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fault, 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.
When it appears that the defendant has neglected to put in an answer through ignorance of the practice of the court, and is at the time of the hearing absent, the court is not precluded from receiving evidence which his counsel may offer as amicus curiæ. The David Pratt, 1 Ware, 509.
Where the defendant refuses to answer any interrogatory propounded by order of the court, the charge in the libel to which the interrogatory relates will be taken pro confesso. Id.
In admiralty and revenue cases when a default has been duly entered to a monition founded on an information averring all the facts necessary to a condemnation, it has substantially the effect of a default to a simmons in a court of common law. It establishes the fact pleaded, and justifies a decree of condemnation. Miller 0. The United States, 11 Wall., 268.
Rule No. 30. Farther answer, how compelled.-In all cases where the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libelant, and the exception is allowed, the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant, to the full purport and effect of the article to which it purports to answer, and as if no answer had been pnt in thereto.
Where a court having jurisdiction of the case and of the parties enters a judgment, there is a presumption that all the facts necessary to warrant the judgment have been found, if they are sufficiently averred in the proceedings. Miller v. The United States, 11 Wall., 268.
Rule No. 31. When answer will criminate.-The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel, which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offense.
Where in proceeding in admiralty by information for a forfeiture, consequences may fall upon the claimants by the production of an invoice called
for by the United States, the party will not be compelled to produce the same. The United States v. Twenty-eight Packages, etc., Gilpin, 306.
Mere narrative statements in a libel, which allege no damages, and claim no particular remedy, need not be replied to specifically by answer. The Brig Aldebaran, Olc. Adm., 130.
Rule No. 32. Interrogatories in answers.—The defendant shall have a right to require the personal answer of the libelant upon oath or soleinn affirmation to any interrogatories which he may, at the close of his answer, propound to the libelant touching any matters charged in the libel, or touching any matter of defense set up in the answer, subject to the like exceptions as to matters which shall expose the libelant to any prosecution, or punishment, or forfeiture, as is provided in the thirty-first rule. In default of due answer by the libelant to such interrogatories, the court may adjudge the libelant to be in default, and dismiss the libel, or may compel his answer in the premises by attachment, or take the subject-matter of the interrogatory pro confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote pub. lic justice.
Each party in the admiralty has the right to require the personal answers of the other under oath to any interrogatories touching the matter in issue. The David Pratt, 1 Ware, 509. See, also, Gammell v. Shinner, 2 Gall., 45.
Rule No. 33. When answer to interrogatory need not be verified, - Where either the libelant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable.
Rule No. 34. Intervention, manner of.—If any third person shall interveno in any cause of adıniralty and maritime jurisdiction in rem for his own interest, and he is entitled, according to the cause of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervenor shall be required, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court.
A person claiming an interest in the thing may intervene and make himself a party to the cause, and contest the forfeiture, so far as the decree would be conclusive of his rights. The Mary Anne, 1 Ware, 99.
Rule No. 35. Stipulations, mode of. The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or maritime proceeding, shall be given and taken in the manner prescribed by rule fifth as an ended.
Rule No. 36. Exceptions, for what taken.-Execptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence or scandal; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged, at the cost and expense of the party in whose libel or answer the same is found.
Amended May 6, 1872. 14 Wall., xi.
Stipulations taken in the progress of a cause, for the purpose of sustaining and rendering effectual the jurisdiction of the court, are to be interpreted as to the extent and limitation of responsibility created by them by the intention of the court which required them, and not by the intention of the parties who are bound by them. Lane v. Townsend, 1 Ware, 289.
By a stipulation conditional for the appearance of a party to answer a libel and await and abide the decision of the court, the fidejussors are not fixed irrevocably by the return of non est inventus on the execution, but they may surrender the principal at any time before a decree against them, on a citation to show cause in the nature of a scire facias at common law. Id. See note to opinion in same case. · The taking a bail bond for the appearance of a party to answer in a suit, is a part of the forms and modes of proceeding in a cause, and the liabilities of the parties to it are to be determined by the rules of practice in the United States courts, and not by those of the State courts. Id.
Rule No. 37. Attachment and garnishment.--In cases of foreign attachment, the garnishee shall be required to answer on oath or solemn affirmation as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching same as may be propounded by the libelant; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit.
The process of attachment, in admiralty cases, may issue whenever the de. fendant has concealed himself or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty. It may issue against his goods and chattels, and against his credits and effects in the hands of third persons. Manro et al. v. Almeida et al., 10 Wh., 473.
It is the right and duty of a garnishee in admiralty to put in an answer, and the libelant has not the right to contest the answer of the garnishee. Story v. Rennell et al., 1 Sprague, 418. .
If a garnishee in admiralty makes default, execution does not, in the first instance, go against him personally, or against his property, but only against the debts, effects or credits of the principal in his hands. Id.
The libelant inay, upon the default of the garnishee, have compulsory process to obtain an answer. If, however, he does not need a disclosure, but can satisfy the courts by atfidavits that the garnishee has debts, effects or credits in his hands, the libelant may have execution against them without an answer having been put in. ld.
After an execution against debts, effects or credits in the hands of a garnishee, and a refusal by him to pay, he has not the right to discharge himself by putting in an answer; though after a default by the garnishee the court may, in its discretion, allow him to put in an answer upon terms. Id.
Rule No. 38. Property brought into court.-In cases of mariners' wages, or bottomry, or salvage, or other proceedings in rem where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application, by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit; and, if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and, upon failure of the party to comply with the order, may award an attachment, or other compulsive process, to compel obedience thereto.
Where the court of admiralty has parted with the possession of the property, upon bail or stipulation, and it is necessary, for the purpose of justice, to retake the property into the possession of the court, the proper process against any person not a party to the stipulation, but who is alleged to have the actual or constructive possession, is a monition, and not an execution, in the first instance. The Gran Para, 10 Wh., 497.
Over the subject of seamen's wages the admiralty has an undisputed jurisdiction in rem, as well as in personam; and wherever the lien for wages exits and attaches upon the proceeds, it is the familiar practice of the court to exert its jurisdiction over them, by way of monition to the parties holding the proceeds. This is familiarly known in the cases of prize and bottomry, and salvage, and is equally applicable to the case of wages. The lien will follow the ship and its proceeds into whose hands soever they may come by title or purchase from the owner. Sheppard v. Taylor, 5 Pet., 675.
Rule No. 39. Suit deserted, dismissed.—If, in any admiralty suit, the libelant shall not appear and prosecute his suit, according to the course and orders of the court, he shall be deemed in default and contumacy; and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs.
Rule No. 40. When decree may be rescinded. The court may, in its discretion, upon the motion of the defendant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the de