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The Court. I do not know that the Court can look at it on the pleading, if it is a vicious pleading.

Mr. Evarts. It is not a vicious pleading. My friends know perfectly well that the claimants are owners. Their pleading is exactly as they meant it, - that we are not sole owners, - and that means that there are other owners. We claim to be sole owners. They do not deny that we are owners, but they say we are not sole owners. That is equivalent to saying that there are other owners.

THE DISTRICT ATTORNEY. Precisely what we propose to try.

Mr. EvARTS. And being owners, we are in a position to appear as claimants and form an issue.

The Court. I apprehend the principle to be, that if there is any defect in the pleadings, the litigants are authorized to appeal to the Court, previous to the trial, to have the pleadings rectified.

Mr. EvArts. It is not pretended that our pleading is defective. We state that we are the sole owners, and so claim. They might except to the allegation that we are owners, and in that way displace us from our right to claim. But when they come in with a pleading admitting that we are owners, and saying that there are other owners, then I submit to your honor that they do not in the least raise an issue that displaces our right to represent the vessel.

The Court. As I understand, in reading over the pleadings, you answer first that you are owners, then they except to that fact. Cary is claimant.

Mr. Evarts. No, sir; the claim is put in by R. B. Forbes and J. M. Forbes as owners, through Cary as their agent, or consignee.

THE DISTRICT ATTORNEY. Let me read both the allegation and response.

The District Attorney reads the allegation and response from the pleadings, and also reads the notice and counter notice. [See Appendix.]

MR. EVARTS. We also noticed the case on the merits.

THE DISTRICT ATTORNEY. Yes, sir; but you filed no note of issue on the merits, and therefore the case is not on trial on its merits.

MR. Evarts. It has been set down for trial three days on the merits. MR. WEBSTER. I beg your pardon. Not on the merits.

Mr. Evarts. I do not know how my friend, Mr. Webster, is able to contradict me on this point. I have been present in court: The note of issue is on the calendar, and the parties are here, and the government assigns it on our pressure for hearing, and it has been set down for hearing on its merits.

THE COURT. On both sides ?

MR. Evarts. On both sides, as I understand. The right of the other side to have their exceptions heard is undoubted; but that the whole case is to be tried before your Honor, and on this calendar, and by assignment, will not certainly be disputed by the District Attorney.

THE DISTRICT ATTORNEY. I do not know that we have appeared in consequence of their pressure. We have at all times been ready, with the exception of a slight misunderstanding. I had the honor to address the learned counsel two notes on the subject, in both of which I remember I stated that we proposed to proceed on the exceptions.

Mr. Evarts. I do not differ with you when you say that you , have always said that you expected to try the exceptions first; but that you said that you did not expect to try the merits, I do not remember; we bring on the exceptions.

THE DISTRICT ATTORNEY. After bringing on the exceptions, we propose to try the merits at the proper period, and we propose, where they allege they are the “sole, true, and lawful owners,” to except to their claim, and allege that they are not the sole, true, and lawful owners.

It is singular indeed, that after all that has been done and said on the subject of exceptions, they regard them as merged in the main issue, when they themselves notice them separately.

MR. EVARTS. I do not regard them as merged in the main issue by any consent, or purpose, or will of theirs. We are here in Court

The case of the Meteor is called on. I am told by Mr. Webster (and I shall have occasion to inquire who it is that he appears for) that there has not been a note of issue filed, and that therefore this case is not to be tried. Now is that the position of the District Attorney, that this case is not to be tried on its merits on this 26th day of March, after the discussions before your Honor, its being on the calendar and the assignment of the cause, because

a note of issue has not been filed ? I would like to know the . positions upon which the government propose to stand. As to

their right to insist upon trying the exceptions first, if the law allows them and your Honor so directs — that is not what I

now.

am talking about. I want to know whether the objection to trying the merits at this time on this calendar is put forward because the note of issue has not been filed ?

The District ATTORNEY. I mentioned incidentally (and I believe Mr. Webster mentioned it in advance), that no note of issue had been filed here for the case of the claimants, and mentioned it as a reason why they are not entitled to press it on. We expect to present the merits of this trial ourselves. We expected to try it, and shall be ready to try it as soon as it is reasonable and proper, after the exceptions shall be disposed of. “The libellant may take issue upon the allegations of interest, and proof should be heard upon that point, and the Court will decide it before requiring the parties to litigate the case upon the merits.” That is a rule of court; and we of course propose to try the merits, and have no desire to shirk them. But in order that we may try them, and try them suitably, holding parties to their responsibilities for this alleged violation of law, we wish to know who the parties are.

Mr. Evarts. Then the absence of the note of issue is not the reason for not trying it?

The DISTRICT ATTORNEY. It is entirely incidental.

The Court. You have a right to try the case in the manner in which you put it in on the calendar.

The DISTRICT ATTORNEY. Very well, we will so try it.

Mr. Evarts argued that the affirmative on the issue of the exceptions was not with the claimants, but with the government. There was no denial that they were owners, but an allegation that there were other owners.

The District Attorney said that his learned friend seemed to lose sight of the substantial allegation in the pleadings. The claimants alleged a good deal more than Mr. Evarts suggested. They claimed that they are the sole, true, and lawful owners. This was denied by the government, leaving the affirmative with the claimants on that issue. He moved on the preliminary issue.

Mr. Evarts. Now, if the District Attorney brings on his cause for trial, I raise the point that it is a case that must be tried by a jury; that it is a penal forfeiture of property, upon criminal allegations. Counsel cited from Conkling's Treatise, 4th ed. p. 228.

The District Attorney, in reply, cited Clark v. The United Slates, 2 Wash. C. C. R. 519, to the point that an information in rem, against the thing itself, is not a suit at common law, but an admiralty proceeding; it does not require a trial by jury.

The Court overruled the objection.

Mr. Evarts then raised the question that the libel for condemnation of the ship, or the decree for its forfeiture, must be preceded by an indictment and conviction under some section of the statute, as that is a necessary ascertainment of the character of the offence as a public crime, preliminary to the infliction of this additional and further punishment in maintenance of the law.

This the Court also overruled.

The question then recurred as to which side should put in affirmative proof on the issue of the ownership, giving rise to an animated and lengthy discussion.

Judge Betts decided that the issue, as to whether the claimants were sole owners or not, was immaterial. It was sufficient if they were shown to have any legal interest whatever in the vessel. For the purpose of having the question presented to a higher Court, he would permit the District Attorney to give proof on that subject.

To this ruling the District Attorney excepted.

The government then calls Robert B. Forbes, who does not answer.

The government then calls John M. Forbes, who is duly sworn.

TESTIMONY OF JOHN M. FORBES.

MR. EVARTS. I ask whether this witness is called on the merits, or on what has been designated as the preliminary exceptions.

MR. WEBSTER. He is called on the latter.
MR. Evarts. That your Honor has decided to be immaterial.

THE DISTRICT ATTORNEY. No, he has not; not for this purpose; for although he has said he considers it immaterial, he permits us to prove it.

The Court. You may go on with your proof.

Mr. Evarts. Your Honor will note my exception; that he is called to an issue wholly immaterial, and if the issue is immaterial, all the evidence is immaterial.

THE Court. I allow the evidence to be taken, so that the whole question may be reviewed in a higher Court.

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Mr. Evarts. That being your Honor's disposition, I do not contest it further; but your Honor will be good enough to note my exception to his being examined, as the issue is immaterial. Now, if the Court please, the question of the right of the government to call the owner of property whose property is to be forfeited I intend to present at the proper time. I care nothing about that matter, in reference to this preliminary question, as it is called, which is not one of merits; and with that caveat that my objection against the party, whose property is to be forfeited, being called and examined as a witness, in a forfeiture suit, is not waived by an examination on this preliminary question, we proceed.

MR. WEBSTER. We understand that the issue here now is distinct from the merits, and that the testimony taken upon this issue is not to be used upon the trial for merits, unless it is taken again.

The Court. I rather admit this evidence, because it will be convenient in rendering a decision on the issues. I do not think there is any great advantage in taking it, but it may aid the parties in trying the question of law in the Court above. The examination will be confined, as far as practicable, to the issues on the exceptions.

MR. WEBSTER. If I understand, we are not now trying the case upon its merits at all. But we are only trying the case upon the preliminary exceptions.

The Court. So far as you can separate them.

MR. WEBSTER. They are absolutely separated now, and the testimony we propose to take on this preliminary issue is not to be made a part of the case when we come to try it upon the merits.

Mr. Evarts. I do not recognize the idea thật there are two trials at all.

THE DISTRICT ATTORNEY. This is a question of ownership merely, and has nothing to do with the condemnation.

Mr. Evarts. All I want to have understood is, that we are trying the case of the Meteor on its merits.

MR. WEBSTER. There we differ.

Mr. Evarts. There is but one trial going on, — the trial of the Meteor.

Mr. Webster proceeded to examine the witness, John M. Forbes.

Q. What is the name of your firm ?
A. John M. Forbes & Co.

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