VOL. 2. ecution in personam upon a suit in rem, and thereby subject the claimant to damages beyond the amount of his stipulation. Amendments of answer cautiously admitted. It will be observed that all the foregoing cases relate to amendments of the libel; and this, as we have seen, is true also of the only rule which the Supreme Court has thought proper to promulgate upon this subject. The same liberal principles in this respect which are applied in the admiralty to the libel, prevail also in chancery in relation to amendments of the bill. But in the case of answers and pleas put in upon oath, courts of equity, for reasons applicable also to admiralty causes, proceed with greater caution and reserve in regard to the allowance of amendments. In a material matter the defendant will not be allowed to amend, unless upon evidence of surprise; but where a defendant, after putting in his answer, discovered a ground of defence of which he was not before informed, the court allowed the new matter to be added to the answer, and the answer to be re-sworn(a). In accordance with this principle, (a) The following is the rule lately promulgated by the Supreme Court, concerning the amendment of answers to a bill in equity. It is the 60th of the new Rules of Equity Practice. "After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document or other small matter, and be re-sworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer; but after replication, or such setting down for a hearing, it shall not be amended in any material matter, as by adding new facts or defences, or qualifying or altering the original statements, except by special leave of the court, or of a judge thereof, upon motion and cause shown after due notice to the opposite party, in a suit for salvage, where, after a decree in the CHAP. 9. district court in favor of the libellants, and an appeal to the circuit court, the claimants having there, as it was clearly shown, for the first time discovered that some of the salvors had been guilty of deliberate embezzlement of the salvage property, whereby their claim to salvage had become justly forfeited, the claimants were permitted to file a supplementary answer setting up this ground of defence(a). And in a suit by a seaman for wages, in the District Court of the United States for the District of Maine, where one of the grounds of defence supposed to be countenanced by the evidence, and insisted upon at the hearing, was, that the libellant had been guilty of misconduct which amounted to mutiny, and worked a forfeiture of his wages, but there was no allegation to this effect in the answer, the learned judge said that as the charge was of a very grave character and went to the merits, he should feel it to be his duty, if it were in fact sustained by the evidence, to allow an amendment, in order to bring the matter fairly before the court. The language of the twenty-fourth rule seems to contemplate an application " to the court" for leave to amend the libel, in all cases, even though the amendment be "of course," or without notice or supported, if required, by affidavit. And in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable therefrom." (a) The Schooner Boston and Cargo, 1 Sumner's R., 328. Application when neces to the court, sary. VOL. 2. special cause shown. The rule is not supposed, however, to form an impediment in the way of permitting amendments before answer or exception, without a formal motion for that purpose(a). The antecedent practice in this respect, of the District Court of the United States for the Southern District of New-York, is thus stated by Judge BETTS: "When a libellant finds any irregularity or mistake in his process or libel, he may amend them of course before contestation of suit, in which case he should serve on the opposite party the proceeding amended, where a proctor has appeared and taken a copy of the libel." Such a practice is convenient, and seems to be unobjectionable; and it is not supposed to be in conflict with the twenty-fourth rule. One of the rules of that court also prescribes that "amendments or supplementary matters must be connected with the libel or other pleading by appropriate references, (a) No such formality is required by the correspondent rule of equity practice; and as no reason is perceived why its provisions should not be substantially applied to suits in admiralty, it is subjoined, and is as follows: "The plaintiff shall be at liberty as a matter of course, and without payment of costs, to amend his libel in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do, of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall without delay furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted; and if the amendments are numerous, he shall furnish in like manner to the defendant a copy of the whole bill as amended; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby." without a recapitulation or restatement of the plead- CHAP. 9. ing amended or added to." This is certainly a highly proper practice, and ought to be observed without any express rule requiring it. But the rule seems to have been deemed necessary for the purpose of correcting an evil which had crept into the practice of the court; for it is said by Judge BETTS to have been "not unfrequently the case with practitioners to recapitulate or rehearse all preceding processes, as inducements to the amendatory charges;" but he adds, that "costs are never allowed for such proceedings." With respect to the mode of obtaining the allowance of amendments when an application to the court for that purpose is necessary in the absence of any express rule or established usage of the court to the contrary, a copy of the proposed amendments should be served on the proctor of the opposite party, with a notice of the time of applying to the court to grant an order for their allowance(a). (a) Betts's Adm. Practice, 58, and rule 95. As to amendments in an appellate court, see further, infra, chapter on Appeals. VOL. 2. Admissions supersede the necessity of proof. CHAPTER X. EVIDENCE. THE next subject for consideration, is the means to I. THE PLEADINGS. of One of the sources of information to which the court will be required to direct its attention, is the pleadings in the cause; and as the extent to which it will be necessary for the parties in a suit to provide themselves with extrinsic evidence in support of their respective allegations will depend upon the degree of weight to be allowed by the court to these allegations in the formation of its judgment, it is proper, at the outset, to ascertain the principles by which courts of admiralty are governed in this respect. The defendant is required, as we have seen, to give an explicit answer to each article and material allegation of the libel. To whatever extent the statements of the libel are expressly admitted by the answer, no further evidence of their truth is One defen- required. It must be borne in mind, however, that where there are several defendants, each is entitled, if he chooses (subject to an ultimate question as to dant not bound by the admis sions of his co-defendant. |