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 execution against the defendant under the 21st Rule. We should not sup- 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 1 After a vessel has been given up to the stipulators, if the vessel is arrested on other suits brought against her, it has been held that the stipulators may, by petition to the court, be released from their stipulations, and the vessel then will be held by the marshal on the former warrant of arrest as well as on the latter.1 Such an application will not, however, be entertained by the court until the process in the second case is returned to court.2 By the practice of the English admiralty, sureties to a bail-bond must not be partners; and if a bond is given signed by partners, the court will order the rearrest of the vessel.3 SECTION III. OF DELIVERY ON APPRAISEMENT. We have already seen that the court may in certain cases order property to be sold; and it may also, upon the application of the claimant, order a delivery thereof to him, upon a due appraisement to be had under the direction of the court, either upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation with sureties as the court shall direct to abide by and pay the money awarded by the final decree." An vessel was then delivered up on a bond being given in the usual way. amendment was afterwards allowed striking out the names of the owner and pilot, and the suit proceeded against the vessel and master. It was held that the stipulators were not discharged. In The Hypodame, 6 Wallace, 216, a libel was filed claiming $ 6,000 damages. A stipulation was given in the sum of $7,250. A decree was rendered for over $ 7,500. Held, that on the libel being amended a decree might be entered for the amount of the stipulation. The Jewess, 1 Bened. Adm. 21, n. The Empire, 1 Bened. Adm. 19. The Corner, Brow. & L. Adm. 161. See ante, p. 338. ' In The Cargo ex Venus, Law Rep. 1 Adm. 50, the property was delivered up on appraisement. The owners afterwards sold it for a less amount, and claimed that they were liable only for the proceeds of the sale; but the court held that the appraisement was conclusive. 10th Admiralty Rule. SECTION IV. OF STIPULATIONS FOR COSTS. By the ancient rules of admiralty, the plaintiff was required to find fidejussores for the prosecution of the suit, for the payment of the defendant's costs if the plaintiff should fail in the cause, and for the production of the plaintiff personally as often as he might be called. In England, this seems now to be confined to the case of non-residents, and it is not then enforced when the defendant has arrested sufficient property of the plaintiff in another suit. In this country various rules have been enacted by the different district courts on this subject. By the old seventh rule of the first circuit, on motion of the defendant, the court would oblige the plaintiff, except where the suit was for the United States, on pain of dismissing the libel, to give a stipulation with sureties to appear from time to time and abide all orders, etc., and to pay all costs. But this rule was not applied where the libellant was too poor to furnish a stipulation, and he was then admitted to give the juratory caution; but even this was not considered essential unless it was demanded by the defendant. In the Southern District of New York, it was provided by Rule Forty-Four, that no process in rem should issue, or appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation to pay costs was first entered into. Seamen suing for wages for services on board American vessels, and salvors bringing property 1 Clerke's Praxis, tit. 14. See The Sophie, 1 W. Rob. 326; The Volant, id. 383; The Franz & Elize, Lush. Adm. 377; The Wild Ranger, Lush. Adm. 553. In The D. H. Peri, Lush. Adm. 543, it was held that a foreign plaintiff suing in rem would be required to give security of costs, but not security for damages as for a wrongful arrest of the defendant's vessel. So held also in The Mary, Law Rep. 1 Adm. 335, which was a cause of possession, although it was admitted to be the practice not to release a vessel on bail in such a suit. The 44th Rule was formerly numbered 14. $ 45th Rule. This rule has been held not to apply to an agreement made by a seaman with the master outside of the shipping articles, and the seaman in such a case must file a stipulation for costs. The Great Britain, Olcott, Adm. 1. 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 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 be 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." * 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. In the Matter of Stover, 1 Curtis, C. C. 201. |