Erastus Cornelius Benedict.

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

. (page 47 of 80)
Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 47 of 80)
Font size
QR-code for this ebook

and explicit answera thereto : and if any witness refuses to answer at all, or to
answer fully, the examining commissioner is forthwith to certify the facts to the


The captors must produce all their witnesses in succession, and cannot, after
the commissioners have transmitted the examination of a part of the crew to
the judge, be allowed to have others examined without the special order of the
court: and the examination of every witness shall be begun, continued and
finished in the same day, and not at different times. Copies of the standing in-
terrogatories shall not be returned by the commissioner with the examinations,
but it shall be sufficient for the answer of the witnesses to refer to the standing
intcn-ogatories by corresponding numbers.


Before any witness shall be examined on the standing interrogatories the
commissioner shall administer to him an oath in the following form : '* Too

Digitized by



shall trae answer make to all such questions as shall be asked of you on these
interrogatories, and therein you shall speak the whole truth and nothing but
the truth, so help you Grod.^* If the witness is conscientiously averse to swear-
ing, an affirmation to the same effect shall be administered to him.


Whenever the ship^s company, or any part thereof, of a captured vessel, are
foreigners, or speak only a foreign language, the commissioner taking the ex-
amination may summon before him competent interpreters, and put to them
an oath well and truly to interpret to the witness the oath administered to him,
and the interrogations propounded, and well and truly to interpret to the com-
missioners the answers given by the witness to the respective interrogatories.


The examination of each witness on the standing interrogatories shall be re-
turned according to the following form :

** Deposition of A. B., a witness produced, sworn, and examined tn prepara-
torio, on the day of in the year at tlie of

on the standing inten*ogatories established by the District Court of the
United States for the Southeni District of New York. The said witness having
been produced for the purpose of such examination by C. D., in behalf of the
captors of a certain ship or vessel called the (or of certain goods,

wares and merchandise, as the case may be.)

**lst. To the first interrogatory, the deponent answers that he was bom
at etc.

•• 2d. To the second interrogatory the deponent answers that he was present
at the time of the taking," etc.


When the interrogatories have all been answered by a witness, he shall sign
his deposition, and the commissioner shall put a certificate thereto in the usual
form, and subscribe his name to the same.


No person having or claiming any interest in the captured propeity, or having
any interest in any ship having letters of marque or commissions of war, shall
act as a commissioner. Nor shall a commissioner act either as proctor, advo-
cate or counsel, either for captors or claimants in any prize cause whatever.


If the captain or prize-master neglect or refuse to give up and deliver to the
commissioners the documents, papers, and writings relating to the captured
property, according to these rules ; or refuse or neglect to produce, or cause to
be pioduced, witnesses to be examined in preparatorio, within three days after
the arrival of the captured property within the jurisdiction of this court, or shall

Digitized by



otherwise unnecessarily delay the production of the said documents, papers, or
writings, the commissionei-s, or one of them nearest to the place where the cap-
tured property may be, or before whom the examination in preparaiorio, may
have been already begun, shall give notice in writing to the delinquent to forth-
with produce the said documents, papers, and writings, and to bring forward
his witnesses, and if he shall neglect or delay so to do for the period of twenty-
four hours thereafter, such commissioner shall certify the same to this court,
that such proceedings may thereupon be had as justice may require.


If within twen^-four hours after the arrival within this district, of any cap-
tured vessel, or of any property taken as prize, the captora or their agent shall
not give notice to the judge or a commissioner, purauant to the provisions herein
made, or shall not, two days after such notice given, produce witnesses to be
examined in preparcUorio, then any pei*son claiming the captured property and
restoration thereof, may give notice to the judge or the commissioners as afore-
said, of the arrival of the said captured property, and thereupon such pixxjced-
ings may be had by the commissioners in respect to the said property, and relative
to the documents, papers, and writings connected with the said capture, which
the claimant may have in his possession, custody or power, and relative to the
examination of witnesses in preparatorio, as near as may be, as is before pro-
vided for in cases where the captors shall give notice and examine inprepara-
torio. And the said claimant may, in such cases, file his libel for restitution,
and proceed thereon according to the rules and practice of this court.


As soon as may be convenient after the captured property shall have been
brought within the jurisdiction of this court, a libel may be filed, and a moni-
tion shall thereupon be issued, and such proceedings shall be had as are usual
in conformity to the practice of this court in cases of vessels, goods, wares, and
merchandise seized as forfeited in virtue of any revenue law of the United States.


In all cases by consent of captor and claimant, or upon attestation exhibited
upon the pait of the claimant only, without consent of the captor, that the cargo
or part thereof is perishing or perishable, the claimant specifying the quantity
and quality of the cargo, may have the same delivered to him on giving bail to
answer the value thereof if condemned, and fuither to abide the event of the
suit, such bail to be approved of by the captor, or otherwise the persons who
give security swearing themselves to be severally and truly worth the sum for
which they give security. If the parties cannot agree upon the value of the
cargo, a decree or commission of appraisement may issue from the court to as-
oertiUD the value.

Digitized by




In oases whore there is no claim, an affidavit being exhibited on the part of
the captor of such perishing or perishable cargo, specifying the quantity and
quality thereof, the captor may have a decree or commission of appraisement
and sale of such cargo, the proceeds thereof to be brought into court, to abide
the further orders of the court.


The name of each cause shall be entered by the clerk upon the docket for
hearing in their order, according to the dates of the returns of the monitions, and
lists of the causes ready for hearing are to be constantly hung up in the derk^i
office for public inspection.


In all cases where a decree or commission of appraisement and sale of any
ship and cargo, or either of them, shall have issued, no question respecting the
adjudication of such ship and goods, or either of them, as to freight or expenses,
shall be heard till the said decree or commission shall be returned, with the
account of sales, and the proceeds according to such account of sales be paid
into court, to abide the order of Uie court in respect thereto.


After the examinations taken in preparcUorio on the standing interrogatories
are brought into the clerk's office, and the monition has issued, no further or
other examinations upon the said interrogatories shall be taken, or affidavits
received, without the special directions of the judge upon due notice given.


None but the captors can, in the first instance, invoke papers from one cap-
tured vessel to another, nor can it be done witliout the special mandate of the
judge ; and in case of its allowance, only extracts from the papers are to be


The invocation shall only be allowed on affidavit on the part of the captors,
satisfying the court that such papers are material and necessary.


Application for permission to invoke must be on service, at least two days
previously, of notice thereof, and copy of the affidavit on the claimants or their
agent (if known to be in this port), and after invocation allowed to the captors,
the claimants, by peimission of the judge, for sufficient cause shown, may use
other extracts of the same papers in explanation of the parts invoked.

Digitized by




But when the same claimaDts iDtervene for different vessels or for goods,
wares, or merchaudise^ captured on board different vessels, and proofs are
taken in the respective causes, and the causes are on the dockets for trial at the
same time, the captors may, on the hearing in court, invoke of course in either
of such causes the proofs taken in any other of them ; the claimants, after such
invocation, having liberty to avail themselves also of the proofs in the cause


In all motions for commissions and decrees of appraisement and sale, the
time shall be specified within which it is prayed that the commissions or decrees
shall be made returnable.


The commissioners shall make regular returns on the days in which their
commissions or decrees are retuitiable, stating the progress that has been made
in the execution of the commissions or decrees, and if necessary, praying an
enlargement of the time for the completion of the business.


The commissioners shall bring in the proceeds which have been collected at
the time of their returns ; and they may be required from time to time to make
partial returns of such sums only as are necessary to cover expenses.


On the returns of commissions or decrees, the commissioners or the marshal
must bring in all the vouchers within their control.


All moneys brought into court in prize causes, shall be forthwith paid into
fuch bank in the city of New York, as shall be appointed for keeping the mon-
eys of the court and shall only be drawn out on the specific orders of the court
in favor of the persons respectively having right thereto, or their agents or
representatives duly authorized to receive the same.


At every stated term of the court, the clerk shall exhibit to the court a state-
ment of all the moneys paid into court in prize cases, designating the amount
paid in each particular case and at what time.


The statement, when approved by the court, shall be filed of record in the
clerk^s office, and be open to the inspection of all parties interested, and certi-

Digitized by



fied copies thereof shall be farnished by the clerk, on request, to any party in
interest, his proctor or advocate.


When property seized as prize of war is delivered upon bail, a stipulation
according to the courae of the admiralty is to be taken for double its value.


Every claim interposed must be by the parties in intei*est, if within convenient
distance ; or in their absence, by their agent or the principal officer of the cap-
tured ship, and must be accompanied by a test affidavit, stating briefly the facts
respecting the claim and its verity, and how the deponent stands connected
with or acquired knowledge of it. The same party who may intervene is also
competent to attest to tJie affidavit.


The captors of propeiiy brought in or held as prize, or which may have been
carried into a foreign port, and there delivered upon bail by the captors shall
forthwith libel the same in fact, and sue out the proper process. The first
process may, at the election of tlie party, be a waiTant for the aiTest of the prop-
erty or pei-son to compel a stipulation to abide the decree of the court or a


The monitions shall be made returnable in ten days, and if the property
seized as prize is in poit, shall be served in the same way as in the case of mo-
nitions issued on the instance side of the Couit of Admiralty, on seizures for
forfeiture under the revenue laws. In the property claimed as prize is not
in port, then the monition is to be served on the paities in interest, their agent
or proctor if known to reside in the district, otherwise by publication daily in
one of the uewspapei*s of this city for ten successive days preceding the return


Whenever the Jurisdiction of the court is invoked upon matters as incident to
prize, except as to the distribution of prize money, there must be distinct ar-
ticles or allegations in that behalf in the original libel or claim on the part of
the party seeking relief. But in case the matters have arisen, or become known
to the paity subsequent to presenting his libel or claim, the court Mrill allow him
to file the necessary amendments.


No permission will be granted to either party to introduce further proofs un
til after the hearing of the cause upon the proofs originally taken.

Digitized by




In case of captures by the public armed vessels of the United States, and a
proceeding for condemnation against the property seized as prize jure helli^ or
in the nature of pnze of war, under any act of Congress, the name of the offi-
cer under whose authority the capture was made must be inserted in the libel.


A decree of contumacy may be had against any party not obeying the orders
or process of the court, duly sei*ved upon him ; and thereupon an attachment
may be sued out against him. But no constructive seivice of a decree or proc-
ess, viis et modis, or publica cUatio will be sufficient, unless there has been a
publication thereof in a daily paper in this city, at least ten days immediately
preceding the motion for an attachment.


When damages are awarded by the court, the party entitled thereto may move
for the appointment of three commissioners to assess the same ; two persons
approved by the court will thereupon be associated with a standing commis-
sioner of the Circuit Court, the clerk or deputy clerk of this court, if not inter-
ested in the matter, whose duty it shall be to estimate and compute the damages,
in confoniiity to the pnnciples of the decree, and return a specific report to the
court of the amount of damages, and the particular items of which they are


Any party aggrieved may have such assessment of damages reviewed in a
summaiy manner by the court before final decree rendered thereon, on giving
two days' previous notice to the proctor of the party in whose favor the assess-
ment is made of the exceptions he intends taking, and causing to bo brought
before the court the evidence given the commissionei's in relation to the partic-
ular excepted to.


Every appeal from the decrees of this court must be made within ten days
from the time the decree appealed from is entered, otherwise the party entitled
to the decree may proceed to have it executed. No appeal shall stay the exe-
cution of a decree unless the party, at the time of entering the appeal, gives a
stipulation with two sureties to be approved by the clerk in the sum of two
hundred and fifty dollars, to pay all costs and damages that may be awarded
against him, and to prosecute the appeal to effect.


If the party appealing is afterwards guilty of unreasonable delay m having
the necessaiy ti*Hnscripts and proceedings prepared for removing the cause, it

Digitized by



will be oorapetent to l^e other party to move the court for leave to execute the
decree notwithstanding the appeal.


In all cases of process in rem the property after arrest is deemed in Uie cus-
tody of the court, and the marshal cannot surrender it on bail, or otherwise,
without the special order of the court.

Digitized by






Eules qf Practice qf the District Court qf the United States for tJie Northam
District qf New Tork, in cases qf Admiralty and Maritime Jurisdiction on the
instance side of the Courts as amended and established at the May Term, 1856.
[Corrected to March 1, 1803.]

The *' Rules of Practice of the courts of the United States, in causes of ad-
miralty and maritime junsdiction, on the instance side of the court," prescribed
by the Supreme Court of the United States, at the January Term, 1845, and the
rules of said court in addition to or in modification of the same, are rules of
pi*actice in this court in all cases of admimlty and maritime jurisdiction, includ-
ing cases within the act entitled ** An Act extending the jurisdiction of the
District Courts to certain cases upon the lakes and navigable waters connecting
the same," passed Febniary 26th, 1845.

A special session of the court is hereby appointed to be held at Utica on Tues-
day of every week, at ten o'clock in the forenoon ; at which special session all
process may be made returnable, and all proceedings may be had, except trials
by jury, which will not be held without a special order by the judge for that
purpose, except at a stated term ; and except trials of issue of fact before the
court, which will be had only on the first Tuesday of each month, other than
the months of July and August, without a like special order. Issues of fact
may be brought to trial by either party after twenty days' notice to the other
parties in interest or in pursuance of an order previously obtained for such pur-
pose ; and issues of law, and enumerated and non-enumerated motions may be
brought to a hearing after eight days' notice as aforesaid, or in pursuance of a
like order; but no notice shall be required in respect to any proceeding or mo-
tion which can bo properly made or taken on the return day of process, if such
motion shall be made or proceeding taken on such return day, or, when the

(463) ,

Digitized by



court shall not sit on sach return day^on the first couii; day thereafter. In case
of the non-attendance of the judge at the time hereby appointed, or at any other
time which may by special order be appointed, for any special session of the
court, all process and proceedings shall be continued as of couree, and without
prejudice, to the next special sessions, or by special order, to some earlier day
for that purpose appointed by the judge.

All process shall bear test of the day on which it is sealed, and shall be made
returnable before the judge at Utica on any Tuesday thereafter, sufficiently re-
mote to admit of the prescribed notice. But final process upon bonds or stipu-
lations may be made returnable at a stated term of tlie court, or at a special
session as hereinbefore provided.


The newspaper called the Buffalo Commercial Advertiser, printed at the city
of Buffalo, is hereby designated, in pursuance of Rule 9 of the Rules of Practice
in admiralty and maritime causes prescribed by the Supi-eme Court, as the
newspaper in which all notices shall be printed, which are by the said inile re-
quired to be published in a newspaper, in all suits in rem^ in which the arrest
of the vessel, goods, or other thing proceeded against, has been made at or with-
in the collection district of Buffalo Creek, or the collection district of Niagara.


The Third National Bank, in the city of Buffalo, is hereby designated as the
place of deposit for moneys paid into court.

• 6.

Libels, answers, and all other pleadings and papers to be filed, shall be so
plainly written as to be readily legible, and shall be free, to all reasonable ex-
tent, from interlineations and ei*asures ; and it shall be the^duty of the clerk to
reject all papers delivered to him to be filed, which are not in conformity with
this rule.


^11 libels praying process of arrest in personam shall be verified by the oath
or solemn affirmation of the libellant, or of one libellant, unless, for sufficient
cause shown, such oath or affirmation shall be dispensed with by the special
order of the judge. All libels praying process of arrest in rem shall be veri-
fied by the oath or solemn affirmation of the libellant, or of one libellant, or of
an officer or agent of the libellant, or of one libellant, or by oath or affirma-
tion of the proctor, to the best knowledge, information and belief of the per-
son so verifying the same. Such libels need only be signed by the proctor.
The clerk is authorized to issue process of arrest and of monition on libels so
verified and signed.

Digitized by



All answers and other pleadings, not hereinbefore provided for, shall be
signed and verified in the same noanner as libels praying process of arrest in


In suits in rem, the mesne process shall be served, and the required notices
given, at least fourteen days before the return day of the process, unless a
shorter lime shall be prescribed by special order, founded upon the exigencies
of the particular case.


All process, and all notices for publication in a newspaper in pursuance of
Rule 9 of the Rules of Pi*actice in admiralty and maritime causes, prescribed
by the Supreme Court, shall be drawn up by the clerk ; and no process, except
subpcBuas, shall be issued by him in blank.


The notice mentioned in the last preceding rule shall contain the title of the
suit, a summary statement of the cause of action, the amount of the demand,
and the day and place fixed for the return of the process ; and shall have affixed
at the close thereof the name of the proctor of the libellant, and that of the mar-
shal, or of his deputy intrusted with the execution of the process.


The amount of the debt or damages for which the action is brought, shall be
stated in the libel, and, with the addition thereto, for costs, of $250 in a suit
in rem, and of $100 in a suit in personam, indorsed on the mesne pro-
cess, thus : ** Action for $ ; ** and m a suit in rem the requisite bond or
stipulation, upon the release of the property, shall be in the sum of $250, in
addition to twice the amount demanded in the libel ; and in a suit in personam
in the sum of $100, with the addition of twice the amount of the demand.


When the libellant is not a resident of the district, he shall, at the time oi
commencing his suit, give a bond or stipulation, with one or more sufficient
sureties, in the sum of at least one hundred dollars, if the suit is in personam ;
and in the sum of at least two hundred and fifty dollars, if the suit be in rem —
conditioned that he will appear from time to time, and abide by all orders, in-
terlocutory and final, of the court, and pay the costs and expenses, if any, which
shall be awarded against him by the final decree of this court, or of any appel-
late court : Provided, however, that this regulation shall not extend to suits for
seamen's wages, nor to suits for salvage, when the salvors have come into pork
in possession of the property libelled.

Digitized by




In all cases not embraced within the last preceding rule, on motion of the
defendant or claimant, the court will, in its discretion, direct the libellant, on
pain of dismissing his libel, to give the like security.


Instead of the security specified in the last two preceding rules, the party
from whom it is required may, at his option, deposit in couit a sum of money
of the like amount.


If in any case a libel shall be filed in behalf of a libellant who is not a resi-
dent within the district, before security for costs and expenses shall be filed as
required by Rule 12, the proctor for such libellant shall be liable for costs and
expenses to the amount specified in the said rule, until such security shall be
filed ; and the payment thereof may be enforced by summary process in per-
sonam against such proctor.


When a proctor is retained to defend in any suit, before the i"etui*n day of
the mesne process therein, who resides or has his place of business more than
three miles from the clerk^s office, and not more than three miles from the resi-
dence or place of business of the proctor for the libellant, such proctor for the
defendant may, at any time before the return day of the process, serve a notice
of his retainer on the proctor for the libellant; and it shall thereupon be the
duty of the proctor for the libellant, without delay, to seiTe on the proctor for
the defendant a copy of the libel on file.

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 47 of 80)