if there be any apprehension of the ship's being CHAP. 5. 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, though differing in some respects from that here 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.

VOL. 2.

Form of process and mode of

service prescribed by rule.

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.

prospective, may probably be considered as having CHAP. 5. a particular reference to the provisions of the act of April 2, 1844, ch. 8, prescribing 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 notice.

The rule is silent, it will be observed, with respect Period of 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.

return of

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 of arrest in rem, is simple and direct. He is to

Mode 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 pre

tending 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
and by

C. D. as his surety [or C. D. and E. F. as his sure-
ties], 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,

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

but is certainly proper, in addition to the fact of CHAP. 5. the arrest as above directed, to state also that afterwards, and before the return, such security was given as above directed. The bond or stipulation is, in all cases, to be immediately returned to the court; and if it is not given until after the return of the process, the marshal should endorse his certificate upon it, that it was delivered to and received by him, and is now returned to the court in pursuance of the act in such case made and provided.

against

executed.

If the process be against the ship and her freight Warrant in the hands of the owners or consignees of the tw cargo, or against the ship and the proceeds of the cargo, it is to be executed, in respect to the freight or proceeds, in like manner as the attachment clause against the credits and effects of the defendant in a warrant in personam(a).

There is another of the rules prescribed by the Supreme Court, which it is proper also to notice in this place. It is the eighth rule, and is in the following words: "In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats or other appurtenances, if such tackle, sails, apparel, furniture, boats or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody

(a) Vide supra, p. 481.

.

Arrest, how appurte ship, when

made of

nances to

in the hands of third