is no chance of obtaining an indemnity for the costs, CHAP. 4. if they should be successful in the result of the suit. Upon this principle I am disposed, unless under particular exceptions, to require that security for the costs should be given in all cases in which the owners are resident out of the jurisdiction of the court. Looking to the practice of other courts, I find this rule to prevail, both in the courts of common law and equity." And he accordingly directed security to be given, in the sum of £100(a). A like application was made in a subsequent case, which was granted, under the circumstances of the case, notwithstanding the objection that it ought to have been made earlier; the court saying, however, that such applications ought to be made at the earliest stage of the proceedings, and that in ordinary cases the court would enforce the rule(b).

The new Rules of Practice are silent with respect to any obligation on the part of the libellant to give this security. It is important, therefore, to ascertain the just claims of the ancient usage, if it ever really existed, of the High Court of Admiralty of England, in this particular, to future respect and observance in our courts; and this is the question alluded to above, as one requiring immediate consideration.

The common law courts have always exercised the power of exacting security for costs from the

(a) The Sophie, 1 W. Robinson's R., 326.

(b) The Volant, 1 W. Robinson's R., 383. See also The Minerva, 1 Robinson's R., 169, 172, where an application for security was refused; Dr. LUSHINGTON Saying that he could not make an order of security for costs, until he saw some special reason for so doing,

VOL. 2. plaintiff when justice required it, and especially in

the case of non-resident plaintiffs. To this extent a like power ought certainly to be exercised by our courts of admiralty; but beyond this, aside from the authority of precedent, it would be wrong for them to go. The injunctions of the process acts of 1789 and 1792, requiring them to proceed according to the course of the civil law, and according to the principles, rules and usages which belong to the courts of admiralty as contradistinguished from courts of common law, are qualified, as we have seen, by the authority given to them to make, by rule, such "alterations and additions" as they "shall deem expedient." This authority was undoubtedly given for the express purpose of enabling the courts to dispense with useless antiquated forms, and, if necessary to substitute others in their stead, better adapted to our social condition and the genius and policy of our institutions, or more conducive to the ends of justice. This has long since been advantageously done to some extent, and the tendency has constantly been to assimilate admiralty proceedings to the more familiar forms of practice in the courts of common law and chancery. The Rules of Admiralty Practice contain, as we have seen, very ample and exact regulations concerning the stipulations required of the defendant or claimant; and if the Supreme Court considered it indispensable in any description of cases that the plaintiff should give security in order to entitle him to the process of the court, or to proceed on his libel, it seems a little extraordinary that the rules contain no decla

ration to this effect. Not that these rules were designed to determine every point of practice, or to supersede all existing usages; but the omission of any provision relative to a point of so much importance, certainly affords strong presumptive evidence that the security in question was not deemed by the Supreme Court to be indispensable, and that it was intentionally left to the discretion of the district

courts.

The only instance in which the subject appears to have been brought directly under judicial notice in an American court, is in a case in the District Court of the United States for the District of Maine. It was a libel in personam, against the master of a vessel for assault and battery, brought by a young slave who had been sent from Guadaloupe to this country, as a servant to the son of his master. On the return of the process, the counsel for the respondent moved the court for an order requiring the libellant to give the usual stipulation for costs. This motion was denied, on the ground that to grant it would, under the circumstances of the case, be equivalent to a denial of justice. At the hearing, it was again objected to the libellant's right to maintain the action, that he had not acquired a standing in court, on account of the want of such stipulation; and the learned judge, in deciding upon the objection, expressed himself as follows: "By the rules of this court, the respondent may always call for this stipulation, which the libellant is required to give, under the pain of having his libel dismissed; and this rule is in conformity with the ancient practice

CHAP. 4.

VOL. 2.

of the admirality (Clerke's Praxis, tit, 11 and 14; 2 Browne's Civ. and Adm. Law, 410). The stipulation ordinarily required is that with sureties or fidejussores; but this stipulation is never required of seamen, as it would seldom be in their power to obtain sureties, on account of tieir poverty; and to exact it of them would be equivalent to a denial of justice. It is said that the ground on which this rule of court is waived in favor of seamen is, that they are a favored class in the admirality; but the true reason why this rule is not enforced against them, is not because they have a claim to any special favor in this respect, but because they are usually unable to comply with it; and wherever the same reason exists, the same indulgence is, by the ordinary practice of admirality, shown to others. In all courts proceeding according to the course of the civil law, when a party is poor, and unable to find fidejussores, the court will receive the jussory caution instead of a stipulation with sureties (Clerke's Praxis, title 5). The libellant in this case is a servant, a slave in his own country, with no other friend or acquaintance here, than a minor whom he attends in the quality of a servant. To require him to enter into a stipulation for costs with sureties, would be the same thing in effect as saying that he had no right to ask redress in this court. It was on this ground that the motion of the respondent's counsel for a stipulation with sureties was overruled by the court. It is there said, that it was necessary to tender the jussatory caution in order to place himself rectus in curia. There is some misunderstanding

between the opposing counsel, whether this tender CHAP. 4. was made or not. In the view which I take of the case, it is immaterial. The rule requiring a stipulation for costs, is a rule established for the benefit of the opposite party, which he may waive as he may any other right; and the principle applies to this as to other cases quisque potest renuntiare jure pro se introducto. It is for the party to move for the security, if he wishes for it; and if he is silent, it is considered as waived(a)."

The rule of practice supposed to be referred to by the court in the foregoing extract, declares that "on motion of the defendant, the court will direct the plaintiff (except where the suit is for the United States), on pain of dismissing his libel, to give a stipulation with sureties, to appear from time to time, and abide all interlocutory orders and decrees, as well as the final judgment which may be rendered in the cause, in the district court, or on appeal in the appellate court; and likewise to pay the costs which

(a) Polydore v. Prince, Ware's R., 402. This case involved another very interesting question, which was discussed by the learned judge with his wonted learning and ability. The libellant, as stated in the text, was a slave in the island of Guadaloupe; and, as such, was incapable of appearing as a party in a French court of justice. This disability, it was insisted by the counsel for the respondent, according to the acknowledged principles of the jus gentium, or at least of national comity followed him into whatever country he might voluntarily go or be carried by his master. But Judge WARE decided, that although the civil incapacities and disqualifications by which a person is affected by the law of his domicile are to be regarded by the courts of other countries as to acts done or rights acquired in the place of his domicile, it is otherwise as to acts done or rights acquired within another jurisdiction, where no such disqualifications exist; and he accordingly held that the libellant was competent to maintain his suit.

Rules of the in the First

dist. courts

Circuit.