clear enough that the government could not complain, if A. should not swear to his ownership at the time stated and to his possession at a later date, as alleged. The allegation by the informant of the claimant's ownership to the time of forfeiture, (when the government succeeded him in the ownership, by operation of law, if the forfeiture is subsequently decreed to have taken place as alleged in the information,) is sufficient for A. so far as the government is concerned; for, if no other parties appear, he must get the goods under this pleading, in case they be not condemned. But, in such case, how would it be if he should have a rival claimant, who has alleged ownership of the box, sworn to it and proved it? If the thing shall turn out to have been erroneously charged, then it has not been forfeited, and might have become the property of the rival claimant, even since importation, and before or after the seizure-for A. might have sold it at any time. In the case last suggested, the restoration ought to be to A.'s rival, notwithstanding the allegations of the government that the box of cigars belonged to A. Even if it had not changed ownership since the allegation in the information was made, if it belonged to the rival claimant before it was brought from Havana, its fate could not be affected by such allegation, in case of restoration. Such an allegation, not being necessary to the information, (since it is not the business of the government to know anything about the ownership of an article prosecuted by the civil action in rem,) would not enter into the side contest between A. and his rival. It is necessary, (to answer the quere propounded above,) that the claimant should swear to ownership, and prove it on the trial, so as to protect his rights against rival claimants, should any appear; but, with respect to the government, he need not swear to ownership when the government has already averred it, or proved it, except in admiralty cases, and there merely to comply with the letter of the admiralty rule. But, though he need not prove this, he must take his place in the cause as claimant, notwithstanding the averments of the information: he must place himself in a position to be con 1 The Acorn, 2 Abbott's U. S. R. 434. 1 demned to costs, in response to the notice, and show a willing disposition to abide by the judgment of the court, or he will be held in contumacy; presumed to have abandoned all pretence to the forfeited property; and he will be finally cut off by the decree of condemnation of the thing and the default and confession of all persons. Whether his ownership is stated by the libellant or informant or not, he must take his stand in court, if he would litigate; for, as Judge STORY said, "The claimant is an actor, and is entitled to come before the court in that character, only in virtue of his proprietary interest in the thing in controversy;" he is not acted upon; the res remains the object of attack after the claimant's appearance as before; it is still the personified defendant, and the entry of the new actor does not make the case inter alias partes, as the courts have thought. He is an affirmative pleader and should be answered. may be met by exception, demurrer, or any proper plea, as the libellant may be. His position must not be confounded with that of the thing proceeded against. Now the reason given by Judge STORY is not avoided, and the necessity of appearance removed, by the informant's averment of the claimant's proprietorship, since such averment does not place the claimant in court, does not subject him to liability to costs, does not relieve him from the danger of being pronounced in contumacy and default, and does not give him a right to answer and defend for the thing seized as forfeited. He If the complainant's allegation of the claimant's ownership in a thing seized as guilty, does not relieve the owner from claiming, though it does relieve him from proving ownership, the same principle is true when a thing seized as hostile, such as land belonging to an enemy, is alleged by the government in the information, to belong to some enemy mentioned by name. The owner of the land must respond to the notice, appear in time, deny that he is an enemy, take his standing in court to abide by the decree, file his claim, make such answer to the accusation of the land as he may choose, or no answer at all: for, if he should not appear, he will be pronounced in con United States v. 422 Casks of Wine, 1 Pet. 547. tumacy and default, and the information taken pro confesso, and a decree of condemnation will be entered against the land, and that judgment will be res adjudicata against him and all persons, and he will be forever debarred from setting up any claim to that land, in the forum where it is condemned, or in any other. All these are the inevitable results of the owner's not appearing as claimant, (if the government should prosecute the case to condemnation,) just so surely as the courts enforce the law as it is. The claimant himself should, as a good pleader, prefer to have the jurat to his claim, even if not required by any rule of court, for the reason that the libel or information is sworn to, or presented by a sworn officer; and the claimant should make as good prima facie showing as his antagonist. The test may be by affirmation, of course: the term "oath" is used in a general way, since it is unnecessary to present both terms disjunctively, as the legal reader will not find such verbal particularity necessary in this instance. $78. The Claim. There is no procrustean form for either the claim or the oath. Nor is there any for the stipulation. The time of filing the claim is usually fixed by the publication notice. In law cases it is sometimes the third Monday from the first date of advertisement. In admiralty, fourteen days are fixed by the rules. But, should default not be pronounced, the claimant may appear after the third Monday, or after the two weeks, as the case may be; he may appear at any time before trial, though not after default, unless he have the default set aside upon rule; and he runs the imminent risk of being defaulted at any moment after the time of the notice has expired, and of thus being forever cut off from all opportunity for claiming his property. In a case1 where the property proceeded against was several lots of land, all seized as the property of Semmes and so alleged in the libel, two of the lots really belonged to another person; and he had failed to claim and had been defaulted; but, by consent of the libellant, the District Court had permitted him to appear 1 Semmes (Pl. in Er.) v. United States, 91 U. S. 21, 25. and claim. The Supreme Court said, (without dissent,) that he would have been remediless had not this opportunity been afforded. If the proceedings had gone on to condemnation, the true owner of the two lots would have lost them, for failure to claim. He could not stand silent and afterwards obtain relief from the fact that the government as libellant had erroneously alleged all the lots to belong to Semmes, and that therefore his own interests could not have been affected; for the res was the land, which when condemned, would have carried with it the interests and title of all persons whatsoever. The claimant must have really the interest or right of property which he sets up, since otherwise he would not be allowed to defend it. It was held that the assignment, by the builders of a vessel, of the money to become due on the building contract, did not invest the assignee with such proprietary interest as would enable him to appear as claimant and to defend the res.1 The claim should be distinct and accurate in its statement of ownership or proprietary right, or of whatever of the res is claimed, but it should not contain the defensive pleading. $79. The Answer. The answer should be a paper separate from the claim, though no great harm would ensue if both be conjoined. It need not be of great length or formality, but it should answer articulately the charges made articulately; and under oath. 3 A general denial to each charge would put the whole at issue. A general denial of one, and a special defense against another article of accusation would be good in an answer. Besides, once in court as claimant, the owner may, by way of defending his property, resort to exception, demurrer and any civil plea appropriate to the case. And the contest between the litigants now becomes so much like that in a case in personam, that it need not be dwelt upon here. Interrogatories may be propounded by the libellant or informant, who is the prosecutor of the thing, or by the claimant, who is a plaintiff so far as he has the affirmative of the issue 1 Revenue Cutter, No. 1, 1 Brown's Ad. 76. The Boston, 1 Sum. 330. relative to the ownership of the property; and the manner and matter of the interrogatories in actions in rem do not differ from those in other classes of actions where the practice of propounding them prevails. The answer to a proceeding in rem, is governed by rules few and simple. It should be respectful; it should be pertinent and responsive to the charges made against the thing; it should not contain contradictory allegations; nor be in the nature of a cross-bill. It is not necessary, in order to answer all the articles of the libel, that the answer should state minute facts beyond what is necessary to make the issue. ordinarily necessary may be waived." Even matters usually one who up a jus in re; § 80. Intervention. The intervenor is asserts a jus ad rem, while the claimant sets though this difference does not always exist. One who should come into court, after the claim of another has been filed, and should also claim to own the res, would be a claimant rather than an intervenor: for there may be many claimants of a single thing, and they may be joint or antagonistic claimants; and there may be many intervenors, with a variety of interests agreeing with each other, or discordant. He who comes between the parties already in court, and asserts some right which he prays to have adjudged, as, for instance, that he has the seaman's lien upon a ship for his wages, in a case against the ship, is strictly an intervenor. He has a right in the ship but not a right to the ship. In an admiralty seizure of a thing indebted, it is common for creditors to come in numerously as intervenors to have their bills allowed. derwriters frequently come in as intervenors to protect the interests of insurers in cases of salvage, etc. All such intervenors are sometimes termed claimants by the courts.7 1 The Pioneer, 1 Deady, 58. 2 The California, 1 Sawyer, 463; The Gustavia, Blatchf. & H. 189; 1 Olco t Adm'r, 130. 3 The Bark Olbers, 3 Ben. 148. 4 Ward & Clement v. Chamberlain & Crawford, 21 How. 572. The Steamship Western Metrop olis, 2 Ben. 212. Un The Steamship Ville de Paris, 3 Ben. 276. The Ship Packet, 3 Mason, 255; The Boston, 1 Sum. 328; The Henry Ewbank, 1 Sum. 400; The St. Jago de Cuba, 9 Wheat. 409; The Mary Anne, 1 Ware Rep. 104. |