he has authority from the owner of the property, or was the lawful bailee thereof at the time of the arrest. There is nothing in admiralty which answers precisely, in form, or in its technicalities to the plea in abatement,1 or demurrer,2 or exceptions of common-law courts. But so far as these are of substance they exist and must exist in the practice of all courts.3 Exceptions to the libel are often filed under that name, and are provided for, as to the time and manner of filing, notice, answer, or confession, etc., by the rules of some of our courts. They go usually to the jurisdiction of the court, or to the insufficiency of the libel, either in point of form or of substance; or to its being multifarious, as embracing distinct and independent causes of action, which cannot be united in the same proceeding.5 But, with or without using the word "except," or "exception," the defendant in his answer may object to the libel that it is frivolous, unintelligible, impertinent, or otherwise improper, and if his objection be grounded in fact and reason, the court will order a further libel, or decree against the libellant generally, or make such other order or disposition of the case as justice may require. So, the defendant may say in his answer, that the court has no jurisdiction of the case, or that it has been judged and determined 1 Defences which do not go to the merits of the case should, however, properly be made by a plea. They may be set up in the answer, but only by a distinct allegation. The Platina, U. S. D. C. Mass., 1858, 21 Law Rep. 397. But in Manro v. Almeida, 10 Wheat. 473, the case came before the court on a demurrer to a libel. Nothing, however, is said of a demurrer in the new admiralty rules. 4 See Knight v. The Attila, Crabbe, 330. The 36th Rule of the Supreme Court provides that" exception may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, 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." • The David Pratt, Ware, 495. The case is said to have first come before the court on an exception to the libel in the nature of a demurrer. Pratt v. Thomas, Ware, 427. In Teasdale v. Sloop Rambler, Bee, 9, it was held that a plea to the jurisdiction must be by the party himself, and under oath. At the present day very little formality is necessary to bring the question of jurisdiction before the court. No provision is made for it in the Admiralty Rules, and no uniformity of practice exists. The doctrine of the Supreme Court has always been that consent cannot give jurisdiction, and if the want of jurisdiction is brought before the court elsewhere, by a court having jurisdiction; or settled by compromise carried into effect, or that the court or the parties are in any manner, either by the respondent, or is perceived by the court itself, the suit will be dismissed. Thus in Cutler v. Rae, 7 How. 729, the case came before the Supreme Court on an appeal on its merits, and the respondent made no objection to the jurisdiction, but the court ordered the question of jurisdiction to be argued, and afterwards dismissed the libel. See also Gruner v. The United States, 11 How. 163; Montgomery v. Anderson, 21 How. 386; Ballance v. Forsyth, 21 How. 389. In Wilson v. Graham, 4 Wash. C. C. 53, there was a plea to the jurisdiction and a demurrer to the plea. In Vandewater v. Mills, 19 How. 82, the objection to the jurisdiction was taken by an exception to the libel. In Jackson v. Steamboat Magnolia, 20 How. 296, the question of jurisdiction was raised on an agreed statement of facts. The objection is also very often taken in the answer. Dean v. Angus, Bee, 369; Bogart v. The John Jay, 17 How. 399; The Genesee Chief v. Fitzhugh, 12 How. 443; Waring v. Clarke, 5 How. 441. And it is sometimes presented by a motion to dismiss the libel. The Bee, Ware, 332; Nelson v. Leland, 22 How. 48. The question may also come before the Supreme Court by means of a writ of prohibition to the district court. See ante, p. 193. In England, the usual way of bringing up the question has been by a protest to the jurisdiction, but it has been doubted whether this is the proper way of bringing the question before the court. The Alexander, 1 W. Rob. 288, 293. 1 In Taber v. Jenny, 1 Sprague, 315, the answer set up an award of referees as a bar to the libel, but as it appeared that one of the referees had prejudged the cause, and the umpire had not heard the parties, but had made up his mind from statements made by the referees, the award was set aside. And when a plea of res adjudicata is made, the record of the former judgment should show that the very question, the precise title of which is the subject of litigation in the new action, was involved and decided in the former action, and not merely that it might have been. The Vincennes, U. S. D. C., Mass., Ware, J., 21 Law Rep. 616. In The Clarence, 1 Spinks, 206, a verdict obtained at common law by the owners of the Clarence against the libellants, was pleaded but overruled. The case was then taken to the Privy Council, and at the hearing, Lord Justice Knight Bruce expressed his surprise that the matter could be again litigated, and intimated that if the judgment in the common-law court had been pleaded, it would have been a bar to the action. 1 Spinks, 209, note. And in Goodrich v. The City, 5 Wallace, 566, it was held that where a matter is directly in issue and adjudged in a court of common law, that judgment may be set up as an estoppel in a court of admiralty. In this case, a judgment obtained by the defendant at common law was pleaded in bar of a suit in admiralty against the same defendant by the same plaintiff for the same cause of action. In The John & Mary, Swabey, Adm. 471, Dr. Lushington held that where a plaintiff sued in a cause of collision at common law and recovered a verdict, he was entitled afterwards, if the defendant proved insolvent, to sue the ship in admiralty, even though she had been transferred to a third party. So held also wrongly named, or the action wrongly brought. All of these, and more, would be included in pleas of abatement; and being stated in the answer, the court will, if they are not denied, decree for defendant, or order an amendment of the libel, or take some other proper course. And if the answer admits all the facts stated in the libel, and then denies their sufficiency in law to make out the libellant's case, this, which is in substance a demurrer, would be judged of like any other answer, upon its substantial merits. It should be added, however, that while a want of jurisdiction arising from the subject-matter of the action, is fatal if brought to the notice of the court at any stage, yet, if it be merely a personal exemption, the court are strongly disposed to regard an appearance, and answer as a waiver of this objection.2 4 A suit may be brought in a State court and discontinued, and a suit then brought on the same cause of action in admiralty.3 The pendency of another action for the same cause, in a foreign court, is not a good plea in abatement, even at common law, and a State court is foreign in respect to a United States court for this purpose. The plea should also show that the other court has in The Bengal, Swabey, Adm. 468, in a suit for wages. In Lang v. Holbrook, Crabbe, 179, it was held that where a foreign court, not of admiralty, had decided a case on different principles from those recognized in this country, and leading to a different result from what would be here arrived at, though professedly deciding according to our law, a court of admiralty in this country was not bound by it, although the suit was by the same plaintiff against the same defendant and for the same cause of action. In Sarchet v. The Sloop Davis, Crabbe, 185, it was held that a judgment or dismissal of a libel in order to be a bar of a second suit, must have been ordered upon a hearing of the parties, or on the merits of the cause, and that a dismissal for want of appearance was not a conclusive judgment. 1 See Cutler v. Rae, 7 How. 729, cited in the preceding note. The objection must, however, be taken before the case is remanded by the Supreme Court. Washington Bridge Co. v. Stewart, 3 How. 413; Whyte v. Gibbes, 20 How. 541. • Thus a defective summons is cured by the appearance of the party. Prankard v. Deacle, 1 Hagg. Eccl. 169, 185. The admiralty court of one country is not bound, as we have seen, to exercise jurisdiction in suits between foreigners, but as it may do so, an objection to the jurisdiction should be made before entering an appearance, and answering to the merits of the case. The Bee, Ware, 332; The Bilbao, Lush. Adm. 149; See also ante, p. 406. Bingham v. Wilkins, Crabbe, 50. White v. Whitman, 1 Curtis, C. C. 494. See also Wadleigh v. Veazie, 3 jurisdiction of the suit, and it should be verified by affidavit, if any matter of fact is contained in it.1 If the defendant makes an error, and even a material one, in his answer, he may correct it by a supplemental answer, or by an amendment; and the adverse party will not be permitted to profit by it, if the error has been made innocently, and not as a trap. When the libellant relies on new matter in avoidance of the defence set up in the answer, he should not put it in issue by a replication as formerly, but by an amended libel.2 It is said that there must be no double pleading in admiralty, and from what we have said, it is obvious that there need be none. But if there are distinct counts in the libel, properly stated, each of them should receive each its adequate and appropriate answer. Sumner, 165; Lyman v. Brown, 2 Curtis, C. C. 559. In The Lanarkshire, 2 Spinks, 189, a suit in rem against the vessel was brought in England for seamen's wages. A plea that the men had commenced a suit against the master in Canada for the same cause of action was held a good plea. 1 White v. Whitman, 1 Curtis, C. C. 494. 52d Admiralty Rule. Constant, 1 Sprague, 73. See also Taber v. Jenny, 1 Sprague, 315; Gladding v. CHAPTER IX. OF AMENDMENTS. AMENDMENTS in matters of form may be made at any time, on motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made upon motion at any time before the final decree, upon such terms as the court shall impose. "And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant.” 1 Under this rule it has been held that if the amount This is the only apply to amend 1 24th Admiralty Rule. This rule begins, "In all informations and libels in causes of admiralty and maritime jurisdiction, amendments, etc. rule relative to amendments, and we should suppose it would ments of answers as well as of libels. It may be well to state the former practice of the courts in respect to amendments. In the Supreme Court it has been held that the court will not allow an amendment which sets up a new subject of controversy. In the Superior Court of a county in Florida, sitting as an admiralty court, a claim had been made for salvage, and by a process in rem, seventy-two bales of cotton were attached, and condemned. The claimant appealed, but the libellant did not. In the next highest court, the court of appeals, the libellant had leave to amend by claiming fifty more bales. On appeal to the Supreme Court it was held that the claim for the fifty bales being a new subject of controversy, the court of appeals had no authority to allow the amendment. Houseman v. Schooner North Carolina, 15 Pet. 40. In The Schooner Harmony, 1 Gallis. 123, an amendment by inserting a new substantive offence was disallowed, on the sole ground that the statute of limitations had run against it. In The Marianna Flora, 11 Wheat. 1, an amendment as to a matter of substance was held to be correctly allowed in the circuit court on appeal from the district court. In The Sch. Boston, 1 Sumner, 328, 331, Story, J., said: "It is the well-known usage of admiralty courts, even after an appeal, in fit cases, in their discretion, to allow either party to file new allegations and proofs; non allegata allegare, et non probata probare." Facts, material to the defence having come to the knowledge of the claimants after an appeal, they were allowed to file a supplementary answer. See also The Edward, 1 Wheat. 261; Schooner Adeline, 9 Cranch, 244. In Coffin v. Jenkins, 3 Story, 108, decided the year before the new admiralty rules were adopted, the respondent moved in the circuit court for leave to file an amendment to his answer setting up a new point of defence, which had not been |