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.

2 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.

3

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. If an action is brought for freight, it is held that damage done to the goods may be set off. 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.

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,3 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.a

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.5

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.1 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.

See ante, p. 423, n. 3.

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