Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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to appear and make answer to the suit.^

§ 396. Whether the Admiralty Rales as to Parties are Excln-
sive, Quaere? — The foregoing piovisions, in form permissive, are not
supposed to be exclusive of any other joindei-s of persons or prop-
erty, which may be authorized by sound principle. Thus, although
in the 18th rule the court speak of following the proceeds of prop-
erty, only in cases of bottomry, it is supposed that the general rule,
uniformly held by the court, will still prevail, that wherever the
property affected by a lien or privilege has been converted into pro-
ceeds, under such circumstances as not to destroy the lien or privi-
lege, the proceeds, in whosesoever hands they are, may be followed
by suit, as effectually and as far as the thing itself might have been.
In like manner, numerous familiar maritime causes of action are not
mentioned. Thus the court have always held that the admiralty
has jurisdiction of the whole subject-matter of damage on the high
seas, — every pei-sonal injury, every violent dispossession of property
on the ocean belongs to the admiralty juiisdiction. Still, within
these great classes, the rules enumerate only the cases of collision
and assault or beating, — and similar omissions will be observed in
other classes. The Supreme Court have not the power to exclude
from the admiralty jurisdiction cases which the constitution and the
laws have placed within that jurisdiction, and the characteristic,
cautious propriety of that court forbids the assumption that they
intended to exercise powera which did not belong to them.*

All rights against the thing to recover a demand are in the nature
of a mortgage or hypothecation. The thing is pledged either by
operation of law, or by the act of the parties, and the rule of the

»Ad. Rule 20; anU, §§274, 311, and

«SheppardtJ. Taylor, SOU. S. (5 Pet)
675; Oliver r. Alexander, 31 U. S. (6 Pet)

143; Cutler t. Rae, 4S U. S. (7 How.)
729; The Eledona, 2 Benedict, 31; ante,

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civil law was that the party had his choice to proceed against the
party, or the thing, or both.^

The specification of particular causes of action in'Rules 12 to 20,
inclusive, is therefore presumed not to exclude other causes of ac-
tion, but to be intended only to lay down a rule in those enumerat-
ed cases, leaving othei'S to the operation of analogous principles or
of the general rule.

§ 397. The Same. — So the admimlty rules of the Supreme Court,
with regard to joinder of person and thing, it is presumed, cannot
be considered as repealing or abrogating the sound and salutary
principle, that, wherever the libellant's cause of action gives him, at
the same time, a lien or privilege against the thing, and a full per-
sonal right against the owner, he may by a libel, properly framed,
proceed against the person and the thing, and compel the owner to
come in and submit to the decree of the court against him person-
ally, in the same suit, for any possible deficiency. [But see aiite^

§ 398. Misjoinder. — If parties are improperly introduced, they
may be struck out of the libel, on motion, or, more properly, the
misjoinder may be made the subject of an exception to the libel ; *
but misjoinder of parties libellant, when not objected to, will not
prevent a decree.®

If new or further parties are found to be necessary, they may be
added by ox:^er of the court on petition, or they may be added by
a supplemental libel. But objections to parties, or for want of prop-
er parties, must be made in the court of original jurisdiction. Such
objections cannot be raised for the first time in the appellate court.*^

§ 399. Statement of Parties and Property. — In the statement of
the parties in libels in personam^ the names, occupation and places
of residence of the parties should be stated, if they are known ; and
in libels in rertt, it should be stated that the propei-ty is in the dis-

•^ 5 Encyc. de Juris. 108, art. Hyi)oth. ;
Kauf. Mack. 396, note.

»Duiilap'8 Prac. 87; Elwell v, Mar-
tin, Ware, 53.

^ Coast Wrecking Co. v. Phoenix Ins.
Co., 7 F. R. 236.

»Bett«' Prao. 21; Dunlap Prac. 87;
The Commander-in-Chief, 67 U. S. (1
Wall.) 62.

tt Ad. Rule 23; The Bee, Ware, 332;
Betts' Prac. 19.

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§ 400. Statement of the Nature of the Cause. — After the state-
ment of the parties, the nature of the cause should be shortly stated
in a cause of contract^ civil and maritime^ or. of tort or damage^ or of
salvage^ or of possession^ or of prize^ or forfeiture or penalty^ civil
and maritime^ as the ease may be. The actions known to the civil
law were classified in various modes, and the classes were almost as
numerous as the transactions of men. That extreme classification
is now considered unnecessary, and every civil cause of admiralty
and maritime jurisdiction may be included in one or the other of
the above classes.

§ 401. The Statement of the Canse of Action.— The libel must
allege, in distinct articles, the various facts upon which Uie libellant
relies to support his suit, sO that the defendant can answer, distinct-
ly and separately, the several mattet-s contained in each article. The
amount claimed to be due should be stated, and it should be stated
without unreasonable exaggeration. For the convenience of all par-
ties, the articles should be numbered Article fii-st, second, etc., in
paragraphs, according to the subject-matter, of greater or less length,
as the orderly statement of the cause of action may require.®

§ 402. The Same. — This statement should contain every fact
necessary to give the court jurisdiction, and to entitle the libellant
to the remedy or relief which he seeks, and it should contain noth-
ing else.^ The statements of fact may be more or less detailed and
amplified according to the taste of the pleader, but simplicity, com-
pactness, orderly aiTangement, and severe logical accuracy, in the
common nari-ative style, are the perfection of pleading in admiralty ;
and the cojirt properly discourages the voluminous and involved state-
ments, repetitions, exaggerated and cumulative epithets, which dis-
credit some systems of pleading.®*

§ 408. Joinder of Causes of Action.— In suits in personam, the
libellant may join in the same libel any number of causes of action.

wAd. Rule 23; The Bee, Ware, 336;
The Boston, 1 Sum. 328; The Graces,
8 Jur. 501; Hutsou v, Jordan, Ware,
399; Ad. Rule 27; The Vim, 2 F. R. 874.

»The Boston, 1 Sum. 331; The Sarah
Ann, 2 id. 209; McKinlay v. Morii8h,62
U. S. (21 How.) 340; post, § 517.

»*The Towan, 8 Jur. 222; The Match-
less, 1 Hag. Ad. R. 97; Captures on the
Jamaica Station, id. 131; Conk. Treat.
2d ed. 353; The Hoppet v. The U. S., U
U. S. (7 Cranch), 389; Betts' Prac. 19;
Thomas o. Lane, 2 Sum. 1; Conk. Ad.

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whether of contract or tort, between the same parties. This is an-
other advantage of the admiralty course of proceeding, which the
different forms of action, the different forms of pleas, the different
modes of trial, and the different kinds of judgments and executions,
all having their technical niceties, in common law proceedings, ren-
der impracticable in common law courts.

In like manner, if the suit be in rem^ the libellant may join, in
the same libel, any number of demands against the thing ; indeed,
it would seem that he must do so, inasmuch as he could hardly be
permitted again to attach the thing in the innocent hands of a pur-
chaser at his own sale. Each separate cause of action should be set
forth in a distinct and orderly manner in a separate article.^

§ 404. Statement of Bights of Separate Libellants. — In cases
in which one party sues for himself and others, the stating part of
the libel should contain facts to show that others are entitled, and
who they are, and how they are entitled ; — ^and wherever several
parties are joined, and the rights of the parties are distinct, sepa-
rate and independent, there each libellant's case should be stated in
au article by itself, not only with a view to the convenience of the
opposite party and of the court, but also because, in such cases, the
right to appeal is the individual right of each party, and the final
decree should be for or against each individual, (or set of partners,)
by name, and, so far as he is concerned, confined to him. In prac-
tice, this is often neglected, and, in case of several parties, a general
joint libel and answer are put in, and a general decree |nade, which
leads to embarrassment and needless expense, in case of an appeal
by some, and not all the parties, or of separate appeals by all.^

[Where several parties have causes of action in rem arising out of
the same transaction, as for instance several salvoi's who have taken
part in a salvage or several parties whose property has been injured
in a collision, they should properly all join in one libel. But if they
have not joined, the proper method is for those not joined in the
first libel to present a petition to be joined as co-libellants. If they
file independent libels instead of coming iiK by petition, the court

»5Dunlap'8 Prac. 88; Betts' Prac. 20;
contra^ Pratt r. Thomas, Ware, 427;
TreadweU c. Joseph, 1 Sum. 390. See
Minturn v. Alexandre, 5 F. R. 117, and
The Anchor, 9 F. R. 840.

^Ante, §§380, 381, 382, 384; Shep-
pardr. Taylor, 30 U. S. (5 Pet) 714;
Oliver c. Alexander, 31 U. S. (6 Pet.)
143; The Henry Ewbank, 1 Sum. 407;
The Anclioria, 9 F. R. 840.

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may mark ite disapproval by its disposition of the question of
costs.^ But if in the first libel a stipulation has been substituted
for the property, parties subsequently coming into court should con-
sider whether it is sufficient security for their claims as well. If it
were not so, independent libels would doubtless be held justified.]

§ 405. Statement of Amount claimed. — The libel should contain
a distinct statement of the amount claimed, with reasonable common
accuracy and truth. The court disapproves of actions being entered
in an amount disproportioned to any reasonable estimate of the
amount justly recoverable ; and, when that seems to have been done
for any sinister purpose, will sometimes manifest its displeasure in
disposing of the question of costs.

The court is not, however, bound by the amount of damages
claimed in the libel. When it appears on investigation, that the
libellant has merits, and that justice requires a larger remuneration
than he has demanded in his libel, the court is not precluded by any
technical forms from doing full justice. Sir William Scott, in a
case of salvage, when the libellant claimed £800, gave £2,100, not-
withstanding the objection was made. The whole matter, says he,
is before the court ; and I think the court is by no means limited
by any particular demand.^ [It is usual, however, to direct the
libel to be amended.^ And a decree against stipulators can not ex-
ceed the amount of their stipulation, unless on their default or con-
tumacy.] ^

§ 406. Place of Seizure. — In cases of seizure for a breach of the
laws of revenue, or navigation, or other laws of the United States,
the information or libel must state the place of seizure, whether it
be on land, or on the high seas, or on other navigable waters within
the admiralty and maritime jurisdiction of the United States, and
the district within which the property is brought, and where it then
is. The libel must also propound, in distinct articles, the mattera
relied on as grounds, or causes of forfeiture, and aver the same to
be contmry to the form of the statute, or statutes of the United
States, in such case made and provided, as the case may require.*^

^ The Nahor, 9 F. R. 214.
^ The Graces, 8 Jur. 501; Pratt w.
. Thomas, Ware, 434; The Jonge Bas-
tiaan, 6 Rob. 287; Olivari v. T. M. Co.,
37 F. R. 894.

89 The Webb, 81 U. S. (14 Wall.) 418.

«>The Wanata, 95 U. S. 600.

« The U. S. r. Hay ward, 2 Gal. 485,
497; Cargo of the Aurora v. The U. S.,
11 U.S. (7 Cranch), 382; The Hoppel

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It is sufficient to describe the oflPence in the words of the statute,
provided it be so described, that, if the allegation be true, the case
must be within the law. It is, in no case, necessary to state any
fact which is only matter of defence to the claimant, nor to negative
exceptions, introduced by way of proviso, or by subsequent statutes.^

§ 407. Statement as to Defendant's Credits, etc. — If the libel-
lant desires to have his process contain a clause to attach the credits
and effects of the defendant, in case he cannot be found, there
should be inserted in the libel a statement that the defendant has
credits and effects in the hands of one or more persons, who should
be named therein. This is necessary to enable the marshal to sum-
mon the garnishee.^ (See post, § 433.)

§ 408. Libel must State a Case within the Jurisdiction.— The

judicial power of the United States being limited, the courts of the
United States are of limited jurisdiction, limited by the grant of ju-
dicial power in the constitution, and limited by the acts of Congress
distributing that jurisdiction to the courts. Their action extends,
and must be confined to the cases, controvei-sies, and parties over
which both the constitution and the laws have authorized them to
act. It is therefore a cardinal rule, that the libel must, on its face,
state a case which is within the jurisdiction of the court. It is not
enough, nor is it at all necessary to make the general statement that
the case is within the jurisdiction, but the facts necessary to give
jurisdiction must be set forth in the libel. In practice, however,
the stating part of the libel usually closes with a general averment
that the facts ai'e true, and within the jurisdiction of the court.**

§ 409. The Prayer of the Libel.— After the stating part of the
libel, follows the prayer for the proper process to enforce the rights
of the libellant by bringing the party, or the property defendant.

V, The U. S., id. 389; The Caroline v.
The U. S., id. 496; The Anne v. The U.
S., id. 570; The Samuel, 14 U. S., 1
Wheat) 9; The Mary Ann, 21 U. S. (8
Wheat) 880; The Eraily, 22 U. S. (9
Wheat) 381; The Merino, etc., id. 391;
Conk. Treat 2d ed. 352, 353, et seq, ;
Ad. Rale 22.
«The Samuel, 14 U. S. (1 Wheat) 9;

The Mary Ann, 21 U. S. (8 Wheat) 380;
The Emily, 22 U. S. (9 Wheat) 381;
The Merino, etc., id. 391; Cargo of the
Aurora v. The U. S., 11 U. S. (7 Cranch),
382; The U. S. v. Hay ward, 2 Gal. 485,

*» Ad. Rule 2, 37.

« Ante, §§ 390, 397; Betts' Prac. 20.

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before the court, and for such relief and redress as the court is com-
petent to give in the premises. If this suit be in personam alone,
the process and the relief must be merely personal. If the suit be
in rem alone, the process and the relief are confined to the thing, and
no person is under any legal obligation to appear and defend the
suit, or will incur any personal liability by neglecting to do so. If
the suit be in personam and in rem^ then the prayer is for a process,
which will bring before the court both the pei-son and the thing, for
adjudication in the matter of the libel.^

§ 410. The Same. — If the suit be in personam slone^ the libellant
may pmy for a simple citation, in the nature of a summons to ap-
pear and answer to the suit ; — or, in cases where the law permits an
arrest, for a simple warrant of arrest, in the nature of a capias, — or
for a waiTant of arrest or a simple citation with a clause therein, if
the defendant cannot be found, to attach his goods and chattels to
the amount sued for, or, if such property cannot be found, to attach
his credits and effects to the amount sued for, in the hands of gar-
nishees, and to summon the garnishees to appear and answer, on
oath or solemn aflBrmation, as to the debts, credits, and effects of the
defendant in their hands, and to such interrogatories touching the
same as may be propounded by the libellant. If the suit be in rem^
the process prayed for, unless otherwise provided by statute, must
be a warrant of arrest of the thing itself, and a monition to all per-
sons interested to appear by a day certain and intervene for their

§ 411. The Same. — Immediately after the prayer for process, fol-
lows the prayer for the specific and general relief which the libellant
desires, — in suita in rem^ in seizure cases, that the property may be
condemned and sold as forfeited to the United States ; in other cases
that it may be condemned and sold to pay the demand of the libellant
stated in the libel, — or that the vessel may be decreed to belong to
the libellant, or delivered to him, or otherwise, as the case may be,
according to the relief to which the party may be entitled ; or, in suita
in personam^ that the defendant may be decreed to pay the debt or
damages claimed by the libellants ; and in all cases, that the defend-
ant may be condemned to pay the costa.

** Ante, § 15 ; Betts' Prac. 16. I of prayers in the Precedents of Libels,

** Ad. Rule 2, 9, 37; cidc, the forms 1 in the Appendix.

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§ 412. Interrogatories. — If the libellant desire to address himself
to the conscience of the defendant, and to compel him to give testi-
mony as to the mattera in controversy, he may close his libel with
interrogatories, touching all and singular the allegations in the libel,
and demand that the defendant answer them on oath. The practice
of thus inserting proper interrogatories tends gieatly to the promo-
tion of justice, and its prompt and economical administration, by
reducing to the narrowest compass that portion of the cause which
is to occupy the time of the judge and the witnesses in court. Since
the change in the law of evidence, which allows the parties to ac-
tions to testify as witnesses, interrogatories annexed to libels are
i-arely used.*^

*' Conk. Treat 2d ed. 356; vide Precedents in the Appendix; Ad. Rule, 23, 87.

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Commencement of the Suit.

§ 413. Security for Costs. — The filing of the libel is the com-
mencement of the suit. Before being filed, the libel should be signed
by the party or his agent, and by his proctor, and verified by oath.^
It is usually signed by an advocate, — ^but this is not necessary. If
the libel prays for only a citation or summons, without arrest, the
libel need not be sworn to. It must be filed in the clerk's office
from which the process is to issue, before the mesne process can be

The District Courts, in their own rules, provide in what cases and
in what amounts security shall be given for costs, by the libellant,
before commencing the suit. This is usually given by stipulation^
which, as before stated, is the proper name for an undertaking of
security in admiralty, and not by bond under seal, although there
is no legal objection to its being in the form of a bond. A stipula-
tion with surety for costs, is required in the New York Districts in
all cases, except those of American seamen prosecuting for marinei's'
wages, salvors in possession and petitioners for money in the Regis-
try of Court and the cities of New York and Brooklyn.^ In suits
in personam the amount of the stipulation is $100, in rem^ $260.

These stipulations being undertakings in court, they are often
prepared by the clerk, and executed and acknowledged before him,
but there is no Itgal objection to their being prepared by the proc-
tor, and acknowledged before any United States commissioner, or
the judge [or a Notary Public. This has grown to be the more com-
mon practice in the Southern District of New York. They must
be executed by the principal party, if within the District, and at least
one resident surety.] The surety must justify as bail, by a written
aflBdavit on the stipulation, that he is a resident and worth twice the
iimount of his stipulation over and above his debts.*

1 Hardy y. Moore, 4 F. R. S43.

2 Ad. Rule 1.


s Dist. Rale 7. See chap. 209 of U. S.
Stat of 1892.
« HutBOU V. Jordan, Ware, 385 ; Pratt ▼

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§ 414. Form of Security. — The stipulation for costs is in the fol-
lowing form :

" district court of the united states of america, for the
southern district of new york.

" Stipulation.
" Entered into pursuant to the Bides of Practice of the Court.

" WTiereas^ a libel was filed in this court, on the tenth day of Jan-
uary, in the year of our Lord one thousand eight hundred and forty-
six, by Ebenezer N. Hinckley, against David L. Robinson, in a cause
of contract, civil and maritime, for the reasons and causes in the
said libel mentioned, and praying that a monition may issue against
the said defendant ; and James Jackson, residincf at No. , 85th St.
in the city of New York, merchant, surety, ana the said libellant,
the parties hereto, hereby consenting and agreeing, that in case of
default or contumacy on the part of the libellant or his surety, exe-
cution may issue against their goods, chattels and lands, for the sum
of one hundi*ed dollars :

" Now, therefore, it is hereby stipulated and agreed for the benefit
of whom it may concern, that the stipulators undersigned shall be,
and are bound, in the sum of one hundred dollars, conditioned that
the libellant above named shall pay all such costs as shall be awarded
against him by this court, or in case of appeal, by the appellate couit.

" E. N. Hinckley,

r« . , , , , , , . ^ /N , *' Jas. Jackson.

" Taken and acknowledged this 10th

day of January, 1846, before me,

" George W. Morton, U, S. Commissioner.''

'* Southern District of New York^ ss. — James Jackson, party to the

above stipulation, being duly sworn, doth depose and say that he is

woi-th the sum of two hundred doUai's over and above all his just

debts and liabilities. -

"James Jackson,

** Sworn this 10th day of January,

1846, before me,

" George W. Morton, U. S. Commissioner,'*

§ 415. Issuing Proeess. — On filing the libel and the stipulation
for costs, the process prayed for is issued by the clerk, as a matter
of course, in most cases, but in suits in personam no warrant of arrest
of the person or property of the defendant shall issue, for a sum ex-
Thomas, id. 427; Ad. Rule 1, 5, 38; Mar- 1 Townsend, Ware, 286, 290; D. C. Rule
tin t. Walker, Abb. Ad. 579; Lane r. I 21, 22.

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ceeding $500, unless by the special order of the court, upon aflSdavit
or other proper proof, showing the propriety thereof.*

§ 416. Order for an Attachment. — The order of the judge is en-
doi-sed on the libel in this form : — [in case of an attachment of prop-
erty — ** Let piocess of attachment issue as prayed for " — and in cases
of arrest as follows.]

" On filing the within libel, and otherwise complying with th«
rules of the court, — let a warrant of arrest issue in this cause against
the defendant, (naming him,) and let Jiim be held to bail in
dollars. (Signed by the Judge.)

In the Southern District of New York, the defendant is held to
bail, in cases under $500, in 1^100 more than the amount sworn to
be due. In the cases ordered by the judge, he fixes the bail in hLs

Bail, however, can be taken by the marshal and the court, in those
cases only, in which it is required by the laws of the state, where an
arrest is made upon similar or analogous process issuing from the
state courts.*

In all cases on filing the libel, the clerk issues the process and
endorses on it tlie amount in which the mai-shal must take bail as
follows :

*' The Marshal will take bail in the sum of dollai*s.*'

The libel being prepared^ let it be signed and sworn to by the libellanf^
or^ in case of his absence^ by his agent or attorney^ before the Judge^
or the Clerks or a United States Commissioner [or a Notary Pub-
K<?], and signed also by the Proctor and the Advocate,

If it be a case for security for costs^ either prepare the stipulation^ and
have it executed^ and acknowledged and justified ; or let the surety

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 24 of 80)