VOL 2. perishable, or are liable to deterioration, decay or injury, by being detained in custody pending the suit, the court may, upon the application of either party, in its discretion order the same, or so much thereof to be sold, as shall be perishable or liable to depreciation, decay or injury, and the proceeds, or so much thereof as shall be a full security to satisfy the decree, to be brought into court, to abide the event of the suit(a)." The application, it will be seen, may be made by either party; and unless the opposite party is present in court when the petition is presented, a copy of it, with reasonable notice of the application, ought to be served (b). 3. MONITION. The remaining form of mesne process prescribed by the second rule above recited, is the "simple monition in the nature of a summons to appear and answer to the suit." The object of the first process in a suit being to bring the defendant under the actual cognizance and power of the court for the purpose of enabling it to dispense justice to the plaintiff, the process, in order to render it effective for this object, must be (a) The remaining part of this rule relates exclusively to suits in rem, and will be noticed in the next section. (b) The 87th rule of the District Court for the Northern District of New-York contains minute and exact provisions relative to the sale of perishable property in cases of municipal seizure; and by a late rule of that court, these provisions are extended to cases of admiralty jurisdiction arising under the act of February 26, 1845, chap. 20. See Appendix; Rules of Practice of the District Court for the Northern District of New-York, in cases of admiralty jurisdiction. How served. served. In regard to the forms of process above CHAP.5. treated of, there is little room for controversy or doubt as to what constitutes a sufficient service; but with respect to the monition, the question is not so clear. It is a summons, citation or notice(a). Its name and its object both imply the necessity of its being brought to the knowledge of the defendant; but the only certain mode of doing this is by a personal service; and the question is whether any, and, if any, what other mode of service is sufficient. Judge BETTS, in his summary of the admiralty practice of the District Court of the Southern District of New-York, lays down the law upon the point as follows: The "citation is served by reading or stating its contents to the defendant and showing it him, when requested. A copy of the citation should also be left with him. A citation may also be served, by leaving a copy at the defendant's usual residence or place of business. It should be delivered to some person, if any is found there, with instructions to give it the party; but when no person competent to receive it is found, the copy should be left so as to afford the greatest probability of its reaching the party, and the return should state the mode of service(b)." No authority or rule of court upon the subject is cited by the learned author, and the reader is therefore left to infer that nothing more is intended than to state his own (a) In form, however, it is a command to the marshal to cite and admonish the defendant to appear and answer, and not a summons addressed to the party. (b) Betts's Adm. Practice, 33. VOL. 2. apprehension of the law, or, at most, to lay down the actual practice of his own court. In Dunlap's Admiralty Practice, it is said of the special monition which, in addition to the general one, is sometimes used in suits in rem, that it is to be served by the delivery of a copy of it, attested by the officer, to the party, or by leaving an attested copy at his usual place of residence, but that personal service should be made if possible(a); and he cites as his authority Clerke's Praxis, tit. 21. The passage to which he refers, in fact, sheds little light upon the subject; but it tends rather to show that no simple form of service is sufficient except a personal service. It directs that the officer "shall go to the residence of the party who is sued, and shall cite him personally, if possible; and it proceeds to prescribe as applicable to all cases where a personal service cannot be effected, the mode of service denominated the citatio viis et modis; a long and tedious process little in accordance with our notions, and not likely ever to be resorted to in this country. It is virtually a substitute for a personal service in the first instance. If the defendant actually appear during its progress, the object in view is attained; and if he does not, the plaintiff is allowed at the termination of it to proceed in his suit notwithstanding(b), and to obtain such decree as he is able to show himself justly (a) Dunlap's Adm. Practice, 135. (b) 2 Bro. Civ. and Ad. Law, 455-459. The citatio viis et modis is a common law proceeding, and, in the ecclesiastical courts, involves excommunication. It is described by BROWNE in the pages above cited, and by CLERKE, tit. 21, and additions to tit. 21. Hall's Adm. Practice, 44, 45. entitled to; the reasonable presumption probably CHAP. 5. being supposed to be that the defendant must by that time have become apprised of the suit, and that his non-appearance is intentional and contumacious. But the mere leaving of a copy at the dwellinghouse or usual place of business of the party, in his absence-perhaps from home-is far from being equivalent to the protracted proceedings in which all ways and means are publicly resorted to for his notification. The reasonable and proper rule would perhaps be to require a personal service when it could be made, and to admit no light excuse for its omission; and when it cannot be effected, to permit a service by copy; but in the latter case, to require the marshal to state the mode of service, and to hold it valid or otherwise, according to the degree of probability there shall appear to be of its actual receipt by the defendant. The return of the marshal to the monition must, of course, be according to the fact: as that he has monished and cited the within named C. D. to Form of a appear at the time and place, within, for that purpose, mentioned, by exhibiting to him the monition, and delivering to him a copy thereof; or by leaving a copy thereof for him, at his usual place of abode, with a person of suitable age, the within named C. D. being absent. marshal's return. VOL. 2. Form of process and mode of service in the English admiralty. SECTION II. MESNE PROCESS IN SUITS IN REM. The following summary account given by Dr. BROWNE, of the mode of commencing suits in rem, in the High Court of Admiralty of England, will serve the purpose of an appropriate introduction to the subject of this section. "When the proceeding is against the ship, the action being entered, and an affidavit of the debt made by the person on whose behalf the warrant is prayed, or by his lawful attorney, process commences by a warrant directed to the marshal of the court, commissioning him to arrest the ship and goods, or both; which warrant contains also a citation to the master of the ship in particular, and all others in general, having, or pretending to have, an interest in the said ship, her tackle, apparal and furniture, or (as the case may be) in the goods, to appear personally on the day, and at a place therein named, to answer and defend in a certain cause, civil and maritime. This warrant is executed by producing the original before the master and crew, and affixing a copy to the mast of the ship: after which, an affidavit must be made of the following tenor, to wit, that the deponent did arrest the ship mentioned in the warrant thereunto annexed, her tackle, apparel and furniture; and that he did cite all persons in general, and those requisite in special, to appear as above; and if the arrest be made abroad, it must be certified under some authentic seal. This warrant and affidavit or certificate are then to be returned ; and |