time of serving the writ," applies equally to the suits in admiralty as to those at common law. But we do not consider this decision to be correct, and have no doubt but that a person who resides out of a certain district, may be sued in admiralty in that district if he has property there which can be there attached.

1 Wilson v. Pierce, U. S. D. C., California, 1852, 15 Law Reporter, 137. The case of Manro v. Almeida, 10 Wheat. 473, is explained on the ground that the defendant in that case was an absconding debtor and an inhabitant of the district in which the suit was brought. The decision in the case of Wilson v. Pierce, was given by Mr. Justice Hoffman, and is of marked ability, and fully discusses the previous decisions. But we do not consider it as sound in principle, and shall briefly consider some of the objections to it. In the first place is a suit in admiralty a civil suit within the meaning of that term in the 11th section? We are clearly of the opinion that it is not. The two sections immediately preceding the one in question provide for the jurisdiction of the district courts in civil causes of admiralty and maritime jurisdiction, and in some other peculiar cases. The 11th section, on the contrary, provides in the beginning that the circuit courts shall have original cognizance, concurrent with the State courts, "of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, etc." Concurrent jurisdiction with the district court is also given of crimes and offences cognizable therein, and it also provides that "no person shall be arrested in one district for trial in another in any civil action before a circuit or district court." Then follows the clause which we have cited in the text. It is thus evident, we think, that this clause was confined solely to the subjects embraced in the first part of the section, viz.: "suits of a civil nature at common law or in equity." And this position we think is clearly supported on authority. It is true that the case of Manro v. Almeida, is strictly an authority only to the point that an attachment will issue when the party has absconded from the country, and has goods within the jurisdiction of the court.

But that the same rule applied to the case in question was never doubted until the decision of Hoffman, J. The point arose in Clarke v. New Jersey Steam Nav. Co., I Story, 531, where a corporation doing business in New Jersey was sued in the Rhode Island district and their property in that district attached. Story, J., who was on the bench when the case of Manro v. Almeida was decided, said: "Neither has it been doubted that the process of attachment well lies in an admiralty suit against the property of private persons whose property is found within the district, although their persons may not be found therein, as well to enforce their appearance to the suit, as to apply it in satisfaction of the decree rendered in the suit. Ever since the elaborate examination of this whole subject in the case of Manro v. Almeida, this question has been deemed entirely at rest." The facts were the same in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, and it is somewhat singular, that, if the objection taken by Mr. Justice Hoffman is valid, the point should not have been noticed either by court or counsel, or by the three judges who dissented. See also Bouysson v. Miller, Bee, Adm. 186; King v. Shepherd, 3 Story, 349.

SECTION III.

OF FOREIGN ATTACHMENT.

The second admiralty rule also provides that the warrant of arrest may contain a clause that if the defendant cannot be found, "his credits and effects to the amount sued for in the hands of the garnishees named therein may be attached."

The process of foreign attachment in admiralty is governed by its own rules and principles, and does not depend on, and is not derived from, the custom of London, or the local laws of the different States. Some question has been made whether process of foreign attachment can issue when the defendant is not an inhabitant of the district, but for the reasons already stated we are clearly of the opinion that a suit may be brought in the district court where the property is."

By the thirty-seventh rule of the supreme court, the garnishee is required, in cases of foreign attachment, "to 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 admit any debts, credits, or effects, the same shall be held in his hands liable to answer the exigency of the suit."

It has been held that the warrant of arrest must contain a citation to the garnishee commanding him to appear, and that it is not sufficient to serve upon him a copy of the process, containing the foreign attachment clause without a citation.3

1 Manro v. Almeida, 10 Wheat. 473.

2 See ante, p. 686.

8 Smith v. Miln, Abbott, Adm. 373. The defendant and the garnishee were both defaulted, and on an exccution being issued against the "credits and effects" in the hands of the garnishee, he appeared and moved that all proceedings in relation to him be set aside for irregularity. And the court ordered it to be done for the reasons stated in the text. This case was decided in 1848, and in 1858 a somewhat similar question came before the district court in Massachusetts. Shorey v. Rennell, Boston Courier,

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.

June 21, 1858. The garnishee entered an appearance, but gave no stipulation, and put in no answer. After judgment against the defendant, he was called and was defaulted. The proctor for the libellant then filed an affidavit that the garnishee had admitted both before and after the suit was brought, that he owed the principal a certain amount, and moved for execution against the person and property of the garnishee. This was granted, but the execution was afterwards stayed by order of court on motion of the garnishee. The libellant then moved the court for an execution against the garnishee personally, and against his property generally, to the amount of the credits in his hands, as shown by the affidavit. The garnishee then offered his affidavit that he had no goods, effects, or credits of the principal in his hands, and prayed that he might make disclosure under oath, and to answer all interrogatories that might be propounded, and that thereupon he might be discharged. The case was considered at great length and the following conclusions arrived at that the compulsory process mentioned in the rule was not a process against the trustee to compel him to pay to the creditor his debts to the extent of the credits alleged by the libel to be in the hands of the trustee, but that it was a process to compel him to perform the duty previously prescribed, namely, to answer. The learned judge was also of the opinion that if the garnishee chose to waive his right and submit to a default, it was not imperative upon the libellant to coerce an answer, but if he could upon a default, show to the satisfaction of the court that the garnishee holds debts, effects, or credits, there was no reason why an execution might not issue. It was also said that after such execution, and a refusal by the trustee to pay, he had not the right to make answer that he had not when summoned, any debts, effects, or credits of the defendant in his hands, unless, perhaps, where there was some other cause than existed at the time of the commencement of the suit, as the discharge of the judgment against the principal by other means, or the destruction of the property in the hands of the garnishee without his fault. The circumstances of the case were somewhat peculiar, an affidavit having been put in stating that the proctor of the libellant had agreed that the garnishee need not make answer in 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. See also, McDonald v. Rennel, U. S. D. C., Mass., 21 Law Reporter, 157.

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.

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. 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 ecclesias

1 Manro v. Almeida, 10 Wheat. 473, 490.

2 See Clerke's Praxis, tit. 28, 21.

tical 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 in 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.

SECTION V.

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

1 9th Admiralty Rule. This mode of giving notice was expressly adopted in the Collection Act of 1799, ch. 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."