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VOL. 2.

In the
Southern

District of
New-York.

In the
Northern
District of
New-York.

shall be adjudged therein against him, if he fails to support the same(a)."

The rules of the District Court for the Southern District of New-York require the libellant, except in suits for seamen's wages for services on board of American vessels, and in suits by salvors coming into port in possession of the property libelled, to enter into a stipulation with sureties "for costs," in suits in personam, in the sum of one hundred dollars, and in suits in rem, in the sum of two hundred and fifty dollars (6).

The rules of the District Court for the Northern District of New-York require security to be given in all cases where the libellant is not a resident of the district, except in suits for seamen's wages, and suits for salvage where the salvors have come into port in possession of the property libelled; and the rules of this court also provide that even in the excepted cases, and in all cases where the libellant is a resident of the district, the court will, in its discretion, direct security to be given on motion of the defendant or claimant, on pain of dismissing the libel. And it is by these rules further declared that if, in any case, a libel shall be filed in behalf of a nonresident libellant before the required security for

(a) This is Rule 7 of a body of rules printed in the appendix to Dunlap's Admiralty Practice, entitled "Rules of the Circuit Court of the United States for the First Circuit, in civil causes of admiralty and maritime jurisdiction." They relate, however, not to proceedings on appeal to the circuit court, as their title infers, but to original suits in the district court, and are, in fact, rules of the district courts for the districts composing the First Circuit.

(b) Rules 17, 44, 45.

costs and expenses shall have been given, the poctor CHAP. 4. shall be liable therefor until such security shall be furnished (a).

In what light the subject is viewed, and what regulations, if any, have been prescribed in regard to it in the other districts, I am not apprised.

(a) Appendix; Rules 13, 14, 15, 16.

VOL. 2.

CHAPTER V.

MESNE PROCESS.

SECTION I.

MESNE PROCESS IN SUITS IN PERSONAM,

SUPPOSING the libel, and, if the rules of the court require it, a stipulation in the proper form, to have been filed, the next subject for consideration is the process which the libellant has thus entitled himself to sue out(a).

By the second of the Rules of Admiralty Practice, it is declared that, "In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant, in the nature

(a) At the first session of the Supreme Court of the United States, it was ordered that (unless and until it should be otherwise provided by law) all process of that court should be in the name of the President of the United States; and such has ever since been the style of the process of all the national courts. And by the first section of the process act of 1792 (ch. 36; 1 Stat. at Large, p. 275), it is enacted that "All writs and process issuing from the Supreme or a circuit court, shall bear test of the Chief Justice of the Supreme Court, or (if that office should be vacant) of the associate justice next in precedence; and that all writs and processes issuing from a district court, shall bear test of the judge of such court, or (if that office shall be vacant) of the clerk thereof; which said writs and processes shall be under the seal of the court from whence they issue, and signed by the clerk thereof." This act remains unchanged.

СНАР. 5.

of a capias; or by a warrant of arrest of the person of the defendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for, or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein; or, by a simple monition in the nature of a summons to appear and answer to the . suit, as the libellant shall, in his libel or information, pray for or elect(a)." In determining what form of process he will apply for, the libellant will of course be governed by the supposed exigencies of his case; but he must make his election beforehand, and frame his prayer for process in his libel accordingly. But before proceeding further it is proper to state that in accordance with the policy originally adopted Laws of by Congress, and ever since adhered to, with states adoptrespect to common law proceedings, the first clause of the foregoing rule has, since the first edition of this work, been modified by a subsequent rule so far as to render it conformable to the laws of the several states in which imprisonment for debt had been or should be abolished. The new rule is as follows: "In all suits in personam where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the state where an arrest is made upon similar or analogous process issuing from the state courts. And imprisonment for debt, on process issuing out of the

(a) Appendix; Rules of Admiralty Practice, Rule 11.

the several

ed by rule.

VOL. 2. admiralty court, is abolished in all cases where, by the laws of the state in which the court is held, imprisonment for debt has been or shall be hereafter abolished, upon similar or analogous process issuing from a state court(a)."

To be drawn and signed by the clerk.

Test and return.

All process is to be drawn and signed, as well as sealed, by the clerk; and he is bound to see that it is in accordance with the libellant's prayer, provided the prayer be a proper one; and if not, process is to be withheld until the libel is amended.

Unless the rules of the court from which the process issues otherwise direct, it may be tested of the day on which it is issued, and made returnable on any future day.

Premising that, by the first of the rules prescribed by the Supreme Court, it is directed that "All process shall be served by the marshal or his deputy, or, where he or they are interested, by some discreet and disinterested person appointed by the court," I propose to offer a few observations upon each of the three several forms of process here prescribed, without regard, for the present, to the modifying influence of the new rule above recited.

1. WARRANT TO ARREST THE PERSON OF THE DEFENDANT

ALONE.

It may, in general, be said that it is at the option of the libellant to choose either of these forms, as he may see fit; but his right to sue out a warrant of arrest is, by the seventh rule, subject to this

(a) Appendix, Rule 48.

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