Page images

VOL. 2.



to issue, until a libel has been Bled.

In the High Court of Admiralty of England, suits in personam and in rem are commenced, as the Roman action was, by the issue of process; and it is not until after the return of the process executed, that the plaintiff (or promovent, as he is denomina

ted) is called upon to exhibit his libel(a). But in No process the admiralty courts of the United States, the

process, in both forms of action, is preceded by a written statement of the cause of action, called a libel, corresponding to the bill in a suit in chancery. Such seems to have been the practice of the Colonial Courts of Admiralty(); and it is now not only sanctioned, but expressly enjoined, by the Rules of Practice lately prescribed by the Supreme Court of the United States. The first rule ordains that "no mesne process shall issue from the district court, in any civil cause of admiralty and maritime jurisdiction, until the libel or libel of information(c) shall

(a) 2 Bro. Civ. and Ad. Law, N. Y. ed., 349, 357 - 396,
(b) Betts's Adm. Practice, 23.

(c) Libel of information is the same given to a libel filed by the district attorney of the United States, who "gives the court to understand and be informedof the breach of laws on which the suit is founded.

CHAP. 8.

be filed in the clerk's office from which the process is to issue(a).”

It is stated by Judge BETTS to have been the practice in the Vice-Admiralty Court of New-York (as he has ascertained, it is presumed, by an examination of the records of its proceedings), to read the libel in open court, and thereupon to obtain an order for process. And he adds, that though this usage did not survive the revolution, the principle upon which it was founded “still enters into and influences the practice” of his court. "In some cases the judge still considers and determines preliminarily the right of the party to coercive process, and in others subrogates the clerk to that office. When no order of the judge is filed, the clerk examines carefully the case made by the libel and the

process, and gives the party such process as his libel will justify(().

Such is the course of proceeding supposed to have been contemplated by the above recited rule. Except in those cases which require the previous order of the court directing the issue of process,

the mere delivery or transmission of the libel to the clerk is all that the rule requires. But the duty thus imposed upon this officer demands vigilance and intelligence on his part; for he cannot lawfully issue any process, until, by an examination of the libel, he has ascertained that the matter of complaint is in its nature cognizable in a court of admiralty ;

prayer of

(a) See Appendix ; Rules of Admiralty Practice, Rule i. (6) Betts's Adm. Practice, 23, 24.

Structure of the libel.

that the libellant is, prima facie, entitled to redress, and that the particular form of process prayed for in the libel is adapted to the case.

It has always been the policy of courts of admiralty to discountenance prolixity and all unnecessary technicalities in pleading, and, disregarding, as far as could safely be done, mere matters of form, to look only at the substantial merits of the controversies before them. Their professed object has been (and it is no idle boast), to administer justice velo levato. The general principles of pleading which they inculcate are nevertheless excellent, and really embrace all that is desirable, and all, therefore, that ought to be required in any court. In imitation of the Roman courts, they exact brevity, clearness, aptness and certainty. Thus, of the libel, it is said that it “ought to contain a narration and conclusion; to be short, and contain nothing superfluous ; clear, so as to avoid all ambiguity; apt, i. e., that the prayer for relief should accord with the nature of the grievance; and sufficiently certain as to the quantity, quality and nature of its subject matter(a).” But from the occasional judicial expressions of dissatisfaction and regret to be met with in our reports, I infer that the known disinclination of the courts to listen to technical objections, and the want of exact knowledge, skill or care on the part of practitioners, have led to a degree of slovenliness in pleading that is at once discreditable and mischievous. The Supreme Court, in framing the Rules

(a) 2 Bro. Civ. and Ad. Law, N. Y. ed., 361.

of Admiralty Practice, have accordingly aimed to CHAP. 8. correct this evil. By the 23d rule, it is ordained that the libel “shall state the nature of the cause, as, for example, that it is a cause civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be ; and if the libel be in rem, that the property is within the district;

and if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of facts, upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article; and it shall conclude with a prayer of the process to enforce his rights in rem or in personam (as the case may require), and for such relief and redress as the court is competent to give in the premises(a).” This rule cannot properly be con

(a) The 22d rule relates exclusively to cases of seizure for a breach of the revenue or navigation laws of the United States. It is as follows: "All informations and libels of information for any breach of the revenue or navigation laws of the United States, shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the adıniralty and maritime jurisdiction of the United States, and the district within which the property is brought, and where it then is. The information or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States, in such case made and provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return day of the process, why the forfeiture should not be decreed.” Its requirements, it will be seen, are the same in substance and effect as those

sidered as enjoining anything not already demanded by the recognized principles of admiralty pleading, unless it be the division and proper distribution and arrangement of the contents of the libel under separate and distinct ARTICLES ; and even this was to some extent in use in this country, as it has always been in England, and is strongly recommended by Mr. Justice STORY in several reported cases decided by him(a). This important requirement,

VOL. 2.

of the 23d rule, relative to other cases. Municipal seizures constitute a distinct class of cases, and are, moreover, sometimes of common law as well as sometimes of admiralty jurisdietion, according to the place of seizure. (See Conkling's Treatise, 3d ed., 236, 505 et seq.) The pleading filed by the district attorney, by which the suit is com

mmenced, when the suit is on the common law side of the court, is called simply an information; and when on the admiralty side, a libel of information.

The reason why seizures are not treated of in this work, has already been stated. The above rule relative to them is here given, on .account of its express requirement of distinct articles. In this respect, it will be seen, the rule makes no distinction between informations and libels of information. In all other respects, the directions relative to libels given in the treatise above mentioned, it is hoped, will be found correct.

(a) See Thomas v. Lane, 2 Sumner's R., 1, 4. This was a cause of damage for assault and battery. The suit in the district court was against the master and mate of the vessel, on board of which the injuries were alleged to have been committed. The case came before the circuit court, on appeal by one of the defendants. Mr Justice Story, in delivering his opinion, speaks of the pleadings in the following terms: “ There is a good deal of embarrassment thrown over the cause by the state of the pleadings; and I exceedingly regret that neither the libel nor the answer have that regularity and certainty of averments, which in strictness they ought to possess. The libel is not drawn in the regular form of articles, articulating (if I may so say) the grievances in a distinct order, and charging each as a joint act of the master and mate. On the contrary, it seems to be a narrative of the events in the order in which the libellant asserts them to have occurred; and the acts of each of the respondents are charged severally

« PreviousContinue »