CA, To the Marshal of the Southern District of New York, Greeting: Whereas a libel has been filed in the District [L. s.] Court of the United States, for the Southern District of New York, on the first day of June, in the year of our Lord, one thousand eight hundred and forty-nine, by William Robinson against the Bark Richard Alsop, whereof George Johnson is or lately was master, her tackle, apparel and furniture, in a cause of contract, civil and maritime, for the reasons and causes in the said libel mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons interested in the said vessel, her tackle, &c., may be cited in general and special, to answer the premises, and due proceedings being had, that the said vessel, her tackle, &c., may, for the causes in the said libel mentioned, be condemned and sold to pay the demands of the libellant.

"You are hereby commanded, to attach the said bark or vessel, her tackle, &c., and to detain the same in your custody, until the further order of the court respecting the same, and to give due notice to all persons claiming the same, or knowing or having any thing to say why the same should not be condemned and sold, pursuant to the prayer of the said libel, that they be and appear before the said court, to be held in and for the Southern District of New York, on the third Tuesday of June instant, at eleven o'clock in the forenoon of the same day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdiction thereafter, then and there to interpose a claim for the same, and to make their allegations in that behalf. And what you shall have done in the premises do you, then and there, make return thereof, together with this writ.

"Witness, the Honorable Samuel R. Betts, Judge of the said Court, at the city of New York, this first day of June, in the year of our Lord, one thousand eight hundred and forty-nine, and of our Independence the seventy-third.

"JAS. W. METCALF, Clerk.

"W. R. Beebe, Proctor for Libellant."

437. The Return of the Marshal should be endorsed on the writ in the following form:

"In obedience to the within attachment and monition, I attached the property therein described, on the second day of June, instant, and have given due notice to all persons claiming the same, that this court will on the third Tuesday of June, instant, (if that day should be a day of jurisdiction, if not, on the next day of jurisdiction thereafter,) proceed to the trial and condemnation thereof, should no claim be interposed for the

same.

"HENRY F. TALLMADGE, U. S. Marshal.

"Dated June 17th, 1849."

§ 438. The proceeding in rem is predicated on the assumption, that the owner and other persons interested in property, have it in their own charge, or have placed it under the control of others who will see that their interests will be protected, whenever any process shall be served upon it. The process commands the Marshal to notify all parties-it is his duty, therefore, to make the service openly-to leave a written notice with the person in possession, and to exercise his acts of custody and control, in such open and visible manner, by a keeper, or otherwise, that the persons having the same in charge, may take the necessary steps to protect the rights of all those interested.(a)

i 439. Process in rem is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it for some claim resting on a real or a quasi proprietary right in it. The court arrests the thing for the purposes of satisfaction. It holds its possession by its officers, and the property, in contemplation of law, is in the custody of the court itself. As the court has the legal possession for the purposes of justice and to that extent is clothed with the sovereignty of the country, it has, of course, the power to defend, and protect its possession, and to resume it, if it should be, by any means, divested. If, therefore, the thing be taken out of the possession of the officer, by a party to the suit or by a stranger,

Ante, 364, 365. Betts' Prac. 33.

the court, on motion, will compel such person by attachment or other summary process, to re-deliver it. And if a purchaser obtain possession without paying the price, he may, in like manner, be compelled to pay the purchase money or re-deliver the property to the officer.(a)

§ 440. In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats, and other appurtenances, if such tackle, apparel, sails, furniture, boats, or other appurtenances, are in the possession or custody of any, third person, the court may, after a due monition or notice to such third person, and on hearing the cause, if any, why the same should not be delivered, award and decree, that the same be delivered into the custody of the Marshal, or other proper officer, if, upon the hearing, the same is required by law and justice. The rule of the Supreme Court mentions only the case of a ship, but the principle is one of general application, and under like circumstances, when a principal object is arrested, and some of its appurtenances are withheld from the Marshal by a third person, the court would, in the manner pointed out in the rule, compel its delivery to the Marshal. The proceeding can work no injustice, for such third person can immediately intervene in the suit, for his interest in the things so taken from him.(b)

§ 441. In cases of proceedings in rem, where freight or other proceeds of property are attached, or are bound by the suit, (as is often the case in suits for seamen's wages, bottomry, or salvage,) and such freight or other proceeds are in the hands or possession of any person, the court, upon application, by petition, of the party interested, may require the party charged with the possession thereof, to appear and show cause why the same should not be brought into court, to answer the exigency of the suit, and if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and upon failure of the party to comply with the order,

(a) 2 Mas. 409. Ware. 352.

(b) 1 Hag. 124. 1 Dod. 282, 381. Ad. Rule 8.

may award an attachment or other compulsory process, to compel obedience thereto.(a)

Draw a petition-stating briefly the facts-let it be sworn to before a United States Commissioner-serve copy and notice of presenting same, with time and place, on the party holding the property. For the precedents, see the Index.

442. It is also the duty of the Marshal to keep the property seized in such safe and secure manner, as to protect it from injury while in his custody; so that if it be condemned, or be restored to the owner, its value to the parties may be unimpaired, and the Marshal himself be not responsible for unnecessary deterioration or damage.

443. If the suit be both in rem and in personam, there may be separate processes at different periods, or one process may combine the usual process in personam with the process in rem, in which case the Marshal executes it in the same manner as he would do the two if they were separate, and he makes on the united process a return of all that he has done in pursuance of the writ.

(a) Ad. Rule 38. Ware, 296. 1 Curteis, 466.

CHAPTER XXIV.

Interlocutory Sale or Delivery of Property.

444. If the property be in its nature perishable, or is liable to deterioration, decay, or injury, by being detained in custody, pending the suit, the court may, on the application of either party, in its discretion, order the same, or so much thereof as shall be perishable, or liable to deterioration, decay, or injury, to be sold, and the proceeds thereof, or so much thereof as shall be a full security to satisfy the decree, to be brought into court, to abide the event of the suit. Instead of a sale the court may, on the application of the claimant, order an appraisement of the property to be made, and order the same to be delivered to the claimant, on his depositing in court so much money as the court shall direct, or the court may order it to be delivered to him on his giving a stipulation, with sureties, in such sum as the court shall direct, to pay the money awarded, and abide by the final decree rendered by the court, or the Appellate Court, if any appeal be taken. These orders for sale, or delivery on bail, may be made at any time, as well in vacation as in term.(a) In such cases, the money deposited, the stipulation, or the proceeds of the sale, are a substitute for the thing itself, and to them the court resorts for satisfaction of the decree.

445. The 89th section of the Collection Act of 1799, provides, that in cases of seizure, upon the prayer of any claimant of the seized property, or any part thereof, the same may be delivered to him, it shall be lawful for the court to appoint three proper persons to appraise the property, who shall be sworn in open court, for the faithful discharge of their duty; and such appraisement shall be made at the expense of the party on whose prayer it is granted; and on the return of such

(a) Ad. Rule 10. Conk. Treat. 2d edit. 363. Collection Act, 1799, § 89. 1 Gal. 148, 476. Act of April 5. 1843. Supra, § 448.