preme court, to execute the powers which such judge is autho rized to execute by virtue of this act.*

Sir,

Attachments in North Carolina.

To the Editor of the Law Journal.

Having no other knowledge of the American Law Journal, than such as is conveyed by the slight notice of it in the Port Folio of the 23d July, I am not sure that the information, contained within, may be useful to you. However, this will serve to express my desire that the work may succeed, because I am convinced that it will, if judiciously conducted, produce very essential public advantages.

ATTACHMENTS. PROOF OF DEEDS, &c. POWER OF ATTORNEY IN NORTH CAROLINA.

ATTACHMENTS are granted in the state of North Caro

lina against the estates of debtors who conceal themselves or abscond, upon oath being made of the amount of the debt and of the cause that requires the attachment. The oath may either be made by the plaintiff himself, or by his attorney, agent, or factor; by whom, also, a bond must be given conditioned for satisfying the costs and damages, in the event of a failure in the suit.

* On an assignment of a bond payable by instalments, with a covenant from the assignor, that " if the obligor should become insolvent, or not be able to pay, &c. and if the assignee, &c. should use all due diligence and take all legal measures, &c. immediately after the several sums shall respectively become due," the assignor is liable for the whole amount on the insolvency of the obligor on the first instalment becoming due, and the assignee is not obliged to wait till the last is payable. If the first instalment be not demanded, it will, unless the contrary be shown by the defendant, be presumed to have been paid. An assignment of property under the absconding debtor's act is evidence of insolvency in the debtor; and the assignee of his bond is not precluded from his action against the assignor because he has not proved the amount under the debtor's estate. 1 N. Y. T. R. 427.

But no attachment can issue where both creditor and debtor are inhabitants of another state, unless process in an action has been served on the debtor in the state; in which case a judicial attachment may issue. A creditor living in North Carolina may attach property there, though the debtor resides in another state. In every case, therefore, where a person having property in that state, but residing in another, is also indebted to an inhabitant of another state, by note or bond, it is expedient for the creditor to assign the debt to a resident of North Carolina, to enable him to comply with the preliminary forms.

Where inhabitants of other states devise or convey property, situated in North Carolina, and the original deed or will cannot be obtained to register in the county where the land lies, or to adduce in evidence upon a legal controversy, a copy of the deed or will, (after the same has been proved and registered or described agreeably to the laws of the state where the person died or made the same,) being properly certified either according to the act of congress, passed in May, 1790, or by the proper officer of the state, and the testimonial of the governor, that the person certifying is authorized so to do-in such cases a copy is equally authentic with an office copy of the state.

Powers of attorney executed by persons out of the state, authorizing the sale of lands in North Carolina, must be proved or acknowledged before the chief justice or any judge of the supreme court of the state where the person making it resides, or in a county court thereof, and duly certified by the clerk, or by a notary public. It is then to be exhibited to one of the judges of the supreme court of North Carolina, or to the court of the county where the land lies, by whose order it may be registered.

Feme coverts, residing without the state, may jointly with their husbands make powers of attorney, to authorize the sale of lands in which they have an interest in North Carolina. But a commission must issue from a judge, or the court of the county where the land lies, to two commissioners to ascertain that the feme hath executed the power voluntarily.

A Brief Historical Examination of the Civil Jurisdiction of Courts of Admiralty.

[The following essay is extracted from the preface to a translation of Clerke's Praxis, which has recently been completed by the editor of this journal.]

THE

HE jurisdiction of the civil or instance court of admiralty, as it is at present understood, appears to be of a strangely anomalous kind. Mariners' wages, except where the contract is under seal or is made in an unusual manner; bottomry, in certain cases only and under many restrictions; and salvage, when the property shipwrecked is not cast ashore; appear to be the only subjects within what is now considered to be its legitimate cog

nizance.

By the publication of Dr. Robinson's Reports, we have been, however, for the first time informed, for in the common law books there is no trace of it to be found, that the court of admiralty of England entertains suits for the mere possession of vessels though it never interferes where the title is in controversy. We ought also to have mentioned that the admiralty has an ancient and long recognized jurisdiction, to decide between part owners of ships or vessels, who differ among themselves about the policy or advantage of sending her on a particular voyage.

On considering the present state of the civil jurisdiction of the court of admiralty and tracing back its history to ancient times, we were induced to believe that those different subjects of which it now has the acknowleged cognizance, were the venerable remains of a much more extensive jurisdiction which it once possessed and which it was long permitted to exercise, notwithstanding the restrictive statutes of 13 and 15 Rich. II. This opinion was confirmed by a perusal of the present work.

As the court of admiralty is constituted at present the greatest part of its proceedings in civil cases are in rem. Indeed it was not long ago held that it had no jurisdiction in perso

nam, and that question was agitated so late as the year 1781 in the great case of Le Caux v. Eden. If then, in the reign of Elizabeth when our author wrote, the jurisdiction of the court of admiralty had been limited as it is at present, his rules of practice would have been particularly directed to the special cases of which it had cognizance, and particularly to proceedings in rem. Whereas the modern subjects of admiralty jurisdiction, bottomry, salvage and mariners' wages, are not even mentioned, and only a single chapter or title (the 41st) relates to those proceedings which may properly be said to be in rem: for we cannot call by that name an attachment of property for the mere purpose of compelling the appearance of the defendant, on which the plaintiff does not claim any right of ownership or lien, as is the case in a suit on a bottomry bond or for seamen's wages. But it seems from the context of Mr. Clerke's book, that the admiralty, in his time, had cognizance of a great variety of matters and contracts which required the same modes of proceeding which are used by courts of general jurisdiction. Indeed it evidently appears that the greatest number of suits which the admiralty then entertained, were actions of debt founded upon contract, which were enforced in the first instance by the arrest of the debtor, if he was present, and by attachment of his property, in order to compel his appearance if he was absent. They entertained petitory suits, in which they decided on the title to property; as well as possessory suits, for the mere possession. No traces whatever appear of such a limited jurisdiction as the admiralty possesses at the present day. And it is remarkable that during the long reign of Queen Elizabeth, (forty-four years) no prohibition appears to have been issued against the admiralty court, except two or three which are mentioned by Lord Coke in 4th Inst. but which we do not find elsewhere reported, and which, if his report be correct, were in violation of the agreement which will hereafter be mentioned. The admiralty jurisdiction then, as far as we are now able to trace it, extended to all cases of freight, charter parties, bottomry, mariner's wages, debts due to material men for the building and repairing of ships, and generally, to what was then

considered as maritime contracts. It extended also to contracts made abroad, because those were to be decided according to the civil law, which was and is still the law of the admiralty. This jurisdiction was secured to that court by an agreement which was signed, in the 17th year of Elizabeth, by all the common law judges, in order to put an end to the disputes which their jealousy had excited and perpetually kept alive. Vid. 4 Inst. 136.

But those articles, in the subsequent reigns, were not executed with good faith, any more than similar ones which were as solemnly agreed to in the eighth year of Charles I. Vid. Ray. 3. Sea Larvs 235. The judges evaded them by subterfuges which were unworthy of the dignity of the bench, and did not observe them longer than they were constrained by the weight of royal authority. So useful, however, were they considered to be to trade and commerce, that the republican parliament enacted them in substance by an ordinance of the 12th of April 1648. Scobell 147. But at the restoration, that ordinance ceased to be in force; and the common law judges began again to annoy the admiralty court with prohibitions, as they had formerly done. They did not, however, venture to deprive them of all their jurisdiction; they left the cognizance of those cases of bottomry and mariners' wages which they entertain at present, but declared that they allowed it from mere indulgence and from the necessity of the thing. The admiralty had however been permitted, but for the same reasons, to hold plea of mariners' wages, so early as the 8th of James I. Winch. 8. anonymous.

It is certain that the court of admiralty, in its origin, had and entertained a jurisdiction coextensive with that of the maritime courts throughout Europe. Those courts were established for the protection of maritime commerce, to which the feudal judicatures of those times were entirely inadequate. We find them in the middle ages established in all the maritime counties of christendom; in some under the name of admiralty, in others under that of consular courts. In the south of Europe the judges who had cognizance of commercial and mari