VOL. 2. presumed, in general, to know beforehand what he is likely to be able to prove, and he can derive no possible advantage from exaggeration. And, to say nothing of the moral necessity which rests upon him, when the libel is to be sworn to, of a strict observance of the truth, the defendant, being required to make a distinct response, under oath, to the several articles and allegations of the libel, is likely to find himself obliged, in framing his answer to overcharged statements, so to qualify his admissions by partial denials, as to lead to unnecessary embarrassment and controversy. By one of the new rules of practice, exception may be taken to any libel as well as to other pleadings, "for surplusage, impertinence or scandal;" and if the exception be allowed, the matter will be expunged with costs(a).

Interroga

tories.

It is also declared by the 23d rule above mentioned, that "the libellant may further require the defendant to answer on oath all interrogatories propounded to him, touching all and singular the allegations in the libel, at the conclusion thereof." The interrogatories which the defendant may thus be called upon to answer, can, of course, as indeed will be seen by the terms of the rule, be such only as relate to the allegations of the libel; but it is not to be understood that they are to be mere repetitions of these allegations, in an interrogative form. In that form they would be wholly useless; for the defendant is obliged, by another rule, to give a full,

(a) See Appendix, Rule xxxvi.

distinct, and explicit answer to each separate article CHAP. 8. of the libel, on oath or solemn affirmation (a). The object of the interrogatories, therefore, is, to obtain the defendant's admission of particular facts, not necessary to be specifically alleged, but which, if admitted, will serve or help to establish the truth of the more general allegations of the libel, and thus to relieve the libellant, wholly or in part, from the necessity of resorting to other evidence.

libel must be sworn to.

Whether, without any rule or established usage of Whether the the particular court in which the question may arise, it is necessary that the libel should be verified by oath, is a question touching which a diversity of opinion seems to have prevailed, and which may be regarded as not fully settled. Mr. DUNLAP, in his Admiralty Practice, states, that "in the admiralty courts of the United States, although it is usual, it is not generally understood to be necessary that the libel should in the first instance be supported by the oath of the libellant. This, however," he adds, "depends on the rules of the different courts. In the District of Massachusetts, libels are usually signed by the proctor, without being sworn to, unless process of arrest of persons or property is prayed for(b)." The learned judge of the District Court of the United States for the District of Maine, after citing the above passage from DUNLAP, in the case of Stutson v. Jordan(c), says: "There may be little inconvenience in issuing a citation merely, where no

(a) Appendix, Rules XXIII., XXVII., XXVIII., XXX. (b) Dunlap's Adm. Prac., 126.

(c) 18 American Jurist, 295.

VOL. 2. arrest is asked for, without the affidavit of the

party; because, on the appearance, the omission may be cured, on motion of the adverse party, upon pain of the libel being dismissed with costs. Though it may not be necessary, in all cases, that the libel should be formally sworn to, it is necessary, I apprehend, in correct practice, that the debt or cause of action, on which the libel is filed, should be verified by affidavit, as a good and subsisting cause of action. At least, such has always been the practice in this district, since I have been acquainted with it. Cases may have occurred, which have passed without notice, where it has been omitted; but whenever it has been asked for, the rule has invariably been enforced. It has been considered as a positive rule, which the court, in ordinary cases, was not authorized to dispense with. Cases have happened, in which, in the absence of the party, the oath of his agent, or attorney, has been admitted from necessity; but the verification of the debt by oath has always been held to be indispensable, when it was insisted upon." The Rules of Admiralty Practice prescribed by the Supreme Court, are not explicit upon the point. They do ordain, however, that "In suits in personam, no warrant of arrest, either of person or property of the defendant, shall issue for a sum exceeding five hundred dollars, unless by the special order of the court upon affidavit or other proper proof showing the propriety thereof(a)." These rules, and the omission of the Supreme Court to prescribe any

(a) See Appendix, Rule vII.

other regulation upon the subject, would seem to infer that the verification of the libel by oath was probably deemed by the court to be in general unnecessary. In the District Court of the United States for the Southern District of New-York, there is a rule requiring all libels in behalf of private suitors praying process of arrest in personam, or in rem, and all libels demanding the answer of any party on oath, to be verified by oath or affirmation; and by another rule of the same court, it is expressly declared that "Libels, informations, or petitions, praying a monition or citation only, without attachment, need not be sworn to (a)." A rule to the like effect has recently been made by the District Court for the Northern District of New-York (b). As this rule embraces the cases specified in the above mentioned rule prescribed by the Supreme Court, it supersedes the necessity, in any other form, of an affidavit or other proper proof," for the purpose of obtaining the order for process.

The libel must in all cases be signed by the proctor of the libellant, as all other pleadings must be by the proctor of the party in whose behalf they are filed.

(a) Betts's Adm. Practice, App., p. 1.

(b) Appendix, Rule 7. It was not until after the text was written, that the third volume of Story's Reports came to the hands of the author. In the case of Coffin v. Jenkins, at page 121, Mr. Justice STORY is reported to have said: "I observe, too, that there are some irregularities in the present case. The libel is sworn to, but not the The reverse is the usual and proper practice; although there is no objection to the libel being sworn to, if the libellant chooses."

answer.

CHAP. 8.

Libel and ings to be

other plead

signed by the proctor.

VOL. 2.

Its general nature and uses.

CHAPTER IV.

THE ADMIRALTY STIPULATION.

BEFORE proceeding to treat of the process to be issued on the filing of the libel, it is necessary to enter into a brief consideration of the admiralty stipulation(a); the name usually given to those securities which the parties are required to furnish or enter into, as a means of enabling the court to enforce justice.

Some general notion of their nature and importance may be conveyed by observing that, in addition to other important uses, they subserve all the purposes of bonds for the security of costs, of bail to the sheriff, and of special bail, in an ordinary action at common law, and of a bond for the return of property in the action of replevin.

The admiralty stipulation is of the nature of a recognizance. It is drawn up in writing, signed and acknowledged, but not sealed. It is the cautio of the civil law. The Roman word signifying a surety being fidejussori, and the correspondent adjective being fidejussorius, the security, when entered into by sureties, was denominated cautio fidejussoria. The sureties bound themselves separately from the

(a) Stipulatio, from stipula (as it has been supposed), the straw of old delivered as a token of consent. 2 Bro. Civ. and Ad. Law, 398, note.