In New York, rules have been passed giving the court power to grant a rehearing if application is made at the term when the decree is pronounced, or there is a stay of proceeding by order of the judge. It is also provided that no libel of review will be entertained in causes subject to appeal, nor unless it is filed before the enrolment of the decree, or return of final process.1 And, even after any decree, any person having an interest in the proceeds, may intervene for them by petition praying for a delivery thereof to him for reasons stated. If separate interests and claims are joined in one libel, to which there is but one answer, the court may, nevertheless, make separate decrees for each separate interest, and should do so whenever this may affect the question of costs or appeal. In causes of contract, interest is generally allowed from the time of a demand made, and if no special demand is proved, from the time of the commencement of the suit.3 Where a libel is filed for damage to the cargo, and a cross libel for freight, and the court find that the damage exceeds the freight, the decree should not be for the amount of the damage less the freight, but each libellant should have a decree for the amount due him.4 The decrees may be final, or interlocutory, and they may be interposed at any stage of the proceedings to effect any purpose which the justice of the case requires. If the action be in rem and the property in the custody of the court, if the libellant prevails, there is a decree of condemnation and sale, and the terms and mode of the sale and satisfaction of the libellant's claim are usually specified in the decree. If the libellant in rem has shown a clear legal right to a condemnation and sale, it is said that the court have no discretionary power to refuse or delay a sale. And generally, wherever any specific relief is prayed for, although there be connected with it a prayer 1 In The Wm. Hutt, Lush. Adm. 25, where an interlocutory order was made, and afterwards a final decree, which was appealed from, but no notice taken of the interlocutory order; it was held that the court making the order, on the case being remitted to it, could not rescind the order. See ante, p. 231–235. Gammell v. Skinner, 2 Gallis. 45. for general relief, the court have no power to grant a relief which is either inconsistent with or different from that which is prayed.1 In a suit in personam, the defendants not being within the district, but their property attached and no appearance entered, the decree will not be against the defendants personally, but only against the property attached. If that property consists of specific articles, the court will order a sale; but such sale conveys only the rights of the debtor, and does not divest liens or rights of third parties. And, if the property attached be money in the registry, the decree will be satisfied therefrom.2 So, the decree may be for further proofs, or for delivery or restoration of the property to the owner; in which case a warrant of restoration follows. If the respondent has taken the property on stipulation, sometimes this warrant is made, and sometimes the decree only; but if the libellant prevails, the respondent may surrender the property to the court; if, however, he does not, execution will issue on the stipulation at once, except in revenue cases, in which certain delay is required by acts of Congress. If in a libel of information, the respondent prevails, the courts give to the prosecuting or seizing officer a certificate of probable cause, if in their judgment he had such cause for the seizure, and this protects him from prosecution for making the same. The final decree of the courts of the United States, in a case of forfeiture regularly before them, is conclusive.4 Decrees in admiralty should be secundum allegata, as well as secundum probata, and the libellant is not permitted to set forth one thing in his libel and prove another. The reason of the rule is obvious. It is, that the respondent may know the exact case he 1 Wilson v. Graham, 4 Wash. C. C. 53. Boyd v. Urquhart, 1 Sprague, 423. 3 Act of 1799, c. 22, § 89, 1 U. S. Stats. at Large, 696; Act of 1807, c. 19, 2 U. S. Stats. at Large, 422. * Gelston v. Hoyt, 3 Wheat. 246. 5. McKinlay v. Morrish, 21 How. 343; The Hoppet v. The United States, 7 Cranch, 389. See also Jenks v. Lewis, Ware, 51; The Sch. Boston, 1 Sumner, 328, 331; Ward v. The Brig Fashion, 1 Newb. Adm. 41, 6 McLean, C. C. 195; The North American, Swabey, Adm. 358; The Ann, Lush. Adm. 55; The Despatch, Lush. Adm. 98; The Haswell, Brow. & L. Adm. 247; The Amalia, id. has to meet, and prepare himself accordingly. But it has been held, that if the allegations of the libellant in a cause of collision, imputing fault to the vessel proceeded against, are not sustained by the evidence, yet, that if the facts admitted by the respondent, or set forth in his answer, show that he was in fault, the libellant may recover.1 We are, however, clearly of the opinion, that not only on prin 1 The Clement, 2 Curtis, C. C. 363. The libel alleged that both vessels were on the starboard tack, the pilot-boat (the libellant) close to the wind, and to the leeward of the brig (the respondent), when the brig suddenly changed her course, and kept off, and struck the pilot-boat, which was sunk, etc. The answer denied that the brig kept off and struck the pilot-boat, but stated that she kept her course until she luffed to lessen the force of the collision. The district court was of the opinion, that the allegations of the libel were not sustained by the evidence, but that it appeared that the case was one of two vessels sailing in converging courses on the same tack, the pilot-boat close-hauled, and the brig with the wind two points free; that the rule of navigation required the brig to avoid the pilot-boat, unless there were special circumstances to render the rule inapplicable, and a decree was entered for the libellant. In the circuit court it was contended, that the decree should be reversed, because it was rested upon facts not alleged in the libel, but Mr. Justice Curtis sustained it for the reasons set forth in the text. Upon appeal to the Supreme Court, that court was equally divided, but as no opinion was given, we cannot state on what point the judges differed. Reference is made by the learned judge to that class of collision cases, where the decree is in conformity with the separate allegations of neither of the parties; namely, cases of mutual fault, where the libellant states that his vessel exercised due care, and imputes fault to the vessel proceeded against, while the claimant denies the fault imputed to him, and alleges that the vessel of the libellant is in fault, and the court finds part of the allegations in each pleading to be true, and divides the loss. But in the present case, no part of the libel imputing fault was sustained by the pleading, and we are unable to see the analogy between the two cases. Some stress, moreover, appears to be laid on the remark of Dr. Lushington in The Lady Anne, 1 Eng. L. & Eq. 670, 674 ; namely, "It is quite evident in this case that the point on which it has hinged has never been touched upon at all in the pleadings." It seems, however, to have escaped the notice of the learned judge that the Privy Council for this very reason remitted the case to the admiralty court, with the directions that it should be further written to. In Dupont de Nemours v. Vance, 19 How. 162, an action was brought on a contract of affreightment against the vessel for non-delivery of goods. The answer set up a necessary jettison of that part of the cargo which was not delivered. The court found that this defence was sustained by the evidence, but allowed the libellant to recover the general average due from the vessel, although not claimed in the libel. Mr. Justice Curtis delivered the opinion of the court, which proceeded mainly on the grounds stated in the case of The Clement, supra. See also Burton v. Salter, U. S. C. C. Mass., 21 Law Rep. 148. ciple, but according to the latest authority, the libellant can only recover according to the allegations in his libel, and that evidence is not admissible on points set up in the answer, which are not responsive to the libel, or which do not relate to some matter in discharge or avoidance of the case set up by the libel.1 If, in a cause of collision, the defendant sets up, in his answer, a particular thing as the cause of the collision, and fails to prove it, he is not, therefore, liable, for the libellant must make out his case, and must prove the defendant to be in fault.2 Although the language of a decree is such that, strictly construed, it could not be sustained on appeal, yet if it is obvious, from the subsequent parts of the record, that no error has been committed, the decree will not be reversed.3 When there is a cross action, which is heard by consent at the same time with the original action, the court may decide the cross action on the facts pleaded and proved in the original action.4 The circuit court, as we have seen, does not remit the case to the district court, but executes its own decrees.5 The Supreme Court, however, remits the case to the circuit court, and by a mandate directs what disposition shall be made of the case. 1 McKinlay v. Morrish, 21 How. 343. So, in equity, it has been held that no relief can be given, unless the complainant, by his allegations and proof, shows that he is entitled to relief, although the answer shows that he is. Knox v. Smith, 4 How. 298. Montgomery v. Anderson, 21 How. 386. In The Roarer, 1 Blatchf. C. C. 1, the decree had been in favor of the libellants in the district court. Only one of the respondents appealed to the circuit court, and this appeal was afterwards dismissed as to some of the libellants, the sums severally awarded to them not being sufficient to justify the appeal. On the hearing, the decree of the district court was reversed, as between the appellant and those of the libellants who remained as appellees. The decree contained no provision as to so much of the decree below, as was not appealed from, and on motion being made to affirm it so far as it was not appealed from, Mr. Justice Nelson held, that the whole decree came up by the appeal, but as to that part not appealed from, it was not open to controversy, and the motion was denied. CHAPTER XVII. FINAL PROCESS. THE old Twenty-First Admiralty Rule of the Supreme Court provided that "In all cases where the decree is for the payment of money, the libellant may, at his election, have an attachment to compel the defendant to perform the decree, or a writ of execution in the nature of a capias and of a fieri facias, commanding the marshal or his deputy to levy the amount thereof of the goods and chattels of the defendant, and for want thereof to arrest his body to answer the exigency of the execution. In all other cases the decree may be enforced by an attachment to compel the defendant to perform the decree; and upon such attachment the defendant may be arrested and committed to prison until he performs the decree, or is otherwise discharged by law, or by the order of the court." In 1862, this rule was abolished, and the following rule substituted for it: "In all cases of a final decree for the payment of money, the libellant shall have a writ of execution in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipulators.' 1 This rule seems more particularly applicable to suits in personam, for in suits in rem the process is a decree of sale, directing the marshal to sell the property and to pay the proceeds into court. We have already considered the liability of stipulators, and also whether a defendant or stipulator can be arrested if imprisonment for debt is abolished or modified in the State by the law of the State, and only remark here that final process by arrest in any case seems to be taken away by the abolishment of the TwentyFirst Rule and the passage of the new rule. |