« AnteriorContinuar »
as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed.
A libel for a forfeiture must be particular and certain in all the material circumstances which constitute the offense. An informal libel or information in rem, may be amended by leave of the court. Brig Caroline v. United States, 7 Cr., 496.
A libel may be amended after reversal for want of substantial averments. The Schooner Anne v. United States, Id., 570.
A libel must aver specially all the facts which constitute the offense. Id.
A general reference to the provisions of the statute is not sufficient. The Schooner Hoppet and Cargo v. United States, Id., 389.
It was held in The Margaret, 9 Wh., 421, that the proviso in the 16th section of the ship registry act of 1872, being by way of exception from the enacting clause, need not be taken notice of in a libel brought to enforce the forfeiture. It was held to be a matter of defense to be set up by the party in his claim.
Where a suit in admiralty was brought against a vessel and her master jointly to recover a penalty for importing or bringing goods into the United States which were not included or described in the manifest, it was held proper to dismiss the suit as to the master, on the ground that he was entitled to a jury trial, and proceed with it as against the vessel in rem. The United States v. T'he Steamship Queen, 11 Blatchf., 416.
An information against a vessel, which charged that “she was built, fitted, equipt, loaded, or otherwise prepared, etc., or caused to sail," etc., was held bad for uncertainty, as to which of the several illegal acts constituting offenses was charged; and on such information a sentence of forfeiture ought not to be pronounced. The Brig Caroline, 1 Brock., C. C., 384.
Rule No. 23. Instance cases, libels in.-All libels in instance causes, civil or maritime, shall state the nature of the cause; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be; and, if the libel be in rem, that the property is within the district; and, if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libelant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article; and it shall conclude with a prayer of due process to enforce his rights in rem or'in personam (as the case may require) and for such relief and redress as the court is competent to give in the premises. And the libelant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof.
In a libel it is not necessary to state any fact which constitutes the defense of the claimant of the vessel, or a ground of exception of the operation of the law on which the libel is founded. The Aurora v. The United States, 7 Cr., 382, 383.
A test affidavit ought to state that the property at the time of shipment, and also at the time of capture, did belong, and will if restored belong to the claimant, but an irregularity in this respect is not fatal. The Schooner Adelaide and Cargo, 9 Cr., 244.
By the rules of admiralty practice, pleas and exceptions must set forth the matter in dispute in perspicuous and definite terms, and it is not necessary that they should embody the formalities required in pleading at common law or in chancery. The Schooner Navarro, Olc. Adm., 127.
A cross-action cannot be maintained in this court which seeks a retrial of matters already adjudicated between the parties. Id.
Where, on a trial at law a fatal variance between the allegation and the proofs would appear by including in the action an independent party, where no proof was furnished of his interest in the suit, yet such an irregularity in pleading will not work a defeat of the action in admiralty; and the insertion of such party may be disregarded. Talbot et al. •. Wakeman et al., 19 How. Pr., 36.
Under rules 22 and 23, and the rules of the local court, it was held that a libel of information to obtain the forfeiture of property for alleged violations of the internal revenue laws, must state in distinct allegations the matters relied on as grounds of forfeiture. About 18,000 Gallons of Distilled Spirits, etc., 5 Ben., 4.
The libel should always show the jurisdiction of the court. When a case comes rightly into a court of admiralty, it is to be conducted, tried and decided according to the usages and practice of that court. Boon v. The Hornet, Crabbe, 426.
Libels in admiralty, especially those for salvage, are usually too loosely framed. They should state the subject matter in articles, with certainty and precision, and with averments admitting of distinct answers. The Schooner Boston and Cargo, 1 Sum., C. C., 328.
The answer should meet each material allegation of the libel with an admission, a denial, or a defense. No evidence is admissible except it be appropriate to some of the allegations in the libel or answer. Id.
In causes of damage in admiralty, the libel should state each distinct act of injury in a distinct article with reasonable certainty of time and place. Treadwell v. Joseph, 1 Sum., C. C., 390.
Where a defense is put in by way of justification, it must admit the facts. Id. Where the act is relied on as a punishment, it must be so pleaded. Id.
The burden of proof is on the respondent where a justification is pleaded. Id.
Every libel for tort must contain on its face sufficient averments as to place, to show that it was within the admiralty jurisdiction, otherwise it must be dismissed. The admiralty jurisdiction as to torts is limited to torts committed on the high seas, or at farthest to torts committed on waters within the ebb and flow of the tide. Thomas v. Lane, 2 Sum., C. G., 1.
The libel and answer should set out clearly and explicitly, though briefly, the facts relied on, and in collision cases this is especially important. The Bark Havre, 1 Ben., 295.
The court has power, in any stage of the proceedings, to require the parties to supply any defect in the pleadings, though counsel can appeal to the court for that purpose only by exceptions filed at the proper time. Id.
Rule No. 24. Amendments to libels. In all informations and libels in causes of admiralty and maritime jurisdiction, amendments in matters of form may be made at any time, on motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libelant.
A libel in rem against a vessel and personally against the master may properly under the present practice of the court be joined. And if the libelant have originally proceeded against the vessel, master, owners and pilots, the libel may, by leave of the court, be amended so as to apply to the vessel and master only in the way mentioned. Newell v. Norton and Ship, 3 Wall., 257.
Where the claimants file exceptions to a libel, the libelant has a right under the 24th admiralty rule, to move to amend his libel in any of the points excepted to, without submitting to the exception, as provided for in rule 94 of the local court. Town et al. v. Steamship Western Metropolis, 28 How. Pr., 283.
Rule No. 25. Security for costs, when required.-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 stipula- . tion, 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 progress of the suit.
In an action in personam the defendants are guilty of no wrong or irregularity in tendering their appearance and pleading to the action, if the libelants choose to accept them, without first giving the securities for costs appointed by the course of practice. Those securities are a privilege to the opposite party which may be waived, without impairing the validity of any after steps in the proceeding. Pharo et al. v. Smith et al., 18 How. Pr., 47.
Rule No. 26. Verification of claim.-In suits in rem the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And, upon putting in such claim, the claimant shall 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.
Rule No. 27. Answer verified. In all libels in causes of civil and mar. itime jurisdiction, whether in rem or in personam, the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation; and the answer shall be full and ex
plicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel Vide post, 49th rule, page 65.
In cases on the instance side of the admiralty the answer of the claimant should be verified by oath. Gammel v. Skinner, 2 Gall., 45. See, also, Dunlap's Adm. Pr., 209.
In a suit for wages the libelant may compel the adverse party to answer special interrogatories. Gammell v. Skinner, 2 Gall., 45.
A plea to the jurisdiction can only be interposed by the defendant himself in propria persona, and on oath. No third person can be adnaitted to file such plea. Bee's Adm., 9.
The answer to a libel should be sworn to by the respondent, but the libel. ant is not bound to swear to the libel. A special replication by the libelant under oath is not admissible, unless it be demanded by the respondents, or ordered by the court, and then it is in the nature of a cross-bill or reconvention of the civil law. Coffin v. Jenkins, 3 Story, 108.
Rule No. 28. Exceptions to answer, grounds of.—The libelant may except to the sufficiency, or fullness, or distinctness, or relevancy of the answer to the articles and interrogatories in the libel; and, if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the defendant forthwith, with such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reasonable.
Exception for impertinence to an allegation in an answer which serves no legal purpose, and is a mere slur on the libelant was allowed in The Pioneer, Deady, 58.
Rule No. 29. Default for want of answer.-If the defendant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the de