PART 3. would otherwise run against a cause of action then before the court, had been held to be a good reason for allowing an amendment as to such cause of action, yet that the reverse of this rule ought to prevail with regard to an amendment introductive of a new substantive cause of action, And, in several cases, in that, for example, of The Hoppet v. The United States (7 Cranch, 389), in which the decree of the circuit court was reversed on account of the insufficiency of the libel, the cause was not remanded with directions to allow an amendment. And although the adjudications above cited, and such others as I have met with relative to the subject, pertain exclusively to the libel of information, doubtless the liberality they inculcate in allowing amendments is to be extended in an equal degree to the pleadings on the part of the claimant.

SECTION III.

OF THE PROCESS, AND DUTY OF THE MARSHAL THEREON.

Upon the filing of the libel or information, the clerk issues a writ to the marshal, commanding him to attach the property seized, and to give notice to all persons claiming it, or knowing or having any thing to say why it should not be condemned pursuant to the prayer of the libel or information, to appear before the district court on a day and at a place therein named, and interpose their claim. It is, therefore, an attachment and citation or monition combined. It is usually and most properly denominated a warrant of arrest, but is also sometimes called a monition. The form of it is given in the Appendix. On receiving it, it is the duty of the marshal to arrest the property seized by taking it into his custody. He is henceforth chargeable with its safe keeping, and may remove it or not at his dis

cretion, and either retain it in his own possession, or CHAP.3. put it in charge of an agent or keeper appointed by him for the purpose.

The next duty of the marshal is to give the required notice; a duty enjoined and regulated by the following clause in the 89th section of the collection act of 1790: "All ships or vessels, goods, wares or merchandise, which shall become forfeited in virtue of this act, shall be seized, libeled and prosecuted, as aforesaid, in the proper court having cognizance thereof; which court shall 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; for which advertisement a sum not exceeding ten dollars shall be paid." Unless there be some rule of the court prescribing a different practice, the warrant of arrest may be tested and made returnable on any day in term. But in order to enable the marshal to comply with the requirement of the act, there must of course be at least fourteen days between the time of issuing the process, and the return of it. The notice is drawn. up by the clerk, and delivered or sent to the marshal along with the warrant. Its form, and the mode of serving it, or rather of giving it publicity, are sufficiently indicated in the provision of the act above cited.

1 Ch. 22: 1 Stat. at Large, p. 695. By the act of Feb. 26, 1853, ch. 80, the fees of printers in all judicial proceedings are fixed at forty cents per folio of a hundred words, for the first insertion, and twenty cents for each subsequent insertion. 10 Stat. at Large, 168. See appendix.

PART 3.

The proper form of the return of the marshal when the process has been executed, is given in the appendix.

SECTION IV.

OF CONDEMNATION BY DEFAULT.

The 89th section of the act above referred to, further provides that "proclamation shall be made in such manner as the court shall direct; and if no person shall appear and claim any such ship or vessel, goods, wares or merchandise, and give bond to defend the prosecution thereof, and to respond the costs, in case he shall not support his claim, the court shall proceed to hear and determine the cause according to law."

The practice under this provision in the district courts of New York, is this. On the return day of the warrant of arrest, if it is returned by the marshal executed, or on some subsequent day of the term, the district attorney reads the libel or information, or so much thereof as is necessary to show what property it is that he is proceeding against, by whom the seizure was made, and the grounds of the seizure. He thereupon moves that the usual proclamation be made; and the crier accordingly makes one proclamation to the purport, that if any one can aught say why the property mentioned in the libel or information should not be condemned as forfeited to the United States, he may come forth and shall be heard. If no claimant appears, the district attorney moves for a decree of condemnation, and that the property be sold at a designated place-and it is so decreed by the court of course, without further inquiry.

SECTION V.

OF THE BOND REQUIRED BY LAW OF THE CLAIMANT, ON THE
DELIVERY TO HIM OF THE PROPERTY SEIZED.

As a considerable period, more or less extended, generally elapses between the seizure and the final decision of the courts upon the case; as in some instances the property may be of a perishable nature, and in others it may be of importance to the owner to have the use and disposition of it in the meantime; and as the care and custody of it by the marshal occasions expense; congress has wisely provided for the delivery of it to the owner, pendente lite, if he chooses to make an application for this purpose and offers sufficient security to pay the value of it in the event of its condemnation.

The clause in the 89th section of the collection act by which alone, until recently, this proceeding was regulated, is as follows: "Upon the prayer of any claimant to the court, that any ship or any part thereof should be delivered to such claimant, it shall be lawful for the court to appoint three proper persons to appraise such ship or vessel, goods, wares or merchandise, who shall be sworn in open court, for the faithful discharge of their duty; and such appraisement shall be made at the expense of the party on whose prayer it is granted; and on the return of such appraisement, if the claimant shall, with one or more sureties, to be approved of by the court, execute a bond' in the usual form, to the United States,

1 In the case of the Alligator (1 Gallis., 148), and in several other cases, Mr. Justice STORY speaks of the right of the courts to exact, on the delivery of property, an admiralty stipulation instead of a bond, in cases of municipal seizure, where the statute does not otherwise provide, and expresses a preference for the stipulation. But I am not aware that he has anywhere intimated an opinion that this latter form of security could properly be required in a case of seizure under the collection act of 1799. For all such cases, the 89th section of the act,

CHAP. 3.

PART 3. for the payment of a sum equal to the sum at which the ship or vessel, goods, wares or merchandise, so prayed to be delivered, are appraised, and moreover, produce a certificate from the collector of the district wherein such trial is had, and of the naval officer thereof, if any there be, that the duties on the goods, wares and merchandise, or tonnage duty on the ship or vessel so claimed, have been paid or secured, in like manner as if the goods, wares or merchandise, ship, or vessel had been legally entered, the court shall by rule, order such ship or vessel, goods, wares or merchandise, to be delivered to the said claimant; and the said bond shall be lodged with the proper officer of the court, and if judgment shall pass in favor of the claimant, the court shall cause the said bond to be canceled; but if judgment shall pass against the claimant as to the whole or any part of the said ship or vessel, goods, wares or merchandise, and the claimant shall not, within twenty days thereafter, pay into the court, or to the proper officer thereof, the amount of the appraised value of such ship or vessel, goods, wares or merchandise, so condemned, with costs, judgment shall and may be granted upon the bond, on motion in open court, without further delay."

It will be observed that nearly all the steps here prescribed are required to be taken in court. The application must be made to the court; the appraisers must be appointed by the court, and they must be as we have seen, expressly directs that a bond shall be taken. The term bond has a familiar and well-defined signification in law, and always imports an instrument under seal, which the stipulation is not.

But independently of this statute designation, no one will suppose that an admiralty stipulation would be a proper form of security in cases of seizure prosecuted on the common law side of the court; and to exact different forms of security according to the place of seizure, would only create unnecessary complexity and embarrassment.