Decisions

A creditor who has acquired a lien by attachment, or any person claiming an interest in the thing in suit, may intervene and contest in a proceeding in rem. The Mary Ann, 1 Ware, 99; Fed. Cases, 9,195.

A mortgagee may intervene to protect his interest. The Old Concord, 1 Brown's Adm. 270; Fed. Cases, 10,482.

In a possessory suit material men cannot intervene to enforce a lien upon the vessel. The Taranto, 1 Spr. 170; Fed. Cases, 13,751.

Where there remains in court a sum of money subject to distribution, a party having a lien upon the property out of which the money was made which was legally fixed, may claim distribution, although the original demand was not such as could be sued for in admiralty. Harper v. New Brig, Gilp. 536; Fed. Cases, 6,090.

An underwriter who has accepted an abandonment and succeeded to the rights of the original claimant may intervene and control the suit. The Ann C. Pratt, 1 Curt. 340; Fed. Cases, 409.

Underwriters as such have no right to intervene in admiralty unless the property has been abandoned to them and accepted by them, so that they have an interest in the thing and not in the cause. The Henry Ewbank, 1 Sumn. 400; Fed. Cases, 6,376.

An intervenor is one who seeks merely to protect his own interests and have his claim paid out of the property in suit, or secured, before its delivery to another, and differs from a claimant who demands the possession or redelivery of the property in suit. The Two Marys, 12 Fed. R. 152-154.

Rule 34 has reference only to those cases where the vessel is still in custody, or where she has been sold and the proceeds paid into court. The Oregon, 158 U. S. 186-210, 39 L. ed. 943.

Others than intervening claimants are not entitled to file exceptions to a libel in rem. Florence Cotton Oil Co. v. Alabama H. Co., 128 Fed. R. 915-918.

Rule 34 requires the court to pass upon the claim of an intervenor before he is given any standing in court. The Clara A. M'Intyre, 94 Fed. R. 552-556.

Where a vessel has been seized by State officers for a violation of law and a libel filed to recover possession, the State officers may appear

and answer the libel without giving the stipulation of sureties required by Rule 34. Ib. 561.

Insurance companies which have paid the loss may intervene at any time before the final distribution of the fund, to present their claim to an interest in the fund and its establishment by decree of the court. Mason v. Marine Ins. Co., 110 Fed. R. 452–455, 49 C. C. A. 106.

Where the libel has been answered by an agent of the owners, the owners cannot afterwards raise a new issue by intervention, which if supported by proof would require the libel to be dismissed, where the original answer admitted the liability but only contested the amount, especially if no notice is given of the filing of such intervention, and no copy served on the proctor of libellants. The Alexandra, 104 Fed. R. 904-906.

In proceedings in rem where the res is in the custody of the law in the enforcement of a lien by one or more creditors, all other creditors may intervene by petition and have their claims allowed, and, if the claims stand in different ranks of privilege, paid according to their priority. The Young Mechanic, 3 Ware, 58; Fed. Cases, 18,182.

RULE XXXV

The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or Stipulations, before whom maritime proceeding, shall be given and may be taken. taken in the manner prescribed by Rule 5 as amended.

RULE XXXVI

matter to be expunged.

Exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, im- Exceptions, if allowed, pertinence, or scandal; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged, at the cost and expense of the party in whose libel or answer the same is found.

Decisions

Although new matter is sufficient as a defensive allegation or peremptory exception to the suit, it is impertinent to blend and confuse it with the response to the particular article or allegation of the libel. The California, 1 Sawy. 463; Fed. Cases, 2,312.

When it becomes necessary to insert in an answer some matter which cannot be pertinently introduced as responsive to any allegation in the libel, such matter must be separately stated in an article framed after the manner of an article in the libel. Ib.

If the answer contains matter not responsive to the allegations and interrogatories of the libel, and not constituting a defense thereto, it is impertinent, but if the answer is responsive to the allegations, it is not impertinent because the facts set out are not a defense to the suit. Ib.

When the answer fails to set up a full, explicit, and distinct response to the allegation or article of the libel which it professes to answer, it may be excepted to for insufficiency. Ib.

An exception on the ground that the libel "does not set forth any facts showing wherein this exceptor failed, neglected, or refused to carry out or perform the terms of said alleged contract" is in fact a demurrer, and if any part of the libel is good, the exception is bad as going to the whole libel. Dennis v. Slyfield, 117 Fed. R. 474-479, 54 C. C. A. 520.

Objections which are merely formal and do not go to the merits of the action, or merely allege that it is prematurely brought, cannot be taken on the final hearing. Furniss v. The Magoon, Alc. 55; Fed. Cases, 5,163.

After personally appearing in a cause and asking for affirmative relief by a cross-bill in a proceeding in rem, the defendants cannot object by exception that the cause is not such as to give admiralty jurisdiction. The Fifeshire, 11 Fed. R. 743.

Exceptions to an answer for insufficiency and impertinence cannot be joined in the same exception. The Whistler, 13 Fed. R. 295–296.

Where separate claims for salvage and towage services against different defendants are joined, the objection will be deemed to be waived, if no exceptions are filed before the cause is tried. Merritt & Chapman D. & W. Co. v. Chubb, 113 Fed. R. 173-176, 51 C. C. A. 119.

RULE XXXVII

In cases of foreign attachment, the garnishee shall be required to answer on oath or solemn Garnishee to answer on affirmation as to the debts, credits, or

oath.

effects of the defendant in his hands, and to such interroga

rested.

tories touching the same as may be propounded by the libellant; and if he shall refuse or neglect Refusing, may be ar so to do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit.

Decisions

Where a defendant has concealed himself or absconded, the process of attachment or garnishment may issue. Manro v. The Almeida, 10 Wheat. 473–492, 6 L. ed. 369.

The goods themselves if accessible may be attached, or the goods and credits in the hands of a third person may be attached by notice. Ib. 492.

The garnishee has a right to put in an answer. If the garnishee makes default the court requires some evidence to sustain the claim that he has debts or credits of the principal in his hands; but if the libellant without disclosure can upon default show that the garnishee holds debts, effects, or credits of the principal in his hands, he may have execution of them. Shorey v. Reynolds, 1 Spr. 418; Fed. Cases, 12,807.

After default the garnishee has no right to make answer that he had not when summoned debts, effects, or credits of the principal, and thereby discharge himself. Ib.

After default the libellant may have compulsory process against the garnishee to compel an answer. Ib.

By the former practice the libellant before answer under oath, might take upon himself the burden of proving assets to be in the hands of the garnishee, and that issue was tried without any answer. Rule 37 now makes it the absolute right and imperative duty of the garnishee to answer, so that the libellant now has no right to contest the answer of the garnishee. Ib.

On default of the garnishee the libellant may have process to compel him to answer. McDonald v. Reynolds, 21 Law Rep. 157; Fed. Cases, 8,765.

The libellant is not entitled to execution in personam against the garnishee. Ib.

Ib.

Compulsory process will only issue to compel a garnishee to answer.

The answer of a garnishee is not conclusive as between two attaching creditors in a proceeding to try title to the fund in court. Dent v. Radman, 1 Fed. R. 882-888.

In disposing of a fund paid into the registry of a court, proof will be required of the right of the claimant or claimants. Ib.

of any person, how

RULE XXXVIII

In cases of mariners' wages, or bottomry, or salvage, or Property, etc., in hands other proceeding in rem, where freight brought into court. or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application, by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit; and if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and upon failure of the party to comply with the order, may award an attachment, or other compulsive process, to compel obedience thereto.

Decisions

Where a maritime lien exists and attaches upon proceeds, an admiralty court exerts its jurisdiction over them by way of monition to the parties holding the proceeds. Sheppard v. Taylor, 5 Pet. 675-677, 8 L. ed. 269.

The proper process in the first instance against a person not a party to the cause who has in his possession properties subject to the suit is a monition and not an execution. On the return of the monition the party may appear and justify himself, and bring all the matters before the court to be determined on the merits. The Gran Para, 10 Wheat. 497-500, 6 L. ed. 375.

The proper remedy in admiralty for a party holding a lien on freight is a libel against the freight. It is not necessary to make an assignor a party. The assignee may sue in his own name. American Steel Barge Co. v. Chesapeake & Ohio C. A. Co., 115 Fed. R. 669–674; 53 C. C. A. 301.

The appropriate primary process is a monition to the holder of the bill of lading or owners of the cargo, requiring them to pay the freight into court. Ib. 674.

Rule 38 does not justify any proceeding against the cargo until after an order to pay the freight into court, unless in peculiar cases. Ib. 675.

Money not strictly the proceeds of the cargo but deposited by each consignee to cover the value of the cargo delivered but liable for con