should always, in any case, pay the additional costs which his tardiness may have caused. The costs required are within the discretion of the court. 1

More liberality is shown in admiralty courts than in others, towards tardy claimants.

By the 29th Admiralty Rule discretion is limited to the final hearing; and the tardy litigant must pay "all the costs of the suit" up to the time of his appearance. By the 40th Rule he may be allowed a re-hearing ten days after the decree.

In State practice, default, in a proceeding in rem with notice limited or otherwise, or proceedings quasi in rem, may be set aside, upon proper showing.

$98. Default, When Confirmed, is Final. The confirmed default is final against all persons, like a personal judgment, or it is a work of supererogation and folly. What is the use of notice, and of the great importance attached to it as the very life of the action, if it may be disregarded with impunity? What is the use of declaring non-claimants in contumacy, if they are to be treated as not really contumacious? What is the use of one claimant's coming within time, if another can take his leisure in deciding what he is to do, and in availing himself of any new turn of events? What is the meaning of the solemn adjudication, if persons not only defaulted, but formally divested of all rights of property they may have had in the res adjudicated, may yet appear and treat the whole procedure as a farce?

There must be an end of litigation; and the non-claimant, when defaulted, should not, after the default has been confirmed, be allowed to get any relief in court, upon any showing; he should seek relief in such case of the legislative department, if he has been wronged.

Litigation must somewhere have an end. Whatever litigants have had the opportunity of having settled in a case; whatever

1 United States v. The Brig Malek Adhel, 2 How. 210; 19 Equity Rule of United States Supreme Court; the 29th Admiralty Rule requires that all costs be paid to the time.

2 Pollard v. Wegener, 13 Wis. 569; Knox v. Miller, 18 Wis. 397; Rape v. Heaton, 9 Wis. 328; McBride v. Harn, 52 Iowa, 80; Aspern v. Lamar Ins. Co., 6 Ill. App. 235.

is at issue and is finally decided, cannot be reopened, since, were the doctrine otherwise, "all rights of persons and property would be afloat," and "the very foundations of society would be broken up, and endless, fruitless litigation is all that would be left."1

All persons have the opportunity of having their rights settled in a proceeding in rem with general notice, so far as they concern the thing proceeded against. "All persons having an interest in the subject matter are parties, or may be parties, so far as their interest extends." And one who neglects the opportunity of putting in his claim, and trying the point of forfeiture is guilty of laches, and shall forever be concluded by the condemnation, not only in respect to the goods themselves, but every other collateral remedy for taking them.3

1 Patterson v. Bonner, 14 La. 233. 2 Gelston . Hoyt, 3 Wh. 246. 312. Scott. Shearman, 2 Wm. Bl. 977: Syndics v. Nicholson, 4 La. 85,

86; Christmas v. Russel, 5 Wall. 290, 307; Clemens v. Clemens, 37 N. Y. 59, 74.

$99.

Presumption After Decree...... 107

The Entered Confession Offered as Evidence Against the Property. When the libel or information has been duly taken pro confesso against non-claimants it is sufficient proof, and condemnation may follow: provided, as a matter of course, the allegations of the libellant are such as to make out the case when they are admitted. The 29th Admiralty Rule, prescribed by the United States Supreme Court, expresses not only the rule in the branch of the law to which it authoritatively applies, but also the usage that prevails in all cases in rem for declarations of forfeiture. It is as follows: "Rule 29. If the defendant shall omit or refuse to make due answer to the libel upon the return day of process, or the day assigned by the court, the court shall proceed to pronounce him 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 default, and, upon the application of the defendant, admit him to make answer to the libel at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor."

This rule, as appears from the context, is meant to apply to both the suit in personam and that in rem. The 27th Rule

begins, "In all libels in causes of civil and maratime jurisdiction, whether in rem or in personam, the answer of the defendant to the allegations of the libel shall be on oath;" and the 29th is a continuation of the subject. The latter is given at length, to present what seems to be the right usage in all suits in rem: the proceeding of the court "to hear the cause ex parte" as to non-appearers, after default, and "to adjudge the cause as to law and justice shall appertain."

Such hearing and adjudging must always follow default, but may be very summary indeed, since the confession establishes the facts which the court is to find. Nothing remains but the application of the law. If, at the hearing, ex parte affidavits are produced by the libellant, the court may receive and consider them with the confession. Oral evidence may be given; witnesses may be examined in court, at such hearing, but these additional evidences are seldom essential; and, it would seem that they are never so, since the allegations must be required to be complete; and therefore their admission, sufficient.

§ 100. Interrogatories. The default and confession of others being nothing against him who has appeared to claim and defend, the finding of the facts against him must be done contradictorily with him. So also must the finding of his alleged facts, be done contradictorily with the libellant. Either party may file interrogatories for the other to answer, and the answers must be made within a given delay, and under oath or affirmation, or they are liable to be taken pro confesso, and used in evidence as though affirmatively answered: affirmatively or negatively, as may be against the defaulting party interrogated. Of course, parties are not required to criminate themselves in answers, nor to subject themselves to forfeiture of property. In admiralty, they are specially protected against this by the 31st Rule. Should the libellant fail to answer proper questions, he may be defaulted and his libel dismissed, or he may be compelled by the court to answer, or the interrogatories may be taken pro confesso in favor of the defendant. When either is sick, absent from the country or otherwise unable to answer, the court may dispense with the interrogatories if it deem them unimportant, or may have them taken by commission when

practicable. Intervenors may interrogate either party or both, subject to like liabilities and restrictions. The parties defending may have the libellant pronounced in contumacy and default, and have the suit dismissed, if he fail to appear and prosecute.

It is needless to dwell upon the incidents of the trial and upon the subject of evidence, as they do not generally differ in actions in rem from ordinary causes.

§ 101. "Testimony in Preparatorio." Prize causes, however, differ so essentially from other causes, so far as the finding of the facts are concerned, as to require some attention in this connection.

The first noticeable peculiarity is that even in the absence of any claimant or defendant whatever, the taking of the libel pro confesso and the receiving of it in evidence, would not meet the requirements of international law. It would not be a sufficient hearing not a sufficient finding of facts. The testimony of the captured officers, or some of them, and of others captured with the prize, taken in preparatorio, in answer to the prescribed list of interrogatories, is required for the satisfaction. of neutral powers, who may wish to review the action of a court of nations sitting in a belligerent country, that they may, by treaty or otherwise, right any wrongs to which they or their subjects may have been subjected.

Though there is but one essential fact to be found the fact that the res is enemy property-yet many subsidiary facts often underlie this, and are necessary to the proper establishment of the main fact. A ship captured in battle is fully shown to be enemy property by the proof of such capture. But the great majority of prizes are nominally neutral. The enemy character is made to appear by proof of the subordinate fact that the master or owner has, by its use, arrayed himself on the side of the enemy, and become an enemy-owner so far as the ship is concerned. Such a nominally neutral owner has standing in court, since his domicile creates a presumption in his favor; but his ship, if condemned for having broken blockade or like act, is condemned as the property of an enemy, and therefore clothed