answer at all, if he is not, on the return-day, ready to CHAP. 7. answer, and desires further time for that purpose, he ought nevertheless to be required then to interpose his claim. VOL. 2. Less strict ness requir ed than in CHAPTER. VIII. OF THE ALLEGATIONS OR PLEADINGS SUBSEQUENT TO THE LIBEL. IN the common law courts, pleading has long been other courts. a science; and it has at length, to a considerable extent, become so in courts of equity. This is true, also, of the courts from which the English and American courts of admiralty originally derived their forms of procedure. But, in these courts, where substantial and speedy justice in each particular case is the paramount object; where, to this end, all mere technicalities are disregarded; where pleadings are always upheld when they can be, and the parties are allowed upon easy terms to amend and alter them when they cannot be; and where, though the courts are frequently impelled to complain of the negligence of practitioners in this respect, a suitor is scarcely ever turned out of court for bad pleading-it could hardly be expected that pleading would attain even the dignity of an art, much less of a science; for laxity and delinquency are the natural consequences of license and impunity. Questions of pleading of in English admiralty. What is here said undoubtedly is, as indeed it recent origin would, for obvious reasons, be strange if it were not, more applicable to the American courts than to the English High Court of Admiralty; but until the recent accession of Dr. LUSHINGTON to the chair of that court, scarcely a single question of pleading appears CHAP. 8. to have been there discussed. All pleading subsequent to the libel, or rather the summary petition, which, latterly, has nearly superseded the libel(a), are spoken of in the reports under the general name of allegations; a discrimination sometimes, though rarely, being made between defensive allegations, corresponding to pleas to the action, and exceptive allegations, corresponding to pleas in abatement, and demurrers, in the courts of common law. Little or no attention seems to have been paid, in litigated cases, to the rule prevalent in other courts, that (a) What, if any, is the substantial characteristic difference between a libel and a summary petition, nowhere, as I can discover, satisfactorily appears. Marriott's Formulary (p. 148) contains a precedent for a "Libel in a Cause of Damage," and for a "Summary Petition for Wages" (p. 274). They differ in their formal parts, at the commencement, and to some extent also, at their conclusion; but in sub.stance they are alike. In both of them the cause of action is with great fulness and precision," articulately propounded." These forms appear antiquated to an American reader; but the precedent above mentioned, of a libel, copied, I presume, from one on file, bears the name of "W. SCOTT," afterwards Sir WILLIAM SCOTT, and subsequently Lord STOWELL, the immediate successor of Sir JAMES MARRIOTT, by whom, or under whose supervision, after his retirement from the court, the Formulary was compiled. I had supposed, until very lately, that the summary petition was used only when the proceeding was by act on petition. (See supra, p. 32, n.) But in one of the recent cases, it is said "A summary petition, consisting of ten articles, was brought in on behalf of the plaintiff;" and it is also stated that "the proceedings were by plea and proof," the form thus characterized in the English admiralty standing opposed to that by act on petition. (The Two Sisters, 2 W. Robinson's R., 125.) And in another case, Dr. LUSHINGTON, almost in the same breath, denominates the plaintiff's original pleading, first a libel, and next a summary petition. (The City of London, 1 W. Robinson's R., 88, 90.) Laxity of admiralty. pleading in the English VOL. 2. Protracted pleadings rare, but allowed. what is alleged on the one side and not controverted by pleading on the other, is for that reason to be taken as true, on the ground that a party may justly be considered as virtually admitting what he does not choose to deny; and consequently little attention appears to have been paid to the formation of precise issues between the parties. Generally speaking, each party has been allowed to tell his own story in his own way, and to prove what he could; and the judge has then, upon a review of the whole case, decided between them. Causes in the English High Court of Admiralty have thus been made to assume the character rather of arbitrations, than of suits either at law or in equity. Pleadings have rarely been extended beyond the first responsive allegation, on behalf of the defendant, to the libel or summary petition. There is, however, no restriction in this respect-the parties being at liberty to protract their pleadings as in suits at common law, the pleadings in that case taking the names which they bear in the common law courts. In one very late case they were extended to a surrejoinder and rebutter(a). Certain fundamental rules relative to this plenary course of proceeding have been laid down by the present learned and vigorous minded judge of the High Court of Admiralty; and it appears that the practice of the court in this respect is modeled rather after that of the courts of law, than that of the English chancery. (a) The Lord Cochrane, 2 W. Robinson's R., 320. CHAP. 8. used only "Answer" in a general sense. answers. The term "answer" is rarely applied to any form of responsive pleading, on the part of the defendant, to the libel or summary petition of the plaintiff. It occurs, in connection with the term "reply," applied to the next succeeding pleading, in two or three instances in the very latest volumes of reports, as we shall presently see; but, even in these instances, it was probably intended to be used only in its generic sense, as equivalent to "response" (a). The Personal term " answers," or rather the phrase "personal answers" often occurs; but it means the responses given by the party to matters charged against him, upon his examination under oath, in pursuance of a "decree for answers," made by the court at the instance of the opposite party, when he chooses to try the experiment of appealing to the conscience of his adversary, for the purpose of obtaining admissions to be used as evidence. These are denominated personal answers, because all allegations or pleadings are "given" in the name of the proctor, who, upon his appearance, "makes himself a party for" his client. Formerly he was obliged to exhibit a power of attorney or proxy, in virtue of which he became dominus litis, and was obliged to give security for the ratification of his acts by his principal; but though these formalities have been dispensed with, as it is said in a late case(b), for the last 200 years, the pleadings are still, as already observed, in his name. His clients are called "his parties;" and in (a) See The Canadian, 1 W. Robinson's R., 343, 344, where the answer to the petition is called a "reply." (b) The Wilhelmine, 2 W. Robinson's R., 335, 337. Pleadings put in by proctor In his own name. Parties not named, unless, etc. |