same manner, as the libellant may except to the answers of the defendant; and on the hearing of the exceptions, the court may adjudge the libellant in default and dismiss the libel, or may by attachment compel a further answer within a time to be fixed by the court; or may take the subject matter of any interrogatory which is insufficiently answered pro confesso, in favor of the defendant, as the court, in its discretion, shall deem most fit to promote justice.(a)

480. If the libellant or the defendant is out of the country, or unable from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation, at the proper time, the court may, in its discretion, in furtherance of the due. administration of justice extend the time, award a commission to take the answer of the party when and as soon as it may be practicable, or may dispense with it altogether.(b)

481. To the answer of the defendant, if the libellant does not admit its statements, he replies by a replication, which is usually in a general form, simply taking issue upon the answer. A general replication is put in without oath, and may be in this form:

"To the Honorable Samuel R. Betts, Judge of the District Court of the United States for the Southern District of New York:

"The Replication of Thomas G. Smith, libellant, to the answer of John P. Goodmanson, defendant, alleges, that he, the said libellant, will aver, maintain and prove his libel to be true, certain, and sufficient; and that the said answer of the said defendant is uncertain, untrue, and insufficient; and he humbly prays, as in and by his said libel he has already prayed.

"BURR & BENEDICT, Proctors for Libellant."

i 482. It is sometimes desirable to reply to an answer, setting

(a) Betts' Prac. 358, 59. Ad. Rule, 32.

(b) Ad. Rule, 33.

up new matter. In that case, a special replication may be put in, replying such new matter. A special replication should

be sworn to like an answer.

The pleadings may thus go on, by turns, so long as the mode of pleading may require it. They are called Replications, Duplications, Triplications, Quadruplications, and so on; but they are very rarely resorted to, and may be considered as obsolete.

As the libel may set forth many causes of action, so any of the pleadings may set up as many distinct matters of defence, avoidance, or reply, as the case may supply.(a)

(a) Betts' Prac. 48.

CHAPTER XXVII.

Amendments and Supplemental Pleadings.

483. As has been before remarked, causes in Admiralty must be heard and decided according to the allegations of the parties, and the proofs under them; and it has always been the practice of the American Admiralty Courts, to allow every facility to the parties to place fully before the court their whole case, and to enable the court to administer substantial justice between the parties, without circuity of action, or turning round in court, and never to allow a party to overcome his adversary by the man-traps and spring-guns of covert chicanery, or by the surprises and technicalities of mere pleading or practice. Therefore, on proper cause shown, omissions and deficiencies in pleadings may be supplied, and errors and mistakes in practice, in matters of substance, as well as of form, may be corrected, at any stage of the proceedings, for the furtherance of justice. The whole subject rests entirely in the discretion of the court, as well as in relation to the relief to be granted as to the terms on which it shall be granted. Amendments may be made, on application to the court at any time, as well after as before decree and at any time, before the final decree, new counts or articles may be added, and new and supplemental allegations may be filed; and this may be done after the cause is in the Appellate Court, if the new allegations be confined to the original subject of controversy. A new subject of controversy cannot thus be inserted in the Appellate Court.(a)

§ 484. Before any pleading is answered or the opposite party has taken any subsequent step in the cause, amendments may be made, of course, without previous notice to the opposite

(a) Ad. Rule 24. Ware. 52. 1 Wheat. 261. 12 Wheat. 1. Paine, 435. Betta Prac. 57. Jud. Act. § 32. Conk. Treat. 2d edit. 357, 360. Ware. 53, 437. 9 11 Wheat. 1. Conk. Ad. 606.

Cranch, 243. 3 Wash. 481.

party, or application to the court. In such cases, the amendment must be filed with the clerk, and if it be after the appearance of the opposite party, a copy of it should be served on him.

In case one of several plaintiff's or defendants die before final judgment, if the cause of action survive to or against his copartners, the suit does not abate by such death, but a sugges tion of the death is made on the record, and the suit proceeds in the name of the survivors.

In case a sole plaintiff or defendant die before final judgment, in case the cause of action, by law, survive, the executor or administrator of the deceased party has full power to prosecute or defend the suit to final judgment; and the court and the opposite party is bound to consider the executor or administrator as the real party. The executor, however, is always entitled to a continuance of the cause, on motion till the next term, but the other party has not such right. (a)

485. The Supreme Court have construed this section, in a common law case, holding, that after the order admitting the executor to appear, it is too late to contest the fact of his being an executor. It is apparent, therefore, that the motion to be so admitted, should be made on notice to the other party to enable him to contest that fact.

If the executor or administrator neglect or refuse to appear and make himself a party, the court may issue a process requiring him to show cause why the action should not proceed; and if he fail to appear within twenty days after service of such process, then the court may proceed and render judgment against the deceased party, in the same manner, as if the executor or administrator had voluntarily made himself a party to the suit.(b)

(a) Betts' Prac. 58, 59, 110. 9 Cranch, 244. 1 Wheat. 261. 11 Wheat. 1. 7 Cranch, 496. 1 Gal. 123. Ware. 51. 15 Pet. 40. 1 Sum. 328. Jud. Act, 31. Dunlap, 87. 3 Cranch. 193. 1 Paine, 483.

(b) 3 Cranch. 193. 1 Paine, 483. 3 Cranch, 193.

486. Answers as well as libels, and indeed all pleadings should state the matter with all due certainty and precision, In case of misconduct set up, there must be special allegation of the facts, with due certainty of time, place, and circumstances. Any responsive pleading should reply to each article, by a clear and exact admission or denial, or defence to the matter of it. Proper certainty and precision are of the greatest importance; for as the party cannot regularly prove that which is not properly alleged, so it is not sufficient that there are facts proved, which might have a material bearing, unless there are allegations suited to bring them before the court, as matters of plea and controversy.(a)

487. The general rule is, that the whole substantive case of a party should be at once brought before the court, but supplemental pleadings (libel, answer, interrogatories or exceptions,) may be filed whenever new parties, new allegations, or a more full, definite, or accurate statement of the subject matter of the controversy may be necessary, and supplemental pleadings, and not affidavits, are the proper mode of bringing before the court such new matter.(b)

488. When any pleading or paper is defective in form or substance, it may be amended, and any party may, at any time, thus correct his papers by further, or more full and regular, supplemental, amendatory, exceptive, or responsive allegations to be filed in the cause.

Parties are not required to furnish copies of original pleadings to the adverse party, but each party is required to take out copies from the clerk's office; in the case, however, of new, further, amendatory, or supplemental papers, they must be furnished to the opposite party.

When such further papers are put in, if they affect the proceedings in any material point, the opposite party will be entitled to the indulgence of the court in a continuance of the

cause.

(a) 1 Sumn. 328, 384.

(6) 7 Jur. 1117. Betts' Prac. 21. 5 Howard's Rep. 441. 7 Ibid. 729. 3 Hag. Ec. 97. 2 W. Rob. 204. Ibid. 227.