Erastus Cornelius Benedict.

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

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Admiralty entertains a cause of which it has no jurisdiction the de-
fendant is not compelled to resort to an appeal from the final decree,
for his remedy, but may apply to the Supreme Court for a writ of
prohibition, which by statute has the power to issue that writ in
such cases.^

The practice is as follows : The defendant presents a petition to the
Supreme Court, in which he asks for the issuing of the writ. He
must attach to his petition a copy of the record of the cause in the
District Court; and the lack in the District Court of jurisdiction over
the case must appear on the face of the record.^

The application should be made before decree in the District Court
and while the proceeding in that court is still pending.^ The peti-
tioner presents the petition to the Supreme Court, with such ex parte
suggestions in print as he sees fit, and moves for leave to file the
petition and for an order to show cause why the praj^er of the peti-
tion should not be granted. The court examines the petition and
if it sees sufficient cause, it orders a rule to be entered calling upon
the judge of the District Court in question to show cause on a day
named why the writ of prohibition should not be granted.

§ 640. Retnm to Rule and Ailment. — The rule being granted
and served, the judge of the District Court makes such return there-
to as he is advised, or he may make no return deeming the case suf-
ficiently set forth in the petition. On the return day of the order
the libellant in the cause in the District Court is permitted to ap-
pear by counsel and present such arguments in support of the juris-



iKey. Stat §688.

> Ex parte Easton, 05 U. S. 77 ; Ex parte
Gordon, 104 IJ. S. 615; Ex parte Perry
Co., id. 619; Ex parte Hagar, id. 520.
(376)



» U. S. «. Hoffman, 71 U. S. (4 WaU.)
158. But see Smltli v, Whitney, 116 U.
S. 178, and In re Cooper, 143 U. S. 495.



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PROHIBITION AND MANDAMUS.



877



diction as he sees fit. The petitioner is also to be heard by counsel.
The case is heard in the Supreme Court as on the calendar of origi-
nal cases and not on the general calendar of appeals.



§ 641. The Qnestion is One of Jurisdiction. — The decision of
the Supreme Court is confined to the question of the jurisdiction of
the District Couit.* And the granting of the writ is generally dis-
cretionary, but in some cases it is held to be a matter of right.^

The practice on application for a writ of mandamus, when that
remedy is the proper one, is similar to the above.



* In re Fassett, 142 U. S. 479; In re
Cooper, 138 U. S. 404; 143 U. S. 472; In
re Morrison, 147 17. S. 33.



* Smith V. Whitney, 116 U. S. 173; lu
re Cooper, 143 U, S. 495.



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CHAPTER XLI.
Certiorari,

§ 642. Cases are Bare. — The sixth section of the act of March 8,
1891, provided that in any case in which by that section the decree
of the Circuit Court of Appeals is made final " it shall be competent
for the Supreme Court to require by certiorari or otherwise any
such case to be certified for its review and determination with the
same power and authority in the case as if it had been carried by
appeal to the Supreme Court.'*

Cases of certiorari under this provision have been rare. The Su-
preme Court has declared that " it is only when questions of gravity
and importance are involved " that this power of the Supreme Court
can be invoked.^ And the decision whether a case involves ques-
tions of sufficient gravity and importance must rest with the Su-
preme Court.

§ 648. The Time to obtain the Writ.— The statute does not spec-
ify any time when the Supreme Court may issue the certiorari. There
might be cases when it would issue the writ before the case had been
heard in the Circuit Court of Appeals, or after the mandate of that
court had been issued to the District Court. But the natural time
would seem to be after the Circuit Court of Appeals has made its
decision and before it has issued its mandate.

§ 644. The Practice* — The petitioner prepares a petition, in which
he sets forth the questions involved and their gravity and impor-
tance, and asks for the certioi-ari. He must attach to his petition a
certified copy of the entire record of the case in the Circuit Court
of Appeals.*^ And he must furnish to the clerk of the Supreme
Court a printed copy of his petition and of such record for each of
the justices of the Supreme Court.

1 In re Lau Ow Ben, 141 U. S. 687; I way, 148 U. S. 383.
Ainer. Const. Co. v. Jacksonville Rail- 1 ' Rule 37 of the Supreme Court, § 3.
(878)



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CBBTIORARl. 879

A copy of the petition should be served on the opposite party,
with notice of the day of its presentation, and proof of such service
should be forwarded with the petition to the Supreme Court. The
petitioner may also file such brief as he deems best. And the oppos-
ing party may also file a brief on the day of presentation of the peti-
tion. The Supreme Court does not hear oml argument on the
petition, but, on the papers, grants or refuses the writ.

§ 645. The Argument — ^What Proceedings thereafter.— If the

certiorari is granted the case goes on the calendar of the Supreme
Court and is heard as an appeal. There is no provision in the stat-
ute as to the final proceedings on the decision of the Supreme Court.
And the question arises whether the mandate of the Supreme Court
is to issue to the Circuit Court of Appeals or to the District Court.
To issue it to the Circuit Court of Appeals, which can only issue
thereupon its mandate to the District Court, would seem to be use-
less. The statute provides that the Supreme Court shall have " the
same power and authority in the case as if it had been canied by
appeal to the Supreme Court." This might mean as well " by ap-
peal from the District Court," as " by appeal from the Circuit Court
of Appeals." The Supreme Court therefore would seem to have
power to issue its mandate in the case directly^to the District Court,
and such practice would be the simpler.



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THE ADMIRALTY RULES,



RULES OF PRACTICE

FOB

THE COURTS OF THE UNITED STATES,

m

ADMIRALTY AND MARITIME JURISDICTION, ON THE INSTANCE

SIDE OF THE COURT. IN PURSUANCE OF THE ACT OF

THE TWENTY-SECOND OF AUGUST, 1842.

CHAP. 188.



No mesne process shall issue from the District Courts in any civil cause of ad-
miralty and maritime jurisdiction until the libel, or libel of information, shall
be filed in the clerk^s office from which such process is to issue. All process
shall be served by the marshal, or by his deputy, or, where he or they are inter-
ested, by some discreet and disinterested person appointed by the (jourt.



In suits in perso7iam the mesne process may be by a simple warrant of arrest
of the person of the defendant in the nature of a caputs, or by a warrant of ar-
rest of the person of the defendant, with a clause therein that if he cannot be
found, to attach his goods and chattels to the amount sued for ; or if such prop-
erty cannot be found, to attach his credits and effects to the amount sued for
in the hands of the garnishees named therein ; or by a simple monition, in the
nature of a summons to appear and answer to the suit, as the libellant shall, in
his libel or information, pray for or elect.



In all suits in personam, where a simple warrant of arrest issues and is exe-
cuted, the marshal may take bail, with sufficient sureties, from the party arrested,
by bond or stipulation, upon condition that he will appear in the suit and abide
by all orders of the court, interlocutory or final, in the cause, and pay the money

(881)



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382 APPENDIX.

swarded by the final decree rendered therein in the court to which the process
8 returnable, or in any appellate court. And upon such bond or stipulation
summary process of execution may and shall be issued against the principal and
sureties by the court to which such process is returnable, to enforce the final de-
cree so rendered, or upon appeal by the appellate court.



In all suits in personam where goods and chattels, or credits and effects, are
attached under such warrant authorizing the same, the attachment may be dis-
solved by order of the court to which the same warrant is retuinable, upon the
defendant, whose property is so attached, giving a bond or stipulation, with
sufficient-sureties, to abide by all orders, interlocutory or final, of the court, and
pay the amount awarded by the final decree rendered in the court to which the
process is returnable, or in any appellate court; and upon such bond or stipula-
tion summary process of execution shall and may be issued against the princi-
pal and sureties by the court to which such warrant is returnable, to enforce the
final decree so rendered, or upon appeal by the appellate court.

5.

Bonds, or stipulations in admiralty suits, may be given and taken in open court,
or at chambers, or before any commissioner of the court who is authonzed by
the court to take affidavits of bail and depositions in cases pending before the
court, or any commissioner of the United States authorized by law to take bail
and affidavits in civil cases.*



In all suits in personam where bail is taken the court may, upon motion, for
due cause shown, reduce the amount of the sum contained in the bond or stipu-
lation therefor; and in all cases where a bond or stipulation is taken as bail, or
upon dissolving an attachment of propeity as aforesaid, if either of the sureties
shall become insolvent pending the suit, new sureties may be required by the
order of the court to be given, upon motion and due proof thereof.

7.

In suits in personam no warrant of arrest, either of the person or property of
the defendant, shall issue for a sum exceeding five hundred dollars, unless by
the special order of the court, upon affidavit or other proper proof, showing the
propriety thereof.

8.

In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats,
or other appurtenances, if such tackle, sails, apparel, furniture, boats, or other
appurtenances are in the possession or custody of any third person, the court
may, after a due monition to such third person, and a hearing of the cause, if

* As amended December Term, isn. 18 Wall. XIV.



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ADMIRALTY RULES. 383

any, why the same should not be delivered over, award and decree that the same
be delivered into the custody of the marshal or other proper officer, if, upon the
hearing, the same is required by law and justice.

9.

In all cases of seizure, and in other suits and proceedings in rem, the process,
miless otherwise provided for by statute, shall be by a warrant of aiTest of the
ship, goods, or other thing to be arrested ; and the marshal shall thereupon ar-
rest and take the ship, goods, or other thing into his possession for safe custody,
and shall cause public notice thereof, and of the time assigned for the return of
such process and the hearing of the cause, to be given in such newspaper with-
in tlie district as the District Court shall order ; and if there is no newspaper pub-
lished therein, then in such other public places in the district as the court shall
direct.

10.

In all cases where any goods or other things are arrested, if the same are per-
ishable, or are liable to deterioration, decay, or injui-y by being detained in cus-
tody pending the suit, the court may, upon the application of either party, in its
discretion, order the same or so much thereof to be sold as shall be perishable
or liable to depreciation, decay, or injury ; and the proceeds, or so much thereof
as shall be a full security to satisfy the decree, to be brought into court to abide
the event of the suit ; or the court may, upon the application of the claimant,
order a delivery thereof to him, upon a due appraisement to be had under its
direction, either upon the claimant's depositing in court so much money as the
court shall order, or upon his giving a stipulation, with sureties in such sura as
the court shall direct, to abide by, and pay the money awarded by, the final de-
cree rendered by the court or the appellate court, if any appeal intervenes, as
the one or the other course shall be ordered by the court.

11.

In like manner, where any ship shall be arrested, the same may, upon the ap-
plication of the claimant, be delivered to him, upon a due appraisement to be
had, under the direction of the court, upon the claimant's depositing in court so
much money as the court shall order, or upon his giving a stipulation, with
sureties as aforesaid ; and if the claimant shall decline any such application,
then the court may, in its discretion, upon the application of either party, upon
due cause shown, oi*der a sale of such ship, and the proceeds thereof to be
brought into court, or othei*wise disposed of, as it may deem most for the bene-
fit of all concerned.

12.

In all suits by material men for supplies or repairs or other necessaries, the
libellant may proceed against the ship and freight in rem^ or against the mas-
ter or the owner alone in personam,*

* 8 How. VI; a How. IV ; 18 WaU. XIV.



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384 APPENDIX.

13.

In all suits for mariners' wages the libellant may proceed against the ship,
freight, and master, or, against the ship and freight, or against the owner or the
master alone in personam.

14.

In all suits for pilotage the libellant may proceed against the ship and mas-
ter, or against the ship, or against the owner alone, or the master alone, in per-
sonam.

15.

In all suits for damage by collision the libellant may proceed against the ship
and master, or against the ship alone, or against the master or the owner alone,
in personam.

16.

In all suits for an assault or beating on the high seas, or elsewhere within the
admiralty and maritime jurisdiction, the suit shall be in personam only.

17.

In all suits against the ship or freight founded upon a mere maritime hypoth-
ecation, cither express or implied, of the master, for moneys taken up in a for-
eign port for supplies or repairs, or other necessaries for the voyage, without
any claim of marine interest, the libellant may proceed either in rem or against
the master or the owner alone in personam,

18.

In all suits on bottomry bonds, properly so called, the suit shall be in rem
only against the property hypothecated, or the proceeds of the property, in
whosesoever hands the same may be found, unless the master has, without au-
thority, given the bottomry bond, or by his fraud or misconduct has avoided the
same, or has subtracted the property, or unless the owner has, by his own mis-
conduct or wrong, lost or subtracted the propeity, in which latter cases the suit
may be in personam against the wrong-doer.

19.

In all suits for salvage the suit may be in rem against the property saved, or
the proceeds thereof, or in personam against the party at whose request and for
whose benefit the salvage service has been performed.

20.

In all petitory and possessory suits between part owners or adverse proprie-
tors, or by the owners of a ship, or the majority thereof, against the master of
a ship for the ascertainment of the title and deliveiy of the possession, or for



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ADMIRALTY RULES. 385

the possession only, or by one or more part owners against the others to obtain
security for the return of the ship from any voyage undertaken without their
consent, or by one or more part owners against the others to obtain possession
of the ship for any voyage, upon giving security for the safe retura thereof, the
process shall be by an aixest of the ship, and by a monition to the adverse party
or parties to appear and make answer to the suit.

21.

In all cases of a final decree for the payment of money the libellant shall have
a writ of execution, in the nature of AjicrifaciaSy 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 stipulators.

22.

All informations and libels of infonnation upon seizures for any breach of
the revenue, or navigation, or other laws of the United States, shall state the
place of seizure, whether it be on land, or on the high seas, or on 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 in-
fonnation or libel of information shall also propound in distinct articles the
raattei-s relied on as grounds or causes of forfeiture, and aver the same to be
conti-aiy to the form of the statute or statutes of the United States in such case
pi*ovided, as the case may require, and shall conclude with a prayer of due pro-
cess to enforce the forfeiture, and to give notice to all persons concerned in
interest to appear and show cause at the return day of the process why the for-
feiture should not be decreed.

23.

All libels in instance causes, civil or maritime, shall state the nature of the
cause ; as, for example, that it is a cause, civil and maritime, of contract, or of
tort or damage, or of salvage, or of possession, or other\\'ise, as the case may
be ; and if the libel be in rem, that the property is within the district ; and if
in personam, the names and occupations and places of residence of the parties.
The libel shall also propound and articulate in distinct articles the various al-
legations of fact upon which the libellant relies in support of his suit, so that
the defendant may be enabled to answer distinctly and separately the several
mattei-s contained in each article ; and it shall conclude with a prayer of due
process to enfoi-ce his rights tw rem, or in personam (as the case may require) ,
and for such relief and redress as the court is competent to give in the premises.
And the libellant may further requii-e the defendant to answer on oath all inter-
rogatories propounded by him t^iuching all and singular the allegations in the
libel at the close or conclusion thereof.

24.

In all informations and libels, in causes of admiralty and maintimo jurisdic-
tion, amendments in matters of fonu, may be made at any time, on motion, to
26



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386 APPENDIX.

the court as of course. And new counts may be filed, and amendments, in matters
of substance, may be made, upon motion, at any time before the final decree,
upon such teims as the court shall impose. And where any defect of form is
set down by the defendant upon special exceptions and is allowed, the court
may, in granting leave to amend, impose terms upon the libellant.

25.

In all cases of libels in personam the court may, in its discretion, upon the
appearance of the defendant, where no bail has been taken, and no a^chment
of property has been made to answer the exigency of the suit, require the de-
fendant to give a stipulation, with sureties, in such sum as the court shall di-
rect, to pay all costs and expenses which shall be awarded against him in the
suit, upon the final adjudication thereof, or by any interlocutory order, in the
progress of the suit.

26.

In suits in rem the party claiming the propert}' shall verify his claim on oatli
or solemn affirmation, stating that the claimant by whom or on whose behalf
the claim is made, is the true and bona-fide owner, and that no other person is
the owner thereof. And where the claim is put in by an agent or consignee, he
shall also make oath that ho is duly authorized thereto by the owner ; or if the
property be, at the time of the arrest, in the possession of the master of a ship,
that he is the lawful bailee thereof for the owner. And upon putting in such
claim, the claimant shall file a stipulation, with sureties, in such sum as the
court shall direct, for the payment of all costs and expenses which shall be
awai*ded against him by the final decree of the court, or, upon an appeal, by the
Appellate Court.

27.

In all libels in causes of civil and maritime jurisdiction, whether in rem or in
personam, the answer of the defendant to the allegations in the libel shall be on
oath or solemn affirmation ; and the answer shall be full and explicit and dis-
tinct to each separate article and separate allegation in the libel, in the same
order as numbered in the libel, and shall also answer in like manner each inter-
rogatoiy propounded at the close of the libel.*

28.

The libellant may except to the sufficiency, or fulness, or distinctness, or rel-
evancy of the answer to the articles and interrogatories in the libel ; and if the
court shall adjudge the same exceptions, or any of them, to be good and valid,
the court shall order the (fefendant forthwith, within such time as the court shall
dii*ect, to answer the same, and may further order the defendant to pay such
costs as the court shall adjudge reasonable.

♦ Tide Rule 48, posU page 3Ca



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ADMIRALTY RtJLES. 887

29.

If the defendant shall omit or refuse to make due answer to the libel upon the
return day of the process, or other day assigned by the court, the court shall
pronounce him to be in contumacy and default ; and thereupon the libel shall
be adjudged to be taken pro confesso against him, and the court shall proceed to
hear the cause ex parte and adjudge therein as to law and justice shall appertain.
But the court may, in its discretion, set aside the default, and, upon the appli-
cation of the defendant, admit him to make answer to the libel at any time be-
fore the final hearing and decree, upon his payment of all the costs of the suit
up to the time of granting leare therefor.

30.

In all cases where the defendant answers, but does not answer fully and ex-
plicitly and distinctly to all the matters in any article of the libel, and exception
is taken thereto by the libellant, and the exception is allowed, the court may,
by attachment, compel the defendant to make further answer thereto, or may
direct the matter of the exception to be taken pro confesso against the defendant
to the full purport and effect of the article to which it purports to answer, and
as if no answer had been put in thereto.

31.

The defendant may object, by his answer, to answer any allegation or inter-
rogatory contained in the libel which will expose him to any prosecution or
punishment for a crime, or for any penalty or any forfeiture of his property for
any penal offence.

32.

The defendant shall have a right to require the personal answer of the libel-
lant upon oath or solemn affirmation to any interrogatoi;ies which he may, at
the close of his answer, propound to the libellant touching any matters charged
in the libel, or touching any matter of defence set up in the answer, subject to
the like exception as to matters which shall expose the libellant to any prosecu-
tion, or punishment, or forfeiture, as is provided in the 31st Rule. In default
of due answer by the libellant to such interrogatories, the court may adjudge
the libellant to be in default and dismiss the libel, or may compel his answer
in the premises by attachment, or take the subject-matter of the interrogatory
pro confesso in favor of the defendant, as the court, in its discretion, shall deem
most fit to promote public justice,

33.

Where cither the libellant or the defendant is out of the country, or unable,
from sickness or other casualty, to make an answer to any interrogatory on oath
or solemn affirmation at the proper time, the couit may, in its discretion, in fur-
therance of the due administration of justice, dispense therewith, or may award



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888 APPENDIX.

a commission to take the answer of the defendant when, and as soon as it may
be practicable.

34.

If any third person shall intervene in any cause of admiralty and maritime
jmrisdiction in rem for his own interest, and he is entitled, according to the
course of admiralty proceedings, to be heard for his own interest therein, he
shall propound the matter in suitable allegations, to which, if admitted by the
court, the other party or parties in the suit may be required, by order of the
court to make due answer ; and such further proceedings shall be had and de-
cree rendered by the court therein as to the law and justice shall appertain. But
every such intervener shall be required, upon filing his allegations, to give a
stipulation, with sureties, to abide by the final decree rendered in the cause,
and to pay all such costs and expenses and damages as shall be awarded by the



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 39 of 80)