CHAPTER IX.

OF AMENDMENTS.

AMENDMENTS in matters of form may be made at any time, on motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made upon motion at any time before the final decree, upon such terms as the court shall impose. "And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant." 1 Under this rule it has been held that if the amount

This is the only apply to amend

1 24th Admiralty Rule. This rule begins, "In all informations and libels in causes of admiralty and maritime jurisdiction, amendments, etc. rule relative to amendments, and we should suppose it would ments of answers as well as of libels. It may be well to state the former practice of the courts in respect to amendments. In the Supreme Court it has been held that the court will not allow an amendment which sets up a new subject of controversy. In the Superior Court of a county in Florida, sitting as an admiralty court, a claim had been made for salvage, and by a process in rem, seventy-two bales of cotton were attached, and condemned. The claimant appealed, but the libellant did not. In the next highest court, the court of appeals, the libellant had leave to amend by claiming fifty more bales. On appeal to the Supreme Court it was held that the claim for the fifty bales being a new subject of controversy, the court of appeals had no authority to allow the amendment. Houseman v. Schooner North Carolina, 15 Pet. 40. In The Schooner Harmony, 1 Gallis. 123, an amendment by inserting a new substantive offence was disallowed, on the sole ground that the statute of limitations had run against it. In The Marianna Flora, 11 Wheat. 1, an amendment as to a matter of substance was held to be correctly allowed in the circuit court on appeal from the district court. In The Sch. Boston, 1 Sumner, 328, 331, Story, J., said: "It is the well-known usage of admiralty courts, even after an appeal, in fit cases, in their discretion, to allow either party to file new allegations and proofs; non allegata allegare, et non probata probare." Facts, material to the defence having come to the knowledge of the claimants after an appeal, they were allowed to file a supplementary answer. See also The Edward, 1 Wheat. 261; Schooner Adeline, 9 Cranch, 244. In Coffin v. Jenkins, 3 Story, 108, decided the year before the new admiralty rules were adopted, the respondent moved in the circuit court for leave to file an amendment to his answer setting up a new point of defence, which had not been

demanded in the inferior court is not sufficient to justify an appeal, the libellant cannot amend by adding a claim for interest.1

The application of the above rule to the amendment of an answer in the circuit court on appeal from the district, has been considered at length by a distinguished jurist, and we state his conclusions in his own words in our note.2 It has been held that

taken in the district court, namely: that in the whale fisheries the master was not liable for lays, and that an action could be brought only against the owners or other agents in possession of the proceeds of the voyage. The amendment was not allowed, on the ground that the facts on which it rested were not new or newly discovered, and Story, J., said: "The rule, in appellatione a sententiâ definitiva licet non allegata allegare et non probata probare, has many limitations, and requires many." In Schooner Anne v. The United States, 7 Cranch, 570, it was held that a libel could be amended after reversal for the want of substantial averments.

1 Udall v. Steamship Ohio, 17 How. 17.

* Lamb v. Parkman, U. S. C. C. Mass., per Curtis, J., 21 Law Rep. 589. After stating that the 24th Admiralty Rule applied to the circuit as well as to the district court, and that it was left to the sound discretion of the court in every case, or regulated by rules of practice, as to what amendments should be allowed, under what circumstances, and supported by what proofs they should be applied for, and in what form incorporated into the record, the learned judge said: "In this court there are no such written rules; but there are courses of decision in similar or analogous cases, which afford proper guides to the exercise of the discretion of the court. Some of these will be adverted to.

"The first is, that leave is given to amend a sworn answer in respect to any matter of substance, with great caution; and where the amendment consists in a denial of a fact previously admitted, or in the allegation of new facts amounting to a new defence, not exhibited in the court of the first instance, I must require the grounds for the amendment, and the reasons why it has become necessary, and why its necessity was not earlier known, to be clearly and satisfactorily shown by affidavit.

"Second. Each of the proposed changes in the answer should be exhibited separately, with apt references to the original answer, so that it can be seen how the original answer will be affected by each; and so that each, when allowed, can be incorporated into the original answer, when taken into a new draft as an amended answer.

"Third. The respondent will not be allowed to require formal proof of written documents, the authenticity of which was admitted by the original answer, without an affidavit denying the signatures, and explaining satisfactorily his former admission; nor to require the production of original papers, copies whereof were admitted by the original answer to be correct, and were used on the trial in the district court, without showing that such originals are in the possession or under the control of the libellant, and can be produced without causing delay, and that the production of such originals is material.

the form of an action cannot be allowed to be changed by an amendment. Thus, if a possessory suit is brought according to the rule of the Supreme Court, by a suit in rem and a monition to the parties, the libellant cannot amend so as to proceed in personam against the respondent for damages for a non-performance of contract.1

But while it is undoubtedly true that an appellate court has not this power, it seems that the district court can make such an amendment, and that the appellate court can remand the case that such an amendment may be made. Thus it has been held that if a suit is improperly brought against a vessel in rem, and the owner in personam, the district court may allow an amendment striking out the name of the owner. And where a libel was brought on the instance side of the court, which should have been brought in prize, the cause was remanded with directions to allow a libel in prize to be filed. So if a libel is improperly brought in prize, the property will not be restored until an opportunity is given to file a libel on the instance side of the court, if the facts before the court show that such a libel could be maintained.5

If a party has lost his interest in a suit, his name may on motion be stricken from the record.

It has been held that an appellee, who was the libellant in the district court, may in the circuit court amend his libel so as to

"Fourth. When an amendment seeks to withdraw an admission of a matter of fact, upon the ground that it was made because the respondent mistook the law, the court will permit it with great caution, and only under extraordinary circumstances, if ever. (See Daniell's, Ch. Pr. 913.)

"Fifth. The court will not allow a defendant to recast his entire answer, after he has discovered from the opinion of the district court, how it may successfully be done, so as to shift the burden of proof, or obtain, by skilful pleading, other legal advantages. (Calloway v. Dobson, 1 Brock. C. C. 122.) Amendments in sworn answers in the appellate court should introduce new substantive facts, previously unknown, or correct substantial mistakes in matters of fact, and cannot be allowed on account of any mere defect of skill in drafting the original answer, in consequence of which the respondent's case was not presented on the record in the best possible manner, or so as to secure to him all possible legal advantages." 1 Kynoch v. The S. C. Ives, 1 Newb. Adm. 205.

* The John Jay, 3 Blatchf. C. C. 67.

Newell v. Norton, 3 Wallace, 257.

✦ Jecker v. Montgomery, 13 How. 498.

5 Alexander's Cotton, 2 Wallace, 404; United States v. Weed, 5 id. 62; The Watchful, 6 id. 91.

The Falcon, 4 Blatchf. C. C. 367.

claim damages above the costs for the vexatious delay caused by the appeal. We are unable, however, to see upon what principle of law this case proceeded.

Motions, petitions for adding or subtracting parties, for distribution, sale, or any incidental purposes, are received by the court in ́ admiralty with great freedom, nor is it held any objection to an amendment that the rights of sureties may be affected, for they take upon themselves all the liabilities of their principals.2

The Rules of the court seldom interfere with proceedings of this nature, and it may be said that they are always admitted where substantial justice requires them. Thus a salvor, not joining with the rest, nor knowing his rights or claims, has been permitted to file a petition after the case had been decided, and a decree of distribution rendered, and distribution made; and he was then ordered a share out of the balance of proceeds which, not having been paid over to the claimant, remained in the custody of the court. It should, however, be remarked that if a case in admiralty be taken by appeal to the Supreme Court, no new claim, nor libel, nor substantial amendment, can be admitted there, because the question it may raise cannot be examined and determined there as it might have been below. If it be a case of forfeiture, and the libel is so defective that a decree cannot be pronounced, the Supreme Court will send the case back to the court below, that it may be there amended. And generally, if an amendment be offered in the Supreme Court, the cause will be remanded to the circuit court, that the amendment may there be made.1

1 Weaver v. Thomson, 1 Wallace, C. C. 343.

See ante, p. 415, n. 3.

Ryan v. Ship Cato, Bee, 241. The petitioner in this case found the vessel a derelict, took her in tow for two days, and finally anchored her nearly in sight of Charleston lighthouse, and then went to Charleston for assistance. When he returned, he found that the vessel had gone adrift, and was afterwards picked up by other persons. The petition also set forth that the petitioner had no knowledge that any suit had been commenced, no monition having issued, until the decree was made. It appeared that the agents of the underwriters and owners appeared and suggested that no monition was necessary, and none was issued, and that the property was sold at Edisto Island with their consent, instead of having been brought to Charleston. Under these circumstances, the court decreed $200 from the owners' share of the proceeds, after the salvage had been decreed.

Brig Caroline v. The United States, 7 Cranch, 496; The Divina Pastora, 4 Wheat. 52; The Mary Ann, 8 Wheat. 380. See ante, p. 431.

CHAPTER X.

OF SET-OFFS AND CROSS LIBELS.

IF the respondent has a claim against the libellant, he can in many cases avail himself of it in his answer, as a set-off. The admiralty has no jurisdiction of an independent set-off,1 and those usually allowed are where advances have been made upon the credit of the particular debt or demand for which the plaintiff sues, or which operate by way of diminished compensation for maritime services, on account of imperfect performance, misconduct, or negligence, or as a restitution in value for damages sustained in consequence of gross violations of the contract.2 A loss arising from the gross neglect of a mariner may be set off in answer to a demand for wages.3 If an action is brought for freight, it is held that damage done to the goods may be set off.4 So freight is to be deducted, if the suit is for damage done to the goods.5

A set-off, founded on a contract, express or implied, is no defence to a libel in a cause of damage. But in a suit by a parent for the wrongful abduction of his minor son, where the damage is substantially the loss of service, the court is not absolutely pre

1 Willard v. Dorr, 3 Mason, 161, 171. In The Lady Campbell, 2 Hagg. Adm. 14, n., a suit was brought by a purser for his wages. The owners of the vessel claimed to set off a sum due for the passage of the purser's wife, but the court refused to allow it. In Dexter v. Munroe, 2 Sprague 39, a master and co-owner of a whaling vessel sued the other owners for his wages. It was agreed that in his capacity as owner he was indebted to the other owners, but it was not shown that this indebtedness was either by agreement or usage connected with the contract of hiring. Held, that the demand against him could not be set off against his claim for wages.

Willard v. Dorr, 3 Mason, 161, 171. See also The Mentor, 4 Mason, 84. The New Phoenix, 2 Hagg. Adm. 420.

Bearse v. Ropes, 1 Sprague, 331; Snow v. Carruth, 1 Sprague, 324; Thatcher v. McCulloh, Olcott, Adm. 365; Bradstreet v. Heron, Abbott, Adm. 209; Zerega v. Poppe, id. 397; Kennedy v. Dodge, U. S. D. C. New York, Shipman, J., 1867. See cases ante. Vol. I. p. 207, n. 1.