It has been held that on a suit by one person against a vessel for injury caused by a collision, the owners may, by showing to the court that there are several other demands against the vessel, growing out of the same occurrence, which exceed the value of the vessel and freight, file a stipulation in the appraised value of the vessel and freight, for the benefit of all persons entitled to liens upon her for losses occasioned by the collision, and that on the filing of the stipulation the vessel and her owners might be declared to be discharged from all liability for losses arising out of the collision.1

If it is necessary for the purposes of justice to take possession of property which has once been delivered up, on a stipulation, the proper process against a person who is in possession, if he is not a party to the stipulation, is a monition, and not an execution in the first instance.2

By these stipulations, the sureties agree and consent that executions may issue against them, their heirs, executors, and administrators, goods and chattels, for whatever sum may be decreed if the stipulation be forfeited. Whether process founded thereon would issue against the lands of the principal stipulator, or his sureties, was not positively determined by the authorities,3 prior

reading over that case carefully there is one expression in page 72, which either dropped from me inadvertently, or was misconceived by the reporter; at any rate it is ambiguous. I there state that the court was bound by the act of Parliament to reduce the amount of the bail to the value of the ship; and I said, on the other hand, that, supposing bail was given to an insufficient amount, the court would raise it to the proper amount.' Now, that is an ambiguous expression. I did not mean that it was possible to compel the individuals giving bail to exceed the amount for which they had made themselves voluntarily responsible, that would be absurd; but what I meant was, that the court would have a right to require further security from those who owned the vessel. I mention that for the purpose of preventing misapprehension hereafter."

1 The Steamboat City of Norwich, 1 Bened. Adm. 89.

The Grand Para, 10 Wheat. 497.

"It is said in Clerke's Praxis, by Hall, p. 13, that "the securities in admiralty, though in the nature of recognizance, do not authorize the court to proceed against lands." And this, we presume, is the rule in England. See Marriott's Form. 273. By the old third rule of the first circuit, the sureties were obliged to stipulate that the execution might run against their lands. Nothing is said on this subject in the Rules of the Supreme Court, passed in 1842, but clearly the lands of the defendant could not be attached under the 2d Rule, nor seized on

to the passage in 1862, of a rule of the Supreme Court, which allows this to be done.1

And if the principal, in a suit which does not survive, dies, the sureties should, regularly, suggest the death to the court, and procure an order for their discharge.

If any obligor to an admiralty stipulation die pendente lite, the court may proceed against the survivor, or at the option of the plaintiffs against the representatives of the deceased also, and, in one case, the vessel having been forfeited to the United States, the court said that if the surety would bring the money into court, it would, with the assent of the district attorney, allow him to proceed against the principals in the bond and their representatives in the name of the United States, to enforce his indemnity.2

Stipulators are not discharged by an amendment, even though no notice be given to them.3

We should not sup

execution against the defendant under the 21st Rule. pose that stipulators would be liable for more than the principal. In a case in New York, it however seems to be assumed that the lands of the stipulators are liable. The suit was in personam, and on judgment being obtained, an execution issued against the real estate of the stipulator. The only questions made were whether a judgment obtained in the southern district of New York, was a lien on the land in any county of the district, and also whether it was necessary to file the transcript of the judgment in the office of the clerk of the county in which the lands were situated, and whether the statutes of the State applied. The court answered the first question in the affirmative, and the last two in the negative. Cropsey v. Crandall, 2 Blatchf. C. C. 341. See also Ward v. Chamberlain, 2 Black, 430, 9 Am. Law Reg. 171. And in 1860, it was held that the land was liable. The Kentucky, 4 Blatchf. C. C. 450.

1 1 Black, 6.

The Ship Octavia, 1 Mason, 149. This case, it will be perceived, was decided before the new rules were passed, but we presume the law is the same

now.

In The Harmony, 1 Gallis. 125, is the following dictum of Story, J.: “I will only add that a third objection made, that it might affect the right of sureties on the bond given for the property, has not been considered of weight in any cases at common law. Where the property is delivered on bond, it is too much to contend, that the rights of the court over it can be increased or diminished by that circumstance. Every person so bailing the property is considered as holding it subject to all legal dispositions by the court. A fortiori the objection would, with great difficulty, find support in a court exercising admiralty jurisdiction. In Newell v. Norton, 3 Wallace, 257, a suit in a cause of collision was brought in rem against the vessel, and against the captain, owner, and pilot in personam. The

into port are not required to give such security in the first instance, but after the arrest of the property the court may order it to be given for adequate cause shown. By a new rule established in 1849, in suits in personam for wages under fifty dollars, the usual stipulation is required, except in certain specified cases. In the Northern District of New York, the rule is confined to cases where the libellant is a non-resident, and does not apply to suits for wages or for salvage when the salvors have come into port in possession of the property libelled; and the court has a discretionary power to require a stipulation where the libellant is

a resident.

This subject is not provided for by the Rules of the Supreme Court.

The practice not to call on seamen for security is only from a presumption of their inability, and is not applied where this presumption disappears.1

In respect to the liability of the defendant to give bail, the Twenty-Fifth Rule of the Supreme Court provides "that in all cases of libels in personam, the court may in its discretion, upon the appearance of the defendant, where no bail has been taken and no attachment of property has been made to answer the exigency of the suit, require the defendant to give a stipulation with sureties in such sum as the court shall direct, to pay all costs and expenses, which shall be awarded against him in the suit upon the final adjudication thereof, or by any interlocutory order in the process of the suit." 2 In suits in rem the claimant, upon putting

1 Wheatley v. Hotchkiss, 1 Sprague, 225. The libel in this case was dismissed without costs, and on the libellant claiming an appeal the respondent moved that he be required to give security for costs. It appeared that the respondent had recently paid the libellant over $400 in a suit for a tort. Judge Sprague said, "that the practice of exempting seamen from giving security for costs, was founded on their presumed inability. Any other person may sue in the admiralty without giving security, upon proof of inability; and a seaman may be required to give security, if his ability is proved. This libellant has had one hearing without giving security, and now upon his claiming an appeal, there is evidence tending to show his ability to give security for costs, and he must stipulate with surety for such costs as the appellate court may decree, unless he prove himself unable to do so by satisfactory affidavits."

This rule, it will be perceived, is limited by its terms to the case of an action in personam, where no bail has been taken and no attachment of property has been made, and the defendant has appeared. It would seem only to apply to the

in his claim, is obliged by the Twenty-Sixth Rule to file a stipulation with sureties in such sum as the court shall direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the court, or upon an appeal, by the appellate court. The Thirty-Fourth Rule makes the same provisions where a party intervenes in a case.2

A stipulation for costs is not, however, essential to render a claimant liable for fees for services rendered by the clerk of the court, but he is liable for these from his relation to the suit as dominus litis.3

case where the party has appeared under the command of a monition, and this is the view taken of it by Judge Betts, who accordingly held, that where a party is arrested, he is not entitled to be discharged on giving bail to appear and pay all costs, and to perform and abide all orders and decrees of the court in the cause, and to deliver himself personally for commitment in execution thereof, but that he must give a bond to satisfy the decree made against him. Gardner v. Isaacson, Abbott, Adm. 141. Judge Conkling, however, supposes that the rule applies to the case where the defendant is arrested, and cannot get bonds to satisfy the decree, and that he is then entitled to be liberated on giving a bond for the payment of costs.

1 In United States v. Sch. Lion, 1 Sprague, 399, which was a libel of information against a fishing vessel alleging it was forfeited by violation of law in obtaining the fishing bounty, no claim was put in or stipulations for costs given. It was suggested that the owners from poverty were unable to give security for costs, and requested the court to require the government to produce full proof of the allegations in the libel. This request was granted on the owners filing an affidavit of ownership, inability to give a stipulation, and that they had a good defence. "The affidavit must be equivalent to a claim and answer, and must fully set forth the grounds of defence."

2 In United States v. Sch. Lion, 1 Sprague, 399, 401, a libel of information against a vessel for forfeiture had been dismissed with a certificate of reasonable cause. Some time before this the vessel had been sold, and the proceeds paid into the custody of the court. The owner was allowed to intervene without giving a stipulation with surety for costs, there being no other claimant of the proceeds, and no contestation on which costs could arise.

SECTION V.

OF THE POWER OF THE COURT TO ORDER DOCUMENTS TO BE PRODUCED BEFORE ISSUE IS JOINED.

The practice of the court of chancery was formerly to require the defendant, if he wished to inspect documents in the possession of the plaintiff, to file a cross bill and pray for a discovery. In one case, however, the court ordered an instrument to be produced for inspection; 2 but this case is generally considered as of but little authority, and has not been followed. The rule at common law is that the defendant is entitled to inspect any instrument in the possession of the plaintiff, which is the subject of the action, and on which the plaintiff bases his claim.1

The power of the court of admiralty in such cases has not, until recently, been invoked, and no definite rule is to be found in the text-books or in the earlier reports. In 1857, the question arose whether, in a suit on a contract, which contract was partly in writing and partly oral, a letter in the libellant's custody, and which, it was alleged, was essential to the full understanding of the contract, should be ordered to be produced on motion of the defendant. The court said that if the whole contract had been in writing, and the letter in question contained the whole contract, the defendant would be entitled to have it produced, so, if, the whole contract being in writing, the letter was a part of the writing, if it appeared that the rest of the contract was either produced or within the control of the parties, and that there was no dispute as to what writings existed and were to be produced. But as the contract was to be proved partly by written and partly by parol

1 Spragg v. Corner, 2 Cox, 109.

Princess of Wales v. Earl of Liverpool, 1 Swanst. 114. In this case an affidavit was made that a note of hand which was in suit was believed not to be genuine, and it was necessary, in order that the answer might fully meet the case, that inspection of the note should be granted.

See Shepherd v. Morris, 1 Beav. 175; Milligan v. Mitchell, 6 Simons, 186; Penfold v. Nunn, 5 Simons, 405; Jones v. Lewis, 4 Simons, 324, overruling the same case, 2 Simons & S. 242.

See 3 Daniell's Ch. Practice, 2070.