The transcript of appeal in admiralty causes should contain all the evidence adduced on both sides. Ib. 205.

Where the record contains only the judge's notes of the testimony, and a part of the testimony of the witnesses, the case is not presented in such a manner as to allow the appellate court to review the testimony. The Alejandro, 56 Fed. R. 621-623, 6 C. C. A. 54.

RULE LIII

of

same cause of action.

Whenever a cross-libel is filed upon any counterclaim, arising out of the same cause of action on cross-libel, out for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross-libel, unless the court, on Security must be given, cause shown, shall otherwise direct;

unless.

and all proceedings upon the original libel shall be stayed until such security shall be given.

Decisions

Only the original parties can be joined as libellants or respondents in a cross-bill. The Ping-on v. Blethen, 11 Fed. R. 607–612.

A cross-libel for salvage on account of services rendered to the injured vessel cannot be brought upon a libel in rem for damages caused by a collision, Crowell v. The Schooner Theresa Wolf, 4 Fed. R. 162.

The words in Rule 53 "The same cause of action" do not mean the same legal demand or legal claim, but mean the same transaction, or subject-matter which has been the cause of the action brought, and include cases where the question in dispute is identical in both, the defense in one suit being the ground of claim in the other. Vianello v. The Crédit Lyonnais, 15 Fed. R. 637–638.

Where a libel was filed to recover the value of cargo not delivered, and a cross-libel filed to recover the freight unpaid, Held, that the questions in dispute were the same, and that respondents in the cross-libel should be required to give security. Ib.

Libellants in a cross-libel may require the respondents to give security although the vessel has not been bonded, but is still in custody, and although the original libellant has not given security in that action. The Empresa Marítima á Vapor v. Steam Navigation Co., 16 Fed. R. 502-504.

The object of Rule 53 is that both parties stand on equal terms as regards security in cases of cross-demands upon the same subject of litigation. Where libellants in a suit in rem exact and obtain security through arrest of the property, the defendants in that suit may likewise be entitled to security in a cross-suit in personam for a counterclaim in respect to the same subject of litigation. Ib. 504.

Where a cross-libel is filed the court may stay proceedings in the first suit until an appearance be entered and other steps taken in the second suit. Nichols v. Tremlett, 1 Spr. 361; Fed. Cases, 10,247.

The object of Rule 53 is to compel the appearance and the furnishing of security by respondent in a cross-libel in personam in cases where it does not appear proper that he should be relieved from giving such security. The Bristol, 4 Ben. 55; Fed. Cases, 1,889.

Where a libel for damages sustained by collision is brought and the claimants in that case afterward filed a libel against the vessel belonging to the original libellants in the first case, for damages sustained by them in the same collision, with no prayer for process in personam against any person, Held, that the court did not obtain jurisdiction of the second libel without a seizure of the vessel. Ib.

Rule 53 applies as well to actions in rem as to those in personam. The Toledo, 1 Brown's Adm. 445; Fed. Cases, 14,077.

Rule 53 applies to a case where the original libel is in personam and prays for an attachment which is issued and served so that the suit is in effect in rem; its object is not simply to compel appearance, but is to place the parties upon an equality. Lochmore S. S. Co. v. Hagar, 78 Fed. R. 642.

Held, to be doubtful whether Rule 53 contemplates a case where the original libel is in personam and consequently no security was required of the respondent in the original cause. Franklin Sugar R. Co. v. Funch, 66 Fed. R. 342-343.

A demand for security and stay of proceedings should not be allowed when not asked for until the original libellants have taken their testimony. Ib. 343.

The court may order monition in a cross-libel to be served upon the proctors of the original libellant, a nonresident, and upon such service proceed to judgment in personam upon all matters covered by the crosslibel; and a subsequent dismissal of the original libel on motion of the libellant will not affect the jurisdiction so obtained. The Eliza Lines, 61 Fed. R. 308-323.

The case of Nichols v. Tremlett, 1 Spr. 361, decided in 1857, Held, not to be in accordance with the present practice. Ib. 323.

Where a vessel libelled in a suit in rem has changed owners between the time the alleged offense was committed and the filing of the libel, and by the terms of the purchase the former owners are liable for all. claims against the vessel, Held, that the former owners, though not parties to the record in the original suit, but liable if the original libel be sustained, might file a cross-libel and require security and have a stay of proceedings in the original libel until such security is given. The George H. Parker, 1 Flip. 606; Fed. Cases, 5,334.

In a collision cause the respondents to the libel should file their cross➜ libel, take out process and have it served in the usual way. When this is done the libellants in the first suit become respondents in the crosslibel, and as such they must answer or stand the consequences of default. Ward v. Chamberlain, 21 How. 572–574, 16 L. ed. 219.

That the respondent in a cross-libel will be seriously embarrassed in his business and put to great expense and sacrifice is not sufficient grounds to exempt him from giving security. Compagnie Universelle v. Belloni, 45 Fed. R. 587.

An appeal from an order upon a cross-libel denying a demand for security and stay does not operate to suspend the proceedings in the original suit. Franklin Sugar R. Co. v. Funch, 73 Fed. R. 844-845, 20 C. C. A. 61.

Assuming without deciding that in the exercise of the authority given by Rule 53 the court may commit an error that would subject its action to review, still there ought to be no reversal of an order made thereunder, unless it clearly appears that the action of the court was unwarranted. The court refused to reverse an order denying a demand for security on a cross-libel because of inexcusable delay in asking for it. Ib. 845.

In admiralty if the respondent desire to obtain entire damages against the libellant, or damages in excess of those claimed by the libellant, a cross-libel is necessary, although matters of recoupment or counterclaim may be asserted in the answer. Bowker v. United States, 186 U.S. 135-140, 46 L. ed. 1090.

Where an appeal is prosecuted from the District Court direct to the Supreme Court under sec. 5 of the Act of Mar. 3, 1891, a decree dismissing a cross-libel is not a final judgment within the rule upon that subject. Ib. 142.

In admiralty a set-off may be pleaded which has no connection with the libellant's cause of action, though a cross-libel can only be filed upon counterclaims arising out of the same cause of action upon which the original libel was filed. The C. B. Sanford, 22 Fed. R. 863-864.

If respondent sets up a claim by way of recoupment it goes only to diminish or extinguish the demand of the libellant, and he can have no

decree for more than he is sued for except by filing a cross-libel. Snow t. Carew, 1 Spr. 324; Fed. Cases, 1,344.

Where suit is brought for a balance of wages alleged to be due and respondents by answer claim damages through the negligence and carelessness of the libellant, which they seek to set off against the libellant's claim, Held, that such acts of negligence if proved are the subject of set-off, but only to the extent of the wages claimed. The Tom Lysle, 48 Fed. R. 690-692.

Actions for damages for misrepresentations and breaches of contract for supplies are within the jurisdiction of admiralty, and the court upon cross-libel may inquire into breaches of such contract, and all the damages suffered thereby, whatever issues they may involve, and upon such cross-libel filed may require security or a stay of proceedings in an original libel in rem for the price of such supplies. The Electron, 48 Fed. R. 689-690.

By bringing a cross-libel the claimant loses no defense properly set up in his answer to the libel. Ib.

Rule 53 does not permit new and distinct matters not involved in the issues tendered by the original libel to be the basis of a cross-libel, but any cause of action in favor of a party called upon to defend against the original libel founded upon the same contract, or arising out of the same transaction, is a counterclaim which may be set up by cross-libel. The Highland Light, 88 Fed. R. 296–297.

Rule 53 must be construed to allow all matters in dispute between the parties which must necessarily be considered in a determination of the original case to be fully considered for all purposes, so that the rights of both parties may be protected and finally adjudicated in one suit. Ib. 297.

To a libel in rem to recover charges of loading, a cross-libel was allowed to be filed to recover damages for breach of promise to render towage service, both agreements being embodied in the same instruments. Ib.

The rule is well settled in admiralty that respondent may set up and prove and recoup for matters growing out of the same cause of action as is set up in the libel, and by averments in the answer may avail himself of all such matters to the extent of defeating the libellant's demand; but it is also well settled that if respondent desires affirmative relief beyond defeating the libel and a decree over and against the libellant, he must beside answering the case made by the libel, file a crossbill, which is an independent proceeding with the formalities attendant upon an original libel. The Edward H. Blake, 92 Fed. R. 203–206.

Rule 53 is broad enough to cover those cases where the original action is in personam as well as in rem. The court, however, is to see that no injustice is done in its enforcement, and the burden is upon the respond

ent in the cross-libel to show circumstances which would make the application of the rule unjust. Morse I. & D. D. Co. v. Luckenbach, 123 Fed. R. 332–334, 59 C. C. A. 236.

To a libel filed for injury to a vessel from the defect of a dock, the dock owner was allowed to file a cross-libel against the vessel for expenses of pumping her out and placing her in the dock so that her cargo could be discharged. Genthner v. Wiley, 85 Fed. R. 797.

Where the claimant of a libelled vessel procures an order requiring libellant to give security to the claimant for damages claimed in his cross-libel, upon dismissal of the cross-libel the claimant is properly taxed with the amount paid by libellant to a surety company for furnishing such bond. Jacobson v. Lewis Klondike Ex. Co., 112 Fed. R. 73-80, 50 C. C. A. 121.

Supplementary rules of practice in admiralty, under the Act of Mar. 3, 1851, entitled "An act to limit the liability of shipowners and for other purposes."

RULE LIV

Act of Mar. 3, 1851, may file libel.

tation of liability under

When any ship or vessel shall be libelled, or the owner or owners thereof shall be sued, for any owners claiming limiembezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the said act above recited, the said owner or owners shall and may file a libel or petition in the proper District Court of the United States, as hereinafter specified, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf; and thereupon said court, having caused due appraisement to be had of the amount After appraisement, may or value of.the interest of said owner or of value of interest in owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same into court, or for the giving of

order payment into court vessel.