will be overruled. New Haven Towing Co. v. City of New Haven, 116 Fed. R. 762.

An allegation in an answer which serves no legal purpose, and is a mere slur upon the libellant, should be struck out on exceptions for impertinence. The Pioneer, 1 Deady, 58; Fed. Cases, 11,176.

The court will disregard exceptions of a formal nature first raised at the hearing. Furniss v. The Magoon, Olc. 55; Fed. Cases, 5,163.

Objections in the nature of a dilatory plea which do not go to the merits of the action will be deemed to be waived after an answer or claim filed. Ib.

A plea to the jurisdiction may be joined with an answer to the merits. The Lindrup, 70 Fed. R. 718–719.

Exceptions to a pleading in admiralty have the effect of a demurrer, and also that of a motion to make the pleading more definite and certain. Quinn v. The Transport, 1 Ben. Adm. 86; Fed. Cases, 11,516.

Where, in a collision case, the libellant states a bare cause of action and omits the full and frank narrative of the material circumstances attending the accident, an exception to the libel should be sustained. Ib.

RULE XXIX

answer

ing, libel taken pro con

If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the Defendant not process, or other day assigned by the fesso. court, the court shall pronounce him to be in contumacy and default; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the default, and, upon Default may be set the application of the defendant, admit him to make answer to the libel, at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor.

Decisions

aside.

Where the respondent refuses to answer interrogatories attached to or contained in the libel, the court will take the charges in the libel on which they are founded as confessed. The David Pratt, 1 Ware, 509; Fed. Cases, 3,597.

Where the defendant's neglect to answer the libel is due to ignorance of the practice of the court, any evidence which he may offer may be received by the court if in the ends of justice the rules of the court should be waived, so as not to operate as a surprise on the ignorance of a party and debar him from making a just defense. Ib.

If the rules of court do not allow this defense to be made by defendant's proctor, it may receive any proper evidence offered in the interest of justice by a proctor as amicus curiæ. Ib.

The effect of a default to appear in an admiralty proceeding is the same as in an action at law. It is a virtual confession. The default establishes the fact averred in the libel of information as effectively as it can be established on hearing, and warrants a decree if the libel contains the necessary averments. Miller v. The United States, 11 Wall. 268–303, 20 L. ed. 135.

Neither sec. 19, nor any other part of the Act of 1789 requires that there shall be a hearing after default in admiralty causes. Ib. 302.

Upon an application to vacate an order pro confesso, the respondent must satisfactorily account for laches, and exhibit either by answer or affidavit a meritorious defense. Scott v. Young America, Newb. 107;

Fed. Cases, 12,550.

A decree pro confesso is not a final decree, but the court thereafter is to hear the cause ex parte, or may refer it to a commissioner to ascertain and report. The Lopez, 43 Fed. R. 95-96.

The case of Miller v. The United States, 11 Wall. 268, distinguished, and the rule in admiralty suits ex contractu held to be different. Ib. 96.

quired to make further

answer.

RULE XXX

In all cases where the defendant answers, but does not Defendant when re- answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant, to the full purport and effect of the article to which it purports to answer, and as if no answer had been put in thereto.

Decisions

No form of general issue is allowed to a libel, a libel of information, or an information. But each article therein must be met by an article in

the answer making a distinct issue on the matters alleged. United States v. Twenty-five Barrels of Alcohol, 10 Int. Rev. 17; Fed. Cases, 16,526.

The answer must admit or deny each allegation of the libel in order that the libellant may know what allegations he must meet. The Dictator, 30 Fed. R. 699..

An omission in an answer to notice an allegation of the libel does not admit it. Ib.

The libellant is entitled to an admission or denial of each distinct and separate averment in his libel, separately and distinctly. Home Ins. Co. v. Sundberg, 54 Fed. R. 389–390.

RULE XXXI

Virginia

fendant need not an

The defendant may object, by his answer, to answer any allegation or interrogatory contained in what allegations dethe libel which will expose him to any swer. prosecution or punishment for crime, or for any penalty, or any forfeiture of his property for any penal offense.

Decisions

Rule 31 is but an application of the provision of the Fifth Amendment of the Constitution, that no person shall be compelled in a criminal case to be a witness against himself, and the rule of the common law extending to cases of liability to a pecuniary forfeiture. Pollock v. The Laura, 5 Fed. R. 133-143.

The exemption provided by Rule 31 is equally applicable to a case where the defendant may expect the like evil consequences of an admission in the same suit, as to a case where his admission may be used against him in a criminal prosecution in some other suit or court. Ib. 143.

A corporation is entitled to the benefit of Rule 31. Ib. 143.

Held, in a proceeding for the offense of perjury, that since the passage of the Act of Feb. 25, 1868, sec. 860, Rev. Stats. (U. S. Comp. Stats. 1901, p. 661), providing that no answer or pleading of any party shall be used against such party, in any proceeding for the enforcement of any penalty or forfeiture, etc., that the general rule which excuses a witness from testifying where his answer may lead to some criminal charge against him, should be no longer upheld. United States v. McCarthey, 18 Fed. R. 87-89.

It is not necessary that a person should be personally before the court in order to avail himself of the privilege given by Rule 31. If a party

desires to avail himself of the privilege of not giving evidence of incriminating matter he must say so in unmistakable language and give the reason for excusing himself, and the privilege should be claimed after the party is sworn, so that his claim may be under the sanction of an oath. In re Knickerbocker Steamboat Co., 139 Fed. R. 713-716.

answer of the libellant to interrogatories.

RULE XXXII

The defendant shall have a right to require the personal Defendant may require answer of the libellant upon oath or solemn affirmation to any interrogatories which he may, at the close of his answer, propound to the libellant touching any matters charged in the libel, or touching any matter of defense set up in the answer, subject to the like exception as to matters which shall expose the libellant to any persecution, or punishment, or forfeiture, as is provided in Rule 31. In default of due anOn default of same, - swer by the libellant to such interrogatories the court may adjudge the libellant to be in default, and dismiss the libel, or may compel his answer in the premises, by attachment, or take the subjectmatter of the interrogatory pro confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice.

bel may be dismissed.

Decisions

If the libel is evidently evasive and designed not to bring out in the pleadings the real points of the litigation, instead of clearly stating the case as required by Rule 23, the defendant may require specific charges by interrogatories attached to the answer, in order to ascertain and define the issues to be tried. The Mexican Prince, 70 Fed. R. 246– 247.

Where the answer denied the facts alleged in the libel as a cause of action, Held, that interrogatories might be propounded to the libellant designed to obtain particulars of the claim sued on, and plaintiff is not entitled to a judgment on the pleadings while such interrogatories are unanswered. The Oregon, 116 Fed. R. 482-483, 53 C. C. A. 650.

Where the interrogatories addressed to the libellant attached to an answer or contained therein are wholly unanswered, the libellant is not entitled to judgment on the pleadings. Ib. 484.

Where the party interrogated refuses to answer, the court will take the charges in the pleading upon which the interrogatory is founded as confessed. The David Pratt, 1 Ware, 509; Fed. Cases, 3,597.

Each party has a right to require the answer of the other on oath upon interrogatories, touching the matter in issue. Ib.

In admiralty causes the practice of examining witnesses at any stage of the suit has always been sanctioned, because otherwise it would often be impossible to obtain the testimony of mariners, and others having no fixed domicile. Flower v. MacGinniss, 112 Fed. R. 377-378, 50 C. C. A. 291.

RULE XXXIII

when waived or taken

Where either the libellant or the defendant is out of the country, or unable, from sickness or Answer under oath, other casualty, to make an answer to under a commission. any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable.

RULE XXXIV

come in.

how may

If any third person shall intervene in any cause of admiralty and maritime jurisdiction in Intervenor, rem for his own interest, and he is entitled, according to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervenor shall be required, upon To give stipulation for filing his allegations, to give a stipulation,

costs, etc.

with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court.