It will be noticed by the second rule, that the garnishees must be named in the warrant of arrest, and a general order would not be sufficient. And interrogatories to the garnishees, it would seem, may be filed with the libel or afterwards. SECTION IV. OF THE MONITION IN SUITS IN PERSONAM. The Second Admiralty Rule of the Supreme Court goes on to provide, that the mesne process may be by a simple monition in the nature of a summons to appear and answer to the suit. The simple monition should be by service on the respondent, and it is issued only when neither an arrest nor an attachment is desired. In admiralty, we think, it is clear that residence does not give jurisdiction, and either the person or his property must be found in the district. If the person, then there may be an arrest or a monition. If the person cannot be found, then there may be an attachment. But the rules of the Supreme Court do not provide for an attachment of goods and a monition, unless the suit is in rem, and the reason, we think, is this. In suits in rem, all the world is bound, and notice should be given, and the rules so provide; but in suits in personam, where property is attached, only the interest of the respondent in the property is bound. Notice to the world, therefore, is not necessary, and it would seem that the attachment was intended to operate as a notice to the, respondent. court, but that if judgment should be rendered against the principal, the answer might be sent to the proctor, and that the default was obtained without due notice. Under these circumstances the default was taken off, and the garnishee was allowed to answer on condition that his answer might be contested by the libellant, and that he should enter into stipulation with surety to pay whatever sums should be decreed against him. It was also stated on the authority of Clerke's Praxis, tit. 34, that ordinarily the sworn answer of the garnishee would be conclusive, although Mr. Benedict, in his Admiralty Practice, § 459, states that the libellant may reply to such an answer and the issue will be tried. Clerke also states that before the answer is sworn to, the libellant may be allowed to show, if he is able, that the garnishee has property of the defendant in his hands; but the court said that the libellant was deprived of this option by the 37th Admiralty Rule. See also McDonald v. Rennel, U. S. D. C. Mass., 21 Law Rep. 157. In a case before the Supreme Court in 1825, the libellant alleged, that the defendant had absconded and fled beyond the jurisdiction of the court, and that no means of redress remained, unless by process of attachment against the goods, chattels, and credits of the respondent. The libel also prayed a personal monition and likewise viis et modis, and the court held that the process was according to the usages of admiralty courts, and decreed that it should issue.1 This process we do not consider to be necessary in cases in personam under our new rules, though it was clearly the old admiralty practice.2 It was the citatio publica, or viis et modis of the civil law; from which is probably derived the practice in admiralty courts, the ecclesiastical courts of England, and the probate courts of this country, of giving notice by posting the citation in conspicuous public places. It is a warrant of the court directed to the marshal, requiring him to give public notice în the manner designated, of the filing of the libel, and the time and place for appearance or trial. It should contain a condensed and very brief statement of the allegations and prayer of the libel. A special monition directs the marshal to give notice to certain persons named therein. The general monition is a notice to all parties interested, -notice to the whole world, it is often called, to appear, usually on the first day of the next term of the court, or on the specified return day, and defend the property against the claims of the libellant. 1 Manro v. Almeida, 10 Wheat. 473, 490. 2 See Clerke's Praxis, tit. 21, 28. CHAPTER IV. OF MESNE PROCESS IN SUITS IN REM. THE manner of proceeding in actions in rem, is clearly defined by the rules of the Supreme Court. In ordinary cases, the process, unless otherwise provided by statute, is by a warrant of arrest, and the marshal is thereupon to take the thing arrested into his possession for safe custody, and give public notice thereof, and of the time assigned for the return of such process, and the hearing of the cause, 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 place as the court shall direct.1 It is further provided, that in a suit in rem against a ship, her tackle, sails, apparel, furniture, boats, or other appurtenances, if such tackle, sails, etc., are in the possession or custody of any 19th Admiralty Rule. This mode of giving notice was expressly adopted in the Collection Act of 1799, c. 22, § 89 (1 U. S. Stats. at Large, 695), which provided that in cases of seizure under the act, the court should "cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published near the place of seizure, and also by posting up the same in the most public manner, for the space of fourteen days at or near the place of trial." In The Mary, 9 Cranch, 144, Marshall, C. J., said: "Where they" (the proceedings) "are in rem, notice is served upon the thing itself. This is necessarily notice to all those who have any interest in the thing, and is reasonable because it is necessary, and because it is the part of common prudence for all those who have any interest in it, to guard that interest by persons who are in a situation to protect it." See also The Commander In Chief, 1 Wallace, 43, 52. In The Hibernia, 1 Sprague, 78, the marshal gave notice by publication as directed, and took formal possession of the ship, but did not go on board again, and left no one in possession, and the owner did not know of the arrest till twelve days afterwards. It was held that the marshal was not entitled to custody fees. Sprague, J., said: "In the execution of admiralty process in rem the officer should take actual and manifest possession, and hold it in such a manner that inquirers and observers may learn or see that he has such possession." third person, the court may, after a due monition to such third person, and a hearing of the cause, if any there be, why the same should not be delivered over, award 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.1 As a suit in rem depends upon the service of the process upon the property, it is obvious that the place where the debt was incurred or the injury done, is not material, and suit may be prosecuted in any district where the res is found.2 If the property, at the time the warrant of arrest issues, is in the hands of a State officer by virtue of process issuing from a State court, the marshal has no power to take the property, but must delay seizure till after the property has passed from the possession of the officer.3 It has been held, however, that this principle does not apply where the person in possession of freight-money has been summoned by trustee or garnishee process in a suit in a State court against the owner of the vessel; and that it is no defence, in answer to a monition from the admiralty court requiring the freight to be brought into that court, to say that the holder of it has been summoned by a garnishee process in the State court.1 An admiralty rule provides that in all suits in rem, "where the 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, and upon failure of the party to comply with the order, may award an attachment or other compulsive process to compel obedience thereto." 5 And in England, it has been held to be a good defence to a suit 18th Admiralty Rule. See also The Harmonia, 1 W. Rob. 179; The George Prescott, 1 Bened. Adm. 1. The Propeller Commerce, 1 Black, 574. * See cases ante, p. 198, n. 2. See ante, p. 200, n. 1. 38th Admiralty Rule. |