it was a case in which such an undertaking could not legally be given.28

On the theory that a bona fide effort to assert one's rights should not involve any unpleasant aftermath, a libelant who fails in his suit is not liable for his unsuccessful arrest of defendant's property, unless his action was malicious.24

195. DECREES BY DEFAULT

If, on the hearing day, no defense has been interposed, then, under the provisions of admiralty rule 29, all persons are deemed in contumacy and default, the libel is taken for confessed, and the court hears the cause ex parte. In such case no proof is necessary, except as to damages, if unliquidated, and the only hearing is the presentation of a decree to the judge.25

In other words, a decree by default in admiralty resembles office judgments or writs of inquiry at common law, or a bill taken for confessed in equity.20

In case of such default the court may at any time within ten days, for cause shown, reopen the decree, and permit defense. But in default decrees this power is limited

28 Roberts v. The Huntsville, Fed. Cas. No. 11,904; Union, Fed. Cas. No. 14,346; White Squall, Fed. Cas. No. 17,570; Wm. F. McRae (D. C.) 23 Fed. 558; Monarch (D. C.) 30 Fed. 283; Mutual (D. C.) 78 Fed. 144; Cleveland (D. C.) 98 Fed. 631. The I. F. Chapman, 241 Fed. 836, 154 C. C. A. 538, is, in the author's judgment, contrary to the weight of authority, and sustainable, if at all, only under its peculiar facts.

24 Alcalde (D. C.) 132 Fed, 576; Admiral Cecille (D. C.) 134 Fed. 673; Watt v. Cargo of Lumber, 161 Fed. 104, 88 C. C. A. 268.

§ 195. 25 Cape Fear Towing & Transp. Co. v. Pearsall, 90 Fed. 435, 33 C. C. A. 161.

26 Miller v. U. S., 11 Wall. 294, 20 L. Ed. 135; United States v. Mollie, 2 Woods, 318, Fed. Cas. No. 15,795; Water Witch (C. C.) 44 Fed. 95; Thomson v. Wooster, 114 U. S. 104, 5 Sup. Ct. 788, 29 L. Ed. 105; Cape Fear Towing & Transp. Co. v. Pearsall, 90 Fed. 435, 33 C. C. A. 161.

to ten days. On the lapse of that time the decree becomes as final as a court judgment after the adjournment of the term.27

There is some conflict of authority whether there is such a thing known to the admiralty law as a libel of review. The better opinion seems to be that there is; but it is a power reluctantly exercised, and lies only for errors apparent on the face of the record, or for fraud. It does not lie to enable a party to set up facts or defenses which his own carelessness overlooked.28

196. THE DEFENSE

If the defendant does not wish to let his case go by default, he raises any legal points apparent on the libel by exception, which corresponds to a demurrer," and he sets up defenses of fact by answer. This must be on oath or affirmation, and must be full and explicit to each article of the libel, and it may propound interrogatories to the libelant.80

If it is not sufficiently full, the libelant may except.

An answer in admiralty has only the effect of a denial. Unlike an answer in chancery, it is not evidence in favor of respondent.$1

27 Admiralty rule 40 (29 Sup. Ct. xliii); SNOW v. EDWARDS, 2 Low. 273, Fed. Cas. No. 13,145; Illinois, 5 Blatchf. 256, Fed. Cas. No. 7,002; Northrop v. Gregory, 2 Abb. U. S. 503, Fed. Cas. No. 10,327.

28 NEW ENGLAND, 3 Sumn. 495, Fed. Cas. No. 10,151; Northwestern Car Co. v. Hopkins, 4 Biss. 51, Fed. Cas. No. 10,334; Dexter v. Arnold,, 3 Mason, 284, Fed. Cas. No. 3,855; Columbia (D. C.) 100 Fed. 890; New York, 113 Fed. 810, 51 C. C. A. 482; Hall v. Chisholm, 117 Fed. 807, 55 C. C. A. 31.

§ 196.

29 White v. Cynthia, Fed. Cas. No. 17,546a. 80 Admiralty rule 27 (29 Sup. Ct. xlii).

81 Cushman v. Ryan, 1 Story, 91, Fed. Cas. No. 3,515; Eads v. The H. D. Bacon, Newb. Adm. 274, Fed. Cas. No. 4,232.

Things neither admitted nor denied by the answer are not taken as true, but must be proved.32

The defendant, in his answer, may set up want of jurisdiction of the subject-matter and a defense on the merits."

Of course, he cannot plead mere want of jurisdiction over the person, and defend on the merits, as that would be a general appearance in any system of pleading.

34

Hence, when the facts showing lack of jurisdiction over the person or exemption from suit do not appear on the libel, such defense must be set up by exception, which corresponds more to a dilatory plea than to a demurrer, as it sets up additional facts.85

The answer, if sufficient, or if not excepted to, puts the case at issue. No replication is necessary.

197. THE TRIAL

As admiralty is not a court of terms, the case goes at once on the trial calendar, and may be called up at any time. convenient.

It is tried before the judge (there are no juries in admiralty proceedings proper), who hears the witnesses ore tenus, or, if he sees fit, appoints a commissioner to take the evidence down in writing, and report it to him later. In this matter the practice varies in the different districts. In the Eastern district of Virginia the rule requires that in cases involving over $500 the evidence shall be ore tenus, and taken down in shorthand; and the stenographer's notes, when written out, constitute the record in the event of an appeal.

82 Clarke v. Dodge Healy, 4 Wash. C. C. 651, Fed. Cas. No. 2,849. 83 Lindrup (D. C.) 62 Fed. 851.

84 Jones v. Andrews, 10 Wall. 329, 19 L. Ed. 935.

85 August Belmont (D. C.) 153 Fed. 639; Koenigin Luise (D. C.) 184 Fed. 170, 172.

86 Admiralty rule 51 (29 Sup. Ct. xliv).

A similar practice is prevalent in the other jurisdictions."" On account of the shifting character of marine witnesses, the cases are rare where all the evidence can be offered in court. In order to save the testimony of departing witnesses, or secure the testimony of nonresidents, it is usually necessary to take many depositions de bene esse. They are taken on notice, pursuant to the provisions of section 863, Rev. St. (U. S. Comp. St. § 1472), or the act of March 9, 1892, permitting them to be taken as in the state courts.

In practice, counsel are liberal with each other in such matters, accepting short notice, allowing the evidence to be taken in shorthand, waiving the witnesses' signatures, and even the filing of the deposition till the hearing.

When the case comes on, it is heard and argued substantially as a chancery cause would be.

If the damages are not known or agreed to, the judge, in the event of a decision for libelant, usually refers the matter to a commissioner by an interlocutory decree to inquire into and assess the damages. Under admiralty rule 44 this commissioner has about the powers of a master in chancery. Those dissatisfied with his report may except to it, and upon it and such exceptions the court renders its final decree.

198. EVIDENCE

Section 858 of the Revised Statutes, as amended June 29, 1906, provides that the competency of a witness to testify in any civil action, suit or proceeding in the courts of the United States shall be determined by the laws of the state or territory in which the court is held.s

§ 197. 87 Neilson v. Coal, Cement & Supply Co., 122 Fed. 617, 60 C. C. A. 175; Rogers v. Brown (D. C.) 136 Fed. 813.

38 27 Stat. 7 (U. S. Comp. St. § 1476).

§ 198. 39 U. S. Comp. St. § 1464. For the statutes regulating evi. dence, see post, p. 498. See, also, Hughes on Federal Procedure, 10.

199. ATTACHMENTS IN ADMIRALTY

It has been settled that the common-law and chancery courts of the United States have no jurisdiction of suits by foreign attachment against nonresidents, for the reason that by the federal statutes no person can be sued, as a general rule except in the district where he lives."0

Since the last-cited decision, however, the Tucker-Culbertson Act allows suits to be brought in the district of the plaintiff's residence, so that a process of foreign attachment could be sustained in such district if the defendant can be served with process.

In admiralty, however, a libel accompanied by an attachment can be sustained, as these statutes do not apply to the admiralty courts.“1

200. SET-OFF

Set-off cannot be pleaded in admiralty as it is the creature of statutes which were passed for the common-law and chancery courts, and were not intended to apply to the admiralty courts.**

This, however, does not prevent a counterclaim arising out of the same transaction from being used to recoup the damages."

§ 199. 40 Ex parte Des Moines & M. R. Co., 103 U. S. 794, 26 L. Ed. 461.

41 IN RE LOUISVILLE UNDERWRITERS, 134 U. S. 488, 10 Sup. Ct. 587, 33 L. Ed. 991; Reilly v. Philadelphia & R. R. Co. (D. C.) 109 Fed. 349.

§ 200. 42 Willard v. Dorr, 3 Mason, 91, Fed. Cas. No. 17,679; O'Brien v. 1,614 Bags of Guano (D. C.) 48 Fed. 726.

43 Bowker v. U. S., 186 U. S. 135, 22 Sup. Ct. 802, 46 L. Ed. 1090; Howard v. 9,889 Bags of Malt (D. C.) 255 Fed. 917.