Erastus Cornelius Benedict.

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

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eration and arrangement of them in argument, the due deliberation
and reflection upon the facts and the law, which are the usual char-
acteristics of proceedings in an admiralty court, are often impossible
in tribunals, of which a necessary part is a jury, drawn by hazard
from the community at large, taken forcibly from their private af-
fairs, and without the practised powers of analysis, of memory and
of judgment, which alone could enable them to detect fallacies, to
unravel the tangled web of deceit, and resist the pereuasives of elo-
quence, especially when compelled to a hurried unanimity in cases
where the wisest ai'e compelled to doubt.

§ 517. Practice at Hearing. — An admiralty cause is to be decided
according to the allegations and proofs, — secundum allegata et pro-

« Sheppard «. Taylor, 6 Pet 675; Copp I Co., 8 Ben. 321; 118 Sticks of Timber,
V, The DeCastro A Doimer Sugar Ref. 1 10 Ben. 86.

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bata^ — and the proofs must correspond to the allegations.* The
allegations are to be found in the pleadings. On the hearing, there-
fore, the first thing to which the attention of the court is called is
the pleadings. The advocate for the libellant opens by a very brief
and general statement of the nature of his case, and of the defence,
and reads the libel ; the advocate for the defendant reads the an-
swer, and, if there be other pleadings, each party reads his own.
The more circumstantial and careful opening, which the inexperi-
ence of jurors renders necessary in trials at common law, is out of
place in an admiralty court. The pleadings being read, the proofs
are introduced in the same genei*al order which must prevail in all
lawsuits, but with less strict adherence to the artificial rules, which
are sometimes made to constrain the parties in jury trials. The
judge always exercises bis discretion as to the order of calling and
re-calling witnesses, and the course of examination.^

§ 517 a. Evidence. — The laws of the state in which the court is
held furnish the rules of decision as to the competency of witnesses ;
and all objections to evidence on the ground of competency must be
made at the hearing.®

[But Courts of Admiralty are not bound by all the rules of evi-
dence which are applied in courts of common law and they may,
where justice requires it, take notice of mattei-s not strictly proved,
and may receive in evidence testimony which might not be admissi-
ble in other courts.] ^

§ 518. Pleadings. — What is the legal effect of an answer as evi-
dence has been considered a matter of doubt, and it has been said
that, if the answer be not contradicted by two witnesses, or circum-
stances and one witness, it must be taken as true in all mattei*s re-
sponsive to the libel. This is the rule in chancery, but not in
admiralty. The answer to the libel has no more force as evidence
■than the libel itself has. They are not evidence, in the common
sense of the word. Being, however, the solemn statement of facts
by the parties, under the solemnity of an oath, the court is bound

* The Boston, 1 Sum. 331 ; The Gazelle,
128 U. S. 487; ante, §402.

^ The Phil. & T. R. R. Co. v. Stimp-
son, 39 U. S. (14 Pet.) 463.

« Rev. Stat. § 855; Ryan «. Bindley, 68
U. S. (1 Wall) 06; Nelson v. Woodruff, 66

U. S. (1 Black.) 166; The Trial, Blatchf .
& H. 94.

7 The Peerless, 1 Vern.Lu8h. 41; The
J. F. Spencer, 3 Ben. 338; The Bos-
kenna Bay, 22 F. R. 662.

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to examine them carefully, and it is impossible that they should not
influence the mind of the court ; in many cases of nicely-balanced
proofs, the influence of the pleadings may well turn the scale.®

§ 519. Answers to Interrogatories. — The power to interrog^nte
the parties furnishes an effectual means of bringing the part}' before
the court, with great advantage, in abridging the more expensive
and doubtful viva voce proof on trial. Either party, as has been
stated, may inten*ogate the other, in writing, as to any mattei*s of
fact, which may be necessary to support the action, or maintain the
defence, and the party interrogated is bound to answer, in writing,
each interrogatory, unless his answer will expose him to prosecution
or punishment for a crime, or to a penalty, or forfeiture of his prop-
erty for a penal offence.

[The later authorities seem to have settled the law that the an-
swers to these special interrogatories are not evidence but pleading.] •

§ 520. Depositions de bene esse. — The provision made by the
acts of Congress, for taking tcBtimony de bene esse^ in cases in the
courts of the United States, without a commission dedimus potesta-
iem^ or letters rogatory^ greatly promotes the convenience of suitoi-s.
The depositions are often taken ex parte^ and they are for that rea-
son exposed to criticism. No presumptions are made in their favor,
and they will not be received in evidence, unless the provisions of
the act be strictly followed.

The authority conferred upon the magistrate is special, and con-
fined within certain limits and conditions, and the facts calling for
the exercise of it should appear upon the face of the instrument,
and not be left to parol proof.^^

•* Hutson r. Jordan, Ware, 393; Cush-
man v. Ryan, 1 Story C. C. 91; ante,

» Ad. Rules 23, 31, 32; Cushraan c. Ry-
an, 1 Story C. C. 91; The David Pratt,
Ware, 497. 501, 604; Gushing r. Laird,
Ben. 408; The Serapis, 37 F. R. 436.

10 Rev. Stat. §863: Beale v. Thomp-
son, 12 U. S. (8 Cranch). 70; The Argo,
15 U. S. (2 Wheat.) 287; The Argo, 2
Gal. 314; Ketland v. Bissett, 1 Wash.
144; Lessee of Banert v. Day, 3 id.
•243; Bleecker «. Bond, id. 529; Petti-

bone V. Derringer, 4 id. 215; Evans v.
Eaton, 20 U. S. (7 Wheat.) 356; Nelson
«. The U. S., 1 Pet. C. C. R. 235; Les-
see of Brown v. Galloway, id. 291 ; Rug-
gles t?. Buckner, 1 Paine, 358; The U. S.
«. One Case of Hair Pencils, id. 400; The
U. S. V. John Smith, 4 Day, (Conn.)
121; N. Car. Cases, 81; Bell r. Morrison,
26 U. S. (1 Pet) 355; The Patapsco
Ins. Co. «. Southgate, 30 U. S. (5 Pet)
604; The Thomas & Henry v. The U.
S., 1 Brockenb. 367; 1 Stat, at Large,
73, §30.

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§521. When They may be taken. — They may be taken in the
following cases :

When the testimony of any person shall be necessary in any civil
cause depending in any District or Circuit Court of the United
States, who lives at a greater distance from the place of trial than
one hundred miles, or is bound on a voyage to sea, or is about to
go out of the United States, or out of such district and to a gi-eater
distance than one hundred miles from the place of trial, before the
time of trial, or is ancient, or is very infirm.

§ 522. Before what OflBcers taken. — [They may be taken before
the following oflBcers :

Any judge of any court of the United States, or any commis-
sioner of a Circuit Court, or any clerk of a District or Circuit Court,
or any chancellor, justice or judge of a Supreme or Superior Court,
mayor or chief magistrate of a city, judge of a county court or court
of common pleas of any of the United States, or any notary public,
not being of counsel or attorney to either of the parties, nor inter-
ested in the event of the cause.^^

They may also be taken in a foreign country before a secretary
of legation or consular oiBcer.] ^

[§ 523. How taken. — They must be taken in the following man-
ner :

Reasonable notice must first be given in writing by the party or
his attorney proposing to take such deposition, to the opposite party
or his attorney of record, as either may be nearest, which notice
shall state the name of the witness and the time and place of taking
his deposition. The notice should also state the officer before whom
the deposition is to be taken, but this is not indispensable.

In suits in rem^ the person having the agency or possession of
the property shall be deemed the advei-se party, until a claim has
been filed in the cause.

Whenever by reason of the absence of the party from the district
and the want of an attorney of record (as for instance in a cause
commenced by foreign attachment) or other reason the statutory
notice cannot be given, a deposition, for the taking of which there is
urgent necessity, may be taken on such reasonable notice as any

"^aj parte Fisk, 113 U. S. 713.

ri Kev. Stat § 1750; Bishoffsheim v. Baltzer, 20 Blatclu 232.

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judge authorized to hold courts in such cixcuit or district shall

§ 524. Notice to take Depositions. — This notice must be in writr
ing. It should be entitled in the cause, or with reasonable certainty
describe the cause. It must be from the party proposing to take
the deposition " to the adveree party ; " it must therefore be signed
by the party or his proctor, and addressed to the party to be noti-
fied, by name, — ^in suits in personam^ to the party advei*se to him on
whose part the deposition is to be taken, or to his attorney of record
" as either may be nearest." Nearest to what — to the place where
the cause is pending, or to the place where the witness is to be ex-
amined ? The latter is probably intended, so that to examine a wit-
ness outside of the district where the cause is pending notice might
have to be given to the party peraonally.

Under the provision of the statute that, if " reasonable " notice
can not be given, and there is urgent necessity for taking the dep-
osition, the notice shall be such as a judge authorized to hold court
in such circuit or district shall " think reasonable," it would seem
to be advisable that, if the party who is taking the deposition has
any doubt as to the proper notice, he should apply to a Circuit or
District Judge of the District where the deposition is to be taken
to fix the terms of the notice.]

Any person may be compelled to appear, and depose in the same
manner as to appear and testify in court. This is by the usual sub-
poena, served in the usual manner, and if he refuse or neglect to
appear, the magistrate may, on due proof of service of the subpoena,
bring him before him, by attachment. Such a subpoena may be
sei-ved upon a witness living without the district, provided he do
not live more than one hundred miles from the place of holding

[But if the witness is to be examined before a commissioner or
notary public, the subpoena must be issued from the court.]

§ 525. Examining the Witness.— Return of Deposition.— At

the taking of the depasition, the witness must be cautioned and
sworn or afiSrmed to testify the whole truth, and carefully exam-
ined. The deposition should have a proper title, showing the cause,

w Rev. Stat § 863; Gould <fc Tuck- 1 Harris v. Wall, 48 U. S. (7 How.) 693.
er's Notes, p. 260, et acq. ; ante, § 338; I ^^ Rev. Stat. §§ 863, 876.

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and the official description of the officer. The witness may be ex-
amined by both parties, or their counsel, if present, and if the dep-
osition be ex parte^ the magistrate should endeavor, by a careful
examination, to get out the whole truth. The testimony must be
reduced to writing, either by the magistrate or b}' the deponent, in
his presence, [and by uo other pei*son, which would seem to exclude
the employment of a stenographer except by consent of both par-
ties ;] and it must be then subscribed by the witness ; and the mag-
istrate should put his official jurat to it, with the date, and retain
the deposition till he deliver it, with his own hand, into the
court for which it is taken; or the magistrate may add his of-
ficial certificate of the reasons for taking the deposition, viz. : that
the witness resides more than one hundred miles from the place of
trial, or is about to go to sea, or otherwise, according to the act, and
of the notice, if any, given to the adverse party, stating the time
given him to appear. It is well to annex a copy of the notice. The
certificate should state the reason for taking the deposition, and the
notice given to the adverse party, (and if it omit to do so, the defi-
ciency cannot be supplied by other proof ;)^ also, that the officer was
not counsel, or attorney, or interested, and that the deposition was
reduced to writing by the witness or the officer, and signed by the
witness. If these documents be on separate pieces of paper, they
should be properly listened together, and referred to with reasona-
ble certaint}'. They must then be sealed up by the magistrate, in
an envelope, and directed to the court in which the cause was pend-
ing, and remain under his seal till opened in court.^^

They should be indoi-sed with the title of the cause, and marked
" depositions,'* and they may be forwarded by mail or by private

As soon as they are received by the clerk, he maiks their receipt
and presents them to the judge in court, who opens them, and the
clerk entei-s the fact in the minutes of the court, and files the dep-
ositions, and notifies the proctor of the party on whose behalf they
are taken.^^

§ 526. Notice of filing Depositions. — By a general rule of the

« Harris tj. WaU, 48 U. S. (7 How.)
693; Petti bone v. Derringer, 4 Wash.
215; Tlie U. S. t?. John Smith, 4 Day,
(Conn.) 121; N. Carolina Cas. 81.

w BeU V. Morrison, 26 U. S. (1 Pet)

351 ; The Patapsco Ins. Co. t?. Southgate,
31 U. S. (5 Pet.) 604; Beale v, Thomp-
son, 12 U. S. (8 Cranch), 70.

^^ Vide the Forms in the Appendix.

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District Court of the Southern District of New York, notice must
be given to the proctor of the opposite party, of the filing of the
depositions ; and all objections to the form or manner in which they
were taken or returned, are deemed waived unless such objections
shall be specified in writing, and filed within four days after the
same are opened unless further time be granted by the judge.^® Ex-
ceptions tiiken thus eaily will sometimes enable the party to remove
them or retake the depositions before the trial.

§ 527. Omitted. .

§ 528. Proof of Regularity of Proceedings. — The depositions
themselves, sworn to and certified in form according to the act, will
be prima facie evidence of the oflBcial character of the magistrate,
and of the truth of his certificate, and the regularity of the proceed-
ings, to take them so far as they are certified to ; but the op{)osite
party will be always at libei-ty, before the . depositions are read in
evidence, to disprove any or all the facts necessary to establish their
validity, — ^and no necessary fact will be presumed, concerning which
the certificates and depositions are silent.^^

If the party, against whom the depositions are taken, is present
at the examination, it is his duty to make all the objections to the
examination which are known to him at the time.^

§ 529. Depositions taken without Notice. — It has been held, in
the Fii-st Circuit, that depositions taken during the session of the
court, are inadmissible, even if regularly taken, it being the duty
of the party and his counsel to be present in court ; and that the
taking of the depositions without notice, was good cause for a con-
tinuance to enable the other party to cross-examine the witness or
repel his testimony, and this is said to be the practice in most of the
circuits. Even at a greater distance than one hundred miles, if the
adverse party have known counsel residing where the deposition is
taken, he should be notified.^^

w Betts' Prac. 80; D. C. Rule 50.

»»Ruggle8 tj. Bucknor, 1 Paine, 358;
Bell r. Morrison, 26 U. S. (1 Pet) 351;
The Patapsco Ins. Co. ». Southgate, 30
U. S. (5 Pet) 604, 617; The Argo, 15 U. S.
(2 Wheat) 287 ; The U. S. f>. Clark, 1 Gal.
501; Evans v. Hettick, 3 Wash. 408;

The Thomas & Henry v. The U. S., 1
Brock. 367; Allen v. Blunt, 2 Wood. &
M. 136.

«'The U. S. V, One Case of Hair Pen-
cils, 1 Paine, 400.

21 Allen V. Blunt, 2 Wood. & M. ir,7,
138; The Argo, 2 Gal. 314.

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§ 530. Necessary Proof for Admission of Depositions. — To au

thorize the party to read a deposition taken de bene esse^ under the
acts of Congress, he must show that the witness is then dead, or
gone out of the United States, or to a greater distance than one
hundred miles from the place where the court is sitting, or that by
reason of age, sickness, bodily infirmity or imprisonment, he is un-
able to tmvel and appear at court.*

§ 530 a. Evidence for Appeal. — [The matter of the taking down
of oral testimony in court in cases in which an appeal will lie, is
now in a state of uncertainty. There was formerly a statutory pro-
vision for the taking down of such testimony by the clerk *^ if either
party moved that it be so taken. But on the adoption of the Re-
vised Statutes this provision seems. to have been omitted. The
practice is that the evidence is taken down by a stenographer,. the
judge taking more or less full notes also. And in case of an appeal,
the evidence is transcribed from such notes. But if the party re-
fused to consent to incurring the expense of a stenographer, the
party desiring to appeal might find his case defective in the evidence.
But in such a case, he might perhaps be allowed by the appellate
court to take the evidence again.] '-^

§ 531. Commission or Dedimus PotestcUem. — By § 866 of the Revised
Statutes, every court of the United States is clothed with the power
to grant a dedimus potestatem^ or commission to take depositions, ac-
cording to the common usage, when it may be necessary to prevent
a failure or delay of justice. This remedial provision with its bene-
ficial purpose fully and distinctly set forth, cannot be construed
otlierwise than to give the courts the fullest power, in every manner
usual in courts of justice, to depute their own power to take testi-
mony in a cause where the ends of justice will be promoted by doing
so. A commission to take testimony in an enemy's country, in prize
cases, is not issued.^

The circumstances under which, and the mode in which the ap-
plication should be made to the court, may be regulated by standing

«Rev. Stat §865; Harris «. Wall. 48
U. S. (7 How.) 693; Sergeant r. Biddle,
17 U. S. (4 Wheat.) 508.

« 1 Stats, at Large, p. 89.

«* 7th Ad. Rule of Circuit Ct of Ap-

86 The Diana, 2 Gal. 93; 4 Stat, at
Large, 197, note; Nelson «. The U. S., 1
Pet. C. C. R. 235; HaU's Ad. 37.

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rules of the court, or left to the discretion of the court in each par-
ticular case. In the Southern District of New York, it is regulated
by standing rules.*

§ 532. The Same. — Commissioners under a commission to take
testimony act under a special authority derived from the court,
which must be strictly pursued, and cannot be exercised by any one
but the commissioner named in the writ.

In executing a commission, all the interrogatories, direct and cross,
must be put to the witnesses, and substantially answered. Within
the United States and its territories, witnesses may be compelled to
appear before the commissionei-s, and produce books and papers, and
testify pursuant to §§ 868, 869 and 870 of the Revised Statutes.
The depositions are not in any sense de bene esse^ and none of the
peculiar requisites in case of depositions de bene esse^ are material.^

§ 533. Letters Rogatory, — or Commissions sub mata» vicissi-
tudinls* — By the law of nations, the courts of justice of diffei*ent
countries are bound to mutually aid and assist each other for the
furtherance of justice. Hence, when the testimony of witnesses
who reside abroad is necessary in a cause, the court or tribunal where
the action is pending may send to the court or tribunal within whose
jurisdiction the witnesses reside, a writ patent or close, as they may
think proper. They are usually called letters rogatory^ but are some-
times denominated sub mutuce vidsiitudinis^ from a clause which
they generally contain. By that instrument, the court abroad is in-
formed that a certain claim is pending, in which the testimony of
certain witnesses, who reside within its jurisdiction, is required, and
it is requested to take their depositions, or cause them to be taken,
in due course and form of law, for the furtherance of justice and sub
tntUtUB vicissitiuiinis obtentu; that is, with an offer on the part of the

» Dist. Rales 47 to 50.

'^ 4 Stat, at Large, 107; Vanstophoret
V. The State of Maryland, 2 U. S. (2 Dal.)
401; Yeaton v. Fry, 9 U. S. (5 Cranch).
3.35; Cunningham v. Otis, 1 Gal. 106;
The Diana, 2 id. 03; Ketland v, Bissett,
1 Wash. 144; Winthrop v. Union Ins.
Go. . 2 id. 7 ; Le Roy v. The Delaware Ins.
Co., id. 223; The XJ. S. v. Price's Admin-
istrator, id. 356; The Argo, 15 U. S. (2
Wheat) 287; The London Packet, id.

371; Sergeant v. Biddle, 17 U. S. (4
Wheat) 508; Chirac v. Reinicker, 27
U. S. (2 Pet) 613; Keene v. Meade, 28
U. S. (3 Pet) 1 ; Richardson v. Golden, 3
Wash. 109; Lonsdale v. Brown, id. 404;
Lessee of Rhoades v. Selin, 4 id. 715;
Bondereau v. Montgomery, id. 186;
Dodge ». Israel, id. 323; Gilpins r. Con-
sequa, 1 Pet C. C. R. 86; Nelson v. The
U. S., id. 235; Willlngs v. Consequa, id.

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court making the request to do the like for the other in a similar
case. If these letters rogatory are received by an inferior judge, he
proceeds to call the witnesses before him, by the i>roce8S commonly
employed within his jurisdiction, examine them on interrogatories
or take their depositions, as the case may be, and the proceedings
being filed in the registry of his court, authentic copies thereof,
duly certified, are transmitted to the court a quo^ and are legal evi-
dence in the cause. If the lettei-s are directed to a court of superior
jurisdiction, they appoint an examiner or commissioners for the
purpose of executing them, and the proceedings are filed and re-
turned in the same manner.^^

§ 534. Examination of Parties. — [Since the passage of the Act
of Congress of July 2, 1864, the clause of which relating to this
subject is now^ embodied in § 858 of the Revised Statutes, the parties
to actions in courts of the United States are no longer excluded as
witnesses. The practice in the admiralty, before that statute^ al-
lowed parties to testify in their own behalf in many cases where the
strict rule of the common law excluded them. (See §§ 534 to 538 of
the second edition of this work.)] Thus when the proofs of a party
were imperfect, yet went far to establish his case, he might offer his
own oath in corroboration of the other proofs. This practice was
(lerived from the necessity, under the civil law, of having more than
one witness. Full proof of a fact could not be made by one witness,
and in many cases, manifest injustice would be the necessary result
of the absence of any second witness. In such cases the party was
allowed to complete his proof by his own oath. This is what is call-
ed the supple tory oath. This oath might be prayed, and was grant-
ed in all maritime causes.^

By the suppletory oath the party himself testified " that, of his
own certain knowledge, the facts stjited in his allegation, (to which
he offei-s his oath,) are true."

§§ 535, 536, 537. Omitted.

§ 538. The Oath deeisory. — There was also the oath deci%ory,
which either party might tender to the other, that is, offering fur-

« Rev. Stat. 4071; HalFg Ad. 87; Nel-
son c. The U. S., 1 Pet. C. C. R. 236;
Conk. Ad. 640.

» Hairs Ad. 93; The David Pratt,
Ware, 506; Dunlap's Prac, 284-8; Green-
leaf s Ev. 204.

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ther decision of the cause upon the oath of his adversaiy. The
adversary was bound either to accept the offer, or make a similar prop-
osition in return. This is a mode of proof known to the civil law,
and is said to have been practiced in admiralty, in the Massachusetts
District, but it is not in general use.^

§ 539. Argument of the Cause. — The testimony being concluded,
the cause is argued at that time or at a futuie day. In the South-
em and Eastern Districts of New York, the practice in argument
varies from that of the common law courts, in that the advocate of
the libellant usually first states the principal points of fact and of
law upon which he relies, with his legal authorities. The advocate

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 31 of 80)