Erastus Cornelius Benedict.

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

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missioner an affidavit, specifying the nature, grounds, and amount of
the claim, the particular dates on which the same accrued^ and what^
if any, credits were given thereon, and what payments, if any, have
been made on account ; with a bill of particulars giving the respec-
tive dates and amounts, if the claim consists of different items.

On the return day of the monition the commissioner files a report set-
ting forth the various claims proved before him. The petitioner on
return of the monition duly served obtains an order taking the default
of any and all persons who have not so proved claims, and, if he has
surrendered the vessel and does not intend to contest his liability,
and no answer is interposed or time to answer obtained he may take
an order limiting his liability, and making perpetual the injunction
against suits arising out of this cause of action ; but, for reasons
stated above, ante, § 577, he may well await the final disposition of
the fund.

On the return of the monition, claimants must appear and answer or
be defaulted as to the question of petitioner* s right to limitation. If
an answer is filed petitioner enters an order that all proceedings



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344 THE AMERICAN ADMIRALTY.

before the commissioner be suspended untU the determination of the
petitioner's liability.

Within five days after the return of the monition^ or after interlocu-
tory decree in case of issue Joined by answer to the petition^ and
within such further time as may be granted by the courts let peti-
tioner or any claimant file with the commissioner any objection he
may have to any claim^ and sei*ve the same on the proctors of the
claim objected to. Unless this is done^ the claim is deemed estab-
lished. If answer is filed to the petition^ put the case on the calen-
dar and try it in the ordinary way.

If petitioner is decided nx>t to be liable^ tax costs and enter a decree
declaring him not liable^ and cancelling his stipulation for the ap-
praised value^ or restoring to him his vessel in the hands of the
trustee^ or repaying to him any proceeds thereof in the registry of
court.

If petitioner is decided to be liable^ but entitled to his limitation^ enter
a decree limiting his liability to the fund or the vessel^ and mak-
ing perpetual the injunction against suits. But as indicated above^
he may still prefer to await the final disposition of the fund. He
will probably have no further interest in the proceeds of his vessel^
but is entitled to notice of reference before the commissioner^ and
may attend and cross examine. In any event the claimants may
obtain an order referring the matter back to the commissioner for
further proof of claims^ and on this hearing may offer proof to re-
duce each other's claims as on an ordinary reference^ and may except
to the commissioner's report.

The commissioner having reported^ and his report having been con-
firmed^ the petitioner may thereupon enter his final decree^ reciting
all the facts, the limitation of his liability to the value of his inter-
est in the vessel, the payment over of such value, and ordering his
perpetual exemption from any further liability arising out of the
cause of action, and decreeing the payment to the various claimants
according to the report.



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CHAPTER XXXV.

Execution.

§ 685. The Execution. — In all cases of a final decree for the pay-
ment of money, the libellant may have a writ of execution in the
nature of a fieri facias^ commanding the marshal or his deputy to
levy and collect the amount thereof out of the goods and chattels,
lands and tenements, or other real estate of the defendant or stipu-
lator.^

§ 586. Form of Execution. — The following is the form of an
execution :

" The President of the United States op America.
" To the Marshal of the Southern District of New York^

" Greeting :

"Whereas, a libel was filed in the District Court of
the United States, for the Southern District of New York,
[l. s.] on the twenty-eighth day of October, one thousand eight
hundred and forty-thi-ee, by Elisha Burgess, libellant,
against Ramon De Zaldo, and such proceedings were
thereupon had, that by the judgment and decree of the said court
in said cause, on the twenty-second day of July last past, the said
Ramon De Zaldo was required to pay to the said libellant the sum of
five hundred and two dollai-s and three cents, besides his costs in
this suit, to be taxed, and execution was ordered therefor : And
whereas, the said costs liave been duly taxed at the sum of one hun-
dred and seventy-nine doUai-s and fifty-nine cents, as by the records
and files of said court fully appear.

*' Now, therefore, we command you, that of the goods and chattels
of the said Ramon De Zaldo, in your district, and, in default of goods
and chattels of him, then of the lands and tenements in your dis-
trict of which he is seized on the day you shall receive this writ, or
at any time afterwards, you cause to be made, the sum of si& hun-
dred and eighty-one dollai-s and sixty-two cents ; and further that
you have those moneys in said court, at the City Hall,^ in the city

I Ad. Rule 21, 48; Diet Rule 10; Cootes' Prac. i:^.
«Now "the Federal Buildiug."

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346 THE AMERICAN ADMIRALTY.

of New York, on the fii*st day of June next, to render to the said
libellant in satisfaction of said decree ; and that you duly return to
the said court what you shall do in the premises together with this
writ.

" Witness the Honorable Samuel R. Betts, Judge of the said court,
in the Southern District of New York, this twenty -seventh day of
May, one thousand eight hundred and foity-four, and of our inde-
pendence the sixty-eighth.

" James W. Metcalf, Cflerk,

"Burr & Benedict, Proctors.''

Executions in favor of the Unit^ States may run throughout the
United States, and, in cases of individuals, they may run through-
out the state, even where there are two districts in the state ; but
they must, in all cases, be issued from and returnable to, the court
where the decree is obtained.®

§ .587. Venditioni Exponas. — In cases in rem^ where there has
been a decree of condemnation and sale, a venditioni exponas is the
proper execution to issue, if the property be still in custody.* ' If
the property have been delivered on stipulation, an order is made
that the stipulators perform the condition of their stipulation or
show cause on such a day why a summary judgment should not be
entered against them, and if no cause be shown a summary judgment
is entered against them on their stipulation, on which an execution
issues against them in personam.

§ 588. Sale by tlie Marslial under It. — If the property is still in
custody, and a venditioni exponas issues, the marshal, on proper pub-
lic notice, sells the property and is bound to pay the proceeds forth-
with into the hands of the clerk, to be paid into the registry of the
court, to be disposed of by the court according to law.^

The following is the form of the writ :

" Southern District of New Yorky ss.

" The President of the United States of America,

" To the Marshal of the Southern District of New Tork^

" Greeting :

" Whereas, a libel of information was filed in the Dis-
trict Court of the United States, for the Southern District

"Rev. Stat. §9^5,986.
« Dist Rule 10.
» Ad. Rule 41.



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EXECUTION. ^ 34T

[l. s.] of New York, on the first day of March, in the year of our
Lord one thousand eight hundred and forty-nine, agfiinst
the ship Rover, her tackle, apparel, and f urnitui-e ; praying
that the same may be condemned and sold, for the causes^ alleged in
the said libel of information. And whereas the said ship has been
attached by the process issued out of the said District Court in pur-
suance of the said libel of information, and is now in custody by
virtue thereof: and such proceedings have been thereupon had,
tiiat by the final sentence and decree of the said court, in this cause
made and pronounced, on the tii'st Tuesday of June, one thousand
eight hundred and forty-nine, the said ship, her tackle, apparel, and
furniture, are condemned and ordered to be sold by you, the said
marshal after giving six days' notice of such sale, according to
law; Therefore you, the said mai-shal, are hereby commanded to
cause tlie said ship, her tackle, etc., so condemned and ordered to
be sold, to be sold in manner and form, upon the notice and at the
time and place by law required. And that you have the moneys
arising from such sale in said court, at the City Hall,^ in the city
of New York, on the firat Tuesday of July, one thousand eight
hundred and forty-nine, and that you then pay the same to the clerk
of the court ; and have you also then and there this writ.

'* Witness, the Honorable Samuel R. Betts, Judge of the said
court, at the city of New York, in the Southern District of New
York, this twenty-fourth day of June, in the year of our Lord one
thousand eight hundred and forty-nine, and of our independence
the seventy-third.

" James W. Metcalf, Clerk,

'' C. L. Benedict, Proctor''

On which the marshal returns as follows :

*' In obedience to the above precept, 1 have sold the said ship
Rover, her tackle, apparel, and furniture, and the proceeds of such
sale, amounting to thirteen thousand one hundred dollars, I have
paid to the clerk of this court as I am above commanded.

"Dated this 15th day of July, 1849.

" Henry F. Tallmadge, U. S, Marshal.''

§ 689. Duty of the Marshal. — It is a great irregularity for the
marshal to distribute the money, or any part thereof, to the parties,
even according to the decree. His function, under a venditioni ex-
ponas^ is solely to sell the property for cash, and bring the proceeds
of the sale into court, deducting nothing but the expenses of the
sale. The flexibility of admiralty process, of which mention has
been often made, renders it highly improper for any of the officers
« Now " the Federal Building."



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348 THE AMERICAN ADMIRALTY.

of the court to meddle with that which may, in the end, be materially
modified by the courtJ

It often happens that there are liens upon the property sold, ac-
cruing while the property is in custody of the law, — such as wharf-
age, storage, labor, etc. These the marshal has no right to pay
without the order of the court ; much less would he have the right
to discharge previously existing liens of any description.®

[The practice has grown up in New York that the marshal should
pay any bills incurred while the property is in his custt)dy for its safe
keeping, such as wharfage, pumping etc., without a previous order
of the court, and include them in his bill of costs, subject of coui-se
to the necessity of sustaining the items, if objected to on taxation.]

§ 590. Moneys most be Deposited in Bank. — All moneys paid
into the hands of the clerk, to be deposited in the i-egistry of the
court, must be immediately deposited, in the name of the court, in
some bank designated by the court as the depository of the registry;
and that account must always be kept by the bank, subject to the
condition that no money shall be drawn out, except by a check
signed by a judge of the court, and countersigned by the clerk,
stating on wliose account and for whose use it is drawn, and in what
suit, and out of what fund, in particular, it is paid.*

It is the duty of tlie clerk to keep a regular book containing a
memorandum and copy of all the checks so drawn, and the dates
thereof, aird it is his duty, at every term, to report to the court in
detail, the moneys in the registry. After the proceeds of a sale are
in the registry, there not unfrequently arise grave questions jxs to
the matter of distributing the funds ; for, in admimlty, the princi-
ples of distribution vary according to circumstances. They are
sometimes distributed according to the order in which the suits were
commenced, sometimes in the order in which the liens were created,
sometimes in the reverse of that order, and sometimes to all alike,
ratably. The order of distribution, or marshalling the proceeds, is
settled by the court according to the legal priority, although the
court sometimes refers it to the clerk to repoi-t the claims and their
order of preference.



- The CoUector, 19 U. S. (6 Wheat)
194; The Phebe, Ware, 354, 358; ante,
§ 398.



8 The Phebe, Ware, 354, 359; The
Collector, 19 U. S. (6 Wheat.) 194.

9 Ad. Rule 42.



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EXECUTION. 349

[The rale formerly prevailed in New York that the party first seiz-
ing should hold, a priority over all other claims of no higher rank.
But in 1884, this rule was changed by the court in the Southern
District, and it was held that liens of the same rank should concur.] ^^
Debts holding a higher rank are paid in full to the exclusion of
those of lower rank. The clerk then gives the parties a hearing
and makes up his report in writing, to which any party may take
exceptions, in the same manner as to other such reports, and the
matter is thus brought before the court for argument and final and
deliberate adjustment.^*

§ 591. Proceeds in the Registry. — Any peraon having an inter-
est in any proceeds in the registry of the court, may, by petition and
summary proceedings, intervene for his interest for a delivery of
them to him, notwithstanding the decree ; and upon due notice to
the opposite party, if any, the court will proceed summarily to hear
and decide thereon, according to law and justice. If the party fail
in his claim, or desert it, the court may award costs against him.*^

[But claims upon the proceeds of sale, except for seaman's wages,
filed after the sale, will not be admitted to the prejudice of lienors
under libels or petitions filed before the sale.]^^

§ 592. Bemnants and Surplus. — It is often the case in proceed-
ings in rem^ that after a condemnation and sale, and payment of the
libellant, there remains in court an unappropriated balance of the
proceeds ; this is sometimes called remnants and surplus. The party
entitled to the whole or any portion of the residue, can obtain it
only by petition or motion to the court.

The proceeds of property which was affected by a lien, are still
affected by it, in whosesoever hands they may be. The regular sale
of property, under a decree of the court, gives a good title against
all the world, and hence the proceeds are often subject to demands
which were not embraced in the suit ; and the court, on motion or
petition, will adjudicate upon the rights of parties claiming an in-
terest in the remnants and surplus.**

2 Blatchford, C. C. R. 427; The Adele,
1 Ben. 308; Boyd's Proc. 45.

«Di8t. Rule 60; The Phebe, Ware, 350;
Brackett v. The Hercules, Gilp. 189.

w Dist. Rule 60.

»* Brackett v. The Hercules, Gilp. 189



»« The I. W. Tucker, 20 F. R. 129; The
Grapeshot, 22 id. 123; See The Julia,
57 id. 235.

" Blaine v. The Charles Carter, 8 U. S.
(4 Cranch), 328; The Paragon, Ware,
322; The Phebe, Id. 359; The Globe,



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850



THE AMERICAN ADMIRALTY.



The party may also proceed against remnants by libel and moni-
tion in a new suit, if he have a lien upon them.**

The notion prevailed for a while, that a party might enforce,
against proceeds or remnants and surplus in the registry, a demand
which he could not enforce against the property by an original suit
It is now, however, well settled that a party will not be allowed to
resort to the proceeds or remnants of the property, as against the
owner claiming them, to enforce a demand which was not a lien
upon the property, and enforceable in the admiralty.^*



Harper v. A New Brig, id. 540; Tlie L.
B. Gk>ld8m!th, 1 Newb. 123; McLane v.
The U. S., 31 U. S. (6 Pet) 404.

>« Andrews v. Wall, 44 U. S. (3 How.)
568; vide, The Sybil, 17 U. S. (4 Wheat)
98; Keen v. The Gloucester, 2 U. S. (2
Dal.) 36.

^« The Neptune, 3 Hag. Ad. 129; Bux-
ton V, Snee, 1 Yes. Sen. 154; Ed. Ad.



Jur. 99-108; Mutual Safety Ins. Co. v.
Cargo of The George, 01c. 89; Gardner
t>. The New Jersey, Pet Ad. 223; vide
The Monte AUegre, 22 U. S. (9 Wheat)
616; The Lottawanna, 87 U. S. (20 Wall.)
221, 223; Surplus of the Balize, 52 F.
R. 414; contrti. The Stephen Allen,
Blatchf. & H. 191.



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CHAPTER XXXVI.
Petitions — Motions — O bders — Rules — ^Notices.

§593. Special Proceedings. — There are proceedings of an inde-
pendent character connected with the powers of a Court of Adrai-
i-alty, which are not properly actions or suits. These are originally
commenced by petition, and carried to their final determination by
the simple orders of the court, without any formal suit or process.^

Such are proceedings for a survey, on the application of seamen
alleging unseaworthiness, — or, on the application of a master to au-
thorize a sale by him, as master, or other proceedings, where a final
decree or adjudication, inter partes^ is not sought for, but where the
aid of the court is sought, to authenticate, or give solemnity and im-
partiality to proceedings authorized by statute and by the general ad-
miralty law. And whenever a party desires the order of the court,
regulating, correcting, modifying, or arresting the proceedings in a
case,^-or authorizing any incidental, ancillaiy, or provisional pro-
ceeding, he may apply to the court by petition or motion.^

§ 694. The Petition. — If a petition be resorted to, the petitioner
must state briefly and clearly the facts on which the demand for the
relief is founded, either by a full statement, or by reference to the
pleadings, depositions or other documents, and must close with a
pi-ayer for the relief desired, so framed as to inform the court and
the opposite, party, if there be one, of the relief demanded in the
premises. The petition must be sworn to by the petitioner. A
copy must be served on the proctor of the opposite party, with such
notice of the time of presenting the same as is required by the rules
of the court.

§ 595. Motions. — ^In case a motion is resorted to, the facts must
be brought before the couit in affidavits, or by proper reference to
the pleadings, depositions, or other documents.

^Dunl^'B Prao. 129; Betts' Prac. 117, 1 «Rev. Stat § 4666; ante, §299; Betts'
119. I Prac. 117; Dunlap'8 Prac. 129.

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352 THE AMEUrCAN ADMIRALTY.

Copies of the affidavits must be served, with a notice containing,
like the prayer of the petition, an intelligible statement of the relief
or order which the party desires.

The other party produces, at the hearing, without service of copies
or notice, such proofs by affidavits or other documents, as may best
answer his purpose.

On these two sets of papers, the court usually disposes of the mat-
ter, unless in the exercise of a sound discretion, time and liberty are
given, by the court, to the moving party, to introduce rebutting or
explanatory proofs. This is rarely done except in cases of urgent
equity, of hardship or of sui-prise.

Wherever circumstances authorize or require an ex parte motion
or petition, as is sometimes the case, the court always requires, not
only full proofs to justify the order asked for, but also proof of dili-
gence in endeavoring to give notice to the other part}*^, if it be a mat-
ter of which he is entitled to notice.

§ 596. Orders of Court. — In the English Admiralty, the court, in
most cases, gives its directory orders the form of a writ, under seal
of the court. They are sometimes called commissions, and some-
times warrants; thus, there are commissions to take bail, to appraise,
to sell, etc., — which are moved for by the party, ordered by the
court, and issued by the clerk. In the American Admiralty Courts,
with more simplicity and directness, the order of the court, made on
motion or petition, takes the place of the commission or warrant, a
copy certified by the clerk being sufficient evidence of the direction
of the court.^

There is, however, no legal objection to the more cumbrous and
expensive forms of the English practice.

§ 597. The Same. — There are no common motions, orders and
rules, in admiralty. The rules of court may sometimes authorize or-
dei-s of coulee, but they are always to be entered by the clerk, as
made in court, either as of the stated term of the court, or as of a
si>ecial court of that day. There are many chamber orders, mere
mandates of the judge, staying proceedings for a provisional pur-
pose, extending or enlarging time, directing the issue of process,
fixing the amount of bail, etc. These are made ex parte by the
judge, on affidavit showing the necessity. They are not entered in
•Betts' Prac. 43, 44; Dunlap's Prac. 177.



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PETITIONS — MOTIONS — ORDERS — RULES — NOTICES. 853

the minutes of the court, but are served on the opposite party, by-
delivering him a copy. If he be of opinion that the order has been
granted improvidently, or on mistaken suggestion, he may apply for
a healing upon it, on an ex parte order to show cause why it should
not be vacated.*

§ 598. The Calendar. — Notiee. — Each court presciibes what no-
tice shall be given of the various steps in a cause to be brought be-
fore it. The diflfereut systems of common law and equity practice,
in the courts of the states, which prevail in the courts of the United
States in common law and equity causes, have caused, in some pro-
ceedings, diveraity, where it ought not to exist. In the Southern
District of Ntyy York no causes are put upon the calendar, at any
term of the court, unless a note of issue be filed with the clerk.
Nor can the cause be heard without due notice of hearing served on
the opposite party. In other districts, the clerk, from his own reg-
isters, entries, and files, makes up a docket or list of all the causes
at issue, and no notices are given, by or to any one, on the subject.
Each party is expected to attend court, and when his causes are
called, either bring them on for trial, or by the order of the court,
or the consent of his adversary, have them continued ; or if his ad-
versary be not present, have them dismissed or decided by default.
This latter practice is the prtjper admiralty practice. It prevails in
the Supreme Court of the United States, and might well be pre-
scribed by that court for all the District Courts in admiralty causes.

All notices in the Southern District of New York, are notices
of four days. In all matters except the hearing of causes, although
the regular notice is four days, the court will, on sufficient cause
shown, order a shorter notice.^

All notices and other papera.to be served in a cause are to be
served on the proctor, instead of the party, if a proctor have appear-
ed in the cause.

§ 599. Rules of the Court. — Each District Court may, by general
rules, regulate its practice, in such manner as it shall deem most ex-
pedient for the due administration of justice, in suits in admiralty,
in all cases not provided for by the general admiralty rules of the
Supreme Court, — and such rules exist in most, if not all the districts.^

* Vide Forms in the Appendix. i ^ Ad. Rule 46; Rev. Stat. § 918. ^ea

^ Vide the Rules. I Rules in Appendix.

23



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CHAPTER XXXVII.
Admiralty and Maritime Crimes.

§ 600. Crimes. — The gi-ant in the constitution of judicial power
to the government of the United States, in all cases of admiralt}'
and maritime jurisdiction, is without limitation, and, of course, em-
braces criminal, as well as civil cases. It is under this grant alone,
that the fedeml government has the right to punish a large class of
offences, whose punishment is provided for in the acts of Congress
in relation to crimes and offences on the high seas. In these acts,
the various offences are not classed or described as admiralty cases,
but they are indiscriminately arranged with other descriptions of
crimes subject to the federal jurisdiction. They will be found in
the Crimes Acts of 1790, of 1804, of 1820, of 1825, and of 1835, in
various sections, providing for the punishment of crimes and offences
committed " on the high seas, or in any arm of the sea, or in any
river, harbor, creek, basin or bay, or in any other waters within the
admiralty and maritime jurisdiction of the United States.*' [See
Rev. Stilt. § 5339, et seqJ] The power of the federal government
to punish these offences is derived from the adraii-alty and mari-
time giant in the constitution ; and of all of them which are not



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 36 of 80)