elsewhere, by a court having jurisdiction; or settled by compromise carried into effect, or that the court or the parties are

in any manner, either by the respondent, or is perceived by the court itself, the suit will be dismissed. Thus in Cutler v. Rae, 7 How. 729, the case came before the Supreme Court on an appeal on its merits, and the respondent made no objection to the jurisdiction, but the court ordered the question of jurisdiction to be argued, and afterwards dismissed the libel. See also Gruner v. The United States, 11 How. 163; Montgomery v. Anderson, 21 How. 386; Ballance v. Forsyth, 21 How. 389. In Wilson v. Graham, 4 Wash. C. C. 53, there was a plea to the jurisdiction and a demurrer to the plea. In Vandewater v. Mills, 19 How. 82, the objection to the jurisdiction was taken by an exception to the libel. In Jackson v. Steamboat Magnolia, 20 How. 296, the question of jurisdiction was raised on an agreed statement of facts. The objection is also very often taken in the answer. Dean v. Angus, Bee, 369; Bogart v. The John Jay, 17 How. 399; The Genesee Chief v. Fitzhugh, 12 How. 443; Waring v. Clarke, 5 How. 441. And it is sometimes presented by a motion to dismiss the libel. The Bee, Ware, 332; Nelson v. Leland, 22 How. 48. The question may also come before the Supreme Court by means of a writ of prohibition to the district court. See ante,

p. 193.

In England, the usual way of bringing up the question has been by a protest to the jurisdiction, but it has been doubted whether this is the proper way of bringing the question before the court. The Alexander, 1 W. Rob. 288, 293.

1 In Taber v. Jenny, 1 Sprague, 315, the answer set up an award of referees as a bar to the libel, but as it appeared that one of the referees had prejudged the cause, and the umpire had not heard the parties, but had made up his mind from statements made by the referees, the award was set aside. And when a plea of res adjudicata is made, the record of the former judgment should show that the very question, the precise title of which is the subject of litigation in the new action, was involved and decided in the former action, and not merely that it might have been. The Vincennes, U. S. D. C., Mass., Ware, J., 21 Law Rep. 616. In The Clarence, 1 Spinks, 206, a verdict obtained at common law by the owners of the Clarence against the libellants, was pleaded but overruled. The case was then taken to the Privy Council, and at the hearing, Lord Justice Knight Bruce expressed his surprise that the matter could be again litigated, and intimated that if the judgment in the common-law court had been pleaded, it would have been a bar to the action. 1 Spinks, 209, note.

And in Goodrich v. The City, 5 Wallace, 566, it was held that where a matter is directly in issue and adjudged in a court of common law, that judgment may be set up as an estoppel in a court of admiralty. In this case, a judgment obtained by the defendant at common law was pleaded in bar of a suit in admiralty against the same defendant by the same plaintiff for the same cause of action. In The John & Mary, Swabey, Adm. 471, Dr. Lushington held that where a plaintiff sued in a cause of collision at common law and recovered a verdict, he was entitled afterwards, if the defendant proved insolvent, to sue the ship in admiralty, even though she had been transferred to a third party. So held also

wrongly named, or the action wrongly brought. All of these, and more, would be included in pleas of abatement; and being stated in the answer, the court will, if they are not denied, decree for defendant, or order an amendment of the libel, or take some other proper course. And if the answer admits all the facts stated in the libel, and then denies their sufficiency in law to make out the libellant's case, this, which is in substance a demurrer, would be judged of like any other answer, upon its substantial merits. It should be added, however, that while a want of jurisdiction arising from the subject-matter of the action, is fatal if brought to the notice of the court at any stage,1 yet, if it be merely a personal exemption, the court are strongly disposed to regard an appearance, and answer as a waiver of this objection.2

A suit may be brought in a State court and discontinued, and a suit then brought on the same cause of action in admiralty.3 The pendency of another action for the same cause, in a foreign court, is not a good plea in abatement, even at common law, and a State court is foreign in respect to a United States court for this purpose. The plea should also show that the other court has in The Bengal, Swabey, Adm. 468, in a suit for wages. In Lang v. Holbrook, Crabbe, 179, it was held that where a foreign court, not of admiralty, had decided a case on different principles from those recognized in this country, and leading to a different result from what would be here arrived at, though professedly deciding according to our law, a court of admiralty in this country was not bound by it, although the suit was by the same plaintiff against the same defendant and for the same cause of action. In Sarchet v. The Sloop Davis, Crabbe, 185, it was held that a judgment or dismissal of a libel in order to be a bar of a second suit, must have been ordered upon a hearing of the parties, or on the merits of the cause, and that a dismissal for want of appearance was not a conclusive judg

ment.

1 See Cutler v. Rae, 7 How. 729, cited in the preceding note. The objection must, however, be taken before the case is remanded by the Supreme Court. Washington Bridge Co. v. Stewart, 3 How. 413; Whyte v. Gibbes, 20 How.

541.

2 Thus a defective summons is cured by the appearance of the party. Prankard v. Deacle, 1 Hagg. Eccl. 169, 185. The admiralty court of one country is not bound, as we have seen, to exercise jurisdiction in suits between foreigners, but as it may do so, an objection to the jurisdiction should be made before entering an appearance, and answering to the merits of the case. The Bee, Ware, 332; The Bilbao, Lush. Adm. 149; See also ante, p. 406.

* Bingham v. Wilkins, Crabbe, 50.

White v. Whitman, 1 Curtis, C. C. 494. See also Wadleigh v. Veazie, 3

jurisdiction of the suit, and it should be verified by affidavit, if any matter of fact is contained in it.1

If the defendant makes an error, and even a material one, in his answer, he may correct it by a supplemental answer, or by an amendment; and the adverse party will not be permitted to profit by it, if the error has been made innocently, and not as a trap.

When the libellant relies on new matter in avoidance of the defence set up in the answer, he should not put it in issue by a replication as formerly, but by an amended libel.2

It is said that there must be no double pleading in admiralty, and from what we have said, it is obvious that there need be none. But if there are distinct counts in the libel, properly stated, each of them should receive each its adequate and appropriate

answer.

Sumner, 165; Lyman v. Brown, 2 Curtis, C. C. 559. In The Lanarkshire, 2 Spinks, 189, a suit in rem against the vessel was brought in England for seamen's wages. A plea that the men had commenced a suit against the master in Canada for the same cause of action was held a good plea.

White v. Whitman, 1 52d Admiralty Rule. Constant, 1 Sprague, 73.

Curtis, C. C. 494.

See also Taber v. Jenny, 1 Sprague, 315; Gladding v.

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

1 24th Admiralty Rule. This rule begins, "In all informations and libels in causes of admiralty and maritime jurisdiction, amendments, etc. This is the only rule relative to amendments, and we should suppose it would apply to amendments 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.