in this country,1) where everything of this sort is usually done by formal acts in court. But if a distinct and sufficient tender of compensation and costs up to the time of tender were made, actually and in good faith, and rejected, we do not believe the salvors would, in this country, be permitted to recover their costs, however informal it might be.2 And it has been held, that if such a tender is made in England, and the parties refuse to accept it, but proceed in the case, they are not entitled to subsequent costs.3

The costs of a suit have been cast upon a proctor whose misconduct caused the suit and the expense. If a tender be made in

certain services had been rendered, and certain damages sustained, a tender to stop the action and to entitle the party making it to all the benefits of a tender in court, must include all the damages as well as the compensation. See also The Sovereign, Lush. Adm. 85; The Ulster, Lush. Adm. 424.

1 Evans v. The Ship Charles, 1 Newb. Adm. 329.

* See Hessian v. The Edward Howard, 1 Newb. Adm. 522.

The John & Thomas, 1 Hagg. Adm. 157, n.; The Eleanora Charlotta, id 156. See also The Frederick, id. 211, 218. In The Emu, 1 W. Rob. 15, where a tender in a salvage suit was pronounced to be sufficient, no costs were given, but the court stated that in future cases, where a tender was pronounced for, and held to be sufficient, costs would always be given. We should construe this language to mean that costs would be given against the salvors, for the learned judge went on to say: "When the question as to the sufficiency of the tender is nicely balanced, the court will not consider itself bound to give costs, but the general principle will be in favor of costs." In The Batavier, 1 Spinks, 169, the tender was pronounced sufficient, and the salvors condemned in costs. The general principle was stated by Dr. Lushington in the case of The Queen, cited 1 Spinks, 175, as follows: "The rule I have endeavored to follow is not to bind myself in all salvage cases to give costs against salvors, unless I think the tender was so large that the salvors in the exercise of a sound discretion could not do otherwise than accept it. Here I think the tender is sufficient, but it is not so much as to lead me to blame the salvors for not accepting it. I therefore pronounce for the tender, but without costs." See also The Albatross, and the case of The Chancellor, both cited 1 Spinks, 175; The Hopewell, 2 Spinks, 249. In the case of The Paris, 1 Spinks, 289, 291, Dr. Lushington said: "I consider it my duty to pronounce for the tender; and, I am sorry to say, to condemn the parties in the costs. That is a measure which I am reluctant to pursue, though, according to the practice in other courts, where the tender is considered sufficient, they uniformly follow that course. I have considered myself justified in some cases in not proceeding to that extremity on grounds of public policy, but in this case I see no sufficient grounds for departing from the rule."

4 The Frederick, 1 Hagg. Adm. 211, 225.

admiralty and rejected, the court will afterwards, for good cause, reduce the amount, and decree a less sum to the libellant.1

In a case where a part-owner of the salving vessel had an interest in the vessel salved, and he was, therefore, not joined as libellant, the court held, that in considering the sufficiency of the tender made by the defendants, the amount which the owner in both vessels would be entitled to as salvor was to be regarded, and that, if the tender were large enough to pay the other salvors, it would be sufficient.2

The practice in the English admiralty is, when money is paid into court as a tender, not to pay it out until the conclusion of the cause.3

1 The General Palmer, 2 Hagg. Adm. 176, 180. Salvors who refused a tender were in one case obliged to pay costs. The Albion, 2 Hagg. Adm. 180, note. The Caroline, Lush. Adm. 334.

The Annie Childs, Lush. Adm. 509.

CHAPTER XVI.

OF THE DECREES IN ADMIRALTY.

THE decrees in admiralty are moulded by the court to meet the exigencies of each case. They are sometimes in writing, and after such delay as the court deem proper; sometimes spoken by the court, with or without delay, and reduced to writing by the clerk. And if, after the case is heard, the court incline to the opinion that either party has not yet made out his full case, or full defence, but may do so if delay and further opportunity for proof and a rehearing are granted, the court will make such order, instead of a decree on the merits. And even after a decree is made, we should be inclined to hold that the court have the power of varying the same for the purpose of correcting any mistake or oversight, although such a power would be used cautiously and perhaps reluctantly. This subject is interesting, and has been much considered by the courts; and we give the authorities at some length in our note.2 It is to be noticed, however, that this

1

1 In The Palmyra, 2 Wheat. 10, a case was dismissed in the Supreme Court on the ground that there had been no final decree in the circuit court. At the next term it appearing that a final decree had actually been made, the court ordered the cause to be reinstated. So in Alviso v. United States, 6 Wallace, 457, where a cause dismissed at one term for the want of citation was reinstated at the next term, on its being shown that a citation had been signed, served, and filed, and that the mistake was owing to a loss of some of the records in the clerk's office by fire.

The question was elaborately discussed in the case of The Monarch, 1 W. Rob. 21. The suit was a cause of collision before Sir J. Nicholl, and he decreed that both parties were equally in fault, and condemned the owners of one of the ships in a moiety of the amount of such damage, and of the costs incurred on behalf of the other party, and referred the case to the registrar and merchants to determine the amount of the damage, etc. It will be noticed that this was an interlocutory, and not a final decree. Sir J. Nicholl afterwards died, and an application was made to Dr. Lushington, then judge of the court, to vary the decree in question as regarded the costs, on the ground that it was inequitable, and that the late judge could not have intended to burden one side with three fourths of the expenses. Affidavits were also offered to show that the registrar had not

subject is not touched upon by the new Admiralty Rules of the Sutaken down the decree aright, but Dr. Lushington refused to receive the affidavits, especially as the registrar stated that he subsequently took the opinion of the late judge as to the accuracy of the decree in question. The House of Lords had previously decided that where both vessels were in fault, each should bear its own costs, and Dr. Lushington referred to the power of the court of chancery to alter, vary, and amend a decree before its enrolment, and stated that he was at a loss to conceive upon what grounds a court of admiralty in its equitable jurisdiction wa to be precluded from a similar discretionary authority, and said: "In the exercise of this authority I should, I trust, use the greatest caution, and the limit which I would propose to myself in future cases is this, merely to make such an alteration of an error arising from defect of knowledge or information upon a particular point, as the justice of the case requires; at the same time let it be understood, that it must be an error instantly noticed, and brought to the attention of the court with the utmost possible diligence." With respect to the case before the court, the learned judge stated that he should vary the decree to the extent of making it accord with the judgment of the House of Lords.

In The Glenburn, Brow. & L. Adm. 62, the defendant gave his consent to a decree of the court pronouncing for the validity of a bottomry bond. Soon after a decision was given in another case, and the defendant asked that the decree might be set aside on the ground that the facts in the case on the authority of the decision constituted a defence. The motion was overruled.

In The Martha, Blatchf. & H. Adm. 151, a libel for wages was prematurely filed. The defendant pleaded a dilatory plea, and joined with it a defence on the merits. After a full hearing, the court ordered the vessel to be restored without costs, on the ground that the defence on the merits was not sustained, and the libellant failed on account of having brought the suit too soon. A decree to this effect was entered, and at the next term the counsel for the claimant applied to the court for leave to reargue the question of costs, and a manuscript decision of the circuit court was produced overruling the doctrine of the court on the merits of the case, so that the claimant should have been entitled to a judgment on the merits. And, after hearing counsel on both sides, the court decreed that costs should be awarded. The question then arose whether the surety for costs was liable or only the libellant. It was contended that the court had no right to reverse the first decree, subsequent to the term at which the decree was rendered, and Judge Betts so held, and pronounced the last decree a nullity, and the rule was said to be that a rehearing could not be granted except with the free consent of all the parties to be affected by it.

In the case of The Steamboat New England, 3 Sumner, 495, a decree for salvage was rendered, but it was discovered after the final adjournment of the court, that by a mistake of the time, nature, and operation of the decree, the benefit intended by it to the salvors was wholly defeated, and they were burdened with expenses beyond the salvage awarded. The mistake was discovered the morning after the final adjournment, and an application was made to the district judge to allow an appeal. The minutes only of the decree had been stated while the court was in session, and the decree was not drawn out in form until the morning after

preme Court, except so far as the Twenty-Ninth and Fortieth Rules provide for the case of a default for not answering the libel.1

the final adjournment. The judge of the district court refused to allow an appeal, but application for leave to file one was made by all the salvors except one, who filed a petition in behalf of himself and the other salvors in the nature of a libel for a rehearing, or of a libel of review, in the district court. This petition was dismissed by the district court, for want of jurisdiction, and an appeal taken. Mr. Justice Story held that the decree pronounced by the district judge was an interlocutory, and not a final decree, and that the district court had the power to vary and amend it. The general power of the court to alter its decrees was considered at length, and the conclusions of the learned judge were that a court of admiralty has the power to rehear a cause after a decree has been pronounced, pending the term, and before the proceedings have been finally enrolled or drawn up and entered on the record, if there was a manifest mistake, going substantially to the merits even with some slight ingredients of negligence on that side, and without any circumstances of fraud on the other. Great doubt was expressed whether a rehearing could be granted after a final decree was made, but it was thought that a libel in the nature of a bill of review in equity would lie after a final decree, under similar circumstances as in equity, and the learned judge said: “But upon the most careful reflection, which I have been able to bestow upon it, the result to which I have brought my mind is, that if the district court has a right to entertain a libel of review in any case, it must be limited to very special cases, and either where no appeal by law lies, because the matter is less in value than is required by law to justify an appeal, or the proper time for any appeal is passed, and the decree remains unexecuted; or where there is clear error in matter at law; or, if not, where the decree has been obtained by fraud; or where new facts, changing the entire merits, have been discovered since the decree was passed, and there has been not only the highest good faith (uberrima fides), but also the highest diligence and an entire absence of just imputations of negligence; and finally, where the principles of justice and equity require such an interference to prevent a manifest wrong. Further than this I am not prepared to go; and I may say, that with my present impressions I should go thus far with some hesitation, and pause at every step.

--

In Janvrin v. Smith, 1 Sprague, 13, the power of granting a review by a court of admiralty was held not to be limited to the term at which the original decree was passed.

In The Enterprise, 2 Curtis, C. C. 317, it was said to be a very grave question, whether the district court had the power to entertain a libel for a review. It was held that the appellee, in whose favor both the original decree and the decree in review were made, could not raise the question in the circuit court. In Northwestern Iron Co. v. Hopkins, U. S. C. C. Illinois, 14 Am. Law Reg. 44, it was held that a libel for review, filed after the term has passed at which the decree complained of was rendered, and after the decree had been executed, would be entertained by a court of admiralty, when actual fraud was charged, and the libellant was without fault, and would be otherwise without remedy.

1 See ante, p. 400, 401.