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It will be noticed by the second rule, that the garnishees must be named in the warrant of arrest, and a general order would not be sufficient. And interrogatories to the garnishees, it would seem, may be filed with the libel or afterwards.

June 21, 1858. The garnishee entered an appearance, but gave no stipulation, and put in no answer. After judgment against the defendant, he was called and was defaulted. The proctor for the libellant then filed an affidavit that the garnishee had admitted both before and after the suit was brought, that he owed the principal a certain amount, and moved for execution against the person and property of the gar nishee. This was granted, but the execution was afterwards stayed by order of court on motion of the garnishee. The libellant then moved the court for an execution against the garnishee personally, and against his property generally, to the amount of the credits in his hands, as shown by the affidavit. The garnishee then offered his affidavit that he had no goods, effects, or credits of the principal in his hands, and prayed that he might make disclosure under oath, and to answer all interrogatories that might be propounded, and that thereupon he might be discharged. The case was considered at great length and the following conclusions arrived at that the compulsory process mentioned in the rule was not a process against the trustee to compel him to pay to the creditor his debts to the extent of the credits alleged by the libel to be in the hands of the trustee, but that it was a process to compel him to perform the duty previously prescribed, namely, to answer. The learned judge was also of the opinion that if the garnishee chose to waive his right and submit to a default, it was not imperative upon the libellant to coerce an answer, but if he could upon a default, show to the satisfaction of the court that the garnishee holds debts, effects, or credits, there was no reason why an execution might not issue. It was also said that after such execution, and a refusal by the trustee to pay, he had not the right to make answer that he had not when summoned, any debts, effects, or credits of the defendant in his hands, unless, perhaps, where there was some other cause than existed at the time of the commencement of the suit, as the discharge of the judgment against the principal by other means, or the destruction of the property in the hands of the garnishee without his fault. The circumstances of the case were somewhat peculiar, an affidavit having been put in stating that the proctor of the libellant had agreed that the garfishee need not make answer in court, but that if judgment should be rendered against the principal, the answer might be sent to the proctor, and that the default was obtained without due notice. Under these circumstances the default was taken off, and the garnishee was allowed to answer on condition that his answer might be contested by the libellant, and that he should enter into stipulation with surety to pay whatever sums should be decreed against him. It was also stated on the authority of Clerke's Praxis, tit. 34, that ordinarily the sworn answer of the garnishee would be conclusive, although Mr. Benedict in his Admiralty Practice, § 459, states that the libellant may reply to such an answer and the issue will be tried. Clerke also states that before the answer is sworn to, the libellant may be allowed to show, if he is able, that the garnishee has property of the defendant in his hands. See also, McDonald v. Rennel, U. S. D. C., Mass., 21 Law Reporter, 157.

SECTION IV.

OF THE MONITION IN SUITS IN PERSONAM.

The second admiralty rule of the supreme court goes on to provide, that the mesne process may be by a simple monition in the nature of a summons to appear and answer to the suit.

The simple monition should be by service on the respondent, and it is issued only when neither an arrest nor an attachment is desired. In admiralty, we think, it is clear that residence does not give jurisdiction, and either the person or his property must be found in the district. If the person, then there may be an arrest or a monition. If the person cannot be found, then there may be an attachment. But the rules of the supreme court do not provide for an attachment of goods and a monition, unless the suit is in rem, and the reason, we think, is this. In suits in rem, all the world is bound, and notice should be given, and the rules so provide; but in suits in personam, where property is attached, only the interest of the respondent in the property is bound. Notice to the world, therefore, is not necessary, and it would seem that the attachment was intended to operate as a notice to the respondent.

In a case before the supreme court in 1825, the libellant alleged, that the defendant had absconded and fled beyond the jurisdiction of the court, and that no means of redress remained, unless by process of attachment against the goods, chattels, and credits of the respondent. The libel also prayed a personal monition and likewise viis et modis, and the court held, that the process was according to the usages of admiralty courts and decreed that it should issue.1 This process we do not consider to be necessary in cases in personam under our new rules, though it was clearly the old admiralty practice. It was the citatio publica, or viis et modis of the civil law; from which is probably derived the practice in admiralty courts, the ecclesias

1 Manro v. Almeida, 10 Wheat. 473, 490.

2 See Clerke's Praxis, tit. 28, 21.

tical courts of England, and the probate courts of this country, of giving notice by posting the citation in conspicuous public places. It is a warrant of the court directed to the marshal, requir ing him to give public notice in the manner designated, of the filing of the libel, and the time and place for appearance or trial. It should contain a condensed and very brief statement of the allegations and prayer of the libel. A special monition directs the marshal to give notice to certain persons named therein. The general monition is a notice to all parties interested,notice to the whole world it is often called, to appear, usually on the first day of the next term of the court, or on the specified return day, and defend the property against the claims of the libellant.

SECTION V.

OF MESNE PROCESS IN SUITS IN REM.

The manner of proceeding in actions in rem, is clearly defined by the rules of the supreme court. In ordinary cases, the process, unless otherwise provided by statute, is by a warrant of arrest, and the marshal is thereupon to take the thing arrested into his possession for safe custody, and give public notice thereof and of the time assigned for the return of such process and the hearing of the cause, in such newspaper within the district, as the district court shall order, and if there is no newspaper published therein, then in such other public place as the court shall direct. It is further provided, that in a suit in rem against a ship, her tackle, sails, apparel, furniture, boats, or other appurtenances, if such tackle, sails, etc., are in the

1 9th Admiralty Rule. This mode of giving notice was expressly adopted in the Collection Act of 1799, ch. 22, § 89 (1 U. S. Stats. at Large, 695), which provided that in cases of seizure under the act, the court should "cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published near the place of seizure, and also, by posting up the same in the most public manner, for the space of fourteen days at or near the place of trial."

possession or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any there be, why the same should not be delivered over, award that the same be delivered into the custody of the marshal or other proper officer, if upon the hearing, the same is required by law and justice.1

If the property at the time the warrant of arrest issues is in the hands of a State officer by virtue of process issuing from a State court, the marshal has no power to take the property, but must delay seizure till after the property has passed from the possession of the officer.2

In all suits in rem, "where the freight, or other proceeds of property are attached to, or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit; and if no sufficient cause be shown, the court may order the same to be brought into court, and upon failure of the party to comply with the order, may award an attachment or other compulsive process to compel obedience thereto." 3

SECTION VI.

OF MESNE PROCESS IN REM AND IN PERSONAM.

Regularly, each of the processes given by the second rule is a thing by itself; but it is quite frequent to combine two or more, and sometimes all are contained in one monition. Thus, it may give notice to all the world, and also summon the defendant by name, and contain a warrant or direction to attach the person or the property, directly, or by foreign attachment. But a monition so multifarious as this, would, and must be, very All these things are of course governed in a great degree

rare.

18th Admiralty Rule.

2 Sec cases ante, p. 523, n. 1.

3 38th Admiralty Rule.

by the rules of court, and in some districts no attachment of person or property can issue without the fiat of the judge. In other districts it issues as a matter of course, either in all cases, or in those of a certain amount or character, or after certain verification of the claim and other facts by the oath of the libellant.

If the suit be both in rem and in personam, one process, combining the two appropriate processes, may issue, and the marshal executes this process as he would the two if separate; or each process may issue simultaneously, or as each is wanted.1

SECTION VII.

OF STIPULATIONS.

The stipulations of admiralty are sometimes called bail; and the forms of certain stipulations are very similar to those of bail bonds; but little, however, is gained by giving them that name, or by applying to them any of the principles of common-law bail. They are usually without seal, the admiralty court in England not taking jurisdiction of deeds or other specialties. In this country no such distinction is made, and a seal neither limits the jurisdiction nor materially affects the jurisprudence of our courts of admiralty.

These enrolments are the stipulations of the civil law, on and by which the party stipulating enters into certain engagements,

1 We have seen that by the rules of the supreme court, suits in rem and in personam may be joined in many cases, and it would seem necessary, when this is done, to issue a monition to the defendants as well as to arrest the property, for, if the owner should appear and defend the suit in rem, this would not render him liable in personam beyond the value of the property arrested. In petitory and possessory suits, the 20th Admiralty Rule provides that the process shall be by an arrest of the ship and by a monition to the adverse party or parties to appear and make answer to the suit. In Blanchard v. Ship Cavalier, U. S. D. C., New York, Betts, J., it was held that under this rule, when a vessel is arrested, notice must be given specifically to the adverse party, and that it is not enough to arrest the vessel and publish a general notice to all concerned.

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