defeat. The narrative of the libel should be plain, perspicuous, full, giving all the facts which can by any reasonable construction be considered as a part of the case, and expressing all things in clear and accurate language.1

In some of the books the "counts" of a libel are spoken of. Thus, Mr. Dunlap says, "It is a common practice to make each count in a libel a distinct article, and to set forth the first allega tion in each count as an imprimis averment, and the subsequent allegations in each count as distinct items." But this use of the term might mislead a common-law practitioner. By "counts" is not meant the separate articles in a libel, because it is of the essence of each count in a declaration at common law that it should be good by itself, and that it should be enough to give the plaintiff his case, if all the other counts failed or were stricken out. It is rather of the essence of each article in a libel in a civil case, that it should not be thus good and valid of itself; for it should be a component and important part of the whole, not telling the whole story of itself, and yet such that if it were stricken out the whole would be maimed and imperfect. But there are sometimes counts in a libel in admiralty as well as in a declaration at common law, and they are inserted for the same purpose, and to the same end, namely, that if one count fails the other may stand good. Thus, where goods are delivered to the master of a vessel and are destroyed before they are put on board the vessel, and the master gives a bill of lading for them after they are thus destroyed, it would seem to be proper that the libellant should declare in one count, which should consist of several articles, upon the bill of lading; and in another count, which should also consist of several articles, he should declare upon the contract of affreightment, independently of the bill of lading. Because if he declared merely on the bill of lading the answer would be," The master had no authority to sign the bill till the goods were on board." And if he declared on the contract of affreightment the

1 The 23d Admiralty Rule prescribes that “the libel shall also propound and articulate in distinct articles the various allegations of facts upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article." In Pettingill v. Dinsmore, Daveis, 208, it was held that in a libel for damage, each separate and distinct tort which is relied on, and for which damages are claimed, should be set forth in a distinct allegation.

answer would be that there was a special contract and the action should have been brought on the bill of lading, which was the evidence of the contract.

The word "counts" in the twenty-fourth admiralty rule was probably inserted to meet cases of this kind.

The plaintiff at common law declares; the libellant in admiralty propounds and articulates. It is common in this country for the libellant to say only that he "showeth," to the court so and so. The more accurate method is to say that he "propounds and articulates," or as in some forms, that he "alleges and articulately propounds." What is meant by articulating, is the dividing of the statement into its articles, or separate elements, each of which constitutes an article by itself. There can be no uniform and positive rule as to the manner of doing this. The purpose, however, is obvious enough, and will be a sufficient guide. It is that each independent fact, or closely connected sequence of facts, should be stated by itself, in such a way, that each one may be distinctly denied or admitted by the answer, and the proof applicable to each one may be separated, and considered by itself; and as the articles are parts of one continuous narrative, they should follow each other in their proper and natural order. How this may be done in different cases, will be indicated by the forms we give. But it is obvious that no two practitioners would be likely to do this in the same way, and no two cases would permit precisely the same division and arrangement. It is said that a libel may be "simple" or "articulate." And if there is but one fact in the plaintiff's case, or a few facts indissolubly connected, it may be unobjectionable to omit a division into articles. Generally, however, a division will be found useful; and, indeed, the 22d admiralty rule requires statements which, we think, should always be articulated.

It has been remarked that "the properties of a libel are these; namely, that it be round, dilucid, concluding, not obscure, uncertain, nor general, or alternative." 1 So far as we understand these epithets they are applicable, excepting that we have some doubts about the last. We know no good reason, nor sufficient authority for saying that the stating part of a libel shall never

1 Law's Forms of Eccl. Law, 148.

be, or contain, an alternative.1 The libellant must state his case as well as he can, and as precisely and specifically as possible, but if it should happen that a material fact, something, for example, relating to the condition of the ship in a case of salvage, may have been caused in either of two ways; the libellant knows not which, but the defendants do, we know not why he must either omit the fact, or elect one way to state it, taking his chance of its being the right one; or say that it happened in both ways, which would probably be impossible. We should hold, therefore, that he might state the fact precisely as it is in his knowledge; that is, in the alternative.

In many cases of libel in personam, the damages are liquidated, or capable of being made precise by evidence; in others, as for personal torts, not; but in either case, and in the last especially, damages should be laid in a definite sum, on account of the law regulating appeals. The amount claimed should not be unreasonably large, nor is the court bound by it, when it is smaller than the justice of the case clearly requires.2

Regularly, the libel should be signed by the libellant, or his agent, and by a proctor of the court, and, unless brought in behalf of government, verified by the oath of the libellant. This matter, however, is of course very dependent upon the practice and rules of the several district courts of this country.3 The

1 In The Emily & Caroline, 9 Wheat. 381, it was held in an information under the Slave-Trade Act of 1794, that a charge stated in the alternative was good, if each alternative constituted an offence for which the thing was forfeited.

2 Pratt v. Thomas, Ware, 427; The Jonge Bastiaan, 5 Rob. Adm. 322.

8 In Coffin v. Jenkins, 3 Story, 108, 121, Mr. Justice Story said: "I observe, too, that there are some irregularities in the present case. The libel is sworn to, but not the answer. The reverse is the usual and proper practice, although there is no objec tion to the libel being sworn to, if the libellant chooses." This is left to some extent an open question by the admiralty rules of the supreme court. The seventh rule provides merely that "In suits in personam no warrant of arrest, either of the person or property of the defendant, shall issue for a sum exceeding five hundred dollars, unless by the special order of the court upon affidavit or other proper proof showing the propriety thereof." In the Massachusetts district no rule has been passed on this subject since the rules of the supreme court went into operation, but the practice appears to be that the libel is not required to be sworn to unless there is an arrest of person or property. See Dunlap's Adm. 126. The rule appears to be the same in both of the New York districts. In Maine the practice is to require, if not the libel, yet in all cases, the debt or cause of action upon which the libel is filed, to be verified by affidavit. See Hutson v. Jordan, Ware, 385.

libellant may require the respondent to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel, at the close or conclusion thereof.1

The practice is general in this country, and perhaps universal, to file the libel in the clerk's office, at any time, either of term or vacation, and taking out the proper process thereafter, at once; and until the libel is filed in the clerk's office no process can issue.2

But, before speaking of process, it should be remarked that admiralty deems it proper that a request for payment or settlement 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.

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.

And

123d Admiralty Rule.

2 1st Admiralty Rule.

3 See Purcell v. Lincoln, U. S. D. C., Mass., 17 Law Reporter, 217.

4 22d Admiralty Rule.

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,1 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 form of the statute or statutes of the United States.2 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 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. 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,

1 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.

2 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.

3 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.

4 Sch. Betsey, 1 Mason, 354.

5 The Samuel, 1 Wheat. 9; The Emily, 9 Wheat. 381; The Merino, 9 Wheat.

The Mary Ann, 8 Wheat. 380.