termed process of foreign attachment, is not permitted under the judiciary act, in the Federal courts sitting at law or in equity, even though local State laws accord the remedy in the State courts. It was at first considered that the Federal courts of admiralty were similarly restricted.5 But the contrary has long been settled and the right of attachment amply sustained. This right has existed in admiralty since very ancient times and is not dependent upon the common law for its origin. It is not permitted, however, until a warrant of arrest has issued and it is shown that the defendant is out of the jurisdiction or cannot be found.8 This rule is strictly adhered to and the mere fact that defendant is immune from arrest by virtue of a State law will not justify attachment.9 But a return of the marshall, declaring that a reasonable and unsuccessful effort was made to serve defendant in person, may not be disputed for the purpose of vacating an attachment.10 Attachments may be of credits and effects in the hands of third parties.11 Ships and other tangible property are effects within the meaning of the rule.11% [b] Monition. Monition corresponds generally to the summons in an ordinary civil suit and its issuance if sought, must be prayed for in the libel. It may issue against a foreign corporation in a district where that corporation has a local agent. 12 Service of monition in admiralty which conform to the mode prescribed by a State statute regulating service of summons in the State courts, will be held good.13 Service by leaving a copy of the citation with a servant at the defendant's residence has been held insufficient.14 § 1204. In general warrant of arrest not issued for more than five hundred dollars. In suits in personam, no warrant of arrest, either of the person or property of the defendant, shall issue for a sum exceeding five 4 Ante, 853. 5 Ex parte Graham, 3 Wash. C. C. 456 Fed. Cas. No. 5,657; Wilson v. Pierce, 15 Law. Rep. 137, Fed. Cas. No. 17,826. 6 Manro v. Almeida, 10 Wheat. 473, 6 L. ed. 369; Atkins v. Disentegrating Co. 18 Wall. 272, 21 L. ed. 841; New Eng. Ins. Co. v. Detroit etc. Navigation Co. 18 Wall 307, 21 L. ed. 846; Cushing v. Laird, 107 U. S. 69, 27 L. ed. 391. 2 Sup. Ct. Rep. 196; Devoe Mfg. Co. v. Petit, 108 U. S. 401, 27 L. ed. 764, 2 Sup. Ct. Rep. 894 Ex parte Louisville Underwriters. 134 U. S. 488, 33 L. ed. 991, 10 Sup. Ct. Rep. 587. Manro v. Almeida, 10 Wheat. 487493, 6 L. ed. 369. 8 Chiea v. Conover, 36 Fed. 334. 5 9 The Bremena v. Card, 38 Fed. 144. 10 Harriman v. Rockaway, etc. Co. Fed. 461. 11 Manro v. Almeida, 10 Wheat. 493, 6 L. ed. 396. In Re Louisville Underwriters, 134 U. S. 490, 33 L. ed. 991, 10 Sup. Ct. Rep. 587. 11% The Alpena, 7 Fed. 361. 12In Re Louisville Underwriters, 134 U. S. 493, 33 L. ed. 991, 10 Sup. Ct. Rep. 587: See ante, § 1198. 13 Insurance Co. v. Leyland, 139 Fed. 67; In re Louisville Underwriters, 134 U. S. 493,; 33 L. ed. 991, 10 Sup. Ct. Rep. 587; Doe v. Springfield, etc. Co. 104 Fed. 686, 44 C. C. A. 128. Compare § 853, ante. 14 Walker v. Hughes, 132 Fed. 885. 885. hundred dollars, unless by the special order of the court, upon affidavit or other proper proof showing the propriety thereof. 7th admiralty rule promulgated December term 1844. In cases where a less amount is involved the warrant will be issued by the clerk as matter of course. § 1205. Bail in cases of arrest, stipulation and execution there on. In all suits in personam, where a simple warrant of arrest issues and is executed, the marshal may take bail, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in an appellate court. And upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. 3rd admiralty rule promulgated December term 1844. As the libellant has nothing to do with the taking of bail it is the duty of the marshal to see that the sureties are sufficient and that the stipulation is duly executed. To entitle to a discharge from arrest the bond should be not only for costs, but also sufficient to satisfy decree made against claimant,17 in the court which shall ultimately decide the cause.18 A party cannot be held to bail in two places at the same time for the same cause of action.19 Upon the decree, execution issues summarily against stipulators, their submission thereto being a condition to such bonds.20 The form and execution of stipulations are elsewhere considered. 1 § 1206. to be taken whenever required by laws of State. 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. Part of 47th admiralty rule promulgated December term 1850.4 17Gardner v. Isaacson, Abb. Adm. 141, Fed. Cas. No. 5,230. 18 United States v. Schooner Little Charles, 1 Brock, 380, Fed. Cas. No. 15.613. 19 Bingham v. Wilkins, Crabbe, 50 Fed. Cas. No. 1,416. 20Gaines v. Travis, Abb. Adm. 422, Fed. Cas. No. 5.180. 1See post § 1216. The rule, as a whole, both the foregoing part, and that part dealing with imprisonment for debts being authorized by statute, arrest under it has the effect of an arrest under and by virtue of a statute. Bail is never allowed in Federal proceedings in admiralty where it would be refused in a State court; if, however, it is allowed by the latter it may be demanded in a Federal court as a matter of right.8 Defendant cannot be required to give a bond conditioned for the payment of money awarded by the final decree, where under the laws of the State he is entitled to his discharge from arrest merely upon giving an undertaking that "he will at all times render himself amenable to the process of the court."9 § 1207. result where imprisonment for debt abolished. Imprisonment for debt, on process issuing out of the 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 analagous process issuing from a State court. Part of 47th admiralty rule promulgated December term 1850.12 It would seem that a claim for unliquidated damages is not a “debt” within the meaning of the foregoing section of the rule, and hence that admiralty may issue warrant for arrest in such cases, although the State faw prohibits imprisonment for debt.13 § 1208. - reduction of bail. In all suits in personam, where bail is taken, the court may, upon motion, for due cause shown, reduce the amount of the sum contained in the bond or stipulation therefor. Part of 6th admiralty rule promulgated December term 1844. The omitted portion of the above rule provides for new sureties in case of insolvency.14 § 1209. Duties and liabilities of garnishees on foreign attach ment. In cases of foreign attachment, the garnishee shall be required to 5See post, § 1207. 6R. S. §§ 990, 991. That statute applies to admiralty process, see The Carolina, 14 Fed. 424. 7Gaines v. Travis, Abb. Adm. 422, Fed. Cas. No. 5,180; Marshall v. Bazier, 7 N. Y. Leg. Obs. 342, Fed. Cas. No. 9,125. 8Beers v. Houghton, 9 Pet. 329, 9 L. ed. 145. 9 Stone v. Murphy, 86 Fed. 158. 13 Hanson v. Fowle, 1 Sawy. 539, answer on oath or solemn affirmation as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit. 37th admiralty rule, promulgated December term, 1844. § 1210. Process by arrest of ship, etc. in suits in rem. In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested; and the marshal shall thereupon arrest and take the ship, goods or other thing into his possession for safe custody,[a] and shall cause public notice thereof and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shall order; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct. [b] 9th admiralty rule promulgated December term 1844. [a] Arrest and seizure. Suit in rem is in substance, a suit against all persons having any interest in the res and all are bound by the decree, so far as the res proceeded against is concerned. The same cause of action may support both a suit in rem and a suit in personam.17 In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the court.18 Moreover, the thing must be subject to process. As the sovereign is not suable except by consent,19 government property is exempt, though it must clearly appear that it is government property and in possession of the proper persons.20 Moreover, exemption can only be claimed by the government itself or its agent. 1 This exemption will also be extended by comity, to property of a foreign government in the public service. It has also been held against public policy to permit libellants to arrest a municipal ice boat used in keeping harbor waters clear and disable her from her duties, though the personal liability of her owners is not affected by this exemption.3 17 See post. § 1240, et seq. 18 The Brig Ann, 9 Cranch, 291, 3 L. ed. 735. 19 Ante, $2 [1]. 1Id. 2 Id. 3The Fidelity, 16 Blatchf. 569 Fed. Cas. No. 4,758; The F. C. Latrobe, 20 Long V. The Tampico & Pro- 28 Fed. 377. gresso. 16 Fed. 491. Just what is a sufficient taking of the res, by the marshal, in order to constitute an arrest and give the court jurisdiction is not entirely clear and would seem to depend on the nature of the res and its location. Courts have gone so far as to hold that where the res was in possession of the port collector of customs, service of the monition upon him by the marshal, was sufficient.4 On the other hand there is authority holding that there must be exclusive custody and control.5 Service of copy of the monition on part owner of a vessel and at the residence of the captain has been held not a sufficient seizure while service on holder of res has been held sufficient. Where, however, the vessel is already in the custody of the marshal his receipt of a warrant of arrest in another suit, with intent to levy it, is constructive levy.8 Arrest is unnecessary where the claimant voluntarily gives a stipulation, and the court has jurisdiction to proceed just as if the vessel had been first seized, and the stipulation then given. The fact that the warrant did not properly describe the property, is immaterial when the marshal has not been thereby misled.10 If the warrant of arrest is premature the arrest will be retained, and compensation made in costs for the fact that it was premature.11 The warrant of arrest must be regular and if issued by the clerk in the absence of the judge contrary to a rule of court, it is void.12 In cases also where the warrant issues as of course on the filing of the libel, the libellant may be held for damages, where he might have known that he had no right to the warrant.13 It is the marshal's duty to retain the specific res libeled, and he is responsible for its proper custody. [b] Notice and publication thereof. Since the decree in an action in rem is good against the whole world, it is only just that the marshal should give notice of the arrest, and publication openly, so that all persons interested in the res may be enabled to take the proper steps to protect their rights.16 Seizure is said to give construction notice to all parties interested.17 In actions in rem in general there is no stated time during which the notice must be published. In cases of seizure, however, under the revenue laws, the court must cause fourteen days' notice to be given, setting forth the time and place of the seizure, 4Two Hundred etc. Tons of Salt, 5 Fed. 216; Jorgensen v. Casks of Cement, 40 Fed. 606. 5Taylor v. Carryl, 20 How. 600, 15 L. ed. 1030; The Rio Grande, 23 Wall. 464, 23 L. ed. 159. 6 Brennan v. The Anna P. Dorr, 4 Fed. 459. 7Snow v. One Hundred etc. Tons of Iron, 11 Fed. 517. 8 Kodiak, etc. Co. v. Haytian Republic, to 60 Fed. 292. The Frank Vanderkerchen, Fed. 763. 10Lands v. A Cargo of Coal, 4 Fed. 478. 11 American. etc. Barge Co. V. Chesapeake etc. Co. 115 Fed. 669, 53 C. C. A. 301. 12 Deas v. The Berkeley, 58 Fed. Fed. 920. 13 Briggs etc. Co. v. Fleming, 40 Fed. 595. 16 See In re Fassett, 142 U. S. 482. 35 L. ed. 1088, 12 Sup. Ct. Rep. 295. 17 The Mary, 9 Cranch, 144, 3 L. ed. 678; Gelston v. Hoyt, 3 Wheat. 246, 87 4 L. ed. 383. The commander-inchief, 1 Wall. 52, 17 L. ed. 612. |