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up with explanatory or qualifying circumstances, and some very general and loose, and general in their language and import. It was with a view to meet this difficulty that Lord CLARENDON's order was made, declaring that an answer to a matter, charged as the defendant's own act, must regularly be without saying 'To his remembrance,' or, 'as he believeth,' if it be laid to be done within seven years before, unless the court, upon exception taken, shall find special cause to dispense with so positive an answer. And if the defendant deny the fact, he must traverse or deny it (as the case requires), directly, and not by way of negative pregnant. As Must not be if he be charged with a receipt of a sum of money,

evasive.

Hearing upon the libel and answer,

demurrer, or plea to the jurisdiction.

he must deny or traverse that he hath received that sum or any part thereof, or else set forth what he hath received. And if a fact be laid to be done with divers circumstances, the defendant must not deny or traverse it literally, as it is laid in the bill, but he must answer the point of substance positively and certainly. However, it is plain that no positive rule can fully provide for all the various difficulties of this sort; and each must therefore be decided upon its own circumstances (a)."

If the answer of the defendant contains admissions of the allegations of the libel to an extent sufficient, in the opinion of the libellant, to supersede the necessity of proof, he may at once have the cause set down for hearing upon the libel and answer alone; and so, if a demurrer or a plea to the juris

(a) Story's Eq. Pleadings, §§ 252, 253, 254, 255.

diction be interposed, the question of law thus CHAP. 8. presented may, at the instance of either party, be brought to argument immediately, or on such early day as shall for that purpose be assigned by the

court.

33

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General principles affecting the right of

amendment.

Rule regulating the

CHAPTER IX.

AMENDMENTS.

THE subject of the present, like that of the last chapter, does not admit of being treated with much minuteness or precision. It may be said, in general, however, that our courts are invested with a large discretionary power, which they are bound to exercise with the utmost liberality, of permitting parties in admiralty suits to correct mistakes, to rectify errors and supply omissions or deficiencies in pleadings. The object of this authority being the furtherance of justice, amendments are allowed, on either side, in matters of substance as well as of form, at every stage of the suit, when necessary to the attainment of this end. The propriety of granting this privilege, in any particular case, will depend on the circumstances by which it is attended. The application is addressed to the sound discretion of the court, and this discretion is to be exercised with a just regard to the rights and interests of both parties-care being taken that, for the sake of relieving one party, injustice shall not be done to the other.

The Supreme Court has thought proper, by one amendment of the new rules of admiralty practice, to some extent, to define this power and to regulate its

of the libel.

CHAP. 9.

Amendlowed after

ments al

appeal.

exercise. The twenty-fourth of these rules is as follows: "In all informations and libels, in cases of admiralty and maritime jurisdiction, amendments in matters of form may be made at any time, on motion to the court, as of course; and new counts may be filed, and amendments in matters of substance may be made upon motion at any time before the final decree, upon such terms as the court shall impose; and where any defect in form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant." It is not supposed to have been the design of this rule to introduce any innovations in conflict with authoritative antecedent decisions. These decisions are few in number, and directly relate chiefly to amendments in an appellate court the authority to grant relief in this form being held not to be limited to the district court, but to appertain also to the circuit and Supreme Court on appeal. It is held, moreover, not to be New allegarestricted, even in the appellate court, to the refor-sible in apmation of the original allegations, but that the courts. court may also allow new allegations to be filed for the purpose of enabling it to take effective cognizance of merits which appear upon the record, but are not embraced by the pleadings as framed. Thus, in a prize proceeding for the condemnation as a prize of an American vessel, having a cargo on board, consisting partly of French and partly of American property, captured by a British squadron, and afterwards recaptured by an American privateer; the property belonging to American citizens, having,

tions admis

pellate

VOL. 2.

by a decree of the district court, which was affirmed in the circuit court, been restored to the owners on the payment of salvage, and it being objected, on appeal to the Supreme Court, that, as the whole cargo had been libelled as enemy's property, the salvage had been irregularly and improperly awarded-the court observed, that "if there were anything in the objection, it could not, in any beneficial manner, avail the defendants; for the most that could result, would be that the cause would be remanded to the circuit court, with directions to allow an amendment of the libel. Where merits clearly appear on the record, it is the settled practice in admiralty proceedings, not to dismiss the libel, but allow the party to assert his rights in a new allegation." This practice, so consonant with equity and sound principle, the court added, had been deliberately adopted by the court on former occasions(a). So, where, in a libel of information, the offence charged was, that the ship proceeded against, departed on the 12th of February, 1810, from the port of Savannah, with a cargo, bound to a foreign port, with which commercial intercourse was not permitted, etc., the ship having been condemned by the decree of the district court, and an appeal having been taken to the circuit court, the district

(a) The Adeline and Cargo, 9 Cranch's R., 244 (3 Curtis's Decis. S. C., 350). The objection was held, moreover, to be altogether inapplicable to a prize proceeding; because "whether the salvage be held a portion of the thing itself, or a mere lien upon it, or a condition annexed to its restitution, it is an incident to the principal question of prize, and within the scope of the regular prize allegation."