if the case was one of inscrutable fault, the loss may be divided. The rule of computing damages appears to be, full compensation. for actual loss at the time and place, but nothing for loss of market, or expected profits.

§ 229. Origin of Admiralty Forms. (a) These forms and terms are derived wholly from the civil law; and the experience of twenty centuries has not succeeded in devising any essential improvements. Chancery built upon them as models, though with many variations. And all the recent codes of procedure, entirely repudiating common-law forms, have gone back to these, for the outlines of their systems.

The admiralty courts, in the exercise of their functions as such, are either instance courts, in which they only try civil causes of a maritime nature; or prize courts, in which they exclusively adjudicate upon prizes of war; or criminal courts, in which they exercise such criminal jurisdiction as is conferred by Congress, and have a jury for that purpose. In the two former, they have no jury; (b) and in this respect, they resemble courts of equity. The forms of criminal procedure have been elsewhere considered. With proceedings in prize cases, we may hope to have no frequent concern. I shall therefore confine myself to the practice "on the instance side of the court," to which the rules referred to in the note are expressly confined.

The counsel are denominated proctors instead of attorneys, and advocates instead of counsellors, with a corresponding difference of functions, not, however, very rigidly observed.

Suits in admiralty are either in rem, or in personam, though sometimes the two may be united. Suits in rem (c) are suits

(a) The act of 1789, 1 Stat. at Large, 93, expressly declared that admiralty proceedings should be "according to the course of the civil law." The act of 1792, 1 Stat. at Large, 275, declared that they should be "according to the principles, rules, and usages which belong to courts of admiralty, as contradistinguished from courts of common law," subject to future alterations to be made by the federal courts. This provision has been always understood to adopt the admiralty practice of England, at least in its general outlines. The sixth section of the act of 1842, 5 Stat. at Large, 516, authorizes and directs the supreme court to make rules regulating the process and proceedings of the circuit and district courts. This duty was performed in 1844, by the framing of forty-seven admiralty rules, which may be found in the books of admiralty practice. Benedict, 339. The 36th of these rules authorizes each of the circuit and district courts to make its own rules, in cases not provided for by the supreme court rules. Thus, while there may be some diversity in details, the general outlines of admiralty practice are the same in all the American courts, and differ very little from those of the British admiralty.

(b) There was an exception in the act of 1845, 5 Stat. at Large, 726, which extended admiralty jurisdiction over the lakes and the navigable waters connecting them. This act was pronounced constitutional in Propeller Genesee Chief v. Fitzhugh, 12 How. 443. See ante, p. 117.

(c) See Ward v. Propeller Ogdensburgh. 5 M'Lean, 622. As to the Ohio watercraft law, see The Monarch e. Finley, 10 Ohio, 384; The Huron v. Simmons, 11 id. 458; Lewis v. The Cleveland, 12 id. 341; The Waverley v. Clements, 14 id. 28; Kellogg v. Brennan, 14 id. 72; Jones v. The Commerce, 14 id. 408; The Ætna v. Treat, 15 id. 585; Champion v. Jantzen, 16 id. 92; The Aurora v. Dobbie, 17 id. 125; Webster v. The Andes, 18 id. 187; The Montgomery v. Kent, 20 id. 54; Keating v. Spink, 3 Ohio State, 105; DeWitt v. Sch. St. Lawrence, 3 id. 325; Raymond v. Whitney, 5 id. 201; Canal-Boat Housatonic v. Kenawha Salt Co. 7 id. 261; Sch. Muskegan v.

against the thing itself, as a ship, a bale of merchandise, or the like, without reference to the owner; and the relief does not extend beyond the thing sued, unless some person substitutes himself in regard to it, as claimant or intervenor. The want of such a proceeding, where it is often so difficult to know, or to serve process upon the owners, was so deeply felt along our lakes and rivers, before the establishment of admiralty jurisdiction over them, that several of the States had attempted to supply the defect by the enactment of what are commonly known as water-craft laws, which authorize a suit against the boat or other craft by name. Suits in personam are, like ordinary suits, against the person only, without reference to any particular thing.

§ 230. Libel. The libel, from libellus, a little book, contains a statement of the cause of action, and corresponds to a bill in chancery, or a petition under the Code. Hence the party complaining is called libellant. The party defending in personam, is called defendant; but if intervening in rem, he is called respondent. There are no technical requisitions in the framing of the libel. All the facts constituting the complaint are to be stated in simple narrative, with appropriate subdivisions, which are numbered consecutively for convenience of reference. The filing of the libel is the first step in the suit. It is usually signed by the party, always by his proctor, and sometimes by an advocate, but this is not essential. If it pray for a seizure, either in rem or in personam, it must be verified by affidavit. In general, security for costs must be given, but this is regulated by the rules of each particular court. This is done by a short writing without seal, called a stipulation, and it is usual for the surety to justify, by an affidavit appended to the stipulation, that he is worth twice the amount.

§ 231. Process. (a) In the theory of admiralty proceedings, the court is always open, not only for the issuing and returning of process, but for all other purposes. But, for the convenience of all concerned in the practice, each court establishes its own rule days, and all process is made returnable accordingly. If the process prayed for be a mere notice, like the summons at common law, it is called a monition, issues of course, and is served by the marshal as a summons is by the sheriff. If the prayer be for an arrest of the person, and the amount claimed be under five hundred dollars, and the case be one where a capias could be issued Moss, 7 id. 377; Steamboat Monarch v. Potter, 7 id. 457; Steamboat Monarch v. Miami Railway Co. 7 id. 478; Thompson v. Steamboat J. D. Morton, 8 id. 222. But see The Moses Taylor, and The Ad Hines v. Trevor, 4 Wallace, 555, where it is held, that so far as these water-craft laws give an admiralty jurisdiction, they are unconstitutional, and see note on p. 117.

(a) Process in the federal courts is regulated by the act of 1789, 1 Stat. at Large, 93, and by the act of 1828, 4 id. 278. These acts provide, in substance, that process in equity and admiralty shall be according to the principles, rules and usages of those courts; and that process in suits at common law shall be the same in each State as is used in the highest courts of that State. See very full and elaborate notes upon this subject, 1 Stat. at Large, 93; 4 id. 278. For leading cases, see Wayman v. Southard, 10 Wheat. 1; Ross v. Duval, 13 Peters, 45; Beers v. Haughton, 9 Peters, 329; Manro v. Almeida, 10 Wheat. 473.

under the State law, the process is called a warrant, and the marshal may take bail upon his own responsibility, not only for appearance, but to abide the event of the suit; there being no distinction like that between appearance bail and special bail at common law. But if the sum exceed five hundred dollars, then, by the seventh rule of the supreme court, the warrant can only issue on the order of the judge. If the warrant contain a clause to attach property, or to garnishee debtors in case the defendant cannot be found, reasonable search should first be made, and then property may be attached to the amount sued for; or if that cannot be found, any person named in the process as a debtor may be garnisheed, by serving him with a copy of the warrant. In either case, the attachment or garnishment will be at once dismissed, upon the defendant appearing and entering into stipulation. If the proceeding be in rem, the warrant contains an order to seize the thing described in the libel, and the marshal has no authority to release it on forthcoming bail. In this case the warrant contains a clause of general monition to all persons interested to appear on the return day and show cause why the property should not be condemned as prayed for in the libel, which must be served on the person found in possession. Advertisement is also made in such newspapers as the court shall designate by general or special rule. In cases where proceedings in rem and in personam can be joined, one process may suffice for both; or there may be separate processes, and even at different times, if need be. If property seized be of a perishable nature, that is, of a nature to depreciate rapidly in quality or value, or to consume itself by expense in keeping, an order may be procured to sell it, or to have it appraised and delivered to the claimant, upon a deposit of money or a satisfactory stipulation.

§ 232. Defence. If the suit be in personam, and the defendant do not appear on the return day, a decree of contumacy and default may be taken, which is similar to a decree pro confesso in chancery. In this case, the court either hears the case ex parte, or refers it to a commissioner. In all cases, the court requires proof of the allegations in the libel; and great liberality is exercised in allowing the default to be set aside and a defence made, at any time before final decree. If the suit be in rem, and no claimant intervene, a similar course is pursued. In like manner, if the libellant be in default, a decree of contumacy may be taken against him as having deserted his case, and it may be dismissed with costs.

If defence be made, it can only be in the form of exception, claim, or answer. There being no demurrer in admiralty proceedings, exceptions take its place. They may be taken at any stage in the progress of a case. They are required to state specifically the cause or matter excepted to, as is done in special demurrer. Accordingly, if the libel be insufficient upon its face, granting the allegations to be true, to authorize a decree for the libellant, it should be excepted to for this reason, and the question of sufficiency presented for decision.

A claim is interposed, when the suit is in rem, by any person interested in the subject-matter. It must set forth specifically in what the claim consists, and be verified by affidavit. The court will take notice of no claim not so presented.

The answer performs the same office as in chancery and under the Code. It is the usual form of defence both in rem and in personam. It must specifically meet every material allegation in the libel, referring to it by number. If the libel contain specific interrogatories, each must be specifically answered. The answer must in all cases be sworn to. It may contain interrogatories to which the libellant must respond. Or either party may file interrogatories, without annexing them to the pleadings, and require an answer from the other party.

If the answer, granting its truth, be insufficient as a defence, or if it contain matter of scandal or impertinence, these questions are all presented by exceptions. But if the libellant means to take issue upon the facts set up in the answer, or to set up new matter in avoidance, he files a replication. (a) If this be a simple denial, as a traverse at common law, it need not be sworn to. But if it make affirmative allegations, they must be verified. And here, virtually the pleadings terminate, though the books speak of duplications, triplications, and so forth.

With regard to amendments, the utmost indulgence is given at all stages of a case, even after appeal, provided they be confined to the original subject of controversy And the same is true as to

defaults. By the fortieth of the supreme court rules, even after a final decree against the defendant upon default, the court may, within ten days, grant a rehearing upon such terms as may seem just.

§ 233. Trial. (b) The ninth section of the 'judiciary act of 1789 declares that "the trial of issues in fact, in the district court, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." The trial of admiralty cases, therefore, is by the court, without a jury; although there is nothing in the constitution to prevent the granting of a trial by jury if it should be deemed expedient. Indeed this was done by the act of 1845, extending admiralty jurisdiction over the lakes.

In the rules of evidence there is very little which is peculiar to courts of admiralty. They receive oral or written evidence under the same conditions as courts of law, and observe the same rules as to competency. There is, perhaps, this exception, that parties are permitted to testify when the facts rest in their knowledge alone, and could not be proved in any other way. The maxim that the proofs must correspond, and be confined to the allegations,

(a) By the 52d of the supreme court rules, adopted at the December term, 1854, a replication is dispensed with in all cases. The new matter set up in the answer is considered as denied; and if the libellant desires to meet it by other new matter, he does it by amending the libel.

(b) 1 Stat. at Large, 73; 5 id. 726; Propeller Genesee Chief v. Fitzhugh, 12 How. 443.

is observed as strictly as in other courts. With respect to depositions, and the notice to be given, we have elsewhere seen that the thirtieth section of the judiciary act of 1789 includes this court. But if depositions are to be taken in a foreign country, (a) there is a practice peculiar to this court of sending letters rogatory to a court of that country, requesting it to have depositions taken in due form of law; and by the comity of nations such a request is always granted. Depositions thus taken are filed in the court taking them, and authenticated copies are received as evidence here.

In the argument of the case, as to opening and closing, and indeed in all other respects, the rules are the same as in other

courts.

§ 234. Decree and Execution. The decree finely illustrates the flexibility of admiralty proceedings, since it may be so shaped as to meet every possible exigency of the case. If the amount be disputed, the court may ascertain it, or may settle the principles upon which it is to be ascertained, and then refer the case to a commissioner. The costs are entirely in the discretion of the court, and the power to adjust them is often used to punish vexatious or frivolous litigation. The enrolment of the decree corresponds to a complete record in chancery. In consists in the making up of a full history of the case, including process, pleadings, order stipulations, and evidence; taking the latter, when oral, from the notes of the judge. As to the effect of the decree, it is a common saying, that the whole world are bound by it, because the whole world are parties. (b) This is peculiarly the case when the suit is in rem; for then notice is served upon the thing itself by the seizure, and this is treated as constructive notice to all persons having an interest in that thing of any kind whatsoever. And to this is added the chance of actual notice from publication.

The enforcement of all decrees in admiralty may be by attachment of the person, when that is practicable. But where the decree is for the payment of money only, the practice is to issue an execution combining the directions of a fieri facias and a capias at common law; that is a command to levy on property if it can be found, and for want thereof to take the body. When the suit is in rem, and the thing is still held by the marshal, the execution takes the form of an order of sale, resembling a venditioni exponas; but if it has been delivered upon stipulation to the claimant, an order is made that the stipulators perform the conditions, or, in default thereof, that a summary judgment be entered against them. When the marshal receives money, he has no authority to makedistribution. His duty is to pay all moneys to the clerk to be deposited in the registry of the court, whence it can only be drawn on the order of the judge, countersigned by the clerk. If there be a surplus after satisfying the libellant, the person entitled may obtain it on petition, or motion in writing.

(a) 1 Greenl. Ev. § 320.

(b) But see Thompson v. Steamboat J. D. Morton, 8 Ohio State, 222.