other tribunal (); its liens, even in the case of bankruptcy and Chap. 4. insolvency, having priority over all other debts, even mortgages, except those common law liens, the essential condition, and security of which, possession, is removed by its process, and which are entitled to be first satisfied out of the proceeds (m) of a sale under its decree. The ordinary mode of proceeding in the Court of Admiralty for the Writ of assertion of a maritime licn is by arrest of the ship, &c. An action summons. The following is the form of this writ. (See Order 2, r. 7 a.) is first commenced by writ of summons. VICTORIA, by the Grace of God, &c. To the owners and partics interested in the ship or vessel of the port of [or cargo, &c., as the case may be.] We command you, that within eight days after the service of this writ, inclusive of the day of such service, you do cause an appearance to be entered for you in the Admiralty Division of our High Court of Justice in an action at the suit of A. B.; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, Hugh MacCalmont, Baron Cairns, Lord High Chancellor of Great Britain, this day of , 18 Memorandum to be subscribed on the writ. N.B. This writ is to be served within (twelve) calendar months from the date thereof, or if renewed, from the date of such renewal, including the day of such date, and not afterwards. The defendant [or defendants] may appear hereto by entering an appearance [or appearances] cither personally or by solicitor at the ] office at [ (1) Ladbrooke v. Crickett, 2 T. R. 619. The Hersey, ibid. 407, 408. The West- Part VI. Indorsements to be made on the writ before issue thereof. The plaintiff's claim is for, &c. This writ was issued by E. F., of plaintiff, who resides at solicitor for the said , or, this writ was issued by the plaintiff in person, who resides at Indorsement to be made on the writ after service thereof. This writ was served by X. Y. [here state the mode in which the service was effected, whether on the owner, or on the ship, cargo or freight, according to Order IX., rules 10, 11 and 12, as the case may be] on day of 18 the Warrant for arrest. By rules made in April, 1880, a form is given for a writ in Admiralty actions for issue from district registry. Since the Judicature Acts the following rules in and made under such Acts apply. By Order 5, rr. 11 and 11a:- In Admiralty actions in rem a warrant for the arrest of property according to the Form A. in the Appendix to these rules, may be issued at the instance either of the plaintiff or of the defendant, at any time after the writ of summons has issued, but no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed, and the following provisions complied with : (a.) The affidavit shall state the name and description of the party on whose behalf the action is instituted, the nature of the claim, the name and nature of the property to be arrested, and that the claim has not been satisfied. (b.) In an action of wages the affidavit shall state the national character of the vessel proceeded against; and if against a foreign vessel that notice of the institution of the action has been given to the consul of the State to which the vessel belongs, if there be one resident in London [a copy of the notice shall be annexed to the affidavit]. (c.) In an action of bottomry, the bottomry bond, and if in a foreign language also a notarial translation thereof, shall be produced for the inspection and perusal of the registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit. (d.) In an action of distribution of salvage the affidavit shall state the amount of salvage money awarded or agreed to be accepted, and the name, address, and description of the Chap. 4. party holding the same. (e.) The court or judge may in any case, if he think fit, allow the writ of summons to issue although the affidavit may not The following is the form referred to: To the marshal of the Admiralty Division of our High Court of Justice, and to all and singular his substitutes [or to the collector or collectors of customs at the port of ]. We hereby command of the port of you to arrest the ship or vessel day of By Order 9, r. 9a, "In Admiralty actions in rem the warrant of arrest shall be served by the marshal or his substitutes, whether the property to be arrested be situate within the port of London or elsewhere within the jurisdiction of the court, and the solicitor issuing the warrant shall, within six days from the service thereof, file the same in the registry." By Order 9, r. 10a, " In Admiralty actions in rem, service of a writ Service of writ of summons against ship, freight, or cargo on board, is to be effected of summons. by nailing or affixing the original writ for a short time on the mainmast, or on the single mast of the vessel, and, on taking off the process, leaving a true copy of it nailed or affixed in its place." By Order 9, r. 11, "If the cargo has been landed or transhipped, service of the writ of summons to arrest the cargo and freight shall be effected by placing the writ for a short time on the cargo, and on taking off the process by leaving a true copy upon it." By Order 9, r. 12, "If the cargo be in the custody of a person who will not permit access to it, service of the writ may be made upon the custodian" Part VI. Procedure in miralty. As to the mode of proceeding in the Admiralty Court since the Judicature Acts, see Roscoe's Practice. So far, the proceeding is in rem,—a process to make perfect a right, inchoate from the moment the lien attached, and the only one which could be effectual in the frequent event of the owners being unknown or beyond the reach of the courts of this country. But when bail has been given, as it may be, to the action, it becomes a proceeding in personam, the suitor recovering the amount of his judgment from the defendant and his bail (a). It is not in the option of the suitor to refuse to accept bail justified according to the practice of the court, to be of competent ability. If it were, the shipowner might be deprived of the profit of his ship's employment; the merchant of a market for his goods; both ship and goods might be deteriorated by detention, or overwhelmed with an accumulation of fees of possession, dock dues, and warehouse charges. When a res is sold by order of the Court of Admiralty and its proceeds brought into the registry, the lien of the suitor attaches upon them as previously on the res itself (b). In undefended cases an appraisement is directed before sale, in order to ascertain, for the benefit of creditors, what may be a proper reserved price. And when, as in cases of salvage and of damage, the amount recoverable by the suitor is governed or limited by the value of the property salved, or the value of the wrong-going vessel, and the parties cannot agree in their estimate of it, the court, though bail has been given, will order the res to be appraised (c). Should it afterwards be sold for a higher or lower price, that fact will have no influence on the adjudication; the amount of an appraisement, unless questioned and reviewed at the time, being taken to be the real value (d). It has been mentioned, ante, p. 577, that in causes of collision the judge is assisted by the nautical skill and experience of two of the elder brethren of the Trinity House. The same course is also sometimes resorted to in the hearing of salvage suits. The opinions of the Trinity Masters are attentively considered, the sentence is not theirs but of the judge (e). Before decree, a conflict for priority between liens may be raised by a second claimant, but a decree once pronounced, the liens of all other creditors are forfeited, the res or proceeds of it passing into the hands of the purchaser or successful suitor exonerated from its old encumbrances (f). (a) The Duchesse de Brabant, Swab. 264. Smith v. Bank of New South Wales, 41 L. J. Ad. 49. (b) The Neptune, 2 Knapp, 94. The possession of property by the Court of Admiralty, through its officers, is a possession protective of the interests of all concerned, and does not displace the rights or lien of any party. The Kathleen, 43 L. J. Ad. 39. (c) The Persian, 1 Notes of Cases, 305. The Mellona, 6 Notes of Cases, 69. (d) Ibid. And see the Betsey, 5 C. Rob. 296. (e) See the Christiana, 7 Notes of Cases, 7; ibid. 47, suppl. Chapman v. Williams, 4 Notes of Cases, 586. The Benares, 7 Notes of Cases, 54. The Blenheim, ibid, 399. As to trial by a judge sitting with assessors under the Jud. Acts, see Jud. Act, 1873, s. 56; Order 36, rr. 2, 27, 28. Arch. by Prentice, 13th ed. p. 384. (f) As to when the judgment in rem of Some question upon this point appears to have been founded on the Chap. 4. form of the bail-bond required by the Admiralty, on payment of money to a successful suitor. The observations of Lord LANGDALE upon this instrument, in the case of the Saracen above referred to, may appear to accredit the notion of a distinction in Admiralty debts, and that payment is only made to a creditor of inferior degree conditionally on no other debts of a higher character appearing after judgment. An article of an ancient sea-law, incorporated in some editions of the Consolato, gives countenance to this construction (g). The terms of the bond are to restore the sum to be paid; "in case any person shall come in for his interest in the said sum, and pay the customary fees as taxed in the cause, and put in sufficient security to answer the action commenced in that behalf, and for his personal appearance at such times as the same shall be required, and to pay what shall be adjudged with expenses, and to bring into the registry of the court the said sum whenever the court shall order, and to save harmless the judge, registrar, marshal, and all others, officers of the court, as to the payment of the said sum." Without help from the light thrown upon these words by the practice of the court, they would seem to justify the doubt which has been entertained. But, if the suitor elects to wait the expiration of a year and a day, before his application for payment, the bond is not required. Whatever may have been the origin of the form, its effect is not to guarantee the court and its officers against claims paramount to those pronounced for, but to guard against the possible mischief of a res having been proceeded against and adjudged, in error, as to its real ownership. This seems abundantly clear from the authorities on the practice of the Admiralty (h), in conformity with which the learned judge of that court observed, in a case lately decided by him, that he was "disposed to believe that the expressions in the bond applied exclusively to interests in the subject-matter, as in cases of title." The court, in the event of its having been misled in the manner supposed, might be called upon to rescind its own decree, and takes security to enable it to do so. 6. Maritime Law of Foreign States as to Priority of Liens, &c. Although the writings of foreign jurists are but sparingly referred to in the cases which have been cited, it is satisfactory to observe how closely the decisions of the Court of Admiralty of England have a foreign court is conclusive and passes the property in a ship, see Castrique v. Imrie, 39 L. J. C. P. 350; L. R. 4 H. L. 414. (g) Ordinance of Aragon and Catalonia, A.D. 1343, Art. xxxi; Pardessus, vol. v., p. 390. 18 Les serviteurs et mariniers pour ce qui leur sera du de loyers sans qu'ils (h) Clarke, Prax. Car. Adm. tit. 35, 38, |