PART 3. other acting in his behalf, it must at least affirm the belief of such agent in the verity of the claim. The United States v. Four hundred and twenty-four Casks of Wine, 1 Peters, 547.

Objections to the claim.] If the interest in the res set up by the claimant be insufficient to entitle him to assume that character; or if he refuse or omit to make the required affidavit in support of his claim, it is subject to preliminary objection and will be rejected on these grounds. The United States v. Four hundred and twenty-two Casks of Wine, 1 Peters, 547. So "if the claim be made through the intervention of an agent, if there is ground for suspicion, 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." Id. Objections of this nature may properly be made orally at the time of the presentation of the claim. "If the claim be admitted upon this preliminary proof, it is still open to contestation, and, by a suitable exceptive allegation in the admiralty, or, by a correspondent plea in the nature of a plea in abatement to the person of the claimant, in the exchequer, 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 inquiry, and an admission that the party is rightly in court, and capable of contesting the merits. If, indeed, it should afterwards appear, upon the trial, even after the merits have been disposed of in favor of the claimant

that the claimant had in reality, no title to the pro- CHAP. 3. perty; but that the same was the property of a third person, who was not represented by the claimant, or had an adverse interest, or whose rights had been defrauded, it might still be the duty of the court to retain the property in its own custody, until the true owner might have an opportunity to interpose a claim, and receive it from the court. But such cases can rarely occur; and are applications to the discretion of the court, for the furtherance of justice." Id. The above quotations are the language (obviously well considered), of Mr. Justice STORY. His professed object was to state with clearness and precision what he conceived to be the just rules of practice touching the points embraced by his remark.

2. Of the defense.

In connection with the claim, usually, the claimant interposes a response of some sort to the libel or information. This response is frequently united continuously with the claim; though it would undoubtedly be more formal and congruous to keep the claim and answer separate; the object of the claim being to set up a right to defend the suit, and to offer an answer to the libel or information; and that of the answer being to set forth the grounds of defense, after the claim has been admitted.

Denial. General issue.] It is very rare in the description of actions of which we are treating, and especially in that class of them (by far the most numerous), which arises under the revenue laws, that any other defense than that of a direct denial of the charges of illegal conduct set forth in the libel or information is interposed; the only question in general being whether the illegal acts charged have in fact been committed. In all such cases the only

PART 3. appropriate answer or plea is one which is equivalent to the general issue in personal actions. When the libel or information alleges several distinct offenses or causes of forfeiture, the usual practice is to traverse each one of them. But by a rule of the district court of the southern district of New York, it is provided that instead of a traverse of each separate cause of forfeiture, the claimant may plead as a general issue "that the several goods in the information mentioned did not, nor did any part thereof, become forfeited in manner and form as in the information in that behalf alleged." This form is recommended by its similarity to the forms of pleading used in personal actions, its directness and brevity. Its effect in nearly every instance, would be to put in issue the substantial merits of the case. It is equally adapted to actions on the admiralty and on the exchequer side of the court; and judging from the decisions in the American courts relative to the practice in cases of municipal seizure, I perceive no reason to doubt that it would be held admissible and sufficient in all the districts.

In a suit on the admiralty side of the court there ought strictly to be a replication in all cases, though in practice it is often omitted when the answer consists of a simple denial of the libel of information in the form, or to the import above mentioned; and in such cases the replication consists only of a denial in general terms of the sufficiency and truth of the answer, and an assertion of the sufficiency and truth of the libel of information. See Appendix, "Practical Forms." When the proceeding is on the exchequer side of the court, the plea in the above mentioned form, or other form of the like import, ought to conclude to the country; and in that case the issue is completed by adding the similiter.

Demurrer.] The libel or information is always CHAP. 3. founded on some statute, and we have seen that it is in general sufficient to state the offense in the words of the statute; provided, however, the charge be so framed, that if true, the offense must necessarily have been committed. We have seen, also, that if the offense is insufficiently described, in a case on the admiralty side of the court, no decree of condemnation will be made, though the evidence is sufficient to show that a forfeiture has in fact been incurred; and upon the same principle, the court, in a proper case, would doubtless at the instance of the claimant withhold a judgment of condemnation after verdict, in a case on the exchequer side of the court. But the claimant may also, if he thinks proper, insist on such insufficiency by demurrer. Unless, however, the defect is such as really to leave him in doubt as to the ground on which the forfeiture is claimed; or one which cannot be supplied consistently with the facts likely to be proved; the great liberality exercised by the courts in allowing amendments, leaves the claimant in general, little chance of being a gainer in the end by objecting at all.

Want of jurisdiction.] It is, as already explained, essential to the jurisdiction of the court that there should be a valid subsisting seizure at the time of the institution of the suit, and also that it should have been made either within the judicial district where the action is pending, or on the high seas and without the limits of any judicial district. In a case, therefore, in which either no effective seizure had in fact been made, or in which after having been made, it had been abandoned; or where the seizure was made in a different district, it is in the power of the claimant to defeat the action on the ground of a want

PART 3. of jurisdiction in the court to hold cognizance of it. But care must be taken that the objection be not waived. The libel or information always alleges the seizure to have been made within the district or on the high seas for the purpose of making it appear that the case is within the jurisdiction of the court; but the fact or the place of seizure is not put in issue by a general denial of the alleged forfeiture. A claimant who wishes to avail himself of such an objection, must therefore put in an answer or plea, in terms, denying the allegation of the fact or the place of seizure. The Abby, 1 Mason, 360. And if he intends to rely on a subsequent abandonment of the seizure, he ought, doubtless, to set up affirmatively the fact of such abandonment, because a seizure having once been made and followed up by a prosecution, the legal presumption would unquestionably be that it had not been abandoned. In the case of The Abby, above cited, Mr. Justice STORY also placed its decision upon the further ground, that a plea to the merits was an admission of the jurisdiction of the court; and he was also of opinion that applying for and receiving the property on bond, was such an acknowledgment of jurisdiction as the claimant was not at liberty to controvert. As a delivery on bond may now by a late statute be made out of court, before the return of the monition, it may be important, therefore, for the claimant to consider whether a delivery might not have the effect to deprive him of his right to contest the jurisdiction of the court.

Matter of justification or excuse.] Most of the forfeitures denounced by our laws are imposed for omitting to do some act enjoined by law. Rigorous and peremptory as they are, no forfeiture, as we have seen, can be incurred under them by unavoidable omissions; nor by illegal acts committed without the con