caused the production of irrelevant matter by reason of his unfair representations, was obliged to pay the costs.1 A proctor may generally be considered sufficiently dominus litis, to make an affidavit of any fact upon which to make a motion, especially if the fact be peculiarly within his knowledge. And if the case goes to trial before an answer is filed by the respondent, the neglect being caused by his absence in good faith, his proctor will generally be allowed to appear as amicus curice, and make any suggestions, and present any proper evidence to the court.3 Proctors, it is said, should always be present when a suit is settled or compromised. But it has been held that a proctor cannot release or compromise a claim without special authority. He is, however, authorized to receive payment, and the amount so paid is a discharge pro tanto.5 A proctor does not so far stand in the place of his principal that a monition may be served upon him in a different suit from that in which he is retained, although it relates to the same subjectmatter.6 After a suit is commenced, the respondent has not, as a general rule, the right to settle the case without the knowledge of the proctor of the libellant, and if he does so the settlement may be inquired into by the court. And where a prochein ami fraudu 1 The Frederick, 1 Hagg. Adm. 211. Adm. 401. See also The Sarah Jane, Blatchf. & H. The Brig Harriet, Olcott, Adm. 222. A motion was made that the libellant should file additional security for costs. It was opposed on the ground that the affidavit on which the motion was based was made by the proctor, and not by the claimant. The objection was overruled. The David Pratt, Ware, 495. The Frederick, 1 Hagg. Adm. 211, 220. Nichols v. Tremlett, 1 Sprague, 361. 7 The Brig Planet, 1 Sprague, 11. The libellant in this case was a boy who shipped at St. John's, N. B., on a certain voyage, but on the vessel's deviating and coming to Boston, demanded his wages and was refused. He then applied to the British consul, who declined to aid him, and then to a proctor of the court. After suit was commenced the master of the vessel sent for the boy, and paid him his wages, but allowed him no costs. The court held that he was clearly entitled to his costs, and the settlement was set aside. See also McDonald v. The Ship Cabot, 1 Newb. Adm. 348; Brooks v. Snell, 1 Sprague, 48; Angell v. Bennett, id. 85; Collins v. Nickerson, id. 126; The Sarah Jane, Blatchf. & H. Adm. 401 ; The Victory, id. 443. lently settled a suit without the knowledge of the proctor for the libellant, the court set it aside.1 Nor, after the decision of the court, has the owner of a vessel a right to pay the wages to the seamen, but the amount should be paid to the proctor, who has a lien on them for his costs.2 A distinction has been taken between a suit for wages and one for a tort, and it has been said that as an admiralty court affords no peculiar remedy in actions of tort, a seaman is not under any peculiar protection, nor does he enjoy any special privilege, so that the case stands as to costs as if brought at common law; and that an adjustment by mutual agreement between the parties, of an action of tort, no fraud being shown, bars the proctor from pro- . ceeding for his costs. But the correctness of this may perhaps be doubted. A proctor, intending to proceed for costs only, must give notice of his intention to the opposing party. It has been held that a garnishee order of a common-law court cannot be reviewed by a court of admiralty, and that the payment, under a garnishee order, of costs pronounced due to a successful party by decree of the court, is satisfaction of the decree, even against the proctor of the party who claims his lien. If, however, the money is in the registry of the court, the proctor's lien will be first satisfied." 1 The Etna, Ware, 462. The Araminta, Swabey, Adm. 81. Peterson v. Watson, Blatchf. & H. Adm. 487. * See Angell v. Bennett, 1 Sprague, 85. In Purcell v. Lincoln, 1 Sprague, 230, a suit was brought against the mate of a vessel for a tort. After service of the process, the parties made a settlement, and the libellant gave to the respondent a written discharge of both damage and costs. At the time of the settlement the respondent was confined to his house by sickness, and the libellant represented to him that he had fully paid his proctor. The respondent had not seen or consulted counsel, and there was no evidence that he had received any notice of the claim, or of the intention to institute a suit before the service of proOn all these facts the libel was dismissed without costs. Stress appears to have been laid on the fact that the proctor should have given notice before bringing the suit, as it appeared that the respondent being sick could not escape, and that the settlement was not collusive, and as in an action of tort the damages are indeterminate, it did not appear that the settlement was not a fair one. See also Brooks v. Snell, 1 Sprague, 48. cess. The Sarah Jane, Blatchf. & H. Adm. 401. The Olive, Swabey, Adm. 423. The Jeff Davis, Law Rep. 2 Adm. 1. CHAPTER II. OF A SUIT IN ADMIRALTY. SECTION I. OF THE TIME WHEN A SUIT MAY BE BROUGHT. 3 In respect to the time in which a suit may be brought, but little need be said. It has been decided that neither the Statute of Anne,1 limiting suits in the English admiralty, nor the statute of limitations of any of our States,2 is of any force in our admiralty courts. Although it is said that courts of admiralty govern themselves in the maintenance of suits by the analogies of the commonlaw limitations, and are not inclined to depart from them unless under very strong circumstances; at the same time, there is an universal maxim, "vigilantibus non dormientibus subveniunt leges," and admiralty will not enforce stale demands. And even the most favored lien, that of a seaman for his wages, may be lost by a delay to enforce it.5 Whether a claim is to be considered stale or not must depend upon the peculiar circumstances of each particular case, and it is difficult to lay down any general rule. It is, however, we think, evident that a party may have a suit in personam when he cannot sue in rem; because, in this latter case, the rights of a bona fide purchaser may intervene. But even where the suit is in personam, the defendants may be prejudiced by the delay; and in one case where a suit was brought by one coowner against the others for supplies furnished the vessel more I Willard v. Dorr, 3 Mason, 91, 161. Brown v. Jones, 2 Gallis. 477. The Brig Sarah Ann, 2 Sumner, 206, 212. See also The Platina, U. S. D. C. Mass., 1858, 21 Law Rep. 397, 399, per Sprague, J.; Hall v. Hudson, 2 Sprague, 65. The Anne, 5 Rob. Adm. 100. The Brig Sarah Ann, 2 Sumner, 206, 212. See cases in notes, infra. than six years before, and the owners had paid their proportion to the agent of the vessel, the suit was dismissed, although within the six years a bill in equity was brought for an account in a State court, which bill had been discontinued. If the vessel remains in the hands of the owners who were in possession at the time the debt accrued, an action may be brought after a considerable lapse of time. But if the vessel has been sold to a bona fide purchaser, the suit should be brought as soon as an opportunity is presented; and if it is not, a delay is fatal. A colorable sale is, of course, of 1 Hall v. Hudson, 2 Sprague, 65. Piehl v. Balchen, Olcott, Adm. 24. In the case of The Sloop Canton, 1 Sprague, 437, a delay of two years was held not to prevent the enforcement of the lien, where the ownership of the vessel remained unchanged, although, as it would seem from the report of the case, the seamen had the opportunity to libel the vessel at any time within the two years. In The Eastern Star, Ware, 185, the vessel was sold before the wages were earned, and made but one voyage afterwards before she was libelled. It was held that the lien was not lost. See cases ante, Vol. I. p. 164, n. 2; p. 531, n. 3; and The Brig Sarah Ann, 2 Sumner, 206. In Packard v. Sloop Louisa, 2 Woodb. & M., 48, 55, a delay of three years, the vessel having been sold, was held to be fatal. If the seamen are present whon the sale takes place, and make no objection to it, and do not inform the purchaser of their claims, their lien is gone. Trump v. Ship Thomas, Bee, 86; Josline v. Scow Bolivar, Olcott, Adm. 474. In the case of The Admiral, U. S. D. C. Mass., 18 Law Rep. 91, a steamer which plied regularly between St. John, N. B., and Boston, was libelled for a collision which had taken place twenty months before. There were agents of the damaged vessel in Boston during that time. The vessel in the mean time had been sold to an incorporated company, some of the members of which were the former owners of the vessel. It was held that this fact did not constitute notice to the corporation, and that it was no defence that this suit had been delayed to await the result of another suit pending between the libellants and the former owners of the Admiral. The libel was therefore dismissed. See also The Lillie Mills, 1 Sprague, 307; Leland v. The Medora, 2 Woodb. & M. 92, 99; The Utility, Blatchf. & H. Adm. 218; The General Jackson, 1 Sprague, 554; Stillman v. The Buckeye State, 1 Newb. Adm. 111. In The Ship Mary, 1 Paine, C. C. 180, the seamen were shipped on a voyage from New York to New Orleans, and back to New York. The voyage was broken up at New Orleans, and the seamen were discharged there. The vessel was sold in October, and remained at the same port till the following May, when her owner sent her on a voyage to Liverpool and thence to New York, where she was at once libelled by the seamen. It was held that, there being no laches on the part of the seamen, the lien was not lost. In another suit against the Scow Bolivar, mentioned above, it appeared that the libellant was not present at the sale, that the purchaser took the vessel at once out of the State, and that no effect.1 Where a libel against the cargo of a vessel was filed to recover the balance due under a charter-party, before the cargo had been discharged from the vessel, it was held that a previous agreement by the claimant that such a libel should be commenced, and his assisting the officer in arresting the goods, and afterwards obtaining them, by giving satisfaction without objection, was a waiver of any right which he might have to object to the time of instituting the suit as premature.2 When the respondent intends to rely on the objection of the staleness of the claim, or any other defence that does not go to the merits, it should be propounded by a formal plea or by a distinct allegation in the answer. And it has been held that the burden. of proof to make out such laches as would operate to forfeit the lien is on the claimant.4 the libellant left his demand with his proctor with directions to have the vessel arrested as soon as she returned to the State. This being done, the lien was held to continue. Shook v. Scow Bolivar, Olcott, Adm. 480. See also Sheppard v. Taylor, 5 Pet. 675; Reeder v. Steamship George's Creek, U. S. D. C. Maryland, 3 Am. Law Reg., 232; Cole v. The Atlantic, Crabbe, 440; The Sch. Marion, 1 Story, 68, 72; The Barque Chusan, 2 id. 455; Anderson v. The Sloop Solon, Crabbe, 17; Freeman v. Sch. Jane, id. 178. In The Eliza Jane, 1 Sprague, 152, the vessel was owned in St. John, New Brunswick, the supplies were furnished in Boston, some in January, and the residue in September of the same year. The vessel left Boston after the supplies were furnished in January, but was there in July. The vessel was sold to a bonâ fide purchaser in October. Held, that the claim for the supplies furnished in January was lost by the delay to enforce it, but that the claim for supplies furnished in September could be enforced. The Paul Boggs, 1 Sprague, 369. The Salem's Cargo, 1 Sprague, 389. In this case Sprague, J., also said: “If there had been no waiver, it would have been in the power of the court, by giving costs or otherwise, to give to the claimant a complete indemnity for all the loss and inconvenience he can sustain by the premature commencement of the suit. And it would not have been necessary to dismiss the libel, which, as the goods have now gone beyond the reach of process, would defeat the remedy against them. It is not the practice of courts of admiralty to favor formal or technical objections, to the sacrifice of substantial justice." The Platina, U. S. D. C., Mass., 1858, 21 Law Rep. 397. |