PART 3. provisions were understood to be applicable only to seizures cognizable on the admiralty side of the court. But the section embraces in express terms, all forfeitures accruing under that act.

It is true it directs that all vessels, &c., which shall become forfeited in virtue of that act "shall be seized, libeled, and prosecuted," &c. But though the appellation libel does not properly belong to the information in rem on the exchequer side of the court, the use of the term in this section does not appear to me sufficient to exclude the otherwise irresistible conclusion that it was the intention of congress to prescribe rules for the prosecution of all seizures made under the act without regard to the place of seizure. At the early day when the act was passed it is not improbable that the distinction now so well understood, between land and water seizures, was overlooked.

Indeed, in that very case, the proceeding had originally been instituted on the admiralty side of the court, under the supposition that no such distinction existed, but that all seizures were of admiralty jurisdiction. If, as from the case I can see no reason to doubt, it was within the 89th section, then by the express terms of this section, a judgment might have been summarily granted on the bond (after twenty days), and upon such judgment an execution might have been issued, as upon other judgments. But, admitting the case not to have been within this section, although the bond might have been obligatory as an instrument voluntarily executed on good consideration and for a lawful purpose, and, as such, might have been enforced by an action of debt, yet, the case being one of common law jurisdiction, it does not appear to me that the admiralty powers of

the court could properly be resorted to for a sum- CHAP. 3. mary remedy unknown to the common law.

It would seem very clear from the language of the 89th section of the collection act of 1799, that it was intended that no judgment should be granted on the bond for value, until after the lapse of twenty days after the decree or judgment of condemnation; and such was the impression of Mr. Justice STORY in the case of McLellan v. The United States (1 Gallis., 227, 229). But in the case of Neilson v. The United States (Peters's C. C. Rep., 240), Mr. Justice WASHINGTON was clearly of opinion that it was only in the district court that the obligors could claim this delay, and he therefore granted a judgment instanter, on the affirmance of a decree of condemnation on appeal from the district court.

It will be observed, too, that the judgment is to "be granted on motion in open court." Should the session of the court at which the condemnation takes place be terminated within less than twenty days thereafter, it would seem to follow, therefore, that no judgment could be granted on the bond until the next term. See, as to this point, the case of McLellan v. The United States, 1 Gallis., 227, 229.

It will be further observed that the bond is required to be "for the payment of a sum equal to the sum at which the ship or vessel, &c., are appraised;" while by a subsequent clause it is declared that if judgment shall pass against the claimant, and he "shall not within twenty days thereafter, pay into court the appraised value of such ship or vessel, &c., with costs, judgment shall and may be granted," &c. While, therefore, the condition of the bond is not required to contain any stipulation for the payment of costs, the claimant is, nevertheless, required to pay costs in addition to the appraised value, as the condition on

PART 3. which he and his sureties are to be exonerated. It

is of some importance, therefore, to ascertain what costs are here intended. The claim of the United States against the offending property is in the nature of a lien upon it to the amount of its value; and the object of the proceeding is its confiscation. The legislative provisions by which forfeitures of this nature are imposed, declare a simple forfeiture. In some instances a pecuniary penalty, to be recovered of the offender, is superadded, but I am not aware of any instance in which a forfeiture in rem, with costs of prosecution is inflicted: and when no claimant appears, a simple decree, or judgment of condemnation, is pronounced against the res, and the costs are paid out of the proceeds of the sale of it, before distribution, in accordance with the express provisions of the 91st section of the collection act of 1799. These views of the subject seem strongly to favor the inference that no other than the additional costs occasioned by the defense, including the delivery, were intended to be exacted; and to this extent only were the claimants held responsible by Mr. Justice STORY, in the case of The Sally (1 Gallis., 397, 414); which, though it did not arise under the collection act of 1799, is not, it is supposed, distinguishable from such a case in this respect.

By a rule of the district court of the southern district of New York, no vessels, goods, wares or merchandise in the custody of the marshal, shall be released from detention upon appraisement and security, until the costs and charges of the officers of the court, so far as the same shall have accrued, shall first be paid into court by the party at whose instance the appraisement shall take place, to abide the decision of the court in respect to such costs. This rule seems to imply an assumption that the court

possesses a discretionary power to subject the claim- CHAP. 3. ant to costs when the decision is in his favor. In cases falling within the general inherent jurisdiction of the court as a court of admiralty, and when no statute interferes to prevent it, a discretionary power with respect to costs may unquestionably be exercised. But the admiralty jurisdiction of the district courts over revenue seizures is an extraordinary jurisdiction, conferred and regulated by statute. The statute requires, when the decision on the merits is in favor of the claimant, that his property shall forthwith be restored, and that the bond for the appraised value shall be canceled; and it then proceeds to declare that if the court shall certify that there was reasonable cause of seizure, the claimant shall not be entitled to costs. I am not aware of any principle, therefore, which warrants the application of the above mentioned rule to cases of this description. The statute, however, requires that the appraisement shall be made at the expense of the party on whose prayer it is granted.

In each of the districts of New York the practice was early adopted and still prevails, of permitting the value of the property seized to be agreed on by the collector and district attorney, in behalf of the United States, and the claimant, and of receiving a written certificate of such agreement signed by them instead of an actual appraisement. It is considered as a highly convenient and beneficial practice, and though not expressly provided for in terms, by the acts of congress on this subject, is warranted nevertheless by their spirit.2

'See Appendix, Rule 86, D. C.

"For the purpose of guarding against possible misapprehensions it may not be amiss to advert to the act of March 3, 1847, ch. 55 (9 Stat. at Large, p. 181), "An act for the reduction of costs and expenses of proceedings in admiralty against ships and vessels," and providing "That

PART 3.

SECTION VI.

OF THE SALE OF PERISHABLE PROPERTY, PENDENTE LITE.

One of the powers exercised by courts of admiralty in proceedings in rem, is that of decreeing a sale, pendente lite, of the thing proceeded against, when from its nature or condition it is likely to become worthless, or of greatly diminished value, if kept under arrest until the termination of the suit. As an incident to the admiralty jurisdiction conferred on the courts of the United States over seizures made on the high seas or on water navigable from the sea by vessels of ten or more tons burden, it may doubtless be exercised in these cases, independently of any specific legislative direction.' But in cases of seizure of the opposite description, which we have seen are of common law jurisdiction, it is not supposed that the admiralty powers of the courts can be rightfully invoked for this purpose.

This power is, however, understood to belong also to the English court of exchequer, and it is moreover expressly recognized, and its exercise is regulated by the act recited under the last preceding head, of April 5th, 1832, not only in cases "of admiralty and mariin any case brought in the courts of the United States, exercising jurisdiction in admiralty, where a warrant of arrest or other process in rem shall be issued, it shall be the duty of the marshal to stay the execution of such process, or to discharge the property arrested if the same has been levied, on receiving from the claimant of the same a bond or stipulation in double the amount claimed by the libelant, with sufficient surety to be approved," &c. The language of this act "in any case brought," &c., and especially the language of its title is sufficiently general to comprise municipal seizures on navigable waters. But such seizures are made to enforce the total forfeiture of the property for the violation of penal laws,- whereas a careful examination of this act will render it apparent that it extends only to private suits in rem to enforce the payment of personal demands against the owners of the property, as, for example, suits for seamen's wages.

'See also rule 10 of the rules of practice in admiralty prescribed by the supreme court, expressly affirming this power. Appendix.