Erastus Cornelius Benedict.

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

. (page 40 of 80)
Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 40 of 80)
Font size
QR-code for this ebook


court upon the final decree, whether it is rendered in the original or appellate
court.

35.

The stipulations required by the last preceding rule, or on appeal, or in any
other admiralty or maritime proceeding, shall be given and taken in the manner
prescribed by rule fifth as amended.

36.

Exceptions may be taken to any libel, allegation, or answer, for surplusage,
irrelevancy, impertinence, or scandal ; and if, upon reference to a master, the
exception shall be reported to be so objectionable, and allowed by the court, the
matter shall be expunged, at the cost and expense of the party in whose libel or
answer the same is found.

37.

In cases of foreign attachment, the garnishee shall be required to answer on
oath or solemn afi^rmation as to the debts, credits, or effects of the defendant in
his hands, and to such interrogatories touching the same as may be propounded
by the libellant ; and if he shall refuse or neglect so to do, the couitmay award
compulsory process in personam against him. If he admits any debts, credits,
or effects, the same shall be held in his hands, liable to answer the exigency of
the suit.

38.

In cases of mariners' wages, or bottomry, or salvage, or other proceeding in
rem, where freight or other proceeds of property are attached to or are bound
by the suit, which are in the hands or possession of any person, the court may,
upon due application, by petition of the party interested, require the party charged
with the possession thereof to appear and show cause why the same should not
be brought into court to answer the exigency of the suit ; and if no sufficient
cause be shown, the court may order the same to be brought into court to answer
Hie exigency of the suit ; and upon failure of the party to comply with the order.



Digitized by



Google



ADMIRALTY RULES.

may award an attachment, or other compulsive process, to compel obedience
thereto.

39.

If, in any admiralty suit, the libellant shall not appear and prosecute his suit,
according to the course and orders of the court, he shall be deemed in default
and contumacy ; and the court may, upon the application of the defendant, pro-
nounce the suit to be deserted, and the same may be dismissed with costs.

40.

The court may, in its discretion, upon the motion of the defendant and the pay-
ment of costs, rescind the decrce in any suit in which, on account of his contu-
macy and default, the matter of the libel shall have been decreed against him,
and grant a reheanng thereof at any time within ten days after the decree has
been entered, the defendant submitting to such further orders and terms in the
premises as the court may direct.

41.

All sales of property under any decree in admiralty shall be made by the
marshal or his deputy, or other proper officer assigned by the court, where the
marshal is a paity in interest, in pui*suance of the orders of the court ; and the
proceeds thereof, when sold, shall be forthwith paid into the registry of the court
by the officer making the sale, to be disposed of by the couit according to law.

42.

All moneys paid into the registry of the court shall be deposited in some bank
designated by the court, and shall be so deposited in the name of the court, and
shall not be drawn out except by a check or checks, signed by a judge of the
court, and countei*signed by the clerk, stating on whose account and for whose
use it is drawn, and in what suit and out of what fund in paiticular it is paid.
The clerk shall keep a regular book, containing a memorandum and copy of all
the checks so drawn, and the date thereof.

43.

Any person having an interest in any proceeds in the registry of the court
shall have a right, by petition and sumpaary proceeding, to intervene pro inter-
esse sue for a delivery thereof to him ; and upon due notice to the advei*se par-
ties, if any, the court shall and may proceed summanly to hear and decide
thereon, and to decree therein according to law and justice. And if such peti-
tion or claim shall be deserted, or upon a hearing, bo dismissed, the court may,
in its discretion, award costs against the petitioner in favor of the adverse part} .

44.

In cases where the court shall deem it expedient or necessary for the purposes
of justice, the court may refer any matters arising in the progress of the suit to



Digitized by



Google



390 APPENDIX.

one or more commissioners, to be appointed by the court to hear the partied and
make report therein. And such commissioner or commissioners shall have and
possess all the powers in the premises which are usually given to or exercised
by masters in chancery in reference to them, including the power to administer
oaths to and examine the parties and witnesses touching the premises.

45.

All appeals from the District to the Circuit Court must be made while the
court is sitting, or within such other period as shall be designated by the District
Court by its general rules, or by an order specially made in the particular suit,
or in case no such rule or order be made, then within thirty days from the ren-
dering of the decree.*

46.

In all cases not provided for by the foregoing rules the District and Circuit
Courts are to regulate the practice of the said couits, respectively, in such man-
ner as they shall deem most expedient for the due administration of justice in
suits in admiralty .f

47.

In all suits in personam where a simple warrant of arrest issues and is exe-
cuted, bail shall 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 simi-
lar or analogous process issuing from the state courts.

And imprisonment for debt, on pi'ocess issuing out of the Admiralty Court, is
abolished in all cases where, by the laws of the state in which the court is held,
imprisonment for debt has been, or shall be hereafter, abolished, upon similar
or analogous process issuing from a state court.

Promulgated December Term, 1850. 10 How. V.

48.

The twenty-seventh rule shall not apply to cases where the sum or value In
dispute does not exceed fifty dollars, exclusive of costs, unless the District Court
shall be of opinion that the proceedings prescribed by that rule are necessary
for the pui*poses of justice in the case before the court.

All rules and parts of rules heretofore adopted inconsistent with this order are
hereby repealed and annulled.

Promulgated December Term. 1860. 10 How. VI.

49.

Further proof taken in a Circuit Court upon an admiralty appeal shall be by
deposition, taken before some conmiissioner appointed by a Circuit Court, pur*

« Ab amended May «, 1872. ISWall.XIY.

t The above rales were promulgated at the December Term, 1844, and took effect September ]»
1845. 8How. m.



Digitized by



Google



ADMIRALTY RULES. 891

suant to the acts of Congress in that behalf, or before some officer authorized to
take depositions by the thirtieth section of the act of Congress of the 24th of
September, 1789, upon an oral examination and cross-examination, unless the
court in which such appeal shall be pending, or one of the judges thereof, shall,
upon motion, allow a commission to issue to take such deposition upon written
interrogatories and cross-interrogatories. When such deposition shall be taken
by oral examination, a notification from the magistrate before whom it is to be
taken, or from the clerk of the court in which such appeal shall be pending, to
the adverse party to be present at the taking of the same, and to put interroga-
tories, if he think fit, shall be served on the advei'se paity, or his attorney, allow-
ing time for their attendance after being notified not less than twenty-four hours,
iuid in addition thereto one day, Sundays exclusive, for every twenty miles travel :
Provided, That the court in which such appeal may be pending, or either of the
judges thereof, may, upon motion, increase or diminish the length of notice
above required.
Promulgated December Term, 1851. 13 How. VI. See Rev. Stat. § 865.

50.

When oral evidence shall be taken down by the clerk of the District Court,
pursuant to the above-mentioned section of the act of Congress, and shall be
transmitted to the Circuit Couit, the same may be used in evidence on the appeail,
saving to each pai-ty the right to take the depositions of the same witnesses, or
either of them, if he should so elect.

Promulgated December Term, 1851. 13 How. VI.

51.

When the defendant, in his answer, alleges new facts, these shall be consid-
ered as denied by the libellant, and no replication, general or special, shall be
allowed. But within such time after the answer is filed as shall be fixed by the
District Court, either by general rule or by special order, the libellant may
amend his libel so as to confess and avoid, or explain, or add to the now mat-
ters set forth in the answer ; and within such time as may be fixed, in like man-
ner, the defendant shall answer such amendments.

Promulgated December Term, 1854. 17 How. VI.

52.

The clerks of the District Courts shall make up the records to be transmit-
ted to the Circuit Courts on appeals, so that the same shall contain the following :

1. The style of the court.

2. The names of the parties, setting forth the original parties, and those who
have become parties before the appeal, if any change has taken place.

3. If bail was taken, or property was attached or arrested, the process of
arrest or attachment and the service thereof, all bail and stipulations, and, if
any sale has been made, the orders, waiTants, and reports relating thereto.

4. The libel with exhibits annexed thereto.

5. The pleadings of the defendant, with the exhibits annexed thereto!



Digitized by



Google



392 APPENDIX.

6. The testimony od the part of the libellant, and snj exhibits not annexed
to the libel.

7. The testimony on the part of the defendant, and any exhibits not annexed
to his pleadings.

8. Any order of the court to which exception was made.

9. Any report of an assessor or assessors, if excepted to, with the orders of
the court respecting the same, and the exceptions to the report. If the report
was not excepted to, only the fact that a reference was made, and so much of
the report as shows what results were arrived at by the assessor, are to be stated.

10. The final decree.

11. The prayer for an appeal, and the action of the District Court thereon ;
and no reasons of appeal shall be filed or inseited in the transcript.

The following shall be omitted :

1. The continuances.

2. All motions, rules, and oi-ders not excepted to which are merely prepara-
tory for trial.

3. The commissions to take depositions, notices therefor, their captions, and
certificates of their being sworn to, unless some exception to a deposition in the
Distnct Court was founded on some one or more of these ; in which case so much
of either of them as may be involved in the exception shall be set out. In all
other eases il shall be suflScient to give the name of the witness, and to copy the
interrogatones and answers, and to state the name of the commissioner, and the
place where and the date when the deposition was sworn to ; and in copying all
depositions taken on interrogatories, the answer shall be inserted immediately
following the question.

2. The clerk of the District Court shall page the copy of the recoixi thus made
up, and shall make an index thereto, and he shall ceitify the entire document,
at the end thereof, under the seal of the court, to be a transcript of the record
of the District Court in the cause named at the beginning of the copy made up
pursuant to this rule ; and no other certificate of the record shall be needful or
inserted.

3. Hereafter, in making up the record to be transmitted to the Circuit Couit on
appeal, the clerk of the Distinct Couit shall omit therefrom any of the pleading,
testimony or exhibits which the parties, by their pi*octors, shall, by written
stipulation, agi*ee may be omitted, and such stipulation shall be ceitified up
with the record.

Promulgated December Term, 1854. 17 How. VI. Amended by adding
clause 3, May 2, 1881. 113 U. S. XIII.

53.

Whenever a cross-libel is filed upon any counter-claim arising out of the same
cause of action for which the original libel was filed, the respondents in the
cross-libel shall give security in the usual amount and form, to respond in dam-
ages as claimed in said cross-libel, unless the court on cause shown, shall other-
vrise direct; and all pro<;eedings upon the original libel shall be stayed until
such security shall be giv«n.

Proibulgated December Term, 1868. 7 Wall. V.



Digitized by



Google



ADMIBALTY BULE8. 393

54.

When any ship or vessel shall be libeled, or the owner or owners thereof shall
be sued, for any embezzlement, loss, or destruction by the master, officers,
mariners, passengers, or any other person or persons, of any propei-ty, goods
or merchandise, shipped or put on board of such ship or vessel, or for any loss,
damage or injury by collision, or for any act, matter, or thing, loss, damage, or
forfeiture, done, occasioned or incurred, without the privity or knowledge of
such owner or owners, and he or they shall desire to claim the benefit of limi-
tation of liability provided for in the thiix] and fourth sections of the act of
March 3, 1851, entitled ** An act to limit the liability of shipowners and for
other purposes," now embodied in sections 4283 to 4285 of the Revised Statutes,
the said owner or owners shall and may file a libel or petition in the proper Dis-
trict Court of the United States, as hereinafter specified, setting forth the facf-s
and circumstances on which such limitation of liability is claimed, and praying
proper relief in that behalf ; and thereupon said court, having caused due ap-
praisement to be had of the amount or value of the interest of said owner or
owners, respectively, in such ship or vessel, and her freight, for the voyage,
shall make an order for the payment of the same into court, or for the giving
of a stipulation, with surties, for the payment thereof into court whenever the
same shall be ordered ; or, if the said owner or owners shall so elect, the said
court shall, without such appraisement, make an order for the transfer by him or
them of his or their interest in such vessel and freight to a trustee to be appoint-
ed by tlie court under ihe fourth section of said act ; and, upon compliance with
such order, the said court shall issue a monition against all persons claiming
damages for any such embezzlement, loss, destruction, damage, or injury, cit-
ing them to appear before the said court and make due proof of their respective
claims at or before a certain time to be named in said writ, not less than thi*ee
months from the issuing of the same; and public notice of such monition shall
be given as in other cases, and such further notice reserved through the post-
office, or otherwise, as the court, in its discretion, may direct; and the said court
shall also, on the application of the said owner or owners, make an order to re-
sti-ain the further prosecution of all and any suit or suits against said owner or
owners in respect of any such claim or claims.

Promulgated May 6, 1872. 13 Wall. XII. Amended January 26, 1891. 137
U. S. 711.

65-

Proofs of all claims which shall be presented in pursuance of said monition
shall be made before a commissioner, to be designated by the court, subject to
the right of any person interested to question or controvert the same ; and, upon
the completion of said proofs, the commissioner shall make report of the claims
so proven, and upon confirmation of said report, after hearing any exceptions
thereto, the moneys paid or secured to be paid into court, as aforesaid, or the
proceeds of said ship or vessel and freight (after payment of costs and ex-
penses), shall be divided pro rata amongst the several claimants, in proportion
to the amount of their respective claims, duly proved and confirmed as aforesaid.



Digitized by



Google



394 APPENDIX.

saving however, to all paities any pnority to which they may be legally en-
titled.
Promulgated May 6, 1872. 18 Wall. XIII.

66.

In the proceedings aforesaid, the said owner or owners shall be at liberty to
contest his or their liability, or the liability of said ship or vessel for said embez-
zlement, loss, destruction, damage, or injury (independently of the limitation of
liability claimed under said act), provided that, in his or their libel or petition,
he or they shall state the facts and circumstances by reason of which exemption
from liability is claimed ; and any pei*son or persons claiming damages as afoi'e-
said, and who shall have presented his or their claim to the commissioner under
oath, shall and may answer such libel or petition and contest the right of the
owner or owners of said ship or vessel, either to an exemption from liability,
or to a limitation of liability, under the said act of Congress, or both.

Promulgated May 6, 1872. 13 Wall. XKI.

57.

The said libel or petition shall be filed and the said proceedings had in any
Distiict Court of the United States in which said ship or vessel may be libeled
to answer for any such embezzlement, loss, destruction, damage, or injury ; or,
if the said ship or vessel be not libeled, tlien in the Distnet Court for any distinct
in which the said owner or owners may be sued in that behalf. When the said
ship or vessel has not been libeled to answer the matters aforesaid, and suit has
not been commenced against the said owner or owners, or has been commenced
in a disti'ict other than that in which the said ship or vessel may be, the said pro-
ceedings may be had in the District Court of the district in which the said ship
or vessel may be, and where it may be subject to the control of such court for
the purposes of the case as herein before provided. If the ship have already
been libeled and sold, the proceeds shall represent the same for the purpose of
these rules.

Promulgated May 6, 1872. 18 Wall. XEI. Amended April 22, 1889. 130
U. S. 705.

58.

All the preceding rules and regulations for proceeding in causes where the
owner or owners of a ship or vessel shall desire to claim the benefit of limita-
tion of liability provided for in the act of Congress in that behalf, shall apply
to the Circuit Courts of the United States where such cases are or shall be pend-
ing in said courts on appeal from the District Courts.

Promulgated March 30, 1881. 108 U. S. XIII.

59.

In a suit for damage by collision, if the claimant of any vessel proceeded
against, or any respondent proceeded against in personam, shall, by petition, on



Digitized by



Google



ADMIRALTY RULES. 395

oath, presented before or at the time of answering the libel, or within such fur-
ther time as the court may allow, and containing suitable allegations showing
fault or negligence in any other vessel contributing to the same collision, and
the particulars thereof, and that such other vessel or any other party ought to
be proceeded against in the same suit for such damage, pray that process be is-
sued against such vessel or party to that end, such process may be issued, and
if duly served, such suit shall proceed as if such vessel or party had been origi-
nally proceeded against ; the other parties in the suit shall answer the petition ;
the claimant of such vessel or such new party shall answer the libel ; and such
further proceedings shall be had and decree rendered by the court in the suit as
to law and justice shall appertain. But every such petitioner shall upon filing
his petition, give a stipulation, with sufficient sureties, to pay to the libellant
and to any claimant or new party brought in by virtue of such process, all such
costs, damages, and expenses as shall be awarded against the petitioner by the
court upon the final decree, whether rendered in the original or appellate court ;
and any such claimant or new party shall give the same bonds or stipulations
which are required in like cases from parties brought in under process issued
on the prayer of a libellant.
Promulgated March 26, 1883. 112 U. S. 743.



Digitized by



Google



RULES



OF



SUPREME COURT OF THE UNITED STATES.



1.

CLERK.

1. The clerk of this court shall reside and keep the office at the seat of the
National Crovernment, and he shall not practice, either as attorney or counsellor,
in this court, or in any other court, while he shall continue to be clerk of this
court.

2. The clerk shall not permit any onginal record or paper to be taken from
the court-room, or from the office, without an order fi'om the court, except as
pix)vided by Rule 10.

2.

ATTORNEYS AND COUNSELLORS.

1. It shall be requisite to the admission of attorneys or counsellors to practice
in this court, that they shall have been such for three years past in the Supreme
Ck)urts of the states to which they respectively belong, and that their private and
professional character shall appear to be fair.

2, They shall respectively take and subscribe the following oath or affiima-
tion, viz. :

I, , do solemnly swear [or affirm] that I will demean myself, as

an attorney and counsellor of this court, uprightly, and according to law ; and
that I will support the Constitution of the United States.



PRACTICE.

This court considers the former practice of the Courts of King's Bench and of
Chancery, in England, as affording outlines for the practice of this court ; and
will, from time to time, make such alterations therein as circumstances may
render necessary.



BILL OP EXCEPTIONS.

The judges of the Circuit and District Courts shall not allow any bill of excep-
tions which shall contain the charge of the court at large to the jury in trials at
(896)



Digitized by



Google



SUPREME COXJBT BULES. 897

common law, upon any general exception to the whole of such charge. But
the party excepting shall be required to state distinctly the several matters of
law in such charge to which he excepts; and those matters of law, and those
only, shall be inserted in the bill of exceptions and allowed by the court.



PROCESS.

1. All process of this court shall be in the name of the President of the United
States.

2. When process at common law or in equity shall issue against a stat«,
the same shall be served on the governor, or chief executive magistrate, and
attoniey-general of such state.

3. Process of subpoBna, issuing out of this court, in any suit in equity, shall
be served on the defendant sixty days before the return-day of the said process ;
and if the defendant, on such service of the subpoena shall not appear at the
return-day, the complainant shall be at liberty to proceed ex parte,

6.

MOTIONS.

1. All motions to the couit shall be reduced to wnting, and shall contaiti a
brief statement of the facts and objects of the motion.

2. One hour on each side shall be allowed to the argument of a motion, and
no more, without special leave of the court, granted before the argument begins.

3. No motion to dismiss, except on special assignment by the court, shall be
healed, unless previous notice has been given to the advei*se party, or the counsel
or attorney of such party.

4. All motions to dismiss writs of eiTor and appeals, except motions to docket
and dismiss under Rule 9, must be submitted in the first instance on printed
briefs or arguments. If the court desires further argument on that subject, it
will be ordered in connection with the hearing on the merits. The party mov-
ing to dismiss shall serve notice of the motion, with a copy of his brief of argu-
ment, on the counsel for plaintiff in eiTor or appellant of record in this court,
at least three weeks before the time fixed for submitting the motion, in all cases
except where tlie counsel to be notified resides west of the Rocky Mountains,
in which case the notice shall be at least thirty days. Afiidavits of the deposit
in the mail of the notice and brief to the proper address of the counsel to be
served, duly post-paid, at such time as to reach him by due coui*se of mail, the
three weeks or thiity days before the time fixed by the notice, will be regarded
as prima facie evidence of service on counsel who reside without the District of
Columbia. On proof of such service, the motion will be considered, unless, for
satisfactoi7 reasons, further time be given by the court to either party.

6. There may be united, with a motion to dismiss a writ of eiTor or an appeal,
a motion to a£Srm on the ground that, although the record may show that this



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 40 of 80)