Read v. Owen , 9 Port. 180 ( 1839 )

GOLDTHWAITE, J.

It appears from the record, that no,person whatever appeared in the County court, where this proceeding liad its origin, claiming any interest in the steam-boat .attached. The judgment entry, at the term after the process of monition and attachment was issued, states that, “came as well the plaintiffs by their attorneys and proctors, as Joseph P. Saffold, proctor and attorney in behalf of the said boat. And the said Saffold, in behalf of the said boat, denies all the allegations of the libel and proceedings in this case contained, and thereupon, on request of the parties, and by the direction-of the court, came a jury,” &c.

The plaintiff in error is no where in the proceedings, mentioned as having presented any claim to the boat, and was not admitted to defend the libel, on account of any supposed interest in the same, or for any other cause whatever.

A person of the same name is one of the libellants, .but whether he is the same person who sues out the writ of error, and is described therein as the sole owner, does not appear. The mode in which any one claiming an interest, in a ship’or other thing, which is the subject of a proceeding in rent, may make himself a party defendant to the suit, according to the course of the admiralty practice, is very distinctly laid clown in the books. The first step is the interposition of a claim for the property libelled. In the case of the United States vs. 422 Casks Malaga Wine, (1 Peters, 547,) it is said, the claimant is an actor, and is entitled to come befóse the court, in that character only, in virtue of his proprietary interest in the thing in controversy ; this alone gives him a 'persona standi injudido. It is necessary that he should establish his right to that character, as a preliminary to his admission as a party, ad litem, capable of sustaining the litigation. He is, therefore, in the regular and proper course of practice, required in the first instance, to. put in his claim, upon oath, averring, in positive terms, his proprietary interest. If he refuses so to do, it is a sufficient reason for the rejection of his claim. If the claim be made through the intervention of an agent, the agent is in like manner required to make oath of his belief in the verity of the claim; and if necessary, he may be required to produce and prove his authority, before he can be admitted to put in the claim. If this is not done, it furnishes matter of exception, and may be insisted upon by the adverse party for the dismissal of the claim. If the claim he admitted, on this preliminary proof, it is still open to contestation, and, by a suitable exceptive allegation, the facts of proprietary interest, sufficient to support the claim, may be put in contestation, and formally decided. it is in this stage of the proceedings, and in this only, that the question of the claimant’s right, is generally open for discussion. If the claim is admitted without objection, and allegations or pleadings to the merits are subsequently put in; it is a waiver of the preliminary enquiry, and an admission that the party is rightfully in court, and capable of contesting the merits.

To follow out the course of practice thus indicated, if any one in this suit had intervened as a claimant, we should not question the manner by which he came into court, in the absence of ah exceptive allegation, but here no person has intervened. It is true, a proctor comes and denies the allegations of the libel, but he only appears on behalf the boat, which cannot thus, or in any other manner, be represented for the purposes of making the lids contestado.

If, however, a claim was properly interposed, in this cause, in the County court, and the claims of the libel-lants were there contested by a proper party, this writ of error would, notwithstanding, he dismissed, because it seeks to remove several independent decrees. The rule of admiralty practice is clear, that when the libellants have joined in their libel, because of their common pursuit of the same ship, whenever their interests become severed by decrees, each decree becomes distinct and independent, and as such, must be appealed from — -(Oliver vs. Alexander et al. 6 Peters, 143.)

The same rule obtains when several claims are interposed — (Stratton vs. Jarvis & Brown, 8 Peters, 4.)

It may be enquired, how, and in what manner, can those who are interested as the proprietors of the ship, or thing which is proceeded against, review the proceedings against it, when a decree has passed by default 7 According to the course of practice, as laid down in the elementary treatises on admiralty law, any person interested may come in, within a year from the time of the decree, and on giving security and paying all the costs, be admitted to defend — (2 Brown’s Civ. & Adm. Law, 405.) And it is stated, as the usual practice on defaults, before a sale is permitted, to require security of the libel-lant to answer for the sum received, to any person claiming right, or intervening for their interest within a yeai' —(2 Brown’s Civ. & Adm. Law, 402.) "VVe are not aware of any decisions in the American courts on this subject, but the rule above quoted seems so reasonable, and protects so perfectly the rights of absent parties in interest, that we do not hesitate to adopt it. In Stratton vs. Jarvis & Brown, (8 Peters, 4,) it is said, if no owner should appear to claim any particular parcel of property, or its proceeds, the habit of courts of admiralty is, to retain such property, or its proceeds, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings, but the case did not require any decision on this question of practice — (See also The Harrison, 1 Wheat. 298.) Should any person claiming an interest, then intervene after a default and condemnation, on shewing a different cause for his previous default, he will be permitted to contest the.suit, as if no decree had been,rendered, and of course the proceedings having then assumed the character of a litis contestation might, after final judgment, be removed to an appellate court by the ordinary mode. Let the writ of error b,e dismissed.