CHAPTER V.

OF MESNE PROCESS IN REM AND IN PERSONAM.

REGULARLY, each of the processes given by the second rule is a thing by itself; but it is quite frequent to combine two or more, and sometimes all are contained in one monition. Thus, it may give notice to all the world, and also summon the defendant by name, and contain a warrant or direction to attach the person or the property, directly, or by foreign attachment. But a monition so multifarious as this, would, and must be, very rare. All these things are of course governed in a great degree by the rules of court, and in some districts no attachment of person or property can issue without the fiat of the judge. In other districts it issues as a matter of course, either in all cases, or in those of a certain amount or character, or after certain verification of the claim and other facts by the oath of the libellant.

If the suit be both in rem and in personam, one process, combining the two appropriate processes, may issue, and the marshal executes this process as he would the two if separate; or each process may issue simultaneously, or as each is wanted.1

1 We have seen that, by the rules of the Supreme Court, suits in rem and in personam may be joined in many cases, and it would seem necessary, when this is done, to issue a monition to the defendants as well as to arrest the property, for, if the owner should appear and defend the suit in rem, this would not render him liable in personam beyond the value of the property arrested. In petitory and possessory suits, the 20th Admiralty Rule provides that the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit. In Blanchard v. Ship Cavalier, U. S. D. C. New York, Betts, J., it was held that, under this rule, when a vessel is arrested, notice must be given specifically to the adverse party, and that it is not enough to arrest the vessel and publish a general notice to all concerned.

CHAPTER VI.

OF CONTUMACY AND DEFAULT.

SECTION I.

OF CONTUMACY ON THE PART OF LIBELLANT.

IF in any admiralty suit the libellant shall not appear and prosecute his suit according to the course and orders of the court, he shall be deemed in default and contumacy, and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs.1

SECTION II.

OF CONTUMACY ON THE PART OF THE DEFENDANT.

If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default, and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain.2

The power of the court to set aside a default on the part of the defendant is regulated by two rules. The Twenty-Ninth Rule provides that in case of a default for not answering the libel, the court may in its discretion set aside the default, and, upon application of the defendant, admit him to make answer at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor.

139th Admiralty Rule. 29th Admiralty Rule.

By the Fortieth Admiralty Rule the court may in its discretion, upon the motion of the defendant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof, at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct.

The Twenty-Ninth Rule, it will be noticed, applies to the case of an application at any time before the final hearing and decree. The Fortieth Rule in terms allows an application within ten days after the decree has been entered," when "the matter of the libel shall have been decreed against" the defendant.

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It is clear that after such a decree has been made, which would give a right of appeal as from a final decree, the defendant cannot apply to have the default set aside under the Twenty-Ninth Rule;1 and we presume that the Twenty-Ninth Rule would be held to apply to all cases where application is made prior to the final decree, and the Fortieth Rule to cases where the application is made after the final decree is passed.

Under the Twenty-Ninth Rule it has been held that before the court will order a default to be taken off the respondent must show that he has not been guilty of any laches, and that he must also exhibit a meritorious defence either by answer or affidavit.2 These rules, we presume, apply as well to suits in rem as to those in personam.3

1 So held by Lowell, J., in the case of The Duiveland, U. S. D. C. Mass., 1866.

* Scott v. The Young America, 1 Newb. Adm. 107.

3

* This was assumed in The Duiveland, supra, and in Scott v. The Young America, supra.

CHAPTER VII.

OF THE CLAIM AND OTHER PROCEEDINGS PRIOR TO THE

ANSWER.

SECTION I.

OF THE CLAIMANT.

IN any suit in rem, the property is taken at once into custody, and is considered as in possession of the court from the beginning of the action. The owner of the property, either being personally notified, or taking notice from the general monition, may appear for his interest in the property attached, and put in his claim and answer. These should regularly be separate, but in practice in this country they are frequently and perhaps usually united in one document, which is then called "The claim and answer of A. B." etc. Of the answer to the libel, we will speak presently. The claim must be verified by the oath of the claimant; he may be the owner of the property, or his general agent, or one specially authorized, or the master of the vessel,2 or, in case of a foreign ship, the consul of the nation to which it belongs.3

1 The 26th Admiralty Rule provides that "In suits in rem the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant, by whom, or on whose behalf, the claim is made, is the true and bonâ fide owner thereof."

See The Hoop, 1 Rob. Adm. 129; and cases infra. The right of an agent to make a claim is recognized by the 26th Admiralty Rule, which provides that "Where the claim is put in by an agent or consignee, he shall also make oath, that he is duly authorized thereto by the owner, or if the property be at the time of the arrest in the possession of the master of a ship, that he is the lawful bailee thereof for the owner." We presume that this last clause means that if the master claims the vessel for the owner, he shall make oath, etc.

The London Packet, 1 Mason, 14, 21; The Bello Corrunes, 6 Wheat. 152; The Antelope, 10 Wheat. 66. And in the case of The Ship Adolph, 1 Curtis, C. C. 87, it was held that a foreign consul had authority to petition the court to

This he can do, however, only as commercial agent, for if the suit or claim grows out of a contested national right, only a diplomatic minister may act. Nor has the consul any power to do more than intervene and protect the interest of the absent. He may carry on the defence, and do everything that is necessary for this purpose, giving security for costs, authorizing proctors, and the like; and for all such acts as these, done in good faith, and not in themselves obviously unreasonable, the principal owner, or the property, would be bound. But the consul would not be permitted to receive the property, or the funds, from the custody of the court, without especial authority from the owner.1

The right of an agent to claim property is strictly limited to the case of the absence of the principal. Thus, one part-owner of goods, if both are within the jurisdiction of the court, cannot claim the property for himself and the other owner.2 Nor can the master of a vessel make the claim, if the owner is present.

Strictly speaking, no person can claim a vessel or other property, unless he has a proprietary interest in the thing claimed, or acts for such person. One who appears because he has a lien or other interest or claim upon the property is called an intervenor. And both classes are specially provided for by the rules of the Supreme Court. It is true that intervenors have been called claim

order the marshal to pay into the registry proceeds of a sale of property libelled for salvage, in which citizens or subjects of his country were interested, they being absent and having no other legal representative in this country.

1 See cases in note above.

The Sch. Lively, 1 Gallis. 315.

The Sch. Sally, 1 Gallis. 401. In the case of The Sch. Adeline, 9 Cranch, 244, the court said: "Where the principal is without the country, or resides at a great distance from the court, the admission of a claim and test affidavit by his agent, is the common course of the admiralty. But where the principal is within a reasonable distance, something more than a formal affidavit by his agent is expected. At least, the suppletory oath of the principal as to the facts should be tendered." The objection in this case was not taken till the case came before the Supreme Court, and the court held that it was too late. See also Spear v. Place, 11 How. 522.

• This distinction is also recognized by the 26th and the 34th Admiralty Rules, the former of which provides for the case of a claimant, and the latter, for a third person intervening.