principles and considerations upon which it rests. CHAP. 1. In the specific application of general principles, courts are not required to go beyond the exigencies of the case before them; and if this opinion leaves the doctrine of joinder of actions still unsettled, except as to cases in all essential respects similar, or strictly analogous to that in which the opinion was pronounced, it is no fault of its author. It may be . added, also, that his reasoning and conclusions are in accordance with what seem to have been the impressions of the Supreme Court of the United States, in a case where it was said to be irregular and contrary to the known principles of courts of admiralty to allow, in a libel in rem, and quasi for possession, the introduction of matters of an entirely different character, as the claim of a part-owner for his wages and advances as master(a).

England.

The decision was in conformity, moreover, with Practice in what appears to be the established practice of the High Court of Admiralty of England; for in the case of The Jack Park(b), referred to by Judge WARE, which was a suit by a mariner against the master, for subtraction of wages, on exception taken to an allegation in the libel, of ill usage, for which however, no damages were claimed, but which was inserted for the purpose of rebutting matters of defence which it was expected would be set up; Sir WILLIAM SCOTT, referring to this allegation, said it was "certainly a charge proper for an allegation of

(a) The Steamboat Orleans v. Phœbus, 11 Peters's R., 175 (12 Curtis's Decis. S. C., 391).

(b) 4 Robinson's R., 308.

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damage; but it might, nevertheless, be not improper in a suit of this kind, as historically accounting for a fact afterwards relied on; and on that ground it might not be unfit to be admitted here, though the court is not insensible of the danger of mixing suits very different in their substance, as well as in the manner of conducting them(a)."

(a) This allusion to a difference between the manner of conducting suits for wages and suits for damage, is understood by Judge WARE to refer to the distinctions between plenary and summary causes, which exist in the practice of the English ecclesiastical courts; and, it is true that the advocate for the respondent did speak of an action of damage as a plenary action. The distinctions between these two modes of procedure are stated and explained by BROWNE, as follows: "The distinctions between plenary and summary causes are well known. It is familiar, also, to the common, or at least the statute law. Plenary are those causes in which the order and solemnity of the law are exactly observed. There is a formal contestation of suit, a regular term to propound, and solemn conclusion of the acts; and if there is the least omission or infringement of the regular order, the whole proceedings are annulled. Summary are those in which this order and solemnity are dispensed with; the suit is, as it were, contested, by the next contradictory act after the libel put in, that concerns the merits of the cause. Such as the dissent of the proctor: the second assignation to hear sentence, supplies the place of conclusion; there is no assignation to propound, nor express conclusion; in short, omnia substantia sunt sublata. Sometimes, even the libel and all proceedings may be viva voce." 2 Bro. Civ. and Adm. Law (N. Y. ed., 1840), 413, note. See, also, 1 idem, 492.

But it is stated, without qualification, both by BROWNE (vol. 2, 413) and by CLERKE (Clerke's Praxis, tit. 19), that all causes in the admiralty are summary. There is, however, in the English admiralty, a form of proceeding which (though probably with such occasional variations as the exigencies of particular cases may be supposed to require) seems, from the reports of adjudged cases, to be almost uniformly pursued in suits in rem for seamen's wages, and frequently, if not generally, in others also (bottomry and collision, for example), and which is of a highly summary nature, compared with that of a formally conducted admiralty suit. By an advocate of the Court of

Upon the whole, it may not be very unsafe to affirm, that the libellant has the privilege of uniting

Causes of like nature may be united, subject to the discretionary power

Admiralty, speaking in that court, the latter might therefore, perhaps, naturally be denominated a plenary suit, in contradistinction to the very of the court. summary and informal proceeding to which I have alluded. This form of proceeding has been denominated an act on petition [a formal suit being usually called, in contradistinction, a proceeding or cause "by plea and proof." See 2 Hagg. R., 151, n., and 3 Hagg. R., 343]. I am not aware that it has been mentioned by any elementary writer; and though the reports of cases adjudged in the English admiralty show that it is in familiar use, as already mentioned, the only description of it which I have met with, is that incidentally given by Sir WILLIAM SCOTT, in the case of Ville de Varsovie and others, 2 Dodson's R., 174, 184, where he describes it as "a summary proceeding, in which the parties state their respective cases briefly, and support their statements by affidavit;" and, in reference to the case before him, he proceeded to characterize it as "a form convenient enough in matters of slight interest and not of very delicate investigation, but certainly not adapted to a case where the important facts are themselves minute, and therefore unfit to be left to the laxity of affidavits, in which the examination of unwilling witnesses cannot be enforced by the authority of the court."

See, also, The Tartar, 1 Haggard's Adm. R., 1, where the reporter, in giving the substance of the "act on petition," takes occasion, in a note, to repeat the above mentioned definition of Lord SroWELL, referring to the case of The Ville de Varsovie.

The mode of commencing suits in this form does not appear to be different from that of instituting formal suits. The "action is entered against the ship, and a warrant of arrest extracted" (The Lord Hobart, 2 Dodson's R., 100), in the usual mode; and, on the return of the process, the cause of action is stated and brought before the court by a "summary petition," instead of a formal libel.

Of this suit by summary petition, it may be said, in general, that, compared with a formal suit by libel, it is like a special motion compared with a formal suit at law, or bill in chancery. The petition is supported by the affidavit of the party, and the voluntary affidavits of other persons; and the allegations of the petition are contested, or defensive allegations are given and supported, in like manner.

What is said above of the frequency of this form of proceeding in the High Court of Admiralty, the learned reader will find fully verified on

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in one suit, as many actions of a like nature as he pleases; subject, however, to the discretionary

examining the reports. In a case of collision, Sir CHRISTOPHER ROBINSON, in discussing the competency of the crew of the vessel charged with committing the damage, to testify in the case, said: "If the case had come before me on petition supported by affidavits, according to the usual form in such cases, each party would have told their own story." (The Catharine of Dover, 2 Hagg. R., 145, 146.) But in a subsequent case of collision, Sir JOHN NICHOLL said that "in collision suits, the most regular course of proceeding is by plea and proof, which enables the defendant to cross-examine the witnesses." (The Gladiator, 3 Hagg. R., 340, 342.)

Whether suits in this form can be entertained in the American courts of admiraly, consistently with the rules of practice lately prescribed by the Supreme Court, is a question upon which it might be indiscreet to express an opinion. These rules require a "libel" to be filed before process issues; but the mere form of the written statement of the cause of action is a matter of little importance, since it must be substantially the same, whether in the form of a libel or of a petition. The subsequent proceedings are, however, widely different. In a suit by summary petition, there is no examination of witnesses; but the case is promptly and informally heard and decided, upon such affidavits as the parties are able to produce. Such, at least, I infer is the nature of the proceeding in the English High Court of Admiralty. It would doubtless be admissible in the American courts, if mutually assented to by the parties; and in cases involving trivial amounts, especially in suits for wages, while it would be highly conducive to economy and dispatch, it would suffice for all the purposes of substantial justice.

Since the preceding part of this note was written, I have met with the report of a case in a late volume of Reports of Decisions in the English Admiralty, which sheds additional light upon the proceeding by act on petition, and shows it to be still more predominant in the High Court of Admiralty than I had ventured to represent it as being I refer to the case of The Minerva, 1 W. Robinson's R., 169; and as the case is short, I shall make no apology for inserting it entire.

"This was a question as to the admissibility of a libel in a cause of bottomry,

power of the court to order one or more of several CHAP. 1. actions, so joined, to be stricken out of the libel,

"The suit had been commenced by plea and proof; and a preliminary objection was taken to the form of the proceeding by Adams and Harding, on behalf of the owners, upon the ground that it was objectionable in principle, and a departure from the established practice of the court in cases of this kind. That the usual form of proceeding was by act on petition and affidavit; and the admission of the libel would entail a hardship upon the owners of the vessel proceeded against, and would also establish an inconvenient precedent in future cases. That bonds of bottomry, it was well known, were most frequently granted by the masters of ships in the ports of countries far distant from the residence of the owners. If, therefore, suits for their recovery might hereafter be brought at the option of the asserted bondholder, in the mode now attempted to be introduced, the consequence would be, that in a majority of cases of this description, the evidence must be taken by commission abroad, and a great increase of delay and expense must, of necessity, be occasioned. Such would be the result in the present case, if the court should admit the libel; and, at all events, the owners of the Minerva were entitled to demand security for the costs of proceeding.

"In support of the libel, Queen's Advocate contra:

"That in point of principle, it was obvious that a proceeding by plea and proof was a convenient form of proceeding, and in many cases indispensable to elucidate the truth of the facts set up on the one side and the other, by compelling the evidence of reluctant witnesses and the answers of the parties in the cause, which could not be done by the more summary form of an act on petition. That the ancient mode of conducting all suits in the Court of Admiralty was by libel and proof; and although in the modern practice of the court the more summary form of an act on petition and affidavit had undoubtedly prevailed, it was still open to the suitors to elect their own mode of proceeding; and that their right to such election had been recognized by the court in the cases of the Westmoreland and the Sidney Cove, and other decided cases.

"Per Curiam:

"It is, I think, essential to the furtherance of justice in these causes, that the parties in the suit should be at liberty to choose their own mode of proceeding, whether by act on petition or in the more solemn form of plea and proof; and for this reason, that many cases might