a verification of the cause of action, and not the ancient oath of calumny of the admiralty.1

The libellant may require the respondent to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel, at the close or conclusion thereof.2

The practice is general in this country, and perhaps universal, to file the libel in the clerk's office, at any time, either of term or vacation, and taking out the proper process thereafter, at once; and until the libel is filed in the clerk's office no process can issue.3

But, before speaking of process, it should be remarked that admiralty deems it proper that a request for payment or settle

1 Pratt v. Thomas, Ware, 427. In this case an affidavit stating that the facts set forth in the libel were to the best of the belief of the party taking the oath, was held to be sufficient.

2 23d Admiralty Rule. In Gammell v. Skinner, 2 Gallis. 45, Story, J., said: "In suits for mariners' wages, the libellant may compel the adverse party to answer special interrogatories, which are filed under the direction of the court, and are like the interrogating part of a bill in chancery." Whether the interrogatories were filed with the libel, or afterwards, does not appear. Mr. Dunlap, in his work on Admiralty Practice, 125 (1836), says: "Interrogatories are sometimes annexed to the libel, and sometimes propounded at some subsequent stage of the cause." And Mr. Benedict, Adm. Pr. 477, says: "Either party may, at any time before hearing, propose interrogatories to the other, and he is not compelled to annex them to his pleading, or to put them in at the same time that he files his pleading, although that is the usual course." The 99th Rule of the court for the southern district of New York provides that either party may propound interrogatories to the other, within four days from the putting in of the claim or answer or other pleading, and the perfections of the same, if excepted to. So, too, the rule in force in the first circuit at the time Mr. Dunlap wrote, gave the libellant the right to require the personal answer of the defendant on oath to interrogatories filed in court. On reference to the new 23d Rule now in force, it will be found that it states what the libel shall contain, and at the close give the libellant the power stated in the text. We should have considerable doubt whether this rule, and the omission of the mention of the subject in any other, should be construed as confining the libellant to the exercise of his right to interrogate the defendant by questions at the close of the libel. In suits in rem there is no defendant at all, strictly speaking, and interrogatories filed with the libel to all persons who may claim the property would be of little avail, until it is known who those persons shall be. We should have no doubt but that the court would allow a libellant, after the answer of the claimant was filed, to amend his libel by adding interrogatories to the claimant, or the party answering.

31st Admiralty Rule.

ment should be made before an action is brought; and though the court would not probably defeat an action on this ground, unless in extraordinary cases, it would deem it a good reason for throwing the whole expense on the libellant, if there were any reason for supposing that the request might have prevented the litigation.1

Where the libel is filed by the government for a breach of the revenue laws, or other offence which is followed by forfeiture, and triable in admiralty, it is called sometimes a libel of information, but more properly, perhaps, an information, which it is in fact. It differs from the libel in civil cases, in that it begins with stating that the attorney of the United States "gives this honorable court (or the judge aforesaid) to understand and be informed that, &c.,' and then sets forth the place of seizure, whether it be on land, or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and mentions the district within which the property is brought, and where it then is. It should 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 provided, as the case may require. It should 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.2 And as this is in the nature of a criminal proceeding, and therefore all the steps must be critically accurate, the district attorney sometimes states the fact in many ways, under so many counts of the information, when he is not certain as to the exact facts which will appear in proof. It is not necessary to state any fact which is only matter of defence, but the facts relied on as grounds of forfeiture should be distinctly and severally articulated, with a general averment that the same are contrary to the

1 See Purcell v. Lincoln, 1 Sprague, 230.

222d Admiralty Rule.

The Aurora, 7 Cranch, 382. If the exception is in the positive enactments of the statute, it should be negatived, but exceptions which come in by way of proviso, or in subsequent statutes, are properly matters of defence for the defendant. United States v. Hayward, 2 Gallis. 485, 497.

form of the statute or statutes of the United States. In other respects the libel of information, the claim and stipulations, and delivery of property, are like those in libels in civil suits, excepting that the district attorney is never required to stipulate for costs, and such other diversities of practice as arise from any special provisions as to forfeitures or from the rules of the courts. On the questions which may arise, the rules of the common law have no force, excepting so far as they are rules also of justice and reason.2 But it may be prudent, as it is on the whole the safest practice, to follow these rules to some extent, in framing the averments and allegations of the libel; and a libel of information should carefully follow the statute on which it is founded. It is generally sufficient if the offence is described in the words of the law, and so described that if the allegation is true, the case must be within the statute. But if the words of the statute are general, embracing a whole class of individual subjects, but must necessarily be so construed as to embrace only a subdivision of that class, the allegation must conform to the legislative sense and meaning. The offence must also be substantially stated, and it is not enough to refer to the provisions of a particular statute. And a charge may be stated in the alternative, if each alternative constitutes an offence for which the thing is forfeited.7

The process in admiralty, which follows the libel, is intended, as at common law, to call the defendants into court to answer the plaintiff, or to arrest and hold them personally, or to attach their property and make it responsible for the debt. There is, however, one very important difference between admiralty and common

1 In The Merino, 9 Wheat. 391, it was held not to be necessary to conclude contra formam statuti; but this is now rendered necessary by the 22d Admiralty Rule. Much technical nicety is said to exist in common-law informations relative to a conclusion in the singular or plural, and the rules may be found in Dunlap's Admiralty Practice, p. 118, 119.

The same technical strictness is not required in admiralty as in proceedings at common law. Cross v. United States, 1 Gallis. 26, 31; Sch. Hoppet v. United States, 7 Cranch, 389; The Samuel, 1 Wheat. 9.

• The Samuel, 1 Wheat. 9; The Emily, 9 Wheat. 381; The Merino, 9 Wheat.

391.

The Mary Ann, 8 Wheat. 380.

The Sch. Hoppet v. United States, 7 Cranch, 389. 'The Emily, 9 Wheat. 381.

law; it is that admiralty has a proceeding in rem, in civil, though not in criminal cases, which is unknown at common law. This undoubtedly arose from the frequent necessity of action in courts of maritime jurisdiction in reference to property, as ships or cargoes, when the owners were either unknown or were out of the reach of the court. Whatever be its origin, we have no doubt that it extends to all property or the proceeds of property upon which a maritime claim may be made by the law of admiralty or by a local law, but that the right to proceed in personam exists con currently with the other, and either may be used at the election of the libellant.

CHAPTER III.

OF MESNE PROCESS IN SUITS IN PERSONAM.

SECTION I.

OF THE PROCESS OF ARREST OF THE PERSON OF THE DEFENDANT.

THE Second Admiralty Rule, which went into force in 1845, provided that in suits in personam, the mesne process might be by a simple warrant of arrest of the person of the defendant, in the nature of a capias.

It was provided by statute in 1839,1 that no person should be imprisoned for debt in any State, on process issuing out of a court of the United States, where, by the laws of such State, imprisonment for debt had been abolished; and where, by the laws of a State, imprisonment for debt should be allowed, under certain conditions and restrictions, the same conditions and restrictions should be applicable to the process issuing out of the courts of the United States; and the same proceedings should be had therein, as were adopted in the courts of such State. And it was afterwards declared, in 1841,2 that this act should be so construed as to abolish imprisonment for debt, on process issuing out of any court of the United States, in all cases whatever, where, by the laws of the State in which the said court shall be held, imprisonment for debt has been, or shall hereafter be abolished.

In 1850, the Supreme Court passed a rule3 providing that "imprisonment for debt on process issuing out of the admiralty court is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been or shall be here

1 Act of 1839, c. 35, 5 U. S. Stats. at Large, 321. The act has been held not to apply to a debtor of the United States. United States v. Hewes, Crabbe, 307.

Act of 1841, c. 2, 5 U. S. Stats. at Large, 410.

10 How. v.