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ject matter and the respondent cannot be served within the district and has not appeared or offered to appear. It will not be issued where the respondent has previously offered to enter an appearance.5 Nor where with real effort personal service can be made within the district. The statutory prohibition against a suit to which an inhabitant of the United States is defendant in any other district than that whereof he is an inhabitant or is found does not apply to suits and proceedings in admiralty. It has been held that a general appearance will not validate a foreign attachment issued without authority.8 "In all suits in personam, where goods and chattels, or credits and effects, are attached under a process authorizing the same, the attachment shall be dissolved by order of the court to which the process is returnable, on the giving of a bond or stipulation, with sufficient sureties, or an approved corporate surety, by the respondent whose property is so attached, or by someone on his behalf, conditioned to abide by all orders, interlocutory or final, of the court, and to pay the amount awarded by the final decree of the court to which the process is returnable, or in any appellate court, not exceeding, however, the value of the goods so attached with interest at six per centum per annum and costs; and upon such bond or stipulation, summary process of execution shall be issued against the principal and sureties or surety by the court to which the process is returnable, to enforce the final decree so rendered or on appeal by any appellate court."9 Under the former rules a bond or stipulation given to secure

4 Bjolstad v. Pacific Coast S. S. Co., 221 Fed. 692.

5 The Athanasios, 228 Fed. 558. 6 Birdsall v. The Germain Co., 227 Fed. 953; Shewan v. Hallenbeck, 150 Fed. 231. It will not issue against the property of a foreign corporation which maintains an office for the transaction of business within the district. Birdsall v. Germain Co., 227 Fed. 953. The presence within the district of the holder of the majority of the stock, who is also the managing officer of a foreign corporation and captain of a boat owned by the latter which

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is docked there for repairs will not justify the quashing of the writ. Am. Potato Corporation v. Boca Grande S. S. Co., 233 Fed. 542 Supra, § 164d.

7 Atkins v. Fibre Disintegrating Co., 18 Wall. 272; Re Louisville Underwriters, 134 U. S. 488; See Robins Dry Dock & Repair Co. v. Chesbrough, C. C. A., 216 Fed. 121; American Potato Corp. v. Boca Grande S. S. Co., 233 Fed. 542; supra, 560h.

8 Birdsall v. The Germain Co., 227 Fed. 953.

9 Adm. Rule 5.

the release of the property attached was void if the attachment was set aside.10

§ 567b. Garnishee process. In case of foreign attachment where the properties in the possession of a stranger to the suit, the marshal serves the citation upon the garnishee, and if he finds goods or chattels of the respondent in the hands of the garnishee, he takes them into his own possession. If credits only are found, they are held by the garnishee "to answer the exigency of the suit."1

"In case of foreign attachment, the garnishee shall be required to answer on oath or solemn affirmation as to the debts, credits, or effects of the respondent or claimant in his hands, and to such interrogatories touching the same as may be propounded by the libelant; 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, or paid into the registry of the court and shall be held in either case subject to the further order of the court." 2

"In cases 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, on 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 cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and on failure of the party to comply with the order, may award an attachment, or other compulsory process to compel obedience thereto." 3

Where the local rules permit, the garnishee may be released

10 Atkins v. Fibre Disintegrating Co., 18 Wall. 272.

§ 567b. 1 Adm. Rule 37. Adm. Rule 11, S. D. N. Y., provides for the service of foreign attachment on the garnishee and service of process in proceedings in rem, etc. Adm. Rule 10, S. D. N. Y., provides for the return of the garnishee and for payment of the garnished funds into

court. Adm. Rule 12, S. D. N. Y., provides for the form of the monition in proceedings in rem on behalf of the United States and for service of the same.

2 Adm. Rule 36.

3 Adm. Rule 37. See Lathrop v. Freights of the John Ena, 212 Fed. 560.

from further liability by giving a stipulation for the amount of the sum in his hands belonging to the respondent to abide the further order of the court in regard thereto. A garnishee may set off a claim in his favor against the respondent, although such claim is not cognizable in admiralty.5

When a debt which is the subject of a libel in personam has been previously garnisheed in another court, it seems to be the better practice in admiralty to suspend proceedings therein, until the former garnishee proceedings have been terminated."

§ 567c. Arrests in admiralty. Although the Supreme Court Rules still contain a provision for warrants of arrest of the person,1 such process cannot be issued by courts of the United States in states where imprisonment for debt has been abolished, and arrests of the person are now, in most cases, dependent upon the laws for similar arrests in the respective states.2

It has been held that the power of a court of admiralty to arrest a defendant upon a claim for damages for a personal injury and cruel treatment of a sailor is not affected by the State law.3

By the Admiralty Rules: "No warrant of arrest of the person of the respondent shall issue unless by special order of the court, on proof of the propriety thereof by affidavit or otherwise.

"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 on similar or analogous process issuing from the State court.

"And imprisonment for debt, on process issuing out of the

4 The Olson & Mahony, 231 Fed. 539.

5 Wilhelmsens D. A. S. v. Canadian Venezuelan Ore Co., C. C. A., 224 Fed. 881.

6 Rhederci Actien Gesellschaft Oceana v. Clutha Shipping Co., 226 Fed. 339.

$ 567c. 1 Adm. Rule 7. See The Alpena, Fed. 361; Harriman Rockaway R. Co., 5 Fed. 461.

V.

2 Act of March 2, 1867, U. S. R. S., § 990; Admiralty Rule 3,

Louisiana Ins. Co. v. Nickerson, 2 Low. 310. The Carolina, 14 Fed. 424;. Chiesa v. Conover, 36 Fed. 334; The Bremena v. Card, 38 Fed. 144. It has been held that a party who has been arrested can be discharged upon giving the bail required by the State laws. Stone v. Murphy, 86 Fed. 158.

3 Bolden v. Jensen, 69 Fed. 745. Cf. supra, § 471.

4 Adm. Rule 2.

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, on similar or analogous process issuing from a State court.5

"The marshal shall take from the party arrested, as bail, either sufficient cash or a bond or stipulation in a sufficient sum, with sufficient sureties or an approved corporate surety, to be held by him to secure the appearance of the party so arrested in the suit. And upon such bond or stipulation summary process of execution shall be issued against the principal and sureties or corporate surety by the court to which the process is returnable.6

§ 568. Return of process and defaults. On the return day, the marshal having returned the monition of the clerk with proof that he has seized the property and made due publication, proclamation is made in open court, and, if no one appears to claim the property, the libelant is entitled to a decree by default. In suits in personam, if the respondent, when served with the citation, fails to appear, his default is taken in the same way. So, in cases of foreign attachment, where goods and chattels have been attached, the default of the respondent may be taken. Where the property attached consists of credits or effects, the garnishee is required to appear and make return under oath, showing the property in his hands belonging to the respondent at the time the attachment was served, and at the time of the return. If he fails to appear or to make such an affidavit or to answer the interrogatories put to him as to the property of the respondent in his hands, he is subject to the compulsory process of the court, and may be punished for contempt, and compelled to furnish a stipulation.1 Upon default the court will hear the cause ex parte and "adjudge therein as to law and justice shall appertain," 2 or for convenience will refer it to a referee to ascertain the amount due the libelant.3 In the Southern Dis

5 Adm. Rule 3.

6 Adm. Rule 4.

§ 568. 1 Admiralty Rule 36.

2 Admiralty Rule 28. By Adm. Rule 28, S. D. N. Y., where no proctor has appeared for any claimant,

a fieri facias will not issue, nor a decree enter, without proof of actual notice of the suit to an owner or agent of the res or to the master of the vessel in custody.

3 See infra, § 584.

trict of New York, process must be returned by the marshal on the return day; and if not then returned, within four days after written notice so to do. The return must state the day of seizure or of sale. All processes upon the return day thereof are called by the clerk, and if there is no opposition the orders prayed for, in accordance with the practice of the court, may be entered by the clerk without the intervention of a judge.

§ 568a. Opening of default in admiralty. "The court may, in its discretion, on motion of the respondent or claimant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within sixty days after the decree has been entered, the respondent or claimant submitting to such further orders and terms in the premises as the court may direct; and the term of the court shall be deemed extended for this purpose until the expiration of such period of sixty days.

1

§ 569. Release of property from custody of marshal. "No property in the custody of the marshal or other officer of the court shall be delivered up without an order of the court but, except in possessory actions, such order may be entered, as of course, by the clerk, on the filing of either a written consent thereto by the proctor on whose behalf it is detained, or an approved stipulation or bond given as provided by law and these rules; or upon the dismissal or discontinuance of the libel; except that in proceedings under section 941 of the Revised Statutes the marshal shall not deliver any property so released until the costs and charges of the officers of the court shall first have been paid into the court by the party receiving such property subject to the decision of the court with respect to the amount of costs due such officers." 1

The owner of property attached, or his agent, may obtain its release from the custody of the marshal by filing with the clerk a claim to the property, and either depositing in the court a sum sufficient to secure the amount sued for, or giving a bond or

4 Adm. Rule, S. D. N. Y., 13. § 568a. 1 Adm. Rule 39. St. Charles Amusement & Transporta

tion Co. v. Elhardt, C. C. A., 254
Fed. 275. See supra, §§ 171, 172.
§ 569. 1 Adm. Rule 57.

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