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existed rules prohibiting remedies in rem and in personam in the same libel, or if the subject-matter of the original libel was without the jurisdiction of admiralty. The Monte A., 12 Fed. R. 331-338.

Rule 46 recognizes the pre-existing powers of the court to regulate its practice in admiralty for the furtherance of justice. In collision cases a vessel sued alone is entitled to contribution, or an apportionment of damages against another vessel equally liable as a substantial right, and such contribution may be enforced by further process against the other vessel upon the petition of the one sued; such remedy being expedient, direct, and effectual, and not interfering with the rights of the libellant or imposing on him additional burdens or obligations on the trial, except to subject him to the liability of an appeal by more than one defendant. Therefore in collision cases, if a libel is filed against one vessel only the court may upon the petition of the vessel sued, award further process in the cause against another vessel to respond for its share of the damage. The Hudson, 15 Fed. R. 162–176.

Rule 46 gives the District Courts power to establish the practice of allowing a joinder of proceedings in rem and in personam upon a contract of affreightment and process in rem and in personam upon the same libel to issue. The Planet Venus, 113 Fed. R. 387-389.

In a case not provided for by the admiralty rules of the Supreme Court there is no fixed rule which prevents the joinder in one libel of causes of action in rem and in personam, where such course will promote the cause of justice and conduce to the convenience of the parties and of the court. The Thomas P. Sheldon, 113 Fed. R. 779-784.

If successive suits upon the same demand may be maintained in personam and in rem, until satisfaction is obtained, it is wholly a question of practice whether the two may be brought concurrently, or whether the second suit will not be allowed until the remedy in the first may be exhausted, to be determined with reference to the convenient administration of justice. The Normandie, 40 Fed. R. 590-591.

A libel to recover damages for a breach of warranty of seaworthiness and to recover possession of goods delivered under a charter party for transportation, may be joined in the same libel. The Director, 36 Fed. R. 335.

The practice in admiralty allows the joining of a number of claims of like character in one libel to avoid a multiplicity of suits. The Queen of the Pacific, 61 Fed. R. 213-214.

Thirty-eight separate claims for damages arising out of breach of contract of affreightment by failure to deliver merchandise described in several bills of lading, and for damages for injuries to the same,

claimed to have been occasioned by the negligence of the officers and crew of the vessel libelled, were joined in this suit.

The mode of proceeding allowed by Rules 12-20 is exclusive of any other in the cases to which they apply, but under Rule 46, in all other cases the court may proceed as may be deemed most expedient for the due administration of justice. The Director, 26 Fed. R. 708–711.

Under Rule 46, it is the general practice in admiralty procedure in a libel upon a contract of affreightment to proceed against the vessel and the master in one suit. Ib. 711.

While at law and even in equity a party may not sue A. and B. in one action, alleging that one of the two was liable, he did not know which, in admiralty, where the convenience of the court makes a joinder and trial of the plaintiff's claims at the same time desirable, a libel for a cause of action arising out of the same transaction against two parties in the alternative may be allowed. Neall v. Curran, 93 Fed. R. 831-832.

While the statutes of the United States limiting the liability of shipowners cannot be resorted to to limit the liability of a foreigner, the United States courts of admiralty in a proper case are authorized to apply the rule of the general maritime law to determine the extent of liability of the owners of foreign vessels for collisions on the high sea. Churchill v. The British America, 9 Ben. 516; Fed. Cases, 2,715.

Arrest,
when by state law.

RULE XLVII

In all suits in personam, where a simple warrant of arrest allowed only issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the State where an arrest is made upon similar or analogous process issuing from the State court.

And imprisonment for debt, on process issuing out of the Imprisonment for debt admiralty court, is abolished, in all abolished where State law prohibits. cases where, by the laws of the State in which the court is held, imprisonment for debt has been, or shall be hereafter abolished, upon similar or analogous process issuing from a State court.

Decisions

A surety in a stipulation in admiralty is exempt from a liability of imprisonment on execution in all cases where he would be exempt on like process issued from the court of a State in which the District Court is held. The Kentucky, 4 Blatchf. 448; Fed. Cases, 7,717.

If a defendant in the State court is exempt from personal arrest and imprisonment on all process whether mesne or final in cases sounding in contract, then the defendant in admiralty will in all such cases be in like manner exempt. Ib.

A person is imprisoned for debt who is arrested on mesne as well as final process. The Bremena v. Card, 38 Fed. R. 144.

Rev. Stats., sec. 990 (U. S. Comp. Stats. 1901, p. 709), and Rule 47, Clause 2, refer only to imprisonment for debt and do not affect the power of the court to issue a warrant of arrest to compel defendants to respond to a claim for unliquidated damages. The word "debt" in the statute does not include claims for unliquidated damages. Bolden v. Jensen, 69 Fed. R. 745-746.

The cases of The Carolina, 14 Fed. R. 424; Chiesa v. Conover, 36 Fed. R. 334; The Bremena, 38 Fed. R. 144, disapproved.

In an action for damages for personal injuries, Held, under Rule 47, that the bond given by the defendants, conditioned to render themselves amenable to the process of the court during the pendency of the action and to such as may be issued to enforce the judgment, was a sufficient bond, and that the parties could not be required to give a bond in the terms prescribed by admiralty Rule 3, where under the State laws a party arrested in a civil action was entitled to his discharge from arrest upon giving an undertaking in the form used. Stone v. Murphy, 86 Fed. R. 158-160.

RULE XLVIII

Rule 27 shall not apply to cases where the sum or value in dispute does not exceed $50.00 dollars, Qualification of Rule 27. exclusive of costs, unless the District Court shall be of opinion that the proceedings prescribed by that rule are necessary for the purposes of justice in the case before the court.

All rules and parts of rules heretofore adopted, inconsistent with this order, are hereby repealed and annulled.

RULE XLIX

deposition or upon oral

Further proof, taken in a Circuit Court upon an admiralty appeal, shall be by deposition, taken Further proof to be by before some commissioner appointed by examination, unless. a Circuit Court, pursuant to the Acts of Congress in that behalf, or before some officer authorized to take depositions by the thirtieth section of the Act of Congress of

Sept. 24, 1789, upon an oral examination and crossexamination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross-interrogatories. When Notification, by whom such deposition shall be taken by oral and when to be served. examination, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified not less than twenty-four Time may be extended hours, and, in addition thereto, one day, Sundays exclusive, for every twenty miles' travel; provided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required.

or diminished.

Decisions

Under the Act of Mar. 3, 1891, establishing the Circuit Court of Appeals, appeals in admiralty lie direct from the District Court to the Court of Appeals. The Havilah, 48 Fed. R. 684–685.

A deposition taken subsequent to the appeal will not be considered at the hearing where the same witness testified in the District Court concerning the matters referred to in the deposition, and no grounds are shown for introducing such additional proof at the hearing on appeal. The Sirius, 54 Fed. R. 188-196, 4 C. C. A. 273.

New evidence may be introduced in the trial of an admiralty cause in the appellate court if material and competent, and if for any cause other than the fault of the party offering the same, such evidence could not be introduced upon the original trial. Ib.

Where it does not appear that a party was prevented from presenting the testimony to the trial court and was then informed as to its materiality and notified by the opposite party's motion to dismiss, that such testimony was necessary, he will not be allowed to present in the appellate court testimony taken on deposition, and if filed, the same will be suppressed. The Lurline, 57 Fed. R. 398, 5 C. C. A. 165.

Where the Court of Appeals has adopted the rule that its practice shall be the same as in the Supreme Court of the United States as far

as applicable, Held, that testimony sought to be introduced in the appellate court must be taken under a commission, which may only issue where the party shows that the testimony is material, and presents a satisfactory excuse for not taking the evidence before the trial court. The Bechee Dene, 55 Fed. R. 526–528, 5 C. C. A. 208.

The rules applicable to appeals from the District to the Circuit Court before Mar. 3, 1891, Held, not to govern appeals to the Court of Appeals. Ib. 528.

Where all prejudice resulting to the appellee because the testimony was not taken in the court below can be corrected in disposing of the costs of the case, and substantial justice requires the admission of testimony taken since the appeal, it will be received, although a satisfactory excuse for not taking the testimony in the lower court may not be shown. Red River Line v. Cheatham, 60 Fed. R. 517–520, 9 C. C. A. 124.

Parties should endeavor to procure in the first instance all the testimony material to the issues presented by the pleadings. The practice of bolstering up a lost cause by additional testimony ought not to be encouraged. Pacific Steam Whaling Co. v. Grismore, 117 Fed. R. 68-70, 54 C. C. A. 454.

In the Circuit Court of Appeals depositions taken after appeal were suppressed on the ground that it did not appear that the party was prevented from taking such testimony in the trial court except by his own choice; thereupon an application was made in the Supreme Court for leave to file a petition for writ of mandamus to the Court of Appeals directing the judges to receive such depositions and give them the consideration they were entitled to receive according to the practice in admiralty; Held, that the Supreme Court had no power to review the action of the Court of Appeals in suppressing the deposition, such action being an exercise of legitimate jurisdiction. In re Hawkins, 147 U.S. 486, 37 L. ed. 251.

Upon this application the question was raised, but not decided, whether new evidence could be taken in the appellate court as a matter of right, or the taking of such evidence could be restricted to applications made within a time prescribed by a rule of the Court of Appeals. Ib.

It must be shown that the evidence sought to be introduced in the appellate court was discovered when it was too late to produce it in the trial court, or that the witnesses had been subpoenaed and failed to appear and could not be reached by attachment, or other satisfactory excuse given, to entitle a party to examine witnesses on appeal. The Mabey, 10 Wall. 419-420, 19 L. ed. 963.

Commissions to take testimony under Rule 12 of the Supreme Court

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