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To be drawn and signed by the clerk.

Test and return.

VOL. 2 admiralty court, is abolished in all cases where, by

the laws of the state in which the court is held, imprisonment for debt has been or shall be hereafter abolished, upon similar or analogous process issuing from a state court(a).”

All process is to be drawn and signed, as well as sealed, by the clerk; and he is bound to see that it is in accordance with the libellant's prayer, provided the prayer be a proper one; and if not, process is to be withheld until the libel is amended.

Unless the rules of the court from which the process issues otherwise direct, it may be tested of the day on which it is issued, and made returnable on any future day.

Premising that, by the first of the rules prescribed by the Supreme Court, it is directed that “All process shall be served by the marshal or his deputy, or, where he or they are interested, by some discreet and disinterested person appointed by the court,” I propose to offer a few observations upon each of the three several forms of process here prescribed, without regard, for the present, to the modifying influence of the new rule above recited.

1. WARRANT TO ARREST THE PERSON OF THE

DEFENDANT

ALONE.

It may, in general, be said that it is at the option of the libellant to choose either of these forms, as he may see fit; but his right to sue out a warrant of arrest is, by the seventh rule, subject to this

(a) Appendix, Rule 48.

when neces

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limitation, that “In suits in personam no warrant chap. 6. of arrest, either of the person or property of the and order, defendant, shall issue for a sum exceeding five sary. hundred dollars, unless by the special order of the court, upon affidavit or other proper proof, showing the propriety thereof."

A general order was made by Sir WILLIAM SCOTT, soon after he took his seat in the High Court of Admiralty, “That no warrant of arrest, either of persons or ships, shall issue out of the instance court, without an affidavit of debt being previously made by the person on whose behalf such warrant is prayed, or his lawful attorney(a).” The term "debt" was doubtless used in its general sense of demand, or right of recovery, and includes actions for the recovery of damages, as well as suits for the recovery of specific pecuniary claims; and the term “lawful attorney” is supposed to designate an attorney in fact, under whose direction, in the absence of his principal, the suit is instituted. The rule of the Supreme Court, above recited, though expressed in very different language, probably was not intended, aside from its more limited scope, to

, bear a construction essentially different. In our courts, no process can issue until after the libel has been filed; and as the libel must necessarily contain a statement of the supposed cause of action, if it is verified by oath(6), that ought, it is presumed, generally to be deemed a sufficient compliance with the rule of the Supreme Court, to entitle the libellant to the order required. When the application

a

(a) Marriott's Formulary, 30.

(6) Vide supra, p. 77 et seq.

VOL. 2.

Service of

taken.

to the judge for this purpose is founded on the oath of the party to the truth of the libel, it must of course be exhibited to him by the proctor before it is filed, or by the clerk afterwards; and so where the sum demanded is less than five hundred dollars, when by the rules of the particular court a previous order for process is required.

The defendant is to be arrested in virtue of the

warrant, in the usual mode of making arrests of the She warrant person; and it is the duty of the marshal to inform

him of the cause of the arrest, and to exhibit to him the warrant. The marshal, on making the

arrest, as we have seen in the last preceding chapter, Bail to be is authorized to 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 therein, in the court to which the process is returnable, or in any appellate court.

The important changes in the antecedent practice introduced by this rule, have already been noticed and explained in treating generally of the admiralty stipulation(a). Notwithstanding the po

p tential form of its direction to the marshal — “may take bail,” etc.— this rule is doubtless so far imperative as to impose on him the duty of detaining the defendant in safe custody, or committing him to prison until he procures bail or is liberated by order

«

(a) Vide supra, p. 88.

of the court(a). If the marshal takes bail in the CHAP. . form of a bond (assuming that he has a right to do so), it is his duty to satisfy himself of the sufficiency of the sureties; and for wilful or gross negligence in this respect, he would doubtless be responsible to the libellant(). If a stipulation is to be taken, the marshal is to go with the defendant, for that purpose, to the court if in session, to the judge at chambers, or to a standing commissioner of the court to take acknowledgments of bail, affidavits and depositions, etc., or to a special commissioner appointed by the court to act in the particular case.

When a bond is taken, it may properly, it is amount in supposed, as is usual in actions in law, be taken in to be double the sum for which the action is brought. In the stipulation, it is usual to insert the sum claimed by the libellant, with the addition thereto of a sum (commonly one hundred dollars) sufficient to answer the costs. The security, whether in the one or in the To be in the other form, is to the libellant by name. The bond is libellant. to be delivered to the marshal, and by him trans- mitted to mitted to the clerk of the court, together with the court. warrant with his return thereon endorsed.

When a stipulation is taken by a commissioner, he is bound to transmit it; but, it is supposed, he may without impropriety deliver it to the marshal

taken.

To be trans

clerk of the

(a) As to the authority of the court in virtue of the twenty-fifth rule, when no bail has been given and no property attached, to liberate the defendant on his giving a stipulation for costs and expenses only, vide supra, p. 92 et seq.

(6) Clerke's Praxis, tit. 4, where it is said that the officer is liable if the defendant does not appear.

VOL. 2.

Power and duty of the

oath of

to their

as a suitable agent for this purpose. In the English admiralty, the commissioner, in addition to his certificate at the foot of the stipulation, that it was "taken and acknowledged” before him, annexes to it a formal and full certificate of the proceeding before him, addressed to the judge of the Court of Admiralty.

The commissioner has authority, and, if there be commision- ground for doubt, it is his duty to require the oath the cureties of the sureties to their sufficiency. In the English sufficiency. admiralty one surety is sometimes taken, provided

he is worth double the amount of the required sum. When two or more sureties are offered, each of them must be able to justify in the sum for which the stipulation is to be given, or all of them collectively in double the amount. The Rules of Admiralty Practice speak uniformly of sureties; but this will probably not be regarded as an implied inhibition, under all circumstances, of the acceptance of one(a).

The return of the marshal or his deputy to this form of process, must, of course, be according to the fact: as that the defendant is not found within his district, or that he has arrested him, and has his body here present in custody, or that he has arrested him and taken bail from him with sufficient sureties by bond (or by stipulation, as the fact may be), in due

Whether one surety may be taken.

Marhal's return.

(a) See Marriott's Formulary, passim. In England, the commissioner is expressly authorized by his commission, on taking the stipulation for the defendant or claimant, to release the person or property from arrest; and, in his certificate, he states that he has done so. It is probably done by a formal order, to that effect, to the marshal.

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