of January, in the year of our Lord one thousand eight hundred and forty-six, by Ebenezer N. Hinckley, against David L. Robinson, in a cause of contract, civil and maritime, for the reasons and causes in the said libel mentioned, and praying that a monition may issue against the said defendant-And James Jackson, of the city of New York, merchant, surety, and the said libellant, the parties hereto, hereby consenting and agreeing, that in case of default or contumacy on the part of the libellant or his surety, execution may issue against their goods, chattels and lands, for the sum of one hundred dollars;

"Now, THEREFORE, it is hereby stipulated and agreed for the benefit of whom it may concern, that the stipulators undersigned shall be, and are bound, in the sum of one hundred dollars, conditioned that the libellant above named, shall pay all such . costs as shall be awarded against him by this court, or in case of appeal, by the Appellate Court.

"Taken and acknowledged, this

10th day of January, 1846, before me,

«E. N. HINCKLEY, "JAS. JACKSON."

"GEORGE W. MORTON, U. S. Commissioner."

"Southern District of New York, ss.-James Jackson, party to the above stipulation, being duly sworn, doth depose and say that he is worth the sum of two hundred dollars over and above all his just debts and liabilities.

"Sworn this 10th day of January,

1846, before me,

"JAMES JACKSON,

"GEORGE W. MORTON, U. S. Commissioner."

415. On filing the libel and the stipulation for costs, the process prayed for is issued by the clerk, as a matter of course, in most cases, but in suits in personam no warrant of arrest of the person or property of the defendant shall issue, for a sum exceeding $500, unless by the special order of the court, upon affidavit or other proper proof, showing the propriety thereof.(a)

(a) Ad. Rule 7. Betts' Prac. 23, 28.

§ 416. The order of the judge is endorsed on the libel in this form :

"On filing the within libel, and otherwise complying with the rules of the court-let a warrant of arrest issue in this cause against the defendant, (naming him,) and let him be held to bail in dollars. (Signed by the Judge.)

In the Southern District of New York, the defendant is held to bail, in cases under $500, in $100 more than the amount sworn to be due. In the cases ordered by the judge, he fixes the bail in his discretion.

In all cases on filing the libel, the Clerk issues the process and endorses on it the amount in which the Marshal must take bail as follows:

"The Marshal will take bail in the sum of

dollars."

The libel being prepared, let it be signed and sworn to by the libellant, or, in case of his absence, by his agent or attorney, before the Judge, or the Clerk, or a United States Commissioner, and signed also by the Proctor and the Advocate.

If it be a case for security for costs, either prepare the stipu lation, and have it executed, and acknowledged and justified; or let the surety go to the clerk's office, and execute one prepared there.

If the libel pray for an arrest, if the amount be over $500, apply to the Judge for an order that a warrant may issue. File the libel, and request the Clerk to issue the warrant, and mark it for bail.

CHAPTER XXIII.

Mesne Process.

§ 417. The court is always open for the test and return of process, as has been stated: but the convenience of the court, as well as of the officers and suitors, has induced each court by its rules to appoint certain general return days. In the Southern District of New York every Tuesday is a general return day. All Admiralty mesne process is tested on the day it is issued and made returnable on the next general return day, at the usual hour for the opening of the court, unless a certain time be necessary to intervene between the test and return, in which case it is made returnable at the earliest return day which will include that time. (a)

418. The proper order and conduct of legal proceedings demands that the process of the court should be prepared with care and correctness, according to the rules and practice of the court, but in this matter, as in every other in Admiralty, the ends of justice is the paramount consideration, and common law technicalities of process are unknown. Any error, mistake, or oversight will, therefore, be corrected by the court, on application, always on such terms as may be just, and as matter of course when the party has not been prejudiced. The issuing of the process being the act of the clerk, the party or his proctor is not responsible for its imperfections.(b)

419. The process issues in the name of the President of the United States-is directed to the Marshal of the District, and is tested in the name of the Judge of the court. It must be served by the Marshal or his deputy, unless he be interested, in which case, the court, on application ex parte, showing the interest,

(a) Act of Aug. 23d, 1842, § 5. Stat. at Large, 516. (b) Jud. Act, of 1789, § 32. Betts' Prac. 24, 28.

will appoint a disinterested person, to whom the process will be directed, and by whom it will be served and returned. (a)

420. The simple monition in personam is in the following form:

"THE PRESIDENT OF THE UNITED STATES OF AMERICA. "To the Marshal of the Southern District of New York, "Greeting:

WHEREAS a libel has been filed in the District Court of the United States of America, for the South[L. S.] ern District of New York, on the tenth day of January, in the year of our Lord one thonsand eight hun

dred and forty-six, by Ebenezer N. Hinckley, against David L. Robinson, in a certain action civil and maritime for wages therein alleged to be due the said libellant, amounting to four hundred and ninety-eight dollars, and praying that a monition may issue against the said defendant pursuant to the rules and practice of this court,

"Now, therefore, we do hereby empower, and strictly charge and command you, the said Marshal, that you cite and admonish the said defendant, if he shall be found in your District, that he be and appear before the said District Court, on the first Tuesday of February instant, at eleven o'clock in the forenoon, at the city hall in the city of New York, then and there to answer the said libel, and to make his allegations in that behalf, and have you then and there this writ, with your return thereon.

"Witness the Honorable SAMUEL R. BETTS, Judge of said Court, this first day of February, in the year of our Lord one thousand eight hundred and forty-six, and of our Independence the seventieth.

"JOSEPH SMITH, Proctor,

"C. D. BETTS, Clerk."

Take the process to the Marshal, and give him information when the party or the property to be served may be found.

(a) Ad. Rule 1. Betts' Prac. 29. Jud. Act of 1789, § 27.

421. If the process be a simple monition or summons to appear and answer to the suit, it is the duty of the Marshal forthwith to serve it on the defendant, by delivering to him a copy thereof. It is a very useful measure of precaution, on the part of the marshal, to ask the defendant to sign on the back of the process his acknowledgment of the service; but if he omit to do so, the service will be good, and in either case the Marshal returns the process to the clerk's office, with his return endorsed upon it "Personally served." (Signed by the Marshal.)

§ 422. If the process be a simple warrant of arrest, it is the duty of the Marshal immediately to arrest the person of the defendant, and keep him in custody, unless he give bail, with sufficient sureties, by bond or stipulation, with condition that he will appear in the suit, and abide by all the orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein, in the court to which the process is returnable, or in any Appellate Court.(a)

It is the duty of the Marshal to see that the sureties are sufficient, and that the stipulation is duly made and executed, inasmuch as the libellant is not consulted, and has no power to meddle with the duty of the Marshal in the premises, who acts under the proper responsibility of his office.

The Marshal returns the process to the Clerk's office, with his true return endorsed upon it, and with the stipulation, if any, which he has taken.

423. The following is the form of the stipulation :

"DISTRICT COURT OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK. STIPULATION

Entered into pursuant to the Rules and Practice of the Court. Whereas, a Libel has been filed in the District Court of the United States of America for the Southern District of New

(a) Ad. Rule 3. Ware, 286. See the Forms of Warrants in the Appendix,

vid. Index.