ment should be made before an action is brought; and though the court would not probably defeat an action on this ground, unless in extraordinary cases, it would deem it a good reason for throwing the whole expense on the libellant, if there were any reason for supposing that the request might have prevented the litigation.1 Where the libel is filed by the government for a breach of the revenue laws, or other offence which is followed by forfeiture, and triable in admiralty, it is called sometimes a libel of information, but more properly, perhaps, an information, which it is in fact. It differs from the libel in civil cases, in that it begins with stating that the attorney of the United States "gives this honorable court (or the judge aforesaid) to understand and be informed that, &c.," and then sets forth the place of seizure, whether it be on land, or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and mentions the district within which the property is brought, and where it then is. It should also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require. It should 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.2 And as this is in the nature of a criminal proceeding, and therefore all the steps must be critically accurate, the district attorney sometimes states the fact in many ways, under so many counts of the information, when he is not certain as to the exact facts which will appear in proof. It is not necessary to state any fact which is only matter of defence, but the facts relied on as grounds of forfeiture should be distinctly and severally articulated, with a general averment that the same are contrary to the 1 See Purcell v. Lincoln, 1 Sprague, 230. 22d Admiralty Rule. * The Aurora, 7 Cranch, 382. If the exception is in the positive enactments of the statute, it should be negatived, but exceptions which come in by way of proviso, or in subsequent statutes, are properly matters of defence for the defendant. United States v. Hayward, 2 Gallis. 485, 497. form of the statute or statutes of the United States.1 In other respects the libel of information, the claim and stipulations, and delivery of property, are like those in libels in civil suits, excepting that the district attorney is never required to stipulate for costs, and such other diversities of practice as arise from any special provisions as to forfeitures or from the rules of the courts. On the questions which may arise, the rules of the common law have no force, excepting so far as they are rules also of justice and reason.2 But it may be prudent, as it is on the whole the safest practice, to follow these rules to some extent, in framing the averments and allegations of the libel; and a libel of information should carefully follow the statute on which it is founded. It is generally sufficient if the offence is described in the words of the law, and so described that if the allegation is true, the case must be within the statute. But if the words of the statute are general, embracing a whole class of individual subjects, but must necessarily be so construed as to embrace only a subdivision of that class, the allegation must conform to the legislative sense and meaning. The offence must also be substantially stated, and it is not enough to refer to the provisions of a particular statute. And a charge may be stated in the alternative, if each alternative constitutes an offence for which the thing is forfeited.7 The process in admiralty, which follows the libel, is intended, as at common law, to call the defendants into court to answer the plaintiff, or to arrest and hold them personally, or to attach their property and make it responsible for the debt. There is, however, one very important difference between admiralty and common 1 In The Merino, 9 Wheat. 391, it was held not to be necessary to conclude contra formam statuti; but this is now rendered necessary by the 22d Admiralty Rule. Much technical nicety is said to exist in common-law informations relative to a conclusion in the singular or plural, and the rules may be found in Dunlap's Admiralty Practice, p. 118, 119. The same technical strictness is not required in admiralty as in proceedings at common law. Cross v. United States, 1 Gallis. 26, 31; Sch. Hoppet v. United States, 7 Cranch, 389; The Samuel, 1 Wheat. 9. 391. The Sch. Betsey, 1 Mason, 354. The Samuel, 1 Wheat. 9; The Emily, 9 Wheat. 381; The Merino, 9 Wheat. The Mary Ann, 8 Wheat. 380. The Sch. Hoppet v. United States, 7 Cranch, 389. 'The Emily, 9 Wheat. 381. law; it is that admiralty has a proceeding in rem, in civil, though not in criminal cases, which is unknown at common law. This undoubtedly arose from the frequent necessity of action in courts of maritime jurisdiction in reference to property, as ships or cargoes, when the owners were either unknown or were out of the reach of the court. Whatever be its origin, we have no doubt that it extends to all property or the proceeds of property upon which a maritime claim may be made by the law of admiralty or by a local law, but that the right to proceed in personam exists con currently with the other, and either may be used at the election of the libellant. CHAPTER III. OF MESNE PROCESS IN SUITS IN PERSONAM. SECTION I. OF THE PROCESS OF ARREST OF THE PERSON OF THE DEFENDANT. THE Second Admiralty Rule, which went into force in 1845, provided that in suits in personam, the mesne process might be by a simple warrant of arrest of the person of the defendant, in the nature of a capias. It was provided by statute in 1839,1 that no person should be imprisoned for debt in any State, on process issuing out of a court of the United States, where, by the laws of such State, imprisonment for debt had been abolished; and where, by the laws of a State, imprisonment for debt should be allowed, under certain conditions and restrictions, the same conditions and restrictions should be applicable to the process issuing out of the courts of the United States; and the same proceedings should be had therein, as were adopted in the courts of such State. And it was afterwards declared, in 1841,2 that this act should be so construed as to abolish imprisonment for debt, on process issuing out of any court of the United States, in all cases whatever, where, by the laws of the State in which the said court shall be held, imprisonment for debt has been, or shall hereafter be abolished. In 1850, the Supreme Court passed a rule 3 providing that “imprisonment for debt on process issuing out of the admiralty court is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been or shall be here 1 Act of 1839, c. 35, 5 U. S. Stats. at Large, 321. to apply to a debtor of the United States. United 307. 2 Act of 1841, c. 2, 5 U. S. Stats. at Large, 410. • 10 How. v. The act has been held not after abolished upon similar or analogous process issuing from a State court." It will be noticed, that while the act of 1839 provides not only for the case of imprisonment for debt being abolished by the State laws then in force, but also for the case of imprisonment being allowed in certain cases, the act of 1841 adopts not only the existing State laws, but also future laws; it applies, however, only to those laws which abolish imprisonment. It has, therefore, been held that the statute of 1841, and the Supreme Court rule of 1850, apply only to cases where, by the State laws, imprisonment for debt is absolutely abolished, and not where it is merely modified and restricted.1 In 1867,2 an act was passed which provided: "That whenever upon mesne process or execution issuing out of any of the courts of the United States, any defendant therein is arrested or imprisoned, he shall be entitled to discharge from such arrest or imprisonment, in the same manner as if he was so arrested or imprisoned on like process of the State courts in the same district. And the same oath may be taken, and the same length of notice thereof shall be required, as is provided by such State laws; and all modifications, conditions and restrictions upon imprisonment for 1 In re Freeman, 2 Curtis, C. C. 491. This was a hearing upon a rule against the marshal calling on him to show cause why he had not levied an execution on the body of a debtor. The execution was issued on a decree in admiralty. The marshal set up in defence the United States statutes of 1839, 5 U. S. Stats. at Large, 321, and of 1841, 5 U. S. Stats. at Large, 410, and the act of Massachusetts of 1855, entitled " An Act to abolish imprisonment for debt, and to punish fraudulent debtors." Mr. Justice Curtis doubted whether the adoption by Congress of prospective legislation by the States was constitutional, but held that Congress had adapted merely laws abolishing imprisonment and not laws modifying it, and that the law of Massachusetts fell within this latter class. So held, also, in Campbell v. Hadley, 1 Sprague, 470, in respect to the Massachusetts act of 1857. A writ of habeas corpus was issued in such a case in the circuit court for the Northern District of New York, and the debtor released. The case was taken to the Supreme Court, but this point was not considered. Pratt v. Fitzhugh, 1 Black, 271. The case of Hodge v. Bemis, U. S. D. C. Northern District of New York, 12 Law Rep. 470, and the cases of Gardner v. Isaacson, Abbott, Adm. 141, and Gaines v. Travis, Abbott, Adm. 422, to the same effect, were decided before the additional rule was passed. In The Kentucky, 4 Blatchf. C. C. 448, where the party was released, the State law was passed in 1831. * Act of 1867, c. 180, 14 U. S. Stats. at Large, 543. |