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ADMIRALT

ADMIRALTY PRACTICE.

VOL. 2. else than a recognition and express sanction of existing rules of procedure.

At the date of the passage of the permanent process act, we had been sixteen years an independent people, during thirteen years of which the admiralty jurisdiction had been administered in the state courts of admiralty, and during the residue of the time in the national courts; and it is to the "principles, rules and usages" of these tribunals that the act may be supposed to refer. Such is the construction given to it by the Supreme Court in the case of Manro v. Almeida. "In giving a construction to the act of 1792," say the court, "it is unavoidable that we should consider the admiralty practice there alluded to, as the admiralty practice of our own country, as grafted on the British practice; and if, in fact, a change had taken place in the practice of the two countries, that of our own certainly must claim precedence(a).

The important power conferred by the process act upon the Supreme Court to prescribe rules of practice in admiralty, has never, until very recently, been exercised; and, as in the absence of any common standard was unavoidable, the practice has continued uncertain, variant and perplexing. This was a serious evil, and had long been a subject of regret and of just complaint.

By an act of Congress, passed August 23, 1842(6), the power of the Supreme Court to prescribe rules of practice in admiralty cases was reiterated in very

(a) 10 Wheaton's R., 473 (8 Curtis's Decis. S. C., 427).
(b) Ch. 188, § 6; 5 Stat. at Large, 516.

Rules pre

ample terms; and at the January term, 1845, a well CHAP. 1.
digested body of rules was framed and proalgated,
entitled "RULES OF PRACTICE OF THE COURTS OF THE
UNITED STATES, IN CAUSES OF ADMIRALTY AND MARI-
TIME JURISDICTION, ON THE INSTANCE SIDE OF THE

COURT(a)." A copy of these rules will be found in
the APPENDIX. They are by no means to be
regarded as mere arbitrary regulations originally
devised by the Supreme Court, and having no higher
claim to its sanction than their supposed adaptation
to their object. On the contrary, they embody,
substantially, the most authoritative and approved
of the customary usages and froms of admiralty
practice, with such modifications as were deemed
necessary to adapt them to the structure of our
courts, and as seemed to be demanded by the injunc-
tion contained in the act of 1842, above cited, so to
regulate the practice of the courts "as to prevent
delays, and to promote brevity and succinctness in
all pleadings and proceedings therein, and to abolish
all unnecessary costs and expenses."
The high

value of these rules consists in the greater degree of
certainty, uniformity and stability which they have
imparted to admiralty proceedings, and which it was
their chief design to secure. As they are of the
highest authority, I shall consider it unnecessary, in
general, to cite other authorities relative to points
concerning which they contain explicit directions.
It is hardly necessary to remark, however, that
they constitute little more than a skeleton, the

(a) 3 Howard's R., 3.

scribed by the Supreme

Court.

VOL. 2. integuments of which are to be drawn from the

The district courts, their officers, etc.

principles and general usages of admiralty procedure, or supplied by additional rules of court. It should be understood, moreover, that they are not to be considered as abolishing or superseding prior authorized rules of practice, except in cases of inconsistency. In some instances, therefore, there may be a choice of means to effect the end in view.

The United States, collectively, are divided into forty-six judicial districts, besides the District of Columbia, in each of which there is a district court, possessing common law as well as admiralty jurisdiction.

As courts of admiralty, the district courts are PRIZE and INSTANCE(a) courts. The present work relates exelusively to their jurisdiction and practice in this latter character.

All actions in the admiralty are either in rem, against the thing; or in personam, against the

person.

The party instituting the suit is called the libellant. Suits in rem are entitled in the name of the libellant against the thing libelled, most commonly a ship; and he who appears and is admitted to defend is called the claimant, respondent, or defendant(b).

(a) As Instance Courts, they afford redress on the application, prayer or solicitation, i. e., at the instance of the suitor. Thus, there was anciently in England a court of equity, called the Court of Requests. Or this may originally have been the French word instance, one of the definitions of which is demand, suit, or cause pending at law. (b) In the English admiralty, suits in rem against a ship are entitled in the name of the ship, with the name of the master subjoined,

When the suit is in personam, the person against CHAP. 1. whom it is brought is called the respondent, defendant, or libellee(a).

The practitioners, on the admiralty side of the court, are denominated PROCTORS and ADVOCATES; names corresponding respectively with those of attorney and counsellor in courts of common law jurisdiction, and solicitor and counsellor in chancery. But those by whom the cause is conducted in court, are usually spoken of under the general denomination of counsel.

The court consists of a single JUDGE. Its records, relating to both branches of its jurisdiction, are kept by one and the same officer, denominated the

CLERK.

thus: FLORA, Findlay. In this country, the usage has most commonly been, as stated in the text, to name the libellant, and when a claimant appears, to subjoin his name, instead of that of the master, to the name of the ship, thus: JOHN DOE, V. THE SHIP (or BRIG, &c.) MARY; and, subsequently, if there is a claiment, John Doe v. The SHIP MARY; RICHARD ROE Claimant. In the Reports of cases decided in the High Court of Admiralty of England, the name of the vessel and of the master, only, appear at the head of the report; and this form is adhered to, even when the suit is in personam against the master of the vessel. (See The Jack Park, Little, master, 4 Rob. R., 308.) Latterly, in this country also, the name of the libellant is omitted, but that of the claimant is generally subjoined to the name of the vessel. In a few instances in Ware's Reports, the English form is adopted. This innovation upon the English practice is in bad taste, inconvenient and much to be regretted. It is the result, not of design founded in the supposition of its utility, but of ignorance.

(a) In a late case before Mr. Justice STORY, in which this appellation had been applied to the defendant by counsel at the argument, he commended it as very proper. Whether it is in use out of Massachusetts, I am not apprised.

VOL. 2.

Commissioners to take acknowledgments of bail and affidavits, etc., etc.

The executive officers of the court are the MARSHAL of the district and his deputies.

The COMMISSIONERS of the circuit and district courts of the United States are highly important officers; and as the nature and extent of their powers and duties seem not to be generally well understood, it may be useful to enumerate them here, although some of them have no relation to the particular subject of this work.

The office of commissioner was created by the act of February 20, 1812(a); by which the circuit courts are authorized, whenever the extent of their districts renders it necessary, to appoint such and so many discreet persons within the district, as may be necessary, to take acknowledgments of bail and affidavits, to have the like force and effect as if taken before a judge of the court; and for the performance of these services, the same fees were to be paid as were allowed by the laws of the state where they were performed, for the like services. The powers of these officers being by this act limited to suits or proceedings in the circuit courts, an additional act was passed in 1817(6), authorizing them to take affidavits and bail in civil causes, to be used in the district courts. They thus became commissioners as well of the district as of the circuit courts. But, by this act, another, and highly important additional power is also conferred upon them, viz., that of taking depositions, de bene esse,

(a) Ch. 25; 2 Stat. at Large, 679.
(b) Ch. 30; 3 Stat. at Large, 350.

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