and time and place of the trial.18 By analogy to this provision it is the practice of the Southern District of New York to require the same publication in all actions in rem. § 1211. how possession of ship's tackle etc. to be obtained from third persons In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats, or other apprutenances, if such tackle, sails, apparel, furniture, boats, or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same may be delivered over into the custody of the marshal or other proper officer, if, upon the hearing, the same is required by law and justice. 8th admiralty rule promulgated December term, 1844. This rule also applies where the property has been sold by the third party, and the court may require the one holding the proceeds to pay the same into court. 20 § 1212. - how freight money and other property brought into court in suits in rem. In case of mariners' wages, or bottomry, or salvage, or other proceeding in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application, by petition of the party interested, 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, may award an attachment, or other compulsive process, to compel obedience thereto. 38th admiralty rule promulgated December term 1844. Generally where a lien exists in rem it attaches to freight money and other proceeds, as well as to the res itself.3 The proper process to bring 18R. S. § 923; post, § 1385. Twelve Dollars, 5 Fed. Cas. No. 674; 20Te George Prescott, 1 Ben. 7 Sheppard v. Taylor, 5 Pet. 710, 8 L Fed. Cas. No. 5,339. 3 Church V. Seven hundred and Fed. Proc.---72. ed. 282. 1137 property into court is by monition and not by execution against the party in possession.4 Payment of money into court is considered elewhere.5 § 1213. Form of process in petitory and possessory suits. In all petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship or the majority thereof, against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the ship for any voyage, upon giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit. 20th admiralty rule, promulgated 1844. The court will not interfere with one half owners possession when the other who had charge of the vessel left it in an unsafe condition.7 The above rule contemplates a proceeding that is both in personam and in rem; s and constitutes the only case for which the admiralty rules permit a proceeding against the ship and owner in the same libel.9 The Grand Para, 10 Wheat 497, 6 L. ed. 375; Sheppard v. Taylor, 5 Pet. 675, 8 L. ed. 269. See post, § 1287. 8The S. C. Ives, Newb. 205, Fed. Cas. No. 7958; Briggs v. Taylor, 84 Fed. 683, 28 C. C. A. 518. 9 See The Corsair, 145 U. S. 342, 7The Ocean, 1 Sprague, 535 red. 36 L. ed. 729, 12 Sup. Ct. Rep. 949. Cas. No. 10,401. CHAPTER 36. ADMIRALTY STIPULATIONS, SECURITY AND PROPERTY OR MONEY § 1216. IN CUSTODY. Stipulations-mode of giving and taking. § 1217. —all stipulations to be so given and taken. § 1218. § 1219. § 1220. § 1221. § 1222. § 1223. § 1124. Power of judge after seizure to take delivery bond in vacation. Right to give stipulations in advance of suit, to prevent seizures. claimant. Bond for dissolution of attachment and execution thereon. When defendant to give security for costs. § 1225. § 1226. Security for costs by respondent on cross libel. § 1227. Stipulation and security by intervenors. § 1228. Claimant in suits in rem to give stipulation for costs. § 1229. § 1230. Stipulation required on petition of claimant or respondent in collision cases. Money in registry of court, how and where deposited. § 1231. Intervenors for money in registry of court. § 1216. Stipulations-mode of giving and taking. Bonds, or stipulations in admiralty suits,[a]-[a] may be given and taken in open court, or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court, or any commissioner of the United States authorized by law to take bail and affidavits in civil cases. [e] Fifth Admiralty Rule as amended May 6, 1872.1 [a] Stipulations in general. The various kinds of stipulations in admiralty are given and taken in the same general way, and sureties are required in all cases. A deposit 1See 13 Wall. xiv. of money however may be made by the party in lieu thereof.3 The right of admiralty courts to take fide-jussory caution or stipulation in cases in rem seems established, even in possessory suits.5 It has also been deemed a sound exercise of discretion to allow release on stipulation in cases of seizure for forfeitures, where the government was not ready for a hearing and there was no reason to suppose that the vessel would again violate the law.6 The stipulation is security for the value of the property,10 except in attachment proceedings under the fourth admiralty rule when it would seem to be security for the amount of the claim.11 Stipulations are interpreted as to extent of responsibility by the intention of the court and not by the intention of the parties.13 If the res arrested is still in custody when intervening petitions are filed it cannot be released until stipulation is given to answer all the libels on file.14 One stipulation when substituted for another, does not become inoperative on appeal.15 Additional security has been ordered by the court,16 but it cannot be demanded after the res has been released on stipulation.17 Moreover where the parties have agreed on stipulations out of court a motion to reduce the amount, made when the vessel is out of the jurisdiction and before the hearing, will be denied. 18 [b]-form of stipulations. Stipulations are not subject to rigid rules.1 No distinct form of stipulation is required though it should distinctly assume the obligation. However the mere omission to mention the sum to be paid in case of default does not render a stipulation invalid. When a vessel is seized on an invalid warrant of arrest. a recital in the stipulation that the claimant and his surety personally appeared and submitted themselves to the jurisdiction of the court is not a waiver of the illegality and does not operate as an appearance in the suit.3 A defect in the execution of the stipulation is deemed waived unless excepted to before the close of the term next after becoming known.4 3 See ante, § 1215. 13The Beaconsfield, 158 U. S. 311, 4 The Alligator, 1 Gall. 145, Fed. 39 L. ed. 993, 15 Sup. Ct. Rep. 860. Cas. No. 248. 5 The Poconoket, 61 Fed. 109. 10United States v. Ames, 99 U. S. 39, 25 L. ed. 295; The Palmyra, 12 Wheat. 1, 6 L. ed. 531; The Wanata, 95 U. S. 611, 24 L. ed. 461; The Steamer Webb, 14 Wall. 418, 20 L. ed. 774; The Oregon, 158 U. S. 209, 39 L. ed. 943, 15 Sup. Ct. Rep. 804; The Vanderkerchen, 87 Fed. 765. 11 Pope v. Seckworth. 46 Fed. 858. See ante. § 1209.[a] 14 The Oregon, 158 U. S. 210, 39 L. ed. 943, 15 Sup. Ct. Rep. 804. 465. 24 L. ed. 672. 16 Morrison v. District Court, 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. Rep. 246. See also ante, § 1216. 17The Mutual. 78 Fed. 144. 18The Monarch, 30 Fed. 283. 1The Beaconsfield, 158 U. S. 310, 39 L. ed. 993. 15 Sup. Ct. Rep. 860. The Haytian Republic, 154 U. S. 118, 38 L. ed. 930, 14 Sup. Ct. Rep. 992. 3The Berkeley, 58 Fed. 920. 4 The Infanta, Abb. Adm. 327, Fed. Cas. No. 7,031. [c]-effect of release on stipulation. Since the stipulation is a mere substitute for the thing itself, the stipulators are subject to the exercise of all the powers which the court could exercise if the property were still in its custody. But where the res has once been delivered to the owner on appraisement and stipulation, he cannot claim that it is of less value in his hands, or that he has discharged other liens, thereby diminishing the value for which the owners were personally liable.8 The vessel returns to the claimant subject to the liens of all who were not parties to the action before the discharge was made. And the same rule applies where only part of the res has been released.11 A vessel cannot be released until stipulation is given covering all the libels on file; 12 but when once released a new warrant of arrest is necessary for subsequent libels.13 Where however, a vessel seized for forfeiture, has once been released on bond, it cannot be rearrested in a different district under a libel alleging other violations committed during the same period.14 [d] rights and liabilities of stipulators and sureties. A stipulation continues to be a charge against the obligors until the final decree, even though a new stipulation has been entered into with sureties on appeal.17 It will cover costs if conditioned to respond to the decree rendered, even though a cost bond has also been given.18 A bond running to cargo owners will also render the sureties liable to the insurer of the cargo.19 On final decrees the obligors are liable for interest only from its date.20 In general they are not liable for interest except on default in complying with the terms of the stipulation.1 The right of subrogation exists in favor of the surety when he has paid the decree.3 Where claimant has given a stipulation in a large sum because a large or excessive amount was claimed in the libel, he cannot recover from libelant the compensation he was obliged to pay the sureties for the excessive bond.4 United States v. Ames, 99 U. S. 36, 25 L. ed. 295. The Palmyra, 12 Wheat, 10, 6 L. ed. 531 The Wanata. 95 U. S. 611, 24 L. ed. 261; United States v. Ames, 99 U. S. 36, 25 L. ed. 295. 8The Ship Virgin, 8 Pet. 554, 8 L. ed. 1036. 11Langdon Cheves, 2 Mason, 58, Fed. Cas. No. 8,063; The Union, 4 Blatchf. 90, Fed. Cas. No. 14,346; The Antelope, 1 Ben. 521, Fed. Cas. No. 481; The Haytian Republic, 57 Fed. 508; Id. 154 U. S. 118, 38 L. ed. 930, 14 Sup. Ct. Rep. 992; The Oregon, 158 U. S. 186, 39 L. ed. 943, 15 Sup. Ct. Rep. 804. 12Hawgood, etc. Co. v. Dingman, 94 Fed. 1014, 36 C. C. A. 627. 13 The Oregon, 158 U. S. 210, 39 L. ed. 943, 15 Sup. St. Rep. 804; The Oregon, 158 U. S. 210, 39 L. ed. 943, 15 Sup. Ct. Rep. 804. 14The Haytian Republic, 59 Fed. 476, 8 C. C. A. 182, Affirming 57 Fed. 508. 17The Belgenland, 16 Fed. 430. 18The Madgie, 31 Fed. 926. 19 The Livingstone, 104 Fed. 922. 20The Manitoba, 122 U. S. 102, 30 L. ed. 1095, 7 Sup. Ct. Rep. 1158. 1The Ann Caroline, 2 Wall. 538, 17 L. ed. 768; The Webb, 14 Wall. 406, 20 L. ed. 774; The Wanata, 95 U. S. 600, 24 L. ed. 461; The Sydney, 47 Fed. 260. But see The Belle, 5 Ben. 57, Fed. Cas. No. 1,270. 3The Madgie, 31 Fed. 928. |