one action in rem; and to such an action a party claiming wages only may be a party. But such a joint action will not lie in personam. The Sloop Merchant, Abb. Adm., 12.

§ 1777. An action against the master for assault and battery cannot be joined in the same libel with an action for wages if it be excepted to. Pratt v. Thomas, 1 Ware, 437.

§ 1778. Parties may join in one libel causes of action arising ex contractu and those arising ex delicto, where the causes of action are so united that the same evidence will apply to all; e. g., a claim for wages, and a claim for damages for an assault and battery committed on the same voyage. Borden v. Hiom, Bl. & How., 293.

§ 1779. A libelant may unite in one libel an allegation founded on the hypothecation implied by law for money advanced for repairs, with an allegation on a bottomry bond given for the same consideration. The Brig Hunter, 1 Ware, 249.

§ 1780. Collision cases.-The true mode of declaring in collision cases in admiralty is for each party to allege what happened on his own vessel; and he may undoubtedly add whatever he believes to have been done by the other; but he ought not to be held to prove too strictly the latter part of his allegations. The Cambridge, 2 Low., 21.

§ 1781. The libel and answer should clearly and explicitly set forth the facts relied on by both parties. This is especially important in collision cases; and the court has power at any stage to require the parties to supply any defects in the pleadings, though counsel can appeal to the court for this purpose only by exceptions filed at the proper time. The Bark Havre, 1 Ben., 295.

§ 1782. A libel is not required to state with precise accuracy the location where a collision occurred, unless the description be material to the main question. The Suffolk County, 9 Wall., 651.

§ 1783. Cross-actions brought at the same time upon double pleadings. The Mazeppa fails to aver the course she was steering. The Washington sets forth distinctly in the pleading her course by compass, and as the court has a right to an unreserved and explicit statement on the pleadings of every material fact known to the parties, a neglect to supply this will always be taken against the vessel omitting it, but as no exception was taken to the defect the court proceeded to consider the proof. Post v. The Schooner Washington Sturges,* 9 N. Y. Leg. Obs., 321.

§ 1784. A libelant is not excused from setting out a full statement of the facts of the case, where his vessel was injured in a collision between two steamboats, one of which was towing her, she thus being a passive object. All the circumstances known to the libelant, or seen by the persons in charge of his vessel, should be fully set out for the information of the court. The Steamboat Transport,* 1 Ben., 86.

§ 1785. The twenty-second rule in admiralty, prescribing the mode of procedure in petitory and possessory suits, requires a joint proceeding in rem and in personam; and to allow a libel, in such a case, to be amended so as to proceed for damages in personam, would be inconsistent with the established rules of admiralty practice. Kynoch v. The Propeller S. C. Ives, Newb., 205.

§ 1786. A libel in personam, resting upon a common cause of action, may be filed for the litelants, and for all others interested, whenever the whole subject-matter can be disposed of in one suit. American Ins. Co. v. Johnson, Bl. & How., 9.

§ 1787. Where it appears on the face of the libel that the court has not jurisdiction, or that the libelant has not capacity to sue, the respondent may demur; but if the incapacity does not appear, though true in point of fact, the respondent must take advantage of it by pleading in bar. Knight v. The Brig Attila, Crabbe, 326.

§ 1788. A libel brought before the right of action is perfected must be dismissed, if duly excepted to on that ground, though such right becomes perfected during the progress of the suit. The Martha, Bl. & How., 151.

$ 1789. Seaman's libel for wages - Notice required to render his statements proof of contents of shipping articles.- If a seaman ships under articles at Boston, in December, 1842, and at New Orleans in March. 1843, and leaves the ship at Bordeaux in June, 1843, and in his libel filed against the vessel in the United States circuit court for wages on those voyages he "prays "the shipping articles may be produced by the master or owner," that is not such notice or requirement as will render his statement proof of their contents. The Brig Osceola, Olc., 450.

§ 1790. Libel for damage to cargo — Libelant cannot claim ground of complaint not set up in libel. In case of damage to a cargo, where the libel alleges the fault of the master to be, first, that he falsely represented his vessel to be tight, staunch and seaworthy; and second, that the danger resulted from the master's carelessness, negligence and improper conduct, the lipelant cannot claim another specific ground of complaint not set up in the libel, as that the danger was caused by the fault of the master in not putting into some other port to repair his vessel and take measures to preserve his cargo. Soule v. Rodocanachi, Newb., 504,

§ 1791. Libel for non-delivery of cargo - Jettison General average.- Where a libel alleged a shipment of cargo under a bill of lading and its non-delivery, and prayed process against the vessel, and the answer set up a jettison, rendered necessary by a peril of the sea, and this defensive allegation was sustained by the court, it was held that the libelant was entitled to a decree for the contributory share of general average due from the vessel. Dupont de Nemours v. Vance, 19 How., 162.

§ 1792. Libel for salvage - Parties.- In a libel for salvage all the parties should be inserted and brought before the court. The Schooner Boston, 1 Sumn., 328.

§ 1793. Lien-Allegation showing foreign character of vessel.- Where a libel is filed to enforce a lien under the general maritime law, such facts must be set forth in the libel which, if proven, would satisfy the court that the vessel was a foreign vessel at the time the lien attached. The Propeller Charles Mears, Newb., 197.

$1794.

Ibid.

before employment of vessel, necessary allegations.- Where a libel is filed to enforce a lien against a vessel before she is actually employed in navigation, the libel must show that the vessel is of the size and build fitted for maritime employment, and that her business was to be maritime navigation upon the lakes or high seas. $ 1795. domestic vessels.— Law giving lien to be set forth. Where a libel is filed to enforce a lien upon a domestic vessel, it must be distinctly set forth in the libel by what municipal regulation or state law such lien is conferred. Ibid.

§ 1796. In a libel for wages the allegations of the hiring, voyage, etc., should be drawn accurately and with reasonable certainty, otherwise it may be excepted to. The most correct course is to state the facts, etc., in distinct articles, which is the usual course in admiralty proceedings. Orne v. Townsend, 4 Mason, 541.

§ 1797. In debt for the double value under section 3 of the embargo act, January 9, 1808, chapter 8, it is not necessary to allege the particular articles which compose the cargo, nor that the owner was knowingly concerned in the illegal voyage. Cross v. United States, 1 Gall., 26.

§ 1798. Marine tort - Each separate wrong to be alleged. In a libel for a marine tort the libelant must set forth in a distinct allegation each separate wrong on which he intends to rely and for which he claims damages; and if he intends to rely on general ill-treatment and oppression on the part of the master in aggravation of damages, it must be propounded in a distinct allegation to enable the master to take issue upon it in his answer. Pettingill v. Dinsmore, Dav., 208.

$1799. Neglect to aver ownership, waiver of.— Where a libel was filed for non-delivery of certain goods without averring that the libelant was the owner, and the answer did not contain an averment that he was, nor did it except to the libel for so not averring, the point that the libelant was not the owner must be taken as having been waived. Steamship Ville de Paris, 3 Ben., 276.

§ 1800. A petition in admiralty to set aside a sale on the ground of fraud must set forth the facts which constitute the fraud. The Kaloolah, 1 Brown, 55.

§ 1801. To charge carrier with loss of goods-In personam - In rem.- A libel in personam for the loss of goods shipped in a certain vessel must charge the vessel as a common carrier; but a libel in rem for the same cause of action need not so charge; but, in the latter case, it must be shown in evidence that the vessel was employed as a common carrier. The Pacific, Deady, 17.

§ 1802. Tort action - Àverment of contract by way of inducement.- In a libel for the destruction of a boat the reciting of a contract of towage by way of inducement does not transform the action from one of tort to one upon the contract of towage. The Quickstep, 9 Wall., 665.

§ 1803. Salvage - Contract averred.— A clause in a libel alleging it to be "a cause of contract, maritime and civil, and of extra services rendered," will not prevent a claim for salvage if the general scope of the several allegations shows that the services rendered were such as to constitute a legal foundation for such a claim. Adams v. Bark Island City and Cargo, 1 Cliff., 210.

§ 1804. After answer and replication libelant cannot except to claimant's right to contest. After an answer has been received and a replication filed to it, and the cause been brought to a hearing on the merits, a libelant cannot be allowed to interpose an exception that the claimant had no legal right to contest the case. A proper allegation should have been filed, putting that fact in issue preliminarily, or else the irregularity will be regarded as waived. Thomas v. The Steamboat Kosciusko,* 11 N. Y. Leg. Obs., 38.

§ 1805. Libel in prize – Necessary allegations.- A libel in prize must allege generally the fact of capture as prize of war and need not state why it has become prize. The Andromeda, 2 Wall., 481.

§ 1806. Libel for wages - Statement of account unnecessary. It is not necessary to annex to a libel for wages an account stating the rate of wages and the precise balance due. It is sufficient if the contract is stated and the service alleged in proper form. Pratt v. Thomas, 1 Ware, 427.

§ 1807. Libel for loan to be paid out of earnings — Allegations.- Plaintiff made a written agreement with the owner of the brig Cadmus to sail her as master, and also loaned him $200, a stipulation being included that this sum should be paid out of the first earnings of the vessel, and that the vessel stood accountable to plaintiff for this sum until paid. A libel against the vessel, to enforce payment of this sum, stated the facts and alleged generally that the whole of said sum was still due and unpaid, but did not allege that there were no earnings out of which the sum might have been paid. For want of this allegation the district court dismissed the libel. Held by the circuit court on appeal that the general allega. tion was sufficient, reversing the decree of the district court. Brown v. The Cadmus,* 2 Paine, 564.

§ 1808. Strictness of admiralty rules of pleading. The same strictness is not required in admiralty pleading as in common-law pleadings. Ibid.

§ 1809. Informations.- A libel in admiralty in the nature of an information need not be expressed with the technical nicety of an indictment at common law. The Samuel, 1 Wheat., 9.

§ 1810. An information on a seizure under the internal revenue laws is subject to the same general rules, as to its structure and amendment, as an ordinary libel. It may contain different causes of forfeiture, and the government cannot be compelled to elect on which to rely. If it be ambiguous or wanting in plain allegations of fact the court will, on motion, order it to be reformed. 18,000 Gallons Distilled Spirits,* 5 Beu., 4.

§ 1811. A libel is sufficient if it follows the language of the statute which inflicts the forfeiture. Exceptions or provisos in the statute are matters of defense. Two Hundred Chests of Tea, 9 Wheat., 430.

§ 1812. When a libel is filed, claiming a forfeiture of the vessel libeled, and the facts of the case do not authorize the forfeiture alleged in the libel, but show an offense against other provisions of the same law under which the forfeiture is asserted to have arisen, the court will dismiss the libel. United States v. The Hunter, Pet. C. C., 10.

§ 1813. An information for a forfeiture of a vessel need not be more technical in its language than an indictment, and in general will be sufficient if it sets forth the offense in the words of the statute creating it, with sufficient certainty as to the time and place of its commission. The Neurea,* 19 How., 92.

§ 1814. A libel, under the passenger act of 1847, averring that the master took on board, to carry to the United States, a certain number of passengers; that this number was greater than in proportion to the space occupied by them, viz., on the lower deck or platform one passenger for every fourteen clear superficial feet; that he brought them to the United States, and that the passengers exceeded the number which could be lawfully brought to the number of twenty in the whole, etc., is a sufficient libel, though it does not state that the excess of passengers was carried in the lower deck or the orlop deck. Ibid.

§ 1815. In a count in a libel upon the fiftieth section of the collection law of March 2, 1799, for unloading goods without a permit, it is not necessary to state the time and place of the importation nor the vessel in which it was made, but it is sufficient to allege that they were unknown to the attorney. Locke v. United States, 7 Cr., 339.

§ 1816. In a libel against a ship for failure to enter goods on the manifest as provided in the statutes of the United States of March 2, 1799, and July 18, 1866, it is not necessary to aver a seizure of the ship within the district, the word "seized," as used in such statutes, referring not to a revenue seizure, but to the seizure under process of court, which forms part of every proceeding in rem in admiralty. The Stearner Missouri, 3 Ben., 508.

§ 1817. In a libel of information to recover a penalty of a steam tug for not having been inspected under the act of February 23, 1871, a seizure of the vessel must be alleged in order to give the court jurisdiction. The Tug Oconto, 5 Biss., 460.

§ 1818. A libel for seizure of a vessel under the thirty-second section of the act of February 18, 1793, need not state the particular trade in which the vessel was engaged at the time of the seizure. It is sufficient, in a libel of this kind, if the case is brought within the words of the act; and technical rules of pleading are not so much regarded in libels of this description as in indictments and informations at common law. United States v. Schooner Paryntha Davis, 1 Cliff., 532.

§ 1819. If an information to secure the forfeiture of a vessel sets forth a proper cause of forfeiture within the main part of a statute, the fact that it does not allege that the case is not within the proviso will not prevent the operation of the statute. This is a matter of

defense to be set up by the claimant, if he relies upon it as exempting him from the operation of the main cause of forfeiture in the statute. The Mary Merritt,* 2 Biss., 381.

§ 1820. A libel under act of March 3, 1799, which prohibits the unloading of a vessel under certain conditions within four leagues of the coast, should conform to the words of the statute, and not charge the offense as committed within four leagues of a collection district, as the expressions would not always be synonymous. However, a decree of the district court will not be reversed in the circuit court for this inaccuracy, but an amendment will be allowed. The Betsy,* 1 Mason, 354.

§ 1821. When an act of congress requires that every captain of a vessel in a certain trade shall deliver to the collector of the port from which he sailed a manifest, a libel charging that the captain sailed from two ports, and did not deliver manifests to the collectors of those ports, is fatally defective, as it requires more than the law requires. The Mary Ann,* 8 Wheat., 380.

§ 1822. A charge that the manifest required by law was not delivered before the vessel sailed is good on demurrer, and the question does not arise by this means whether the charge would be disproved by producing a libel not strictly conformable to law. Ibid.

§ 1823. The ninth section of the act of congress of March 2, 1807, as to vessels carrying negroes, comprehends only vessels of forty tons' burden or more, and a libel for forfeiture of a vessel under this section must allege that the vessel was of forty tons or more. Ibid.

§ 1824. By the fifteenth section of the act of 1799 a ship is not forfeited for unlading goods without a permit unless they are of the value of $400, and counts of a libel alleging goods unladen to be of a less value must be adjudged insufficient. The Washington,* 7 Law Rep., 497. $ 1825. A libel for forfeiture for violation of United States laws should set out a seizure before the filing of such libel. United States v. Steamboat Cora,* 1 Dak. T'y, 1.

§ 1826. Before there can be a libel in rem for forfeiture there must be a seizure; and a plea of no seizure is like a plea of not guilty to an indictment, and puts in issue all the material allegations of the libel. If, therefore, upon trial, a seizure previous to filing the libel does not appear, the libel is not sustained. The Schooner Silver Spring, 1 Spr., 551.

§ 1827. A libel under the navigation laws does not lie unless there has previously been a seizure of the property, and therefore an allegation of such seizure in the libel is necessary to give the court jurisdiction. Fideliter v. United States, 1 Saw., 153.

§ 1828. Under section 50 of the collection act of March 2, 1799, a suit to enforce forfeiture need not allege that the goods unladen were of foreign growth or manufacture if it is alleged that they were brought from a foreign port; it is sufficient to allege that they were unladen in the collection district of Oregon without alleging that they were unladen in the United States, since the court will take judicial notice that such district is in the United States; and it is not necessary to allege that the goods were unladen at a port; for it is sufficient if they were unladen at any place or district within the United States. The Active, Deady, 165. § 1829. A libel against a vessel for violating the embargo laws must contain a substantial statement of the offense, and it must be made with reasonable precision. But, inasmuch as the embargo act of December, 1807, prohibits all vessels, whether foreign or domestic, registered or coasting vessels, from sailing to any foreign port or place, and the supplemental act of January, 1808, annexes the penalty of forfeiture to any vessel which violates either act, it is not necessary that the libel should set forth the particular character of the vessel. United States v. The Schooner Little Charles, 1 Marsh., 347.

§ 1830. An act of congress declares that "no person shall build, fit, equip, load, or otherwise prepare, any ship or vessel, etc., within any port of the United States, nor shall cause any ship or vessel to sail from any port of the United States, for the purpose of carrying on any trade or traffic in slaves, to any foreign country;" and it declares that "if any ship or vessel shall be so fitted out as aforesaid, or shall be caused to sail as aforesaid, such ship or vessel shall be forfeited to the United States." Held, that an information against a vessel which charges "that she was built, fitted, equipped, loaded or otherwise prepared, etc., or caused to sail," is bad for uncertainty as to which of the several offenses is charged. The Case of the Brig Caroline, 1 Marsh., 384.

§ 1831. Cross-libels. If a claimant of a vessel libeled for collision wishes to recover damages for his injury he should file a cross-libel. The Dove,* 1 Otto, 381.

§ 1832. A libel and cross-libel are usually tried together though separate decrees are entered. If one of these be appealed from and the other not, the question in the latter is finally settled, but the rights of the parties in the former are not at all affected; nor is either of them estopped from setting up anything warranted by the pleadings, by the decree not appealed from. Ibid.

§ 1833. New and distinct matters not included in the original libel cannot be included in the cross-libel, which may include only matters auxiliary to the cause of action set forth in the original suit. Ibid.

§ 1834. A cross-libel may not be necessary in every case where the libeled vessel was injured and claims damages, but it may be questioned whether such injury should not appear in the answer. At any rate the claim cannot be made for the first time on appeal. The Sap

phire, 18 Wall., 51.

§ 1835. Respondents in admiralty who wish to file a cross-libel should do so in regular form, and not file an answer under an agreement that this should operate as a cross-libel. Ward v. Chamberlain, 21 How., 572.

§ 1836. To a libel against a common carrier for failure to deliver goods, a claim for freight cannot be set up as a defense; such a claim can only be used against the libelant by setting it up in a cross-libel. Maxwell v. The Powell, 1 Woods, 99.

$1837. If a respondent sets up a deviation from the contract by the libelant as a mere defense to a libel on a charter-party, and not by way of set-off or recoupment, he may afterwards file a cross-libel claiming damages for misconduct of the libelant in making such deviation. Nichols v. Tremlett, 1 Spr., 361.

§ 1838. No general doctrine of set-off is recognized in admiralty. The respondent may set off damages by way of recoupment, but if the damage be greater than the whole freight, there can be no decree against the libelant for the excess. To recover damage more than the amount of the freight the respondent must bring a cross-libel; but he cannot do this if he has set up the damage by way of recoupment. He must elect between recoupment and cross-libel. Snow v. Carruth, 1 Spr., 324.

3. Plea.

§ 1839. A plea to the jurisdiction must be interposed by the defendant in person and on oath, and not by any agent or attorney. Teasdale v. The Rambler,* Bee, 9.

§ 1840. Suit prematurely brought – Plea in abatement proper.— A claimant or respondent in admiralty, to obtain judgment on the ground that the action was prematurely brought, must raise the point by plea in abatement. Otherwise the action will not be dismissed for this reason, if the right is perfected before final hearing. The Isaac Newton, Abb. Adm., 11. § 1841. Pendency of another suit.- An objection grounded on the pendency of another suit for the same cause of action is preliminary in its character, and should be taken in admiralty by a special plea in the nature of a plea in abatement, known as a dilatory or declinatory exception. Certain Logs of Mahogany, 2 Sumn., 589.

§ 1842. A plea to a libel that it shows no cause of action, or, if it does, that the remedy is in a court of common law, amounts to a demurrer, and will be overruled. The Sea Gull, Chase's Dec., 145.

§ 1843. Salvage - Replevin suit pending - Plea in abatement.- It cannot be pleaded in abatement to a libel in rem for salvage that a replevin suit is pending in a court of law brought by the owner of the salved property against the salvor to recover possession, in which replevin suit the validity of the salvor's lien may be determined. A Raft of Spars, Abb. Adm., 291.

§ 1844. The non-joinder of proper respondents in an action in personam can be taken advantage of only by plea in abatement. Reed v. Hussey, Bl. & How., 525.

§ 1845. Plea to jurisdiction.—Where no want of jurisdiction appears on the libel, but a plea to the jurisdiction is put in, and the case heard on that question alone, the plea will be overruled. Knight v. The Brig Attila, Crabbe, 326.

4. Answer.

SUMMARY — Plea, clearness but not excessive formality required, § 1846.- Plea of former adjjudication, § 1847.

§ 1846. Pleas or exceptions in admiralty must set out the matter of defense clearly, but excessive formality is not required. The Navarro, §§ 1848-49.

§ 1847. A plea setting up a former adjudication is good, though the former suit was in personam and the pending suit in rem. Ibid.

[NOTES.- See §§ 1850-1906.]

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