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VOL. 2. were it not usually a matter of course for the court, at the instance of the plaintiff, to decree a sale of the property and the application of its proceeds to the satisfaction of his claims. For this purpose, an allegation is made of the perishable condition of the property, and of its actual or probable deterioration by time, concluding with a prayer that it may be appraised and decreed to be sold, and that the moneys arising from the sale be brought into the registry of the court. Upon this the court decrees what is called a perishable monition, which is a citation to be served by affixing it on the Royal Exchange, to all persons in general, having any interest adverse to that of the plaintiff, to appear in court on a certain day, and show cause why the petition of the plaintiff should not be granted. After a summary hearing, the court decrees a commission of sale.

In Ireland, as Doctor BROWNE informs us, the commission of appraisement and sale, at the time when he wrote, usually followed the defaults directly, without the intermediate primum decretum; a practice, however, which he admits to have been irregular(a); and even in England, vague notions seem to have prevailed upon the subject(b). It is somewhat

(a) 2 Browne's Civ. and Adm. Law, 399-404.

(b) The case of The Exeter, 1 Robinson's R., 173, which occurred soon after the accession of Sir WILLIAM SCOTT, will serve to illustrate this remark. An application was made to the court for the allowance of interest from the date of the primum decretum, in a suit on a bottomry bond. "Let me ascertain the correct practice of the court," said Sir WILLIAM SCOTT: "This primum decretum, I perceive, gives not only possession of the ship, but of the proceeds also. Is not this going a step too far?" The advocate for the petitioner replied that he feared that was irregular. Sir WILLIAM SCOTT then proceeded, in

remarkable that the antiquated, dilatory and oppressive formalities, very summarily and imperfectly above detailed, should have escaped the enlightened and searching spirit of reform manifested within the last few years in that country, in regard to its entire system of jurisprudence, not excepting that of the admiralty.

pronouncing his judgment, to state the correct practice as follows: "It appears that a primum decretum was obtained so long ago as last June; but, in obtaining it, the party seems to have gone farther than the forms of the court would allow. The effect of that decree should be only, in the first instance, to put the party into the possession of the thing. All further proceedings of the sale, and power over the proceeds, should be by subsequent application to the court. In this case the ship was sold without application to the court. When the court signed the decree, it could not have been aware that the tenor of the decree was not in the usual form; and that it went farther than such a decree should go, in concluding with a power over the ship and proceeds." See the form of the first decree in a suit for wages; Marriott's Formulary, 295; et infra, ch. 11, note.

CHAP. 6.

VOL. 2.

Security
to be given

CHAPTER VII.

OF THE PROCEEDINGS UPON THE APPEARANCE OF THE PARTIES
ON THE RETURN-DAY OF THE PROCESS.

UPON the appearance of the adverse parties in court,
it behooves them, not in a captious and litigious
spirit, which a court of admiralty never indulges,
but with a prudent regard to their substantial inte-
rests, to look to their respective rights.

If, by the rules of the court, the libellant is reby libellant. quired, on filing his libel, to give security for costs, and to appear from time to time and abide the orders of the court(a), the defendant or claimant has a right, if this security has not already been given, tơ call upon the court to direct it to be now given, before the libellant shall be permitted further to prosecute his suit.

By the defendant in an action in personam.

The libellant also possesses a correspondent right. The defendant, in an action in personam, may not, on his arrest in virtue of a warrant of arrest, have given bail to the action in pursuance of rule third of the rules prescribed by the Supreme Court. He may, on the contrary, have given bail only for his

(a) As by a rule of the District Court for the Northern District of New-York, he is, in imitation of a law of the state courts, required to do, when he is a non-resident of the district, except in suits for mariners' wages, and in suits by salvors in possession of the salved property. See Appendix, Rule XII.

appearance, according to the antecedent practice(a); CHAP. 7. or he may have been brought into court under arrest for want of bail. The process against him may also have been a simple monition. In each of these cases, the libellant has a right now to call upon him either to give bail to the action, according to the general rule of admiralty procedure; or, if it appears that he is unable to obtain sureties for the payment of the debt or damages which may be awarded against him, he may, in the discretion of the court, be required only to give a stipulation with sureties in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him according to the twenty-fifth rule(b).

I have ventured, also, in a former chapter, to refer to the practice observed in the civil law courts, and in the English admiralty, of taking what is called a juratory caution, when the defendant was unable to find sureties, as a practice prevailing, or at least admissible in our own courts. One of the rules of the district courts composing the First Circuit expressly declares that "In proper cases, the court will permit the defendant to give a juratory caution or stipulation." The new rules are silent with respect to this form of security; but it is not supposed to have been intended by them to abrogate any existing rules of procedure not inconsistent with them, and they ex

(a) As to his right still to do which, vide supra, p. 100, et seq.

(b) Vide supra, pp. 92, 93. As to the right, at this or any subsequent stage of the suit, of the libellant to exact new sureties, and of the defendant to ask to have the amount of his bail-bond reduced, vide supra, p. 112.

Juratory caution.

VOL. 2. pressly recognize the power of the courts to regulate their own practice "in such manner as they shall deem most expedient for the due administration of justice, in all cases not provided for by the" new rules (a). I presume, therefore, when the learned judge of the District Court of the United States for the Southern District of New-York, speaking of the juratory caution, remarks that "modern practice has not employed this oath()," he must be understood to refer to the practice of his own court in particular. He adds, however, of the "modern practice," that it "acts in relief of the indigent suitor by mitigating his bail, or exonerating him wholly from giving it;" so that, even as understood by him, it differs from the general civil law and admiralty practice only in the omission of the promissory oath of the party that he will fulfil his engagements(c). It is doubtless within the discretion of the courts to modify the practice in this respect, by dispensing with the oath; and this may have been actually done in other districts, besides that of the Southern District of New-York.

Dissolution

of attachment.

It may happen, also, that upon a warrant of arrest with an attachment clause therein, the defendant could not be found, and that his goods and chattels, or, for want thereof, his credits and effects, may have been attached. In such case the defendant may, if he think proper (as he also may at any other stage of the

(a) See Appendix, Rule XLVI. As to the general scope and design of these rules, vide supra, p. 7.

(b) Betts's Adm. Practice, 27.

(c) The form of this stipulation is given in the Appendix.

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