supreme court. It is true, that intervenors have been called claimants,1 but this language is inaccurate, the rights of the parties being entirely distinct.2 An intervenor does not claim the thing in controversy, but only asserts an interest in it. He cannot, therefore, ordinarily be admitted to dispute the cause of action of the libellant, but merely asserts his own claim, and generally, that it is superior to that of the libellant. It has, however, been held, that an attaching creditor may intervene and contest the suit, the owner not defending. The thirty-fourth admiralty rule has also been construed to allow third parties to come in, not merely as intervenors, but as parties subrogated to the rights of the original claimant by operation of law, as in the case of the death of a party, after the case came before the court. And an underwriter, who, after the case came before the circuit court on appeal, accepted an abandonment made before the suit was brought, was allowed to intervene as dominus litis.4

If the party claiming the goods cannot make good his title to them, the court will not give them up, if the libellant fails in his suit, but will retain them for the actual owner,5 and it is said to be usual to retain them for a year and a day.

After a case has gone before the supreme court on appeal, a new claim cannot be presented in that court, but it may be presented to the circuit court, when the cause is remanded.7

1 Thus, in The St. Jago de Cuba, 9 Wheat. 409, the court speak of a claim filed by seamen for their wages.

2 In United States v. 422 Casks of Wine, 1 Pet. 547, 549, a full and accurate definition of a claimant and his duties is given.

3 The Mary Anne, Ware, 104. The vessel in this case had been attached by a creditor in the State court, and was afterwards seized by the government for a forfeiture, and the creditor was allowed to defend the suit.

4 The Brig Ann C. Pratt, 1 Curtis, C. C. 340.

Curtis, J., said: “The thirty-fourth Unless this construction be put upon

rule seems well enough adapted to such cases. it, I perceive no provision even for the death of a party, after an appeal to this court; and as this court does not possess power to remit an admiralty cause to the district court, and there is no rule expressly providing for a supplemental libel to be filed here, some rule to prevent the abatement of suits is needful, and I shall hold this thirtyfourth rule to be applicable to all such cases." Underwriters, however, cannot intervene until they have accepted the abandonment. The Ship Packet, 3 Mason, 255; The Ship Henry Ewbank, 1 Sumner, 400; The Sch. Boston, 1 Sumner, 328, 332; The Bee, Ware, 332, 335.

5 The Boat Eliza, 2 Gallis. 4, 11; United States v. 422 Casks of Wine, 1 Pet. 547,

550.

6 Stratton v. Jarvis, 8 Pet. 4.

7 The Societé, 9 Cranch, 209.

SECTION II.

OF STIPULATIONS, AND THE DELIVERY OF THE PROPERTY.

Before any claim or answer can be allowed or be heard, there must be a sufficient stipulation for the costs. Such a stipulation is not, however, essential to render a claimant liable for fees for services rendered by the clerk of the court, but he is liable for these from his relation to the suit as dominus litis.2

If there be separate and distinct interests, there must be separate claims and answers, and separate stipulations.3 But if one or more parties in interest, refuse to make answer or claim or enter into stipulation, or are unable to do so, their contumacy or inability will not be permitted to injure the other parties in interest, who may proceed by themselves.

If the property is attached, either in a suit in rem or in personam, as the property of a certain person, and another party, a stranger to the suit, claims the property as his own, in which case at common law, he would take it by replevin, he would in admiralty put in his claim (not however answering the libel), setting forth his title, and on giving a stipulation with sufficient sureties, the property would be delivered to him.

In almost all cases in which property in custody of the court of admiralty is claimed by any party, it will be delivered to him on proper stipulation. But this, though seldom refused, is not a matter of course, but is in the discretion of the court.

In the case of a bottomry bond, the ship of which the possession is demanded by the obligee, is the very security agreed upon, and usually the only one, for the debt of the obligor, and for this reason it is said, that admiralty will not deliver the ship to the obligor, even on stipulation with sureties, without the consent

1 See ante, p. 697.

2 In the Matter of Stover, 1 Curtis, C. C. 201.

8 Stratton v. Jarvis, 8 Pet. 4.

4 The Mary, 9 Cranch, 126.

of the libellant. So it is said, in respect to a suit for salvage,2 but the eleventh admiralty rule makes no such distinctions. We have no belief that any court would refuse this delivery, merely for want of consent, for, if the case was a contested one, and the obligee and libellant chose to be perverse and stubborn the ship might lie in the harbor, useless and decaying, perhaps, while commissions were going to the other side of the world to obtain evidence.

If the property in possession of the court is perishable, and is not taken out by stipulation, the court will order it, on motion of either party, and cause shown, to be examined and inspected, and a report made, and if necessary, will decree, a sale of the property with proper precautions to avoid unnecessary loss. And the funds arising from the sale go into the treasury of the court, subject to decree, in the same manner in which the property itself might have been. It may also be added in this connection, that if a party appears and files a claim, he thereby waives all objection to the regularity of the process.

Some other questions of stipulations by the respondent, we treated of in a former section, in order to present the statutory law on the subject of stipulations in a great measure, together.5

SECTION III.

OF THE POWER OF THE COURT TO ORDER DOCUMENTS TO BE PRODUCED BEFORE ISSUE IS JOINED.

The practice of the court of chancery was formerly to require the defendant, if he wished to inspect documents in the possession of the plaintiff, to file a cross bill and pray for a discovery.6

1 Dunlap's Adm. Practice, 176.

2 The Ship Nathaniel Hooper, 3 Sumner, 542, 562. Mr. Justice Story said the proper course, if the property was perishable or might sustain injury from the delay, would be to have a sale of it authorized by the court.

10th Admiralty Rule.

4 The Merino, 9 Wheat. 391.

5 See ante, p. 692–697.

6 Spragg v. Corner, 2 Cox, 109.

In one case, however, the court ordered an instrument to be produced for inspection;1 but this case is generally considered as of but little authority and has not been followed. The rule at common law is that the defendant is entitled to inspect any instrument in the possession of the plaintiff, which is the subject of the action, and on which the plaintiff bases his claim.3

The power of the court of admiralty in such cases has not until recently, been invoked, and no definite rule is to be found in the text-books or in the earlier reports. In 1857, the question arose whether in a suit on a contract, which contract was partly in writing and partly oral, a letter in the libellant's custody, and which, it was alleged, was essential to the full understanding of the contract, should be ordered to be produced on motion of the defendant. The court held that if the whole contract had been in writing, and the letter in question contained the whole contract, the defendant would be entitled to have it produced. So, if the whole contract being in writing, the letter was a part of the writing, if it appeared that the rest of the contract was either produced or within the control of the parties, and that there was no dispute as to what writings existed and were to be produced. But as the contract was to be proved partly by written and partly by parol evidence the court refused to require the libellant to produce it.1

1 Princess of Wales v. Earl of Liverpool, 1 Swanst. 114. In this case an affidavit was made that a note of hand which was in suit was believed not to be genuine, and it was necessary, in order that the answer might fully meet the case, that inspection of the note should be granted.

2 See Shepherd v. Morris, 1 Beav. 175; Milligan v. Mitchell, 6 Simons, 186; Penfold v. Nunn, 5 Simons, 405; Jones v. Lewis, 4 Simons, 324, overruling the same case, 2 Simons and S. 242.

3 See 3 Daniell's Ch. Practice, 2070.

4 The Steamer Le Voyageur de la Mer, U. S. D. C., Mass., 1857, 20 Law Repor ter, 331. The reasons given for the decision are, that if the paper was produced the defendants would obtain an advantage, as they would learn the extent of the knowledge or ignorance of the other parties as to the proofs of the contract, and without first answering as to their best knowledge and belief, could frame their answers to meet the disclosures on one particular point.

CHAPTER V.

OF THE ANSWER.

THE answer should correspond with the libel. The caption should state the court, the judge, the parties, and the kind of case, with legal accuracy and in appropriate language. It should then proceed to exhibit the defence, answering the libel, article by article, in the same order as numbered in the libel, and should answer in like manner each interrogatory propounded at the close of the libel. What it admits, should be admitted unreservedly, if possible, and not by way of hypothesis; that is, not, if so and So, then so and so.2 But where this is made necessary by the nature of the case, as where certain facts are stated, of which the defendant cannot know whether they are true or false, but which he believes to be false, and has a perfect defence against them, if true, we can see no sufficient reason why he may not state his belief, and then his defence; and why, if he supposes that they may be true, he may not state this, and say, if true then his defence is so and so. Such we should believe to be within the allowed practice of admiralty, for good cause shown, because there are here no rules like those of special pleading. Both the libel and the answer, and every other document in the case must be as precise and definite as the party can make it, consistently

1 27th Admiralty Rule. In The Sch. Boston, 1 Sumner, 328, 330, Story, J., said : "The answer should accordingly reply to each article by a clear and exact admission or denial, or defence to the matter of it."

2 Treadwell v. Joseph, 1 Sumner, 390. The charge was that the respondent did with force and violence, without rightful cause or justification, order the libellant to scrape down the masts of the ship for a long space of time, to wit, fourteen hours, the wind then blowing heavily. The answer was "that the scraping of the masts of a ship is a necessary duty,” etc., “and that if the libellant was employed in that manner, it was a part of the ship's duty, which the libellant was bound to perform." It was held that a conditional answer of this nature was improper; that a party setting up the excuse or justification of any act must admit the existence of it. It was held also that the answer did not meet the gravamen of the charge, because it was only the duty of the crew to scrape the masts at proper times and seasons, and in a reasonable manner.