bradley v. Welch, 1 Munf. 284; 3 Bl. Com. 290, 291; Highmore Bail, Published about 1783, p. 37; 1 Sellon, Pr. p. 137; 1 Bacon Abr. p. 538; Dashwood v. Folks, 3 Lev. 343, 83 Eng. Reprint, 721; Mayor & Commonalty v. Cooke, 1 Cranch, C. C. 160, Fed. Cas. No. 9,358; Voss v. Tuel, 1 Cranch, C. C. 72, Fed. Cas. No. 17,015; Wager v. Lear, 2 Cranch, C. C. 92, Fed. Cas. No. 17,034; Manro v. Almeida, 10 Wheat. 473, 490, 6 L. ed. 369, 373; Gardner v. Issacson, 1 Abb. Adm. 141, Fed. Cas. No. 5,230; Bohun, Privilege of London, 3d ed. pp. 3, 253, 257, 260, 261; Lock, Attachm. pp. 2, 27; Pulling, Laws 191; Andrews of London, 2d ed. pp. 189, Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 560, 46 L. ed. 679, 690, 22 Sup. Ct. Rep. 431; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; People ex rel. Farrington v. Mensching, 187 N. Y. 8, 10 L.R.A.(N.S.) 625, 79 N. E. 884, 10 Ann. Cas. 101; F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 64 L. ed. 989, 40 Sup. Ct. Rep. 560; Bogni v. Perotti, 224 Mass. 152, L.R.A.1916F, 831, 112 N. E. 853; Re Flukes, 157 Mo. 125, 51 L.R.A. 176, 80 Am. St. Rep. 619, 57 S. W. 545; Opinion of Justices, 211 Mass. 618, 98 N. E. 337; Johnson v. Goodyear Min. Co. 127 Cal. 4, 47 L.R.A. 338, 78 Am. St. Rep. 17, 59 Pac. 304; American Dev. Clerke, Carth. 26, 90 Eng. Reprint, Forest Wireless Teleg. Co. v. Superior 619; Day v. Paupier, 13 Q. B. 802, 116 Ct. 153 Cal. 533, 17 L.R.A.(N.S.) 1117, Eng. Reprint, 1470; Fowler v. Dickson, 126 Am. St. Rep. 125, 96 Pac. 15; Peo-1 Boyce, 119, 74 Atl. 601; Reybold v. ple v. Sholem, 238 Ill. 203, 87 N. E. 390; Phipps v. Wisconsin C. R. Co. 133 Wis. 153, 113 N. W. 456; Pennoyer v. Neff, 95 U. S. 714, 727, 24 L. ed. 565, 570; Maxwell v. Bugbee, 250 U. S. 525, 63 L. ed. 1124, 40 Sup. Ct. Rep. 2; Steed v. Harvey, 18 Utah, 367, 72 Am. St. Rep. 789, 54 Pac. 1011. Messrs. Willard Saulsbury and Harlan F. Stone argued the cause and filed a brief for defendants in error: If the bail demanded by the plaintiffs in the attachment below had been excessive, it would have been reduced and fixed at the proper amount, by the court, to its satisfaction, on the application of the defendant. Vienne v. M'Carty, 1 Dall. 154, 1 L. ed. 79; Campbell v. Morris, 3 Harr. & McH. 552; Watts v. Taylor, 13 Johns. 305; Bunting v. Brown, 13 Johns. 425. By settled procedure of the common law, a defendant cannot plead in bailable actions until he has appeared by giving bail. 1 Sellon, Pr. p. 91; 1 Tidd, Pr. p. 465; Venn v. Calvert, 4 T. R. 578, 100 Eng. Reprint, 1186; Saunders v. Owen, 2 Dowl. & R. 252; Bergkofpski v. Ruzofski, 74 Conn. 204, 50 Atl. 565. Appearance can be effected at common law, both in actions of debt and in pro Parker, 6 Houst. 553; Woolley, Delaware 839 Louis & S. F. R. Co. v. Delk, 86 C. C. A. 95, 158 Fed. 934, 14 Ann. Cas. 233; Ladew v. Tennessee Copper Co. 179 Fed. 252; Railroad Commission V. Grand Trunk Western R. Co. 179 Ind. 255, 100 N. E. 855; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 295, 52 L. ed. 1061, 1068, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464. The process of law known as foreign attachment is not prohibited by the due process clause. Central Loan & T. Co. v. Campbell Commission Co. 173 U. S. 84, 43 L. ed. 623, 19 Sup. Ct. Rep. 346; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Herbert v. Bicknell, 233 U. S. 70, 58 L. ed. 854, 34 Sup. Ct. Rep. 562. A process of law is due process within the meaning of constitutional limitations if it can show the sanction of settled usage, both in this country and in England. McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335; Kelly v. Pittsburgh, 104 U. S. 78, 26 L. ed. 658; Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Light v. Canadian County Bank, 2 Okla. 543, 37 Pac. 1075; Anderson v. Henry, 45 W. Va. 319, 31 S. E. 998; Garnett v. Jennings, 19 Ky. L. Rep. 1712, 44 S. W. 382; Ex parte Ah Fook, 49 Cal. 406; Cooley, Const. Lim. 4th ed. p. 440, note 2; Tracy v. Ginzberg, 205 U. S. 170, 178, 51 L. ed. 755, 760, 27 Sup. Ct. Rep. 461; Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Lowe v. Kansas, 163 U. S. 81, 85, 41 L. ed. 78, 79, 16 Sup. Ct. Rep. 1031; Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 60 L. ed. 1084, 36 Sup. Ct. Rep. 637; York v. Texas, 137 U. S. 15, 34 L. ed. 604, 11 Sup. Ct. Rep. 9; Riverside & D River Cotton Mills v. Menefee, 237 U. S. 189, 59 L. ed. 910, 35 Sup. Ct. Rep. 579; Kauffman v. Wootters, 138 U. S. 285, 34 L. ed. 962, 11 Sup. Ct. Rep. 298; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 272, 59 L. ed. 220, 224, 35 Sup. Ct. Rep. 37; Capital Traction Co. v. Hof, 174 U. S. 1, 43-46, 43 L. ed. 873, 888, 889, 19 Sup. Ct. Rep. 580; Parsons v. Bedford, 3 Pet. 433, 446, 7 L. ed. 732, 736; M'Clenachan v. M'Carty, 1 Dall. 375, 1 L. ed. 183. A process of law which conforms to the statutes and decisions of a state, and under which the defendant is given opportunity for defense in accordance with settled procedure of the state, will not be held unconstitutional merely because the defense might be made easier or more convenient for the defendant by a different procedure. Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 44 L. ed. 747, 20 Sup. Ct. Rep. 620; York v. Texas, 137 U. S. 15, 34 L. ed. 604, 11 Sup. Ct. Rep. 9; Miedreich v. Lauenstein, 232 U. S. 236, 58 L. ed. 584, 34 Sup. Ct. Rep. 309; Simon v. Craft, 182 U. S. 427, 437, 45 L. ed. 1165, 1171, 21 Sup. Ct. Rep. 836; Iowa C. R. Co. v. Iowa, 160 U. S. 389, 393, 40 L. ed. 467, 469, 16 Sup. Ct. Rep. 344; Wilson v. North Carolina, 169 U. S. 586, 593, 594, 42 L. ed. 865, 870, 871, 18 Sup. Ct. Rep. 435; Hovey v. Elliott, 167 U. S. 409, 443, 42 L. ed. 215, 17 Sup. Ct. Rep. 841. The plaintiff in error is not within the jurisdiction of Delaware, within the meaning of the term "jurisdiction," as used in the guaranty of equal protection given by the 14th Amendment. Blake v. McClung, 172 U. S. 239, 260, 43 L. ed. 432, 440, 19 Sup. Ct. Rep. 165; Sully v. American Nat. Bank, 178 U. S. 289, 44 L. ed. 1072, 20 Sup. Ct. Rep. 935; Fire Asso. of Phila. v. New York, 119 U. S. 110, 30 L. ed. 342, 7 Sup. Ct. Rep. 108; State v. Travelers Ins. Co. 70 Conn. 590, 60 Am. St. Rep. 138, 40 Atl. 465. The plaintiff in error is not deprived of the equal protection of the laws. Standard Oil Co. v. Tennessee, 217 U. S. 413, 54 L. ed. 817, 30 Sup. Ct. Rep. 543; Ft. Smith Lumber Co. v. Arkansas, 251 'U. S. 532, 64 L. ed. 396, 40 Sup. Ct. 123 N. E. 758; London Corp. v. London Rep. 304; Re Watson, 226 N. Y. 384. Joint Stock Bank, L. R. 6 App. Cas. N. S. 81, 29 Week. Rep. 870; Vogle v. 393, 50 L. J. Q. B. N. S. 594, 45 L. T. New Granada Canal Co. 1 Houst. 294; Johns. 5; 13 Am. & Eng. Enc. Law, 2d M'Queen v. Middletown Mfg. Co. 16 ed. 894. Mr. Justice Pitney delivered the opinion of the court: This writ of error brings under review a judgment of the supreme court of the state of Delaware, affirming a judgment of the superior court in a proceeding brought by defendants in error by foreign attachment against the property of plaintiff in error, pursuant to the statutes of that state. Proceedings were commenced in the superior court [99] December 23, 1915, by the filing of an affidavit entitled in the cause, made by one Joyce, a credible person, and setting forth that defendant Ownbey resided out of the state and or property under the writ, or its security for any judgment finally entered; and that if the statutes could not be so construed as to permit appearance and defense in a case begun by foreign attachment without the entry of bail security for the discharge of the property seized, they were unconstitutional under the 1st section of the 14th. Amendment, in that (a) they abridged the privileges and immunities of citizens of the United States; (b) deprived defendants in cases brought under them of property without due process of law; and (c) denied to such defendants the equal protection of the laws. Upon motion of plaintiffs this response and the attempted appearance and pleas of defendant were struck out upon the ground that special bail or security, as required by the statute, had not been given by defendant or any person for him; the court, in banc, hold against an individual, there could be no appearance without entering "special bail," that the requirement to that effect was not arbitrary or unreasonable, and the statute was not unconstitutional. 6 Boyce (Del.) 379, 398-406. was justly indebted to plaintiffs in a sum exceeding $50. Thereupon a writ of foreign attachment was issued to the sheriff of New Castle county, which plaintiffs caused to be indorsed with a memorandum to the effect that special bail was required in the sum of $200,000, and under which the sheriff attached 33,3243 shares of stock (par value $5 each) held and owned by defendant in the Wootten Land & Fuel Company, a Delaware corporation, and made a proper return. Plaintiffs filed a declaration demanding recovery of $200,000, counting upon a combination of the common money counts in assumpsit. Whether such pleading was required or even permitted by the statutes is questionable; but this is not material for present purposes. Not long afterwards defendant, by attorneys, without giving security, went through the form of entering a general appearance, and filed pleas of non ing that, in a foreign attachment suit assumpsit, the Statute of Limitations, and payment. Plaintiffs' attorneys moved to strike out the appearance and pleas on the ground that special bail or security, as required by the statute in suits instituted by attachment, had not been given. To this motion defendant filed a written response, setting up that the Wootten Land & Fuel Company, although a Delaware corporation, was engaged in coal mining and all its other activities and business in the states of Colorado and New Mexico, where it had large and valuable property; that defendant was a resident of Colorado, and the stock in said company attached in this case constituted substantially all Defendant repeatedly asked that the his property; that the company was in proceedings be opened and he permitted the hands of a receiver, and because of to appear and disprove or avoid plainthis the market value of the shares tiffs' debt or claim, saying that shortly attached was temporarily destroyed, so after the issuance of the writ of attachthat they were unavailable for use in ment, and as soon as advised thereof, he obtaining the required bail or security had proceeded to Delaware, retained to procure the discharge of the [100] counsel, and used every possible effort shares from attachment, and that it was to secure bail in the sum of $200,000, impossible for defendant to secure bail or offering the attached stock as collateral security in the sum of $200,000, or any security to indemnify a surety, but beadequate sum, for the release of the cause the property of the Wootten Comshares so attached; that defendant had pany was in the hands of a receiver, he a good defense, in that there was no in- had found it impossible to obtain any debtedness upon any account or in any surety; and that he was not at present sum due from him to plaintiffs; that, by nor was he at the time of the issuance the true construction of the Delaware of the writ of foreign attachment instatutes, the entry of bail or security debted to plaintiffs in any sum whatfor the discharge of the property ever, but had a just and legal defense attached was not a necessary prerequi- to the whole of the alleged cause of site to the entry of defendant's appear- action. These applications were denied, ance, and such appearance might be upon opinions of the court in bane (6) made without disturbing the seizure of Boyce (Del.) 417, 434-436), and the Thereupon judgment in favor of plaintiffs and against defendant for want of appearance was ordered, collectable only from the property attached, the amount to be ascertained by inquisition at bar. The inquisition afterwards proceeded, and resulted in the finding of damages [101] to the amount of $200,168.57, for which final judgment was entered. superior court ordered the shares of stock in question sold in order to satisfy the debt, interest, and costs. The supreme court affirmed the judgment (7 Boyce (Del.) 297, 105 Atl. 838, 849), and the case comes here upon the contention that the statutes of Delaware, as thus construed and applied, are repugnant to the 1st section of the 14th Amendment. The statutes are found in Delaware Rev. Code 1915, and the provisions bearing upon the controversy are set forth in the margin.1 [102] The principal contention is based upon the "due process of law" clause of the 14th Amendment. It is said the essential element of due process-the right to appear and be heard in defense of the action-is lacking. But the statute in plain terms gives to defendant the [103] opportunity to appear and make his defense, conditioned only upon his giving security to the value of the property attached. Hence the question reduces itself to whether this condition is an arbitrary and unreasonable requirement, so inconsistent with established | docket, shall be signed by the security, and shall be an obligation of record of the same force and effect, and subject to the same remedy by an action of debt, as any other obligation for the payment of money may be. 4137. Sec. 20. Judgment shall be given for the plaintiff in the attachment the second term after issuing the writ, unless the defendant shall enter special bail as aforesaid; whereupon, the court shall make an order that the sheriff shall sell the property ceeds (deducting legal costs and charges) to the auditors for distribution. 4145. Sec. 28. The said writ shall be framed, directed, executed and returned, and like proceedings had, as in the case of a domestic attachment, except as to the ap-attached, on due notice, and pay the propointment of auditors and distribution among creditors; for every plaintiff in a foreign attachment shall have the benefit of his own discovery, and, after judgment, may proceed, by order of sale, fieri facias, capias ad satisfaciendum or otherwise, as on other judgments. Provided, that before receiving any sum under such judgment, the plaintiff shall enter into recognizance as required by § 18 preceding. 4135. Sec. 18. Provided, that before any creditor shall receive any dividend or share, so distributed, he shall, with sufficient surety, enter into recognizance to the debtor, before the prothonotary, in a sufficient sum, to secure the repayment of the same or any part thereof, if the said debtor shall, within one year thereafter, appear in the said court and disprove or avoid such debt, or such part thereof. The proceeding for this purpose may be by motion to the court, and an issue framed and tried before the same. 4123. Sec. 6. If the defendant in the attachment, or any suflicient person for him, will, at any time before judgment, appear and give security to the satisfaction of the plaintiff in such cause, or to the satisfaction of the court and to all actions brought against such defendant, to the value of the property, rights, credits and moneys attached, and the costs, then the garnishees and all property attached shall be discharged. The security may be taken thus: "On the........day of........19.., A. B. becomes security in the sum of....that C. D. shall answer the demand of E. F. in this suit, and shall satisfy any judgment to the extent of the value of the property attached, that may be recovered against him therein;" which entry, on the appearance 4143. Sec. 26. A writ of foreign attachment may be issued out of the superior. court of this state against any corporation, aggregate or sole, not created by or existing under the laws of this state, upon affidavit made by the plaintiff or any other credible person, and filed with the prothonotary of said court, that the defendant is a corporation not created by, or existing under the laws of, this state, and is justly indebted to the said plaintiff in a sum of money, to be specified in said affidavit, and which shall exceed $50. The said writ shall be framed, directed, executed and returned, and like proceedings had as in the case of a foreign attachment issued under the next foregoing section, except that attachments to be issued under this section shall be dissolved only in the manner hereinafter provided. In any attachments to be issued under this section, judgment shall be given for the plaintiff at the second term after the issuing of the writ, unless the defendant shall have caused an appearance by attor ney to be entered, in which case the like proceedings shall be had, as in suits commenced against a corporation by summons; Provided, however, if the defendant in the attachment or any sufficient person for him, shall, at any time before judg ment, give security for the payment of any judgment that may be recovered in said proceedings with costs, then the garnishees and all the property attached shall be discharged, and the attachment dissolved, and like proceedings be had as in other cases of foreign attachment, in which the attachment has been dissolved by special bail. . |
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