ing into arrangements dictated by a spirit of courtesy CHAP. 6. and of mutual accommodation, is found to be a sufficient antidote to any evils which might otherwise result from the usage in question. SECTION III. OF THE NON-APPEARANCE OF ANY CLAIMANT IN AN ACTION IN essentially in suits in personam. It seemed to be advisable, for the sake of simplicity and perspicuity, not to blend the subjects of the last and present sections; and it was found to be more convenient to notice suits in personam first in order, although the action in rem is the favorite remedy of suitors in the admiralty, and is consequently much more frequently resorted to than Proceedings the action in personam; but in reality, nearly all the me that has been said in the last section respecting suits of the latter description is equally applicable to those of the former. The 29th rule above recited makes no distinction in this respect, but it was unquestionably intended to embrace both forms of action; although the appellation "defendant" is not strictly applicable to a suit in rem before the appearance of a claimant. But in this form of action, all persons who have or pretend to have any interest in the thing proceeded against are cited to appear and answer the libellant; and all such persons are accordingly entitled to appear as claimants, and, on showing that they have in fact such interest, to make themselves parties defendant in the suit. VOL. 2. The nature of the interest, and the evidence to establish it, requisite to confer this right, will be considered in the next chapter; the design of the present section being only to point out the proceedings immediately consequent on the non-appearance Any of any person to contest the libellant's demand. As in the action in personam, proclamation is made by the crier of the court, calling upon all persons, having a right to do so, to appear and answer the libel(a). If no claimant appears, the libel All persons having interest, etc., to be called. , (a) The formula in use for this purpose in the District Court of the United States for the Northern District of New-York is as follows: "All persons having or pretending to have any right, title or interest in the ship her tackle, apparel and furniture, arrested at the suit of A. B. on process returnable here this day, come forth, assert your claims and answer the libel of the said A. B., on pain of being pronounced in contumacy and default, and of having the libel adjudged to be taken pro confesso against you." The form of the proclamation used in the same court, and in substance, I presume, also, in the other courts, in cases of municipal seizure, is as follows: "If any person can aught say why the articles mentioned in the libel [or information] which has just been read should not be condemned as forfeited to the United States, let him come forth and he shall be heard." In the District Court of the United States for the Southern District of New-York, it seems that in private suits the proclamation is also for "all persons having anything to say why the property arrested should not be condemned and sold for the benefit of the libellant, to come in and make their allegations in that behalf.” (Betts's Adm. Practice, 36.) I perceive, also, that it is customary in this country to insert, at the close of the libel, a prayer that the ship or other property be condemned and sold, etc. I am not able, however, to discern any propriety in this form of expression thus applied; and I infer that it must have been inadvertently borrowed from cases of municipal seizure and of prize, where the decree against the thing is properly enough, and for obvious reasons, denominated a decree of condemnation. But the arrest of property in virtue of a maritime lien, at the suit of a private suitor, differs very widely from the seizure of property at the suit of the government to enforce a forfeiture or a capture jure belli. The object of the arrest is merely to obtain secu is adjudged to be taken pro confesso against all CHAP. 6. persons whatever; and if a claimant appears, and is admitted as such, then against all other persons (a). persons(a). rity for a debt or other demand, for which the owner is also personally responsible, precisely as in a suit in a state court commenced by attachment; and in point of fact, the property arrested is rarely sold, being usually returned to the owner, on the substitution of personal security pendente lite, or on the payment of the sum awarded to the libellant by the final decree. In the English admiralty, neither the term condemnation nor any one of like import occurs either in the primum decretum, awarding the possession of the property to the libellant, or in the subsequent decree of sale on a perishable monition, to satisfy the decree; and I repeat that it appears to me to be wholly misapplied in our own practice. (a) The form of the order given, supra, p. 179, note, in an action in personam, must, of course, be varied, so as to adapt it to the form of action now under consideration, and may be as follows: A. B. v. The Ship her tackle, etc. [or as the case may be]. The mesne process returnable this day, in this cause, having been returned duly executed; and, upon proclamation duly made for all persons having or pretending to have any right, title or interest in the said ship her tackle, etc. [or as the case may be], to appear and make due answer to the libel filed in this cause, no person having appeared to answer the same, the court, on motion of Mr. advocate for the libellant, doth pronounce all persons whatsoever to be in contumacy and default, and doth order and adjudge that the libel filed in this cause be, and the same hereby is, taken pro confesso against all persons whatsoever. If a claimant appears and puts in an answer, or is allowed further time to do so, the foregoing form will require to be varied as follows: After the words "make due answer to the libel filed in this cause," insert: C, D. [or C. D. and E. F., etc., as the case may be], appeared as claimant [or claimants] of the said ship her tackle, etc. [or as the case may be; and if the claim extends only to a part of the property arrested, specify the part claimed], and made due answer to , VOL. 2. Decree, how enforced. Practice of the English High Court of Admiraity. In all other respects, the proceedings in an action in rem, at this stage of the suit, are the same as those in an action in personam, as already described. The form of the decree when the libel is taken as confessed, and the mode of enforcing it, are essentially the same as when the suit is contested. These and other matters more or less intimately related to the subject of the present chapter, will be more fully considered hereafter. In suits in personam, where, as is usually the case, bail has been given to pay the sum awarded by the decree, the decree is enforced against the defendant and his sureties. In suits in rem, when the property has been delivered to the owner on a bond or stipulation, the decree is enforced in like maner; and where it remains in custody, by a sale of the property. In England, no decree for contumacy in an action in rem is pronounced until after four successive defaults. On the return day of the process, as in our courts, all persons having a right to appear are publicly called in court. No one appearing, the day of to the said libel [or prayed further time until the The order of reference and the report thereon, with the exception of one or two slight and obvious verbal differences, are the same in this form of action as in an action in personam. action is said to proceed in pœnam contumacia; and in pain of their contumacy, the ship, etc., or rather they are said to incur the first default. Time is then given to them to appear at the next court-day, which is technically called continuing the certificate of the execution of the warrant to that day, when they are again called; and this is repeated until the fourth default has been incurred (a). The proctor for the plaintiff thereupon exhibits a petition stating the cause of action, reciting the defaults incurred, and praying that the plaintiff may be put in possession of the ship, etc., to the extent of his demand, to the end that the property may be preserved. A schedule of expenses to be taxed is at the same time exhibited, together with the instrument, if any, as a bottomry bond, for example, on which the suit is founded. The court then decrees that the plaintiff shall be put in possession of the ship, etc., he first giving security to answer for the same to any person claiming right, or intervening for his interest within a year. This is called the first decree-primum decretum. But as the plaintiff is not premitted to use the property or appropriate its proceeds, this decree in his favor would prove but a barren remedy (a) They are, on each day, "thrice called." (2 Bro. Civ. and Adm. Law, 399.) Whether, in any of our courts, the call is thus repeated, I am not apprised. In the courts of the New-York districts there is but one call. It seems to be understood, however, when a party is to be called, in the Supreme Court, preparatory to any order or proceeding founded on his default, that three calls are to be made. See the case of Walsh v. The United States, 1 Howard's R., 28, where the plaintiff in error was "three times solemnly called by the marshal to come into court and prosecute his writ of error." |