and certain others guarantee the due execution of these engagements as his sureties, or, as they are sometimes called, fide-jussores, which is their name in the civil law. These stipulations are of many kinds; they differ principally, however, accordingly as the action is in personam or in rem, and the forms in blank are usually provided by the clerk.

In all suits in personam, where a simple warrant of arrest issues and is executed, it is provided by the third admiralty rule, that the marshal may take bail, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered there in the court, to which the process is returnable, or in any appellate court. And upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties, by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court.2

1 See Lane v. Townsend, Ware, 286, for a learned exposition of the subject of bail bonds, and stipulations by the civil and by the common law. In Clerke's Praxis, additions to title 4, Hall's ed. p. 12, it is said: "Securities, or cautions, as they are termed by civilians, are of three sorts:

"1. Judicatum Solvi; by which the party is bound absolutely to pay such sum as may be adjudged by the court.

"2. De Judicio Sisti; by which he was bound to appear from time to time during
the pendency of the cause to abide the sentence and also to pay a tenth
part of the sum in dispute if he should be defeated.

"3. De Rato; by which he engaged to ratify and confirm the acts of his proctor.
"With respect to the manner in which these cautions were taken, they were-
"1. Cautio fide jussoria; by sureties.

"2. Pignoratitia; by deposit.

"3. Juratoria; by oath.

"4. Nudi Promissoria; by bare promise."

Where the stipulation is merely in judicio sisti, the bail may surrender the debtor at any time before a decree against them. Lane v. Townsend, Ware, 286.

2 See Gardner v. Isaacson, Abbott, Adm. 141. In a case in Massachusetts, entitled, In the Matter of the Bail of Snow, 2 Curtis, C. C. 485, the condition of the bail bond was merely to appear and answer, and abide the final decree, and nothing was said about paying the damages. Judgment had been obtained against the defendant, and on application of the plaintiff, the court being satisfied that the defendant was beyond the seas, ordered a monition to issue to the bail to show cause why he should not pay the judgment, and why process should not issue against him. It was contended that there was no breach of the bond until an execution should have been issued and returned non est inventus, but Curtis, J., said: "I am of opinion that it is not necessary

By an additional rule, passed December term, 1850,1 it is ordered that in all suits in personam where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the State where an arrest is made, upon similar or analogous process issuing from the State courts.

And in a suit in personam where property is attached, it is provided by the fourth rule that the attachment may be dissolved by the defendant giving a bond or stipulation, with sureties. The conditions of the bond are the same as are provided by the first rule, except as to that which relates to the appearance of the defendant, which is omitted.

The fifth rule provides that bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court. The thirty-fifth rule is much to the same effect, with some differences. It provides that "stipulations in admiralty and maritime suits may be taken in open court, or by the proper judge at chambers, or under his order, by any commissioner of the court who is a standing commissioner of the court, and is now by law authorized to take affidavits of bail, and also depositions in civil causes pending in the courts of the United States." The former rule has been supposed, by Mr. Conkling, to be useless, but it may well be that the latter rule was intended only to provide for stipulations for costs, and not for bonds or stipulations. The thirty-fourth rule provides that intervenors shall be required to give stipulations for costs, and the thirty-fifth rule may have been intended to apply merely to such stipulations. We are not able, however, to express so definite an opinion on this point as we could wish, and further adjudication is also necessary to

to take out an execution against the principal to charge such bail in the admiralty. It is in conformity with the practice of the high court of admiralty in England to proceed summarily against the bail, in a case where the principal has gone out of the kingdom, by issuing a monition to the bail to show cause why execution should not go against them, without citing the principal, or issuing any process against him. It is upon this practice that the rule No. 3, for the admiralty practice of the district court, was framed." In New York, the practice is not to obtain a monition, but to issue an execution at once against the defendant and his stipulators. Gaines v. Travis, Abbott, Adm. 422; Holmes v. Dodge, id. 60.

1 10 How.

determine whether, under the thirty-fifth rule, the words "or under his order," were intended to prevent a commissioner from acting except under the order of the judge, or whether they have reference to a special commissioner.

By the sixth rule, it is provided that "in all suits in personam where bail is taken, the court may, upon motion, for due cause shown, reduce the amount of the sum contained in the bond or stipulation therefor; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as aforesaid, if either of the sureties shall become insolvent pending the suit, new sureties may be required, by the order of the court, to be given, upon motion and due proof thereof." 1

If the suit be in rem, the stipulation is given for the purpose of obtaining possession of the property, and not for that of liberating the person; and the eleventh admiralty rule provides that in such a case the vessel "may be delivered to the claimant, upon a due appraisement to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court, or otherwise disposed of as it may be deemed most for the benefit of all concerned." This rule is, to some extent, of less importance than formerly, on account of the passage of the act of 1847.2 The title of this is, "An act for the reduction of the costs and expenses of proceedings in admiralty against ships and vessels." The language of the act is, however, general, and would embrace any other property as well as vessels. It is as follows: "That in any case brought in the courts of the United States, exercising jurisdiction in admiralty, where a warrant of arrest or other process in rem shall be issued, it shall be the duty of the marshal to stay the execution of such process, or to

1 We should however suppose, notwithstanding this rule is confined to the case of bail actually given, and to the insolvency of the sureties, that the court, by virtue of its general admiralty power, would have the power to order new sureties to be given if the old ones were insufficient, though not actually insolvent.

2 Ch. 55, 9 U. S. Stats. at Large, 181.

discharge the property arrested if the same has been levied, on receiving from the claimant of the same a bond or stipulation in double the amount claimed by the libellant, with sufficient surety, to be approved by the judge of the said court, or in his absence by the collector of the port, conditioned to abide and answer the decree of the court in such cause; and such bond or stipulation shall be returned to the said court, and judgment on the same, both against the principal and sureties, may be recovered at the time of rendering the decree in the original cause.”

If the stipulation is for a sum certain, the surety cannot be compelled to pay more than that sum, although the stipulation is conditioned to pay such sum as shall be awarded by the final decree.1

It has been held in England that where the owners of a vessel are only liable to the extent of the value of the ship and freight, the bail are only liable to the same extent, although the action may have been entered and the bail given in a larger sum;2 and probably the same rule would obtain in this country, in similar cases, for the stipulation is regarded as a substitute for the thing itself, and the stipulators are liable for no more and no less than the thing itself, if it had remained in the custody of the court.3 And the valuation in the stipulation cannot be increased in the appellate court. It has also been held that if a claimant receives the vessel upon a stipulation to pay into court its appraised value with interest and costs, he cannot insist on allowances because he has discharged liens for seamen's wages; and if much delay has intervened, of which he has had the benefit, he must pay interest.5 If it is necessary for the purposes of justice to take possession of property which has once been delivered up, on a stipulation, the proper process against a person who is in

1 Brown v. Burrows, 2 Blatchf. C. C. 340.

2 The Duchesse De Brabant, 1 Swabey, Adm. 264.

8 In The Palmyra, 12 Wheat. 1, the case had been dismissed in the supreme court on the ground that there had been no final decree in the circuit court, but as it afterwards appeared that this arose from a mistake of the clerk, and that a final decree had actually been made, the court ordered the cause to be reinstated, although it was objected that they had no authority to do so after a dismissal, because it might operate to the prejudice of the stipulators to whom the vessel had been delivered.

4 Houseman v. Schooner North Carolina, 15 Pet. 40, 51..

The Virgin, 8 Pet. 538.

possession, if he is not a party to the stipulation, is a monition, and not an execution in the first instance.1

SECTION VIII.

OF STIPULATIONS FOR COSTS.

By the ancient rules of admiralty, the plaintiff was required to find fidejussores for the prosecution of the suit, for the payment of the defendant's costs if the plaintiff should fail in the cause, and for the production of the plaintiff personally as often as he might be called.2 In England this seems now to be confined to the case of non-residents, and it is not then enforced when the defendant has arrested sufficient property of the plaintiff in another suit. In this country various rules have been enacted by the different district courts on this subject. By the old seventh rule of the first circuit, on motion of the defendant, the court would oblige the plaintiff, except where the suit was for the United States, on pain of dismissing the libel, to give a stipulation with sureties to appear from time to time and abide all orders, etc., and to pay all costs. But this rule was not applied. where the libellant was too poor to furnish a stipulation, and he was then admitted to give the juratory caution; but even this was not considered essential unless it was demanded by the defendant.4

In the Southern District of New York, it was provided by rule forty-four that no process in rem should issue, or appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation to pay costs was first entered into.5 Seamen suing for wages for services on board American vessels, and salvors

1 The Gran Para, 10 Wheat. 497.

2 Clerke's Praxis, tit. 14.

8 See The Sophie, 1 W. Rob. 326; The Volant, id. 383.

4 Polydore v. Prince, Ware, 402.

5 The 44th Rule was formerly numbered 14.

6 45th Rule. This rule has been held not to apply to an agreement made by a seaman with the master outside of the shipping articles, and the seaman in such a case must file a stipulation for costs. The Great Britain, Olcott, Adm. 1.

VOL. II.

59