Erastus Cornelius Benedict.

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

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or in case of a special appeal, the stipulated record, with the certification by
the said clerk of all papers contained therein on file in his office.

6.

IF APPEARANCE OF APPELLEE NOT F.NTERED.

If the appellee does not cause his appearance to be entered in this court
within ten days after service on his proctor of notice that the apostles are filed
in this court, the appellant may proceed ex parte in the cause, and have such
decree as the nature of the case may demand.

7.

NEW ALLEGATIONS, ETC

Upon sufficient cause shown, this court or any judge thereof, may allow
either appellant or appellee to make new allegations or pray different relief,
or interpose a new defence, or take new proofs. Application for such leave
must be made within fifteen days after the filing of the apostles and upon at
least four days notice to the adverse party.

8.

NEW PLEADINGS— NEW TESTIMONY.

If leave be granted to make new allegations, pray different relief or interpose
a new defence, the moving party shall, within ten days thereafter, serve such
new pleading, duly verified, on the adverse party, who shall, if such pleading
be a libel, within twenty days answer on oath.

If leave be given to take new testimony, the same may be taken and filed
within thirty days after the entry of the order granting such leave, and the ad-
verse party may take and file counter testimony within twenty days after such
filing.

9.

NEW TESTIMONY — HOW TAKEN.

Such testimony shall be taken by deposition before any United States com-
missioner, or notary public, upon reasonable notice in writing given to the oppo-
site party; or by commission issued out of this court with inteiTogatories
annexed. Upon proper cause shown, the couit may grant an open commission.

10.

PRINTING NEW PLEADINGS AND TESTIMONY.

If new pleadings are filed or testimony taken in this court, the same shall
also be printed and furnished by the clerk, as in the 23d General Rule provided.

11.

MOTIONS.

All motions shall be made upon at least four days notice.



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426 APPENDIX.

12.

WRIT OF INHIBITION.

A writ of inhibition may be awarded by thid court on motion of the appellant,
to stay proceedings in the couit below when ciroumstances require.

13.

MANDAMUS.

A mandamus may, in like manner, be obtained, to compel a return of the
apostles when unreasonably delayed by the clerk, or court, below.

14.

CASES TO BE PLACED ON DOCKET.

Each case shall be placed on the docket as soon as the printing of the apos-
tles is completed by Uie clerk.

15.

BRIEFS.

Sec. 1. Counsel for the appellants shall file with the clerk of this court, at
least twenty days before the case is called for argument, ten copies of a printed
biief and shall at the same time serve two copies thereof on the proctors of
record, or on the counsel engaged upon the opposite side. This brief shall con-
tain in order here stated :

(1). A statement of the nature of the appeal, the court from which the appeal
is taken, and a concise abstract or statement of tjie case, presenting succinctly
the questions involved, and the manner in which they were raised.

(2) . If the pleadings have been amended in this court or new proofs have been
taken, it shall be stated what amendments have been made, and in what respect
the new proofs have changed, or tended to change, the case as made in the court
below.

(3) . A bnef of the argument, exhibiting a clear statement of the points of law
or fact to be discussed, with a reference to the folios of the recoi*d or to the num-
bers of the questions, and the authorities relied upon in support of each point.

Sec. 2. The counsel for the appellee shall file with the clerk of the court ten
printed copies of his brief and serve two copies thereof at least ten days before
the case is called for argument. His brief shall be of a like chai*acterwith that
required of the appellant, and in case new proofs are taken on behalf of the
appellee, the brief shall so state and wherein the new proofs have changed the
case as made in the court below.

Sec. 3. The reasonable expense of printing briefs shall be an item of taxable
costs.

16.

MANDATES.

The decrees of this court shall direct that a mandate issue to the court below.
The form of such mandate shall be settled on not less than two days notice.



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ABMIBALTY BTTLBS OF U. 8. CIRCUIT COURT OP APPEAfJS. 427

17.

EXTENSION OF TIME.

The time specified in the foregoing rules for any proceeding may be extended
by order of a judge of this court.

• 18.

WHEN HOLES OF DISTRICT COURTS TO APPLY.

In all matters, in civil causes of admiralty and maritime jurisdiction, not ex^
pressly provided for by the foregoing rules of this court, the rules of practice
of the District Court of the district in which the cause was decided, being in
force at the time, (not being inconsistent with these rules), will be adopted so
far as may seem proper.

19.

The following of the general rules of this court, and no others, shall be
deemed admiitdty rules, viz. : Rules 3, 4, 5, 6, 7, 9, 11, 12 ; section 4 of Rule 14 ;
Rules 15, 16, 17, 18. 19, 20, 21, 22; Amended Rule 23; Rules 24,25,26,27, 28,
29 ; section 4 of Rule 30 ; Rules 31, 32, and 34.



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RULES

OF THB

UNITED STATES DISTRICT COURTS,

• FOB THB

SOUTHERN AND EASTERN DISTRICTS OF NEW YORK.

In H^ect From and After July 1, 18»3.



RULES IN ADMIRALTY.
1.



Libels, petitions, and answers thereto, unless otherwise ordered by the court
for cause, and except on behalf of the United States, shall be verified ; the veri-
fication to be made by the party, or by one of the parties, if in the United States
and within 100 miles of New York city ; otherwise it may be made by the agent,
attorney in fact, or proctor, acquainted with the facts, — the affiant's means of
knowledge or information in such case and the reason why the verification is
not made by the party, to be stated. If the personal oath of the party be de-
manded, proceedings may be stayed a reasonable time to enable such verifica-
tion to be taken by commission or dedimus poiestatem.



All papers, not otherwise provided for b}' law, shall be filed, and shall be
plainly and fairly engrossed without erasures or interlineations materially de-
facing them. If papers not conforming to this inile are offered, the clerk before
receiving them shall require the allocatur of the judge to be endorsed thereon.

3.

Amendments, or supplementary matters, must be connected with the libel or
other pleading by appropriate references, without a recapitulation or restate-
ment of the pleading amended or added to.



Persons entitled to participate in the recovery, and in suits for wages any other
seamen claiming wages for the same voyage, not made parties in the original
(428)



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DISTRICT COURT RULES. 429

libel, may, upon petition, be admitted to prosecute as co-libellants upon such
terms as the court may deem reasonable. Suits may also be joined or oonsoli«
dated as provided by law.

5.

When yarious actions are pending, all resting upon the same matter of right
or defence, although there be no common interest between the parties, the court,
by order, at its discretion, may compel said actions to be tried together, and will
enter a decree in each cause comformably to the evidence applicable thereto.

6.

Whenever, from the death of any of the pailies, or changes of interest in the
suit, defect in the pleadings or proceedings, or otherwise, new parties to the
suit are necessary, the persons required to be made paities may be made such
either by a petition on their part or by the adverse party. In either mode, it
shall be sufficient to allege bnefly the prayer of the oiiginal libel, the interest
which the party sought to be added or substituted has in the action, the several
proceedings in the cause and the date thereof, and to pray that such persons
required to be made parties in the suit may be made such parties. On seiTice
of a copy of such petition and of notice of the presenting thereof, such order
will be made for the further proceeding in the cause as shall be proper for its
speedy and convenient prosecution as to such new paities ; and the same stipu-
lations and security shall, in ail such cases, be required and given, as in oases
of persons becoming originally parties to suit.



No libel, petition, appearance or answer shall be received, or third party per-
mitted to intervene or claim, except on the part of the United States, or on the
special order of the court, or when othei*wise provided by law, unless a stipula-
tion for costs shall be firat entered into by the party, conditioned that the prin-
cipal shall pay all costs awarded against him by this court, and in case of appeal,
by the Appellate Court ; such stipulations to be with at least one surety resi-
dent in the Southern or the Eastern District, and to be in the sum of $250 in
cases in rem, and $100 in cases in personam.

But seamen suing for wages in their own right and for their own benefit, for
services on board American vessels (excepting as provided by Rule 68), salvors
coming into port in possession of the property libelled, petitioners for money
in the registry of the court, and the mayor, aldermen and commonalty of the
city of New York or the city of Brooklyn, shall not be required to give such se-
curity in the first instance. The court, however, on motion with notice to the
parties, will, for adequate cause shown, oi*der the usual stipulations to be given.

8.

When not otherwise provided for by law, suits can be prosecuted or defend-
ed in forma pauperis by express allowance of the court only, and in such <



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480 APPENDIX.

no stipulation for costs will be required ; but process in rem in such causes,
unless specially allowed by the couil, shall not issue except upon proof of
twenty-four hours^ notice of the filing of the libel, for opportunity to appear.
In the absence of the judge the allowance may be made by the clerk.

9.

Process to be used in commencing suits may be in personam or in rem, or
both, when not otherwise provided ; and shall be issued by the clerk.
Pitxjess in personam may be :

(1) A simple monition in personam,

(2) Such monition united with a clause of attachment of defendant's goods
and chattels if the defendant is not found.

(3) Such monition and attachment united with a foreign attachment of the
defendant's goods, moneys, choses in action, credits, or effects in the hands of
third persons ; the names of such thiixl persons and the specific property in their
hands to be attached as stated in the libel, shall be expressed in the process,
with a citation to the garnishee to appear and answer on oath concerning the
same. But except on a libel for liquidated damages not exceeding $500, no
process of attachment or foreign attachment shall issue under this, or the preced-
ing subdivision, unless allowed by special order of the court, upon due proof of
the demand and of the propriety of the attachment being first made.

(4) A warrant of arrest of the person, upon the special order of the court,
in cases allowed by law, either alone or united with an attachment.

Process in rem may be :

(1) A waiTant to arrest the property libelled, with a general monition to
all persons interested therein.

(2) Such warrant and monition united with any process in personam above
specified, when such joinder is allowable.

10.

Final process, in this court, in all cases for the sale of property, shall be by
writ of execution, in the nature of Vi fieri facias, or vendUioni exponas.

11.

In all possessoiy actions, the pix)cess shall be made returnable at the first
general return day not less than three days after the filing of the libel, unless
otherwise ordered by the judge. In such actions,*the answer will be required
to be filed upon return of the process duly served, and a day of hearing will
then be fixed unless otherwise ordered for cause shown. Notice by publication
will not be required in possessory actions, unless specially ordered.

12. .

On service of foreign attachment the party holding the property, funds, cred-
its, or effects attached, shall, on the return day of the process, file an affidavit
oontaining a full and true statement of the pi*operty, funds, credits or effects in



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DISTRICT COURT RULES. 431

his hands belonging to the defendant at the time the attachment was serred
and at the time the affidavit was made ; and declare whether he had any, and,
if any, what claim to any, and what pait thereof; and unless he shall then on
motion of the libellant, pay into court such amount as he shall not claim, or
such amount as may be ordered by the court, he shall give stipulation with
sufficient surety to hold the same with interest thereon to answer the exigency
of the suit, and to abide the further oixler or decree of the court in relation
thereto ; and on his default in this behalf or in default of his appearance to an-
swer interrogatories on oath, an order may be entered that an attachment issue
against him unless he shall show cause in four days, or on the fii*st day the
court shall be in session thereafter.

13.

When the propeity, effects, or credits named in any process of foreign attach-
ment, are not delivered up to the marshal by the garnishee or tnistee, or are
denied by him to be the propei-t}- of the party defendant, it shall be a sufficient
service of such foreign attachment to leave a copy thereof with such garnishee
or tiiistee, or at his usual residence or place of business, with notice of the prop-
erty attached ; and on due return thereof by the niai*shal the libellant, on proof
satisf actoiy to the court that the property belongs to the defendant, may proceetl
to a hearing and final decree in the cause. If the defendant appears, fuither
pi*oceedings may be had as is usual in suits in personam.

In proceedings in rem, process against freight or proceeds of property in pos-
session of any person, and all ordera granted by the court under Rule 38 of the
Supreme Court, may be served in like manner,

14.

In proceedings in rem in behalf of the United States, when the goods ai*e un-
der seizure by the collector and in his possession, the clerk, at the instance of
the district attorney, may omit the attachment clause in the monition.

In such suits, and also in other suits in rem when the things libelled are
in the custody of the collector of customs under authority of any revenue law
of the United States, it shall be a sufficient service of the monition and warrant,
in the first instance, to leave a copy thereof with the said collector, with notice
of the attachment of the property therein described, and requiring such collec-
tor to detain such property in custody until the fmther order of the court ; and
in case the collector is not found within the district, then to leave also such copy
and notice with the custodian of the propeity within the district ; with notice,
also, except in customs seizure cases, to the owner or his agent, if found within
the district ; subject, however, to such further special order as the court may
make thereon.

15.

No process shall be received on file unless duly returned by the proper officer.

All process to the marshal shall be returned on the return day thereof ; if not

•o returned by him, nor within four days after written notice so to do, an order



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432 APPENDIX.

may be entered of coarse that he show cause why an attachment should not is-
sue against him.

Upon process in rem the return shall state the day of seizure or of sale, as the
case may be.

16.

Pi'ocesses, orders to show cause and notices of motion shall, upon the return
day thereof, be called by the clerk, and thereupon, when there is no opposition,
the orders prayed for in accordance with the practice of the court, may be en-
tered by the clerk, whether the judge be personally present or not ; and in like
manner orders, which, according to the practice of the court, are gi'anted as of
coarse, may be entered, reseiTing to any party affected thereby the right to ap-
ply to the judge at the eai'liest opportunity to vacate or modify the same. In
the event of opposition, the papers may, in the absence of the judge, be left with
the clerk, to be by him submitted to the judge for decision thereon, or the clerk
may adjourn the matter until the judge shall be in attendance.

17.

Property seized by the marshal may be released as follows :

Fii*st. By giving bond as provided in § 941 of the Revised Statutes.

Second. In all suits for suras certain, by paying into court the amount sworn
to be due in the libel, with interest computed thereon from the time it was due
to the stated tenn next succeeding the return day of the attachment, and the costs
of the officei-s of the court already accrued, together with the sura of $250, to
cover further costs ; or by filing an approved stipulation for such sworn amount,
with interest, costs and damages, conditioned as in the next subdivision stated ;
and by payment into court of the costs of officera of the court as provided by
Rule 20 ; and in either case the claimant may thereupon have an order entei'^
instaiUer for delivery of the property arrested without appraisement.

Third. In all suits other than possessoiy or petitory actions, by filing an ap-
proved stipulation for the amount of the appraised or agreed value of the prop-
erty seized with interest, (unless the same is modified by order of the court) ,
conditioned to abide by all ordera of the court, interlocutory or final, and to pay
the amount awarded by the final decree rendered by this court, or by any appel-
late court, if any appeal intervene, with interest.

Fourth. In possessory and in petitory actions, upon the order of the court
only, and on such security and terras as ordered.

Fifth. By an order duly entered upon the written consent of the proctor for
the paity or paities on whose behalf the property is detained.

18.

If, in a possessory suit, after decree for either party, the other shall make
application to the court for a proceeding in a petitory suit, and file the proper
stipulation, the property shall not be delivered over to the prevailing party until
after an appraisement is made, nor until he shall give a stipulation with sureties
to restore the same property without waste, in case his advers^ shall prevail in



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DISTRICT COURT RULES. 483

the petitory suit, and also to abide as well all interlocutory orders and decrees
as the final sentence and decree of the District Court, and, on appeal, of the
Appellate Court.

19.

In case of the attachment of property, or the aiTest of the person, in causes
of civil and admiralty jurisdiction (except in suits for seamen ^s wages when the
attachment is issued upon certificate pursuant to §§ 4546 and 4547 of the Revised
Statutes), the party an^ested, or any person having a right to intervene in re-
spect to the thing attached, may upon evidence showing any improper practices
\>Y a manifest want of equity on the part of the libellant, have a mandate from
the judge for the libellant to show cause instanter why the an*est or attachment
should not be vacated.

20.

No property in the custody of the marshal or other officer of the court shall
be delivered up without the order of the court, but, except in possessory actions,
such order may bo entered, of course, by the clerk, on filing a written consent
thereto by the proctor in whose behalf it is detained ; or after filing an approved
stipulation or an approved bond to the marshal, as provided by law. But ex-
cept in proceedings under § 941 of the Revised Statutes, the marshal shall not
deliver property released on stipulation or on deposit of moneys, until the ac-
crued costs and charges of the officers of court shall first be paid into court by
the paity receiving the property, to abide the decision of the court in respect to
the amount of costs due to them.

21.

All stipulations in causes civil and maritime, shall be executed and acknowl-
edged by the principal party (if within the district), and at least one surety
resident in the southern or the eastern district, and shall state the street and
number, if there be any, of the surety^s residence, and his occupation, and be
accompanied by the surety^s acknowledgment and his justification by affidavit
that he is worth double the amount thereof overall his debts and liabilities ; and
such stipulation shall contain the consent of the stipulators, that in case of de-
fault or contumacy on the part of the principal or sureties, execution to the
amount named in such stipulation may issue against the goods, chattels and
land of the stipulators. Parties not residing in either of said districts must
supply at least two sureties.

22.

Stipulations to release property from attachment or arrest may be taken out
of court on short notice before the clerk, or a commissioner, or a notai*y public,
or under a dedimus protesUUem. The officer taking the stipulation shall, if re-
quired by the opposite party, examine the sureties under oath as to their suffi-
ciency, and annex their depositions.
28



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434 APPENDIX.

To obtain the judge's approval thereof, if not consented to, reasonable notice
of application therefor shall be given. In the absence of the judge, the approval
of the clerk, or deputy clerk, on like notice, shall be sufficient.

Sureties in stipulations for costs may be examined in like manner on demand
thereof served upon the proctors of the partj' giving the stipulation, who shall
thereupon give reasonable notice of the time and place of the justification of
sureties.

23.

In all cases of stipulations in civil and admiralty causes, any party having an
interest in the subject matter may, at any time on two days' notice, move the
court on special cause shown for greater or better security ; and any order made
thereon may be enforced by attachment, or otherwise.

24.

In suits in personam, stipulators on the arrest of the defendant may be dis-
charged from their stipulation before or after the return of the warrant, on the
surrender of the principal by them or by himself, except in respect to costs in
this court or in any other court to which the cause may be appealed.

25.

The clerk shall provide a book in which shall be entered all stipulations filed
in causes civil and admiralty, which shall be open to the examination of all par-
lies interested.

26.

In case of seizure of propei'ty in behalf of the United States, an appraisement
for the purpose of bonding the same may be had by any party in interest, on
giving one day's previous notice of motion before the court, or the judge in va-
cation, for the appointment of appraisers. If the paities or their proctors and
the district attorney are present in court, such motion may be made instanier,
after seizure, and without previous notice.

27.

. Orders for the appraisement of pix)pei*ty under an'cst at the suit of an individ-
ual, may be entered, of course, by the clerk, at the instance of any paity inter-
ested therein, or upon filing the consent of the proctors for the respective parties.

28.

Only one appraiser is to be appointed in suits by individuals, unless otherwise
ordered by the judge, and, if the respective parties do not agree in writing upon
the appraiser to be appointed, the clerk shall foithwith name him, either party
having a right to appeal instanter to the judge from such nomination, for ade-
quate cause.



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DISTKICT COURT RULES. 435

29.

Appraisers, before executing their trust, shall be swoni or affirmed to its
faithful discharge before the clerk, or his deputy, a United States commissioner,
or notary public, and shall give one day's notice of the time and place of mak-
ing the appmisement, by notifying the proctors in the cause and by affixing the
notice in a conspicuous place adjacent to the United States couit rooms, and
where the marshal usually affixes his notices, to the end that all persons con-
cerned may be informed thereof ; and the appraisement, when made, shall be
returned to the clerk's office.

30.

Appraisers acting under an order of the court shall be severally entitled to at
least five dollars for each day necessarily employed in making the appraisement,
to be paid by the paity at whose instance the same shall be ordered.

31.

Upon any seizure in suits iti rem, or upon any infoimation in rem or m per-



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 44 of 80)