
    Wright v. Steamboat Vesta.
    Where the Justice subscribed his name, witness A. B. justice, fyc. and affixed a scrol! to the end of his name, with the word seal written within, it was held a good seal according to the statute.
    ERROR from the circuit court of the'county of Warren.
    The plaintiff sued out an attachment against the Steamboat Vesta, under the provisions of the act of 1840. A levy was made upon the boat, which was replevied by W. C. Gould, who then had possession of her. A motion was made' on the return of the writ to set it aside, on the ground that it was not under the sea! of the justice of the peace who issued it. The motion was sustained, and the proceeding ordered to be dismissed. The justice subscribed his name to the .writ, and- affixed opposite to it a scroll, with the word seal written within. This was considered not to be a sufficient seal, within, the meaning of the law, as there were no words intervening to express the intention of the justice, to substitute the scroll used for a formal technical seal. The words “ witness my hand and seal,” were not used by the justice, nor any of a similar import, and hence it was contended that there was no seal. Before the decision on the motion to quash the writ, the plaintiff moved for leave to the justice to amend by writing the words, “my hand and seal,” between the words witness and seal, as contained in the scroll, which would have made it read witness my hand and seal; but the court refused the application. It was proved by the justice that he had no seal of office, and that the method used was his uniform custom.
    Depew, for plaintiff in error.
    It is contended the warrant was in the form prescribed by the legislature, and that the court below erred in quashing the proceedings. See Dig. Miss. Stat. by How. & Hutch, page 551. The concluding words of the legislative form, are : “ Witness, judge or justice,” “as the case may be.”
    
      It is believed that the case of Bohannon v. Hough, Walker’s Rep. 461, upon the authority of which the court below decided this case, is not applicable to attachments.issued in the form prescribed by statute. The case of Bohannon v. Hough is the only reported case as to seals, decided by this court, and it is believed to be in conflict with the doctrine of the common law on the subject of seals, and the great majority of cases relating thereto, decided by the supreme courts of the sister states. According to Blackstone, vol. 2, ch. 20, p. 305: “ The method of the Saxons (in the execution of deeds,) was, for such as could write to subscribe their names, and, whether they could write or not, to affix the siga of the cross.” The illiterate Normans introduced the practice, after the conquest, of sealing with wax, without writing their names, which they were unable to do. Sealing alone was sufficient, provided there was a delivery. The clause, “Mis testibus” contained the expressions, “ sealed and delivered in the presence, &c.” and it was not necessary that these expressions should be comprised in the deed.
    In Hubbard v. Beckwith, 1 Bibb, 492, it is decided, that the affixing of a scroll to a writing is sufficient to make it a sealed instrument, without naming the seal in the hand writing. Many other decisions of similar import might be cited from the adjudications of the sister states, were it necessary. See Kent’s Com. vol. 4, p. 453, note, 4th Ed. But it is believed' that the doctrine of Bohannon v. Hough is not applicable to writs of attachment, issued under the official signature and scroll of a justice of the peace. This view of the subject is confirmed by a perusal of the case of Wanzer v. Barker, 4 Howard, 363.
    The attachment against the Vesta Avas in the nature of a libel from the admiralty, should be liberally expounded in furtherance of justice, and amended if necessary. See Jeffrew’s Heirs v. Callis, 4 Dana’s Ky. Rep. 405, and 3 Cond. Rep. Supreme Court IT. S. 468. The proceedings of the court below should be reversed. ■ :!
    Work, on the same side.
    Tompkins for defendant.
    This is-an attempted proceeding under the statute of 1840, giving remedy against water crafts, &c. The plaintiff in. error was plaintiff below, and the claim sued on is evidenced by a mortgage, executed upon the timbers of an unfinished boat, by persons other than the defendant. It is attempted by the plaintiff to charge the defendant as execution purchaser of the said mortgaged timbers, under process against the mortgagors. If Gould is liable at all, under such a state of case, he is liable only in a chancery proceeding to foreclose the mortgage, and then liable only to the extent of the value of the timbers mortgaged. In such a proceeding, the mortgagors are necessary parties. The statute of 1840 was intended, doubtless, to give a remedy on claims properly sueable in the courts of law, and was not designed to invade the fields of equity jurisdiction. This claim, therefore, is purely an equitable claim; and if the Steamboat Vesta, and her present owners, can be charged with it at all, it is only to the extent of the value of the timbers mortgaged. How can that value be ascertained in a proceeding other than in chancery ?
    If the circuit court could not take cognizance of the claim, for want of jurisdiction, then that court properly discharged and dismissed the attachment, although nothing was said on that point in the motion to dismiss; for the circuit court, being a court of limited jurisdiction, and deriving all its powers from the constitution and the statutes made in pursuance thereof, must, like other American courts of limited jurisdiction, take notice of its want .of authority, however it may be presented. It is limited, because it cannot entertain a suit demanding, upon contract, less than fifty dollars, nor can it exercise equity powers to enforce a remedy, except in special cases, greater in amount than five hundred dollars.
    In relation to the attachment, it was without the justice’s seal; the statute of 1822 makes the seal necessary. The scroll, without words expressing an intention to make it a.seal, is not sufficient; to this point, the case in Walker, and the authorities there cited, are conclusive.
    In relation to the proposition of the plaintiff below, (which was not made until after the motion to dismiss had been several days entered,) to permit the justice to amend his writ of attachment, by inserting the word “seal/’ the court could not have done oth-wise than refuse. The attachment was the leading process in the cause, and in the issuing of it, the justice of the peace bore to the court the relation of clerk; in that particular case he was quasi clerk of the court. The statute of 1832, requires the clerk in issuing writs to affix the seal of thé court and sign his name as clerk. If the clerk omits to affix the seal, or to sign his name, the writ though perfect in every other particular, is bad, and will be quashed on motion. The clerk cannot amend it. The statute does not authorize him to amend'; no decision of any court in this state permits him.
    A universal and well understood principle of law, permits the sheriff to amend his return, so as to make it speak the truth, and here the' counsel for the plaintiff seems to confound the powers and duties of those two officers of court, (the clerk and sheriff,) for in the court below he urged the authority of a case in 4 Dana’s Ky. Rep. as in point. That case was one in which a newspaper publisher was permitted to amend his certificate, of the publication of an order in chancery against an absent defendant. He was quasi sheriff to execute constructive process, and the authority of that case proves only, that the quasi sheriff may amend his return as to the execution of constructive process, so as to make the return speak the truth. In this it puts him iipon a footing with the real sheriff, who executes actual process. But that case does not prove that a clerk or a quasi clerk may amend. and perfect defective process after it has been executed and returned.
    A decision of the Supreme Court of the United States, to be found in the third volume Cond. Rep. 468, was read and relied upon by the plaintiffs below. That was an admiralty case; the present is not such a case, nor analogous to it.
    Attachment is a summary proceeding and in rem. It is in derogation of the common law; and the prescribed proceeding should be strictly pursued. Such is the judicial language of the states all around us. Attachments are not amendable.
    It is thought this’cause must go off, upon our several statutes; do these require the writs to] be under seal? Has not the supreme court of the.land determined that a scroll without words to shot'/ it was intended for a seal, does not constitute a seal?. Has the statute .of 1822 or 1830, enlarged the constitutional powers of the circuit court-'so as to enable it to exercise ■general chancery jurisdiction; and that, in the summar}r way of affidavit, bond and common writ, without bill of complaint or any description - of equity pleading ? Is not the claim exhibited- by the plaintiffs in their cause purely of a chancery character? ■
   Mr. Justice Tuottek

delivered the opinion of the court:

The reasoning of the supreme court in Walker’s Rep. 461, is relied on in support of the objection to the seal. The question which., arose .in .that case was, whether - the writing on which the ■ action was; founded,-was. a bond or'a promissory note, and the court held that the scroll .annexed to the name of the maker did not become a. seal, unless there was some evidence upon the paper of his intention to use the .same as a substitute for a'seal. The distinction is -of importance between bonds, .or bills s.ingle and promissory notes, since the former is regarded as a security of higher dignity than the latter. .But none, of the. reasons which can demand the distinction in cases like that, can have any application to an attachment. The latter is a judicial, writ, and its validity must depend upon its conformity to the law. The intention of the judge,or justice who issues it, is rout of-the question. The law does indeed require that it shall be signed and sealed by the justice, but the form of the writ which has been prescribed by the legislature does not require the use of dhe words “witness my hand and seal,’? which the court below appear to have considered essential to express the intention of the justice to give the scroll annexed to his name the character and dignity of a seal. The teste is in tire words -used by the justice in the writ, which are witness John F. Pierson, justice, &c.” This we regard as a strict compliance with the law.

The case of Lowrey v. Stowe, 7 Porter, 483, is precisely similar to this so far as regards this question, and the objection taken to the present attachment was there held not to be tenable. The court say, the form of the attachment given in the statute does not recognize the seal of the justice, and. the act of affixing a seal opposite his name was sufficient. '

It is not considered necessary to express qn opinion upon the question of jurisdiction, which has been raised in the argument-of counsel. It was not made in the court below, and we do not consider it properly before' us, as the case is presented by the record. The judgment must be reversed, and the cause remanded.  