case, cannot be admitted under the petition to displace the right of the District Court to entertain the suit.

The proper practice is to apply to one of the justices of the Supreme Court for leave to file a suggestion for the writ, which is a verified petition setting forth the facts on which the petitioner relies. Upon fling the petition, the petitioner should apply to the court ex parte for a rule to show cause why the writ should not issue. This is served upon the district judge, who makes a return setting forth the proceedings in the cause, and annexing a certified copy of the records and papers on file therein. The proctor for the libelant in the cause must be notified of the time when the rule is returnable.

$433. Mandamus.- The Circuit Courts of Appeal have the powers possessed by the Supreme Court and the Circuit and District Courts, by virtue of 8 716 of the Revised Statutes, to issue all writs, not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law1 Thus, if a District Court, in a case of admiralty and maritime jurisdiction, refuses to entertain the cause or to pronounce a decree, or to allow an appeal from a decree when interposed according to the rules prescribed by the court or justified by the general principles of the admiralty practice recognized in the courts of the United States, the Circuit Court of Appeals may issue a writ of mandamus to compel the District Court to proceed in the cause, to enter a decree, or to allow an appeal upon the proper requisitions of the law being complied with by the party.2 A mandamus will issue to compel the return of the apostles, or record on appeal, when unreasonably delayed by the District Court or clerk."

The practice on application for the writ is to obtain ex parte an order to show cause why the writ should not issue, or to apply to the court on due notice upon a sworn petition or complaint setting forth the facts which entitle the relator to the writ.

4 Ex parte Easton, 95 U. S. 68.

5 In U. S. v. Peters, 3 Dall. 121, a suggestion and writ are set out in full.

§ 433. Act of March 3, 1891, ch. 517, § 12 (26 St. at L. 829). See supra, SS 361, 363, 363a, 384.

2 The New England (Story, J.), 3 Sumn. 495.

3 U. S. v. Gomez, 3 Wall. 752.

4 Ex parte Bradstreet, 7 Pet. 634, where the writ is set out at length. Adm. Rule 13, 2d Ct.

§ 434. Limitation of liability - Petition.Petition. Proceedings to secure the limitation of liability given to shipowners by the Act of 1851 (§§ 4283 to 4289 of the Revised Statutes) and amendments' are begun by the filing of a libel or petition2 in the District Court for the district in which the vessel or owners have been sued, or in which, if suit has not been brought, the vessel then is. The libel or petition should set forth the facts and circumstances on which the limitation is claimed, and pray proper relief. As soon as the petition is filed the court will grant an order, either appointing appraisers to appraise the amount or value of the interest of the owner or owners in such vessel and her freight for the voyage, or referring it to a commissioner to take proofs of such value. Notice of the application for the appointment of appraisers or of the reference to ascertain values must be given to all persons who have brought suit. When the value has been ascertained to the satisfaction of the court, it will make an order for the payment of the amount into court, or for the giving of a stipulation with sureties for the payment thereof into court whenever ordered. If the owners so elect, the court will, without appraisement, make an order for the transfer by them of their interest in the vessel and freight to a trustee to be appointed by the court."

§ 435. Same-Monition.-Upon the payment into court of the value ascertained, or the giving of a stipulation therefor, or the transfer to a trustee, as the case may be, the court must issue a monition against all persons claiming damages for the

§ 434. 123 St. at L. 57; 24 St. at L. 80. Where there is but a single claim for damage the proceedings cannot be instituted, since the limitation of liability may be set up by answer in an action brought at common law. Hence the petition must show the existence or the probability of the existence of more than one claim for damage. The Rosa, 53 Fed. R. 132. 2 The benefit of the act may also be secured by means of proper allegations in the answer. The Scotland, 105 U. S. 24. As to pleading, see Butler v. Boston S. S. S. S. Co.,

130 U. S. 527; Black v. So. Pac. R. Co., 39 Fed. R. 565; The Garden City, 26 Fed. R. 766; The Rosa, 53 Fed. R. 132; The Benefactor, 103 U. S. 247; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578; The Luckenback, 26 Fed. R. 870; The Annie Faxon (C. C. A.), 75 Fed. R. 312; s. c. (D. C.), 66 Fed. R. 575.

3 The Mary Lord, 31 Fed. R. 416. 4 Adm. Rule 57; In re Morrison, 147 U. S. 14.

5 Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 591. 6 Adm. Rule 54.

loss on account of which limitation of liability is sought, citing them to appear and make due proof of their claims at or before a certain time to be named in the writ, not less than three months from the issuing of the same. Public notice of the monition must be given as in other cases, and notice must also be served through the post-office or otherwise as the court may direct; and on the application of the owners the court will make an order restraining the further prosecution of all suits against said owners in respect of any such claims.1

§ 436. Same-Proof of claims.- Proof of all claims presented in pursuance of the monition must be made before a commissioner to be designated by the court. Upon confirmation of the commissioner's report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court, or the proceeds of the ship and freight, after payment of costs and expenses, are divided pro rata among the several claimants in proportion to the amount of their respective claims proved and confirmed, saving to all parties any priority to which they may be legally entitled.1

§ 437. Same-Answer-Trial.-The owner may contest his liability, or the liability of his vessel, on the merits, for the damage claimed, independently of the limitation provided by the statutes, in which case he must state in his libel or petition the facts and circumstances by reason of which he claims exemption from liability. And any person claiming damages who has presented his claim to the commissioner pursuant to the monition may file an answer to the petition contesting the right of the petitioner to either an exemption or a limitation of liability. On the issues thus joined, the parties proceed to trial, the court first trying the case on the merits, and if it finds the petitioner liable for the loss or damage claimed, then trying the question of the petitioner's right to a limitation under the

statutes.

§ 435.1 Adm. Rule 54; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 592. The District Court may by a stay order en join the prosecution of proceedings pending in State courts where the petition is filed. In re Long Island N. S. P. & F. Transp. Co., 5 Fed. R. 599; Provi

dence & N. Y. S. S. Co. v. Hill, 109 U. S. 578, 600.

§ 436. Adm. Rule 55; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 592.

§ 437. The Benefactor, 103 U. S. 239; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578.

2 Adm. Rule 56.

§ 438. Proceedings on seizures.-The Judiciary Act of 1789 gave the District Courts exclusive jurisdiction of all suits for penalties and forfeitures incurred under the laws of the United States,' but subsequent statutes have given the Circuit Courts jurisdiction of particular penalties and forfeitures. In the District Court proceedings for the condemnation and sale of goods seized are in rem. Where the seizure was made on land, the court sits as a court of law with a jury; where the seizure was made on water, the court sits as a court of admiralty.

Proceedings in admiralty for a breach of the revenue, navigation, or other laws of the United States must be brought in the name of the United States. Proceedings are begun by filing a libel of information in the district in which the property is seized. The information must state the place of seizure, and the district within which the property is brought, and where it then is. It must propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute of the United States in such case provided, which must be specified."

Upon the filing of the information a monition will issue, and the cause will proceed as in other suits in admiralty. Notice of the seizure and of the substance of the information must be published for fourteen days in a newspaper published near the place of seizure, and must also be posted for the same period at or near the place of trial. Where a default is entered it is not necessary for the government to take proofs; a decree of condemnation and sale may be entered forthwith. Fifteen days' notice of sale is required.'

Property seized may be bonded by the claimant on notice to

§ 438. 1U. S. R. S., § 563, clauses 3 and 8; U. S. v. Mooney, 116 U. S. 104. 2U. S. R. S., § 629, clauses 4, 5, 7, and 15; Coffey v. U. S., 116 U. S. 427. 'U. S. R. S., § 919.

* Adm. Rule 22. In case of a seizure, the libel should set forth the place of the seizure and the place where the violations of the statute were committed. U. S. v. One Raft, 13 Fed. R. 796.

Supra, § 394; Adm. Rule 22; Coffey v. U. S., 116 U. S. 427, 435.

has been held that it is unnecessary to state specifically that acts or omissions which are described in the language of the statute were done or omitted "contrary to the form of the statute in such case made and provided." The Idaho, 29 Fed. R. 187. For a libel that was held to be insufficient, see U. S. v. The Haytian Republic, 57 Fed. R. 508; s. c. (C. C. A.), 59 Fed. R. 476.

It

6 U. S. R. S., § 923.
7 U. S. R. S., § 939.

the collector of customs and the United States attorney. When judgment is rendered for the claimant, but the court certifies that there was reasonable cause of seizure, the claimant is not entitled to costs.9

$439. Proceedings in prize causes.-The District Court has original and exclusive jurisdiction in prize causes.1 The Prize Act, passed by Congress June 30, 1864, now embodied in Title LIV. of the Revised Statutes, authorizes the District Courts to appoint three prize-commissioners in each district, one of whom must be a retired naval officer. It is their duty to receive from the captors the documents found on board the captured ship, or having reference to the captured property, and return them to the court with the affidavit of the prizemaster that they are in the same condition as delivered to him; also to examine the prize property as soon as it comes within the district, secure it by seals, and report to the court whether any part of it is in a condition requiring immediate sale, and anything relating to its condition, custody, or disposal which may require action by the court. They are also required to take the depositions of the persons captured with, or who claim, the captured property, upon standing interrogatories prescribed by the court."

These depositions are returned by the commissioner to the court, and, with the documentary evidence obtained from the captured property, constitute the only evidence on which the cause is heard in the first instance. If upon this evidence the case is doubtful, the court may require further proofs to be taken; but in no case are witnesses examined orally before the court.5

At any time after the property is brought within the jurisdiction of the court a libel may be filed for its condemnation. The proceeding must be in rem. Where the capture has been made by a public vessel of the United States the libel is filed in the name of the United States by the district attorney."

8 U. S. R. S., SS 938 and 940.

9 U. S. R. S., § 970.

§ 439. U. S. R. S., § 563, cl. 8.

2 U. S. R. S., §§ 4613-4652.

3 U. S. R. S., § 4621.

4 U. S. R. S., § 4622.

5 The Dos Hermanos, 2 Wheat. 76; The Sir William Peel, 5 Wall. 517; The Ambrose Light, 25 Fed. R. 408. 6 U. S. R. S., § 4618.

7 The Palmyra, 12 Wheat. 1; Jecker v. Montgomery, 18 How. 110, 124.