cluded from considering, in determining the amount of damage, the advances of clothing and other necessaries furnished the minor during the time.1

It would seem that if the set-off is more than the amount sued for, the respondent cannot have a decree for the balance,2 nor can he afterwards bring a suit for the balance, and on this account a cross libel is often filed, in which case the court, if there is no inexcusable delay in bringing the cross suit, will delay the execution in the original case till the other is heard.4

It has been said that where a cross libel is filed, process should be taken out and served in the usual way, and that an agreement of counsel that the answer of the respondents in the original suit should operate as a cross libel, is irregular, and ought not to receive countenance."

1 The Platina, U. S. D. C. Mass., 1858, 21 Law Rep. 397.

Snow v. Carruth, 1 Sprague, 324; Kennedy v. Dodge, U. S. D. C. New York, 1867, Shipman, J.

3 Bearse v. Ropes, 1 Sprague, 331; Nichols v. Tremlett, 1 Sprague, 361; Kennedy v. Dodge, U. S. D. C. New York, 1867, Shipman, J.

79.

⚫ Nichols v. Tremlett, 1 Sprague, 361. See The North American, Lush. Adm.

5 Ward v. Chamberlain, 21 How. 572.

CHAPTER XI.

OF THE TRIAL AND ITS INCIDENTS.

SECTION I.

OF THE TRIAL GENERALLY.

THERE is seldom much delay in bringing any suit in admiralty to a trial, beyond that which the actual circumstances of the case, as the distance of witnesses, or other facts of like kind, may require. There must be, by law, four stated terms of the courts in the year, at places and times prescribed by law, and there may be others at such other times and places as the respective judges shall think proper. In our largest cities these courts are held very frequently, sometimes every week, and much of the business of the court is transacted by the judge, out of court, or at a special court held for the purpose, as the convenience of the parties, and the nature of the case, may require.

SECTION II.

OF EVIDENCE IN ADMIRALTY.

The trial very frequently proceeds upon the libel and answer. The answer, though under oath, does not require two witnesses to contradict it, as we have seen.2 And we should say, without any doubt, that although the answers of the respondent to the interrogatories contained in the libel are evidence in the case, yet they are not of more effect than any other evidence, and, if in his

1 Act of 1789, c. 20, § 3, 1 U. S. Stats. at Large, 74.

2 See ante, p. 423, n. 3.

'The David Pratt, Ware, 495. This was a suit in personam, and not in rem, as the title would indicate.

favor, should be received with caution, as coming from an interested party. It has been held that if the facts alleged in the libel are not denied in the answer, they are not, therefore, to be taken as confessed.1 But as the Twenty-Seventh Admiralty Rule provides that the answer shall be full and explicit, we should suppose that the contrary would now be considered as the more correct rule.2 A claim, though under oath, is not evidence.3

It may be doubtful whether a libel filed by a party to another suit can be given in evidence against him as his confession. But if he brought the suit as trustee and recovered, the cestuis que trust may put the whole record in evidence to show the recovery and the title on which it rested.4

The 34th section of the judiciary act 5 provides, "That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." This act does not, however, include cases in admiralty, and, until the passage of recent statutes, interested witnesses were excluded, except in cases of necessity. And in a suit in rem against the vessel, to recover the value of the goods, the master is considered as an interested witness, but a release from some of the part-owners renders him competent. So if the suit is in personam.8 An objection to the interest of the master should be made at the hearing, and if not made until the argument, it is too late.9

In 1862, an act was passed providing that "The laws of the

1 Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651, 655. It was contended that the rule was the other way, but Mr. Justice Washington said: "This is a doctrine as novel as it is untenable."

2 See The Peerless, in P. C., Lush. Adm. 103. This case also decides that conclusions drawn from certain regulations set up in the pleadings and not denied, were not thereby to be considered as admitted, they being deemed conclusions of law, and not of fact.

3 Sch. Thomas & Henry, 1 Brock. C. C. 367.

Church v. Shelton, 2 Curtis, C. C. 271.

Act of 1789, c. 20, § 34, 1 U. S. Stats. at Large, 92.

The Independence, 2 Curtis, C. C. 350; The Wm. Jarvis, 1 Sprague, 485.
The Peytona, 2 Curtis, C. C. 21.
Swett v. Black, 1 Sprague, 574.
Nelson v. Woodruff, 1 Black, 156.

State in which the court shall be held shall be the rules of decision, as to the competency of witnesses in the courts of the United States, in trials at common law, in equity and admiralty." In 1864, it was provided, "That in the courts of the United States there shall be no exclusion of any witness on account of color, nor in civil actions, because he is a party to, or interested in, the issue tried." And in 1865,3 this act was amended by a proviso, "That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court." 4

1 Act of 1862, c. 189, 12 U. S. Stats. at Large, 588.

Act of 1864, c. 210, § 3, 13 U. S. Stats. at Large, 351.
Act of 1865, c. 113, 13 U. S. Stats. at Large, 533.

The effect of the last clause of this statute was considered at length in the case of Robinson v. Mandell, U. S. C. C. Mass., Nov. 1868. An application was made to the court by the complainant in a suit in equity that she should be allowed to testify. Clifford, J., said: "Such an application is doubtless addressed to the discretion of the court, but it is a legal discretion, and our opinion is that the court, in granting or refusing the application, ought to be governed as far as practicable by certain fixed rules, to be applied in all similar cases. Intrinsic difficulty, it is apprehended, may arise in every attempt to define such general rules, and perhaps it would be unwise to make any such attempt, except when an application is before the court calling for the decision of the court under the power conferred by the act of Congress. New as the provision is, and called upon as the court is for the first time to determine its true meaning, the court is not disposed to go one step beyond what the necessities of the present case require. Viewed as a whole, the several acts of Congress in relation to the competency of witnesses indicate an intent on the part of Congress so to legislate that the evidences of title to real estate and the rules of decision in all controversies affecting rights of property shall be the same in the federal courts as in the State courts of the same State and district, and the decisions of the Supreme Court throughout the period since its organization tend strongly to the same end. Impressed also with the conviction that that course of legislation and of decision has been highly beneficial, we are of the opinion that the court ought not to grant such an application under the provision in question in any case where the effect of granting it would be to adopt a rule of decision in the federal courts of the district different from that which the legislature of the State has prescribed for the government of the State courts in all similar cases. Where an executor or administrator is a party, the other party, under the law of the State, cannot be admitted to testify in his own favor unless the contract in issue was originally made with a person who is

Declarations of the master concerning the contract of affreightment are admissible in a suit against the owners, though they are not strictly part of the res gesta.1 But declarations of the other officers and of the crew are not admissible, and this has been so held in a case where the alleged declarations were made by the mate in regard to a collision, he being in charge of the deck at the time.2

Where suits by rival salvors are heard together, Dr. Lushington has held that the proper course of proceeding is for the witnesses, called by one set of salvors, to be cross-examined first on behalf of the other salvors, and then on behalf of the defendants.3

In England, it has long been the custom for the judge in cases of collision at the hearing of the cause to be assisted by two or more masters of the Trinity House, who give their opinion which vessel is in fault. This opinion, though not binding on the court, is usually followed. In this country we have no such practice, generally; but it was at one time customary in the Massachusetts living and competent to testify, and this court decides that in such a case the court will not pass an order in a controversy respecting property requiring the. living party to testify in his own favor to any transaction with or statement by the testator or testatrix, intestate or ward, as the case may be. Obviously the case at bar falls within that rule, and the decision of the court is that the complainant is not a competent witness in this case to testify to any transaction with, or statement by, the said testatrix, and that all such parts of her deposition as fall within that rule are rejected as inadmissible."

This case involved a large amount of property, and the learned judge carefully limits the rule to cases of that nature. How far the same rule would be adopted in admiralty is uncertain.

1 The Enterprise, 2 Curtis, C. C. 317.

The Actæon, 1 Spinks, 176. See also cases ante, Vol. I. p. 537.

The Philadelphia, Brow. & L. Adm. 28.

In The Swanland, 2 Spinks, 107, Dr. Lushington, addressing the Trinity Masters, said: "When a common-law judge has summed up the case to the jury, his duty is discharged; the jury give their verdict. But unfortunately for me, I have not only to state the evidence to you, but whatever decision or opinion you may give to me, to that opinion I must be an assenting party, in order to found a judicial decision thereon."

It would seem that a practice similar to the English, obtains in Pennsylvania, for Judge Kane, in the case of The Red Bank Co. v. The John W. Gandy, 7 Am. Law Reg. 606, remarks: "The nautical gentlemen who did me the kindness to hear the evidence with me, are of opinion," etc. See also The Hypodame, 6 Wallace, 224. And in The Brig Rival, 1 Sprague, 128, experts were admitted by consent, and questions put to, and answers returned by, them.