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between the opposing counsel, whether this tender CHAP. 4was made or not. In the view which I take of the case, it is immaterial. The rule requiring a stipulation for costs, is a rule established for the benefit of the opposite party, which he may waive as he may any other right; and the principle applies to this as to other cases quisque potest renuntiare jure pro se introducto. It is for the party to move for the security, if he wishes for it; and if he is silent, it is considered as waived(a).”
The rule of practice supposed to be referred to Rules of tho by the court in the foregoing extract, declares that in the First
on motion of the defendant, the court will direct the plaintiff (except where the suit is for the United States), on pain of dismissing his libel, to give a stipulation with sureties, to appear from time to time, and abide all interlocutory orders and decrees, as well as the final judgment which may be rendered in the cause, in the district court, or on appeal in the appellate court; and likewise to pay the costs which
(a) Polydore v. Prince, Ware's R., 402. This case involved another very interesting question, which was discussed by the learned judge with his wonted learning and ability. The libellant, as stated in the text, was a slave in the island of Guadaloupe; and, as such, was incapable of appearing as a party in a French court of justice. This disability, it was insisted by the counsel for the respondent, according to the acknowledged principles of the jus gentium, or at least of national comity followed him into whatever country he might voluntarily go or be carried by his master. But Judge WARE decided, that although the civil incapacities and disqualifications by which a person is affected by the law of his domicile are to be regarded by the courts of other countries as to acts done or rights acquired in the place of his domicile, it is otherwise as to acts done or rights acquired within another jurisdiction, where no such disqualifications exist; and he accordingly held that the libellant was competent to maintain his suit.
shall be adjudged therein against him, if he fails to support the same(a)."
The rules of the District Court for the Southern Pew York. District of New-York require the libellant, except
in suits for seamen's wages for services on board of American vessels, and in suits by salvors coming into port in possession of the property libelled, to enter into a stipulation with sureties “for costs,” in suits in personam, in the sum of one hundred dollars, and in suits in rem, in the sum of two hundred and fifty dollars(6).
The rules of the District Court for the Northern District of New-York require security to be given in all cases where the libellant is not a resident of the district, except in suits for seamen's wages, and suits for salvage where the salvors bave come into port in possession of the property libelled; and the rules of this court also provide that even in the excepted cases, and in all cases where the libellant is a resident of the district, the court will, in its discretion, direct security to be given on motion of the defendant or claimant, on pain of dismissing the libel. And it is by these rules further declared that if, in any case, a libel shall be filed in behalf of a nonresident libellant before the 'required security for
In the Northern District of New-York.
(a) This is Rule 7 of a body of rules printed in the appendix to Dunlap's Admiralty Practice, entitled “Rules of the Circuit Court of the United States for the First Circuit, in civil causes of admiralty and maritime jurisdiction.” They relate, however, not to proceedings on appeal to the circuit court, as their title infers, but to original suits in the district court, and are, in fact, rules of the district courts for the districts composing the First Circuit.
(6) Rules 17, 44, 45.
costs and expenses shall have been given, the poctor CHAP. 4. shall be liable therefor until such security shall be furnished(a).
In what light the subject is viewed, and what regulations, if
have been prescribed in regard to it in the other districts, I am not apprised.
(a) Appendix ; Rules 13, 14, 15, 16.
MESNE PROCESS IN SUITS IN PERSONAM.
SUPPOSING the libel, and, if the rules of the court require it, a stipulation in the proper form, to have been filed, the next subject for consideration is the process which the libellant has thus entitled himself to sue out(a).
By the second of the Rules of Admiralty Practice, it is declared that, “In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant, in the nature
(a) At the first session of the Supreme Court of the United States, it was ordered that (unless and until it should be otherwise provided by law) all process of that court should be in the name of the President of the United States; and such has ever since been the style of the process of all the national courts. And by the first section of the process act of 1792 (ch. 36; 1 Stat. at Large, p. 275), it is enacted that “ All writs and process issuing from the Supreme or a circuit court, shall bear test of the Chief Justice of the Supreme Court, or (if that office should be vacant) of the associate justice next in precedence; and that all writs and processes issuing from a district court, shall bear test of the judge of such court, or (if that office shall be vacant) of the clerk thereof; which said writs and processes shall be under the seal of the court from whence they issue, and signed by the clerk thereof." This act remains unchanged.
of a capias; or by a warrant of arrest of the person of the defendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for, or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein; or, by a simple monition in the nature of a summons to appear and answer to the . suit, as the libellant shall, in his libel or information, pray for or elect(a).” In determining what form of process he will apply for, the libellant will of course be governed by the supposed exigencies of his case; but he must make his election beforehand, and frame his prayer
process in his libel accordingly. But before proceeding further it is proper to state that in accordance with the policy originally adopted by Congress, and ever since adhered to, with states adoptrespect to common law proceedings, the first clause of the foregoing rule has, since the first edition of this work, been modified by a subsequent rule so far as to render it conformable to the laws of the several states in which imprisonment for debt had been or should be abolished. The new rule is as follows: "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 imprisonment for debt, on process issuing out of the
Laws of the several
ed by rule
(a) Appendix; Rules of Admiralty Practice, Rule 11.