SECTION V.

OF THE POWER OF THE COURT TO ORDER DOCUMENTS TO BE PRODUCED BEFORE ISSUE IS JOINED.

The practice of the court of chancery was formerly to require the defendant, if he wished to inspect documents in the possession of the plaintiff, to file a cross bill and pray for a discovery.1 In one case, however, the court ordered an instrument to be produced for inspection; 2 but this case is generally considered as of but little authority, and has not been followed.3 The rule at common law is that the defendant is entitled to inspect any instrument in the possession of the plaintiff, which is the subject of the action, and on which the plaintiff bases his claim.1

The power of the court of admiralty in such cases has not, until recently, been invoked, and no definite rule is to be found in the text-books or in the earlier reports. In 1857, the question arose whether, in a suit on a contract, which contract was partly in writing and partly oral, a letter in the libellant's custody, and which, it was alleged, was essential to the full understanding of the contract, should be ordered to be produced on motion of the defendant. The court said that if the whole contract had been in writing, and the letter in question contained the whole contract, the defendant would be entitled to have it produced, so, if, the whole contract being in writing, the letter was a part of the writing, if it appeared that the rest of the contract was either produced or within the control of the parties, and that there was no dispute as to what writings existed and were to be produced. But as the contract was to be proved partly by written and partly by parol

Princess of Wales v. Earl of Liverpool, 1 Swanst. 114. In this case an affidavit was made that a note of hand which was in suit was believed not to be genuine, and it was necessary, in order that the answer might fully meet the case, that inspection of the note should be granted.

* See Shepherd v. Morris, 1 Beav. 175; Milligan v. Mitchell, 6 Simons, 186; Penfold v. Nunn, 5 Simons, 405; Jones v. Lewis, 4 Simons, 324, overruling the same case, 2 Simons & S. 242.

See 3 Daniell's Ch. Practice, 2070.

evidence the court refused to require the libellant to produce the letter.1

In a recent case in England,2 a motion was made by the claimants in a salvage cause, for leave to inspect certain letters in the possession of the owner of the salving vessel. The objection taken was that the documents in question were privileged communications, and consisted of correspondence between the owner and his agent, relating to the proceedings in the cause. Dr. Lushington said: "I have examined the cases at common law on this subject, but the whole question appears to me to be in a state of darkness and confusion. It would not be right for the court to order documents to be produced, of the contents of which it knows nothing. I direct that the documents in question be produced for my inspection, and I shall then consider whether I ought to grant the present application."

'The Voyageur de la Mer, 1 Sprague, 372. The reasons given for the decision are, that if the paper was produced, the defendants would obtain an advantage, as they would learn the extent of the knowledge or ignorance of the other parties as to the proofs of the contract, and without first answering as to their best knowledge and belief, could frame their answers to meet the disclosures on one particular point.

* The Macgregor Laird, Law Rep. 1 Adm. 307.

CHAPTER VIII.

OF THE ANSWER.

ACCORDING to established rules of practice in admiralty, before the defendant can be heard in his defence, or make use of any of his proofs, he must enter his appearance and contest the suit, either by filing exceptions or answering the libel. And if exceptions are taken and sustained, and the libel is amended by striking out the objectionable matter, the defendant should then answer the libel so amended. But, although until this is done, the defendant has no standing in court, yet if the neglect to file an answer was caused by ignorance, the court would undoubtedly allow an answer to be filed after the time established by its rules, and if, owing to the absence of the defendant, an answer could not be filed, the proctor for the defendant would be allowed to make any suggestions, and present any proper evidence as an amicus curiæ.1

The answer should correspond with the libel. The caption should state the court, the judge, the parties, and the kind of case, with legal accuracy and in appropriate language. It should then proceed to exhibit the defence, answering the libel, article by article, in the same order as numbered in the libel, and should answer in like manner each interrogatory propounded at the close of the libel.2 What it admits, should be admitted unreservedly, if possible, and not by way of hypothesis; that is, not, if so and so, then so and so.3 But where this is made necessary by the nature

1 The David Pratt, Ware, 495.

27th Admiralty Rule. In The Sch. Boston, 1 Sumner, 328, 330, Story, J., said: "The answer should accordingly reply to each article by a clear and exact admission or denial, or defence to the matter of it."

Treadwell v. Joseph, 1 Sumner, 390. The charge was that the respondent did with force and violence, without rightful cause or justification, order the libellant to scrape down the masts of the ship for a long space of time, to wit, fourteen hours, the wind then blowing heavily. The answer was "that the scraping of the masts of a ship is a necessary duty," etc., " and that if the libellant was employed

of the case, as where certain facts are stated, of which the defendant cannot know whether they are true or false, but which he believes to be false, and has a perfect defence against them, if true, we can see no sufficient reason why he may not state his belief, and then his defence; and why, if he supposes that they may be true, he may not state this, and say, if true, then his defence is so and so. Such we should believe to be within the allowed practice of admiralty, for good cause shown, because there are here no rules like those of special pleading. Both the libel and the answer, and every other document in the case, must be as precise and definite as the party can make it, consistently with the actual facts of the case, or his actual knowledge, or his means of knowledge of these facts. But further than this we do not know that any rule or practice would carry the courts.

Every fact relied on in defence should be set forth with all due form of time, place, and circumstances.1 And where a new clause in the shipping articles is relied on to repel a claim for wages, it must be specially pleaded.2

The defendant may rest upon mere denial of the plaintiff's allegations, or upon new matter of his own; and upon matters which he asserts to be positively true, or upon those which he declares to be true, according to his best knowledge. And every answer should be verified by the oath or solemn affirmation of the defendant, except where the sum or value in dispute does not exceed in that manner, it was a part of the ship's duty, which the libellant was bound to perform." It was held that a conditional answer of this nature was improper; that a party setting up the excuse or justification of any act must admit the existence of it. It was held also that the answer did not meet the gravamen of the charge, because it was only the duty of the crew to scrape the masts at proper times and seasons, and in a reasonable manner.

1 Orne v. Townsend, Mason, 541. In Pettingill v. Dinsmore, Daveis, 208, it was held that if the master desired to show, in defence to an action for wages, that the seaman was habitually careless, disobedient, or negligent, as a justification or mitigation of damages, he should set it forth in his answer. In The Commander In Chief, 1 Wallace, 43, the answer alleged that the vessel of the libellant lay in an improper manner and in an improper place, without setting forth in what manner she lay, or in what respect the manner was improper, and there was no definite description of the place where she lay or any reasons assigned why it was an improper anchorage. The opinion was expressed that the answer was too indefinite to constitute a valid defence, but the point was not determined. * Heard v. Rogers, 1 Sprague, 556.

27th Admiralty Rule; Gammell v. Skinner, 2 Gallis. 45. In an early case in

fifty dollars exclusive of costs, unless the district court shall be of opinion that this is rendered necessary for the purposes of justice owing to peculiar circumstances in the case before the court.1 The defendant may also in his answer object to respond to any allegation or interrogatory contained in the libel, which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offence.2 And the defendant may in his answer require the personal answer of the libellant upon oath or solemn affirmation to any interrogatories which he may propound at the close of the answer, touching any matters charged in the libel, or touching any matter of defence set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution or punishment or forfeiture, as provided in the Thirty-First Rule. And if the libellant does not duly answer these interrogatories, the court may adjudge him to be in default, and dismiss the libel, or may compel his answer by attachment, or take the subjectmatter of the interrogatory pro confesso in favor of the defendant, as it may in its discretion deem most fit to promote public justice.

If either the libellant or the defendant is out of the country, or unable from sickness or other casualty to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may in its discretion in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable. The answer may be verified by the oath of the agent or proctor of the respondent, who must also make oath that this country it was held that where the libel required the answer to be under oath, it required two witnesses to contradict the statements of the answer. Teasdale v. Sloop Rambler, Bee, 9. But the more correct view is, that this doctrine has no standing in admiralty. Cushman v. Ryan, 1 Story, 91, 102; Sherwood v. Hall, 3 Sumner, 127; The Mary Paulina, 1 Sprague, 45, 48; Hutson v. Jordan, Ware, 385; Andrews v. Wall, 3 How. 568, 572. And now that the answer is required to be under oath by an express rule of court, the oath of course can have no effect as evidence. Eads v. The Steamboat H. D. Bacon, 1 Newb. Adm. 274. It is also said in this last case that the answer under oath is of no more effect although it is responsive to interrogatories propounded.

1 Additional Admiralty Rule, passed Dec. Term, 1850, 10 How. vi. 31st Admiralty Rule.

32d Admiralty Rule. 33d Admiralty Rule.