Page images
PDF
EPUB

VOL. 2.

SECTION II.

Form of process and mode of service in

MESNE PROCESS IN SUITS IN REM.
The following summary account given by Dr.

BROWNE, of the mode of commencing suits in rem, admiralty. 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 law ful 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

the United

if there be any apprehension of the ship's being CHAP. 6. carried to sea, the sails may be taken on shore, or a custodee put on board(a).”

The practice of the American courts of admiralty, process of though differing in some respects from that here States. described, has always been substantially in accordance with it. In some of the courts it has been customary to issue the citation or monition in the form of a separate writ, simultaneously with the warrant of arrest, instead of being incorporated with it. The practice in this country has been, also, not to post up a copy of the process, but a notice containing a fuller statement of the cause of action, framed from the libel, which with us, as we have seen, contrary to the English practice, must be filed before the process can be issued. Our practice, also, is to publish the notice in a newspaper. This form of notice, and this mode of publication in cases of seizure under the collection act of 1799, are expressly enjoined by that act. The enactment referred to is as follows: “ All ships or vessels, goods, wares or merchandise, which shall become forfeited in virtue of this act, shall be seized, libelled and prosecuted as aforesaid in the proper court having cognizance thereof; which court shall 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 the trial, to be inserted in some newspaper printed near the place of seizure,

(a) 2 Browne's Civ. and Ad. Law, 397, 398.

[blocks in formation]

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(a).”

The posting of the notice, “near the place of trial” (in actual practice, on or near the court-house door), required by this act, has not, as far as I am informed, been followed by our courts, in private suits; but in such cases the English practice has been pursued, of posting the notice on the mast of the ship.

Having given these explanations, I proceed to notice the ninth rule of the Rules of Admiralty Practice, which is as follows: "In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other things to be arrested, and the marshal shall thereupon arrest and take the ship, goods or other things into his possession for safe custody; and shall cause public notice thereof, and of the time assigned for the return of such process and the hearing of the cause, to be given 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 places in the distict as the court shall direct.

The exception in the rule, of cases “otherwise provided for by statute,” though it is doubtless also

(a) Act of March 2, 1799, ch. 22, $ 89; 1 Stat. at Large, 627. In England, forfeitures for the infraction of the revenue and navigation acts are prosecuted in the Court of Exchequer, and are not cognizable in the Court of Admiralty.

.

the notice.

prospective, may probably be considered as having cuAP. 5. a particular reference to the provisions of the act of April 2, 1844, ch. 8, preseribing a summary course of proceeding by the collector, without the aid of judicial process, not exceeding in value the sum of one hundred dollars, seized under the revenue laws.

The newspaper in which the publication is to be made, is by the terms of the rule to be designated by the court; and this, it is supposed, may be done either prospectively by a general order having reference to the several localities where arrests of property are likely to be made, or by special order in each case.”

The rule is silent, it will be observed, with respect Periodile to the length of the notice. The period of fourteen days, prescribed by the statute in cases of municipal seizure, is supposed to have been generally adopted by the courts in private suits; subject, however, to be altered, when justice requires it, by a special order; and it is not unusual to prescribe a shorter time, when it appears that the convenience of one or both of the parties will be promoted, and no hardship be imposed thereby.

The number of days necessary between the test and Test and return of the process, will of course be determined process. by the length of the notice required. The time must be sufficient to enable the marshal to complete the publication of the notice, and to bring or transmit to the court his certificate that this has been done.

The duty of the marshal in executing a warrant Mode of of arrest in rem, is simple and direct. He is to

return of

execution.

VOL. 2,

Marshal's return

take the thing — most usually a vessel and her appurtenances — into his custody, and keep it securely, employing an agent for this purpose if necessary, until the further order of the court, or until security be given under the late act of Congress(a). In this latter case, the act does not seem to contemplate any interference on the part of the court, nor any specific act of restoration or delivery of possession by the marshal. The acceptance of the security simply terminates · his right to the further custody of the thing.

The return of the marshal to the warrant will be, that he has arrested the within mentioned

and cited all persons having or pretending to have any right, title or interest therein, as he is by the warrant commanded to do. If security should be given under the late act, just above cited, before any arrest has been made, the return of the marshal ought to state that after the warrant came to his hands, and before the same was executed, a bond duly executed, or a stipulation duly taken and acknowledged by A. B. as claimant of the within mentioned C. D. as his surety (or C. D. and E. F. as his sureties], for double the amount claimed by the libellant, conditioned to abide and answer the decree of the court in the cause, and duly approved, was delivered to and received by him, as will appear by the said bond or stipulation with the warrant returned. If the like security is given after the arrest, and before the return of the warrant, it may not be necessary,

and by

[ocr errors]

(a) Act of March 3, 1847. Vide supra, p. 99.

« PreviousContinue »