Erastus Cornelius Benedict.

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

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17.

When the defendant's answer, or any other pleading subsequent to the libel,
is put in by being simply filed in the clerk's ofllce, instead of being given in
open court, in pi'csence of the proctor or advocate for the adverse party, a copy
thereof, with notice of the time of filing the same, shall without delay be served
on the proctor of sudi advei*se party.

18.

When a deci-ee is made in the absence of the proctor of either party to the
suit, unless such proctor resides at the jilace where the clerk's office is kept, it
shall be the duty of the clerk immediately to transmit to him by mail a copy of
the decree ; and such proctor and party shall be responsible to the clerk for the
fees to which he may be entitled for such setTice, according to the usual rate of
cliarge.



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DI8TKICT COURT liULBS — NOUTHERN DISTRICT. 467

19.

In all suits, others than those founded upon municipal seizure, not loss tlian
six days^ notice of the sale of property on final pix)ces8 shall be given. A
longer notice may be given at the discretion of the marshal or his deputy by
whom the sale is to be made, or by order of the court. It shall be the duty of
the marshal in all cases in which it shall be practicable, to make the sale and
pay the proceeds into court on or before the return day of the process, under
which such sale is to be miide. The clerk will in all cases make the process
returnable at such time as may be necessary to enable the marshal to give the
requisite notice, make the saile, and return such process on or before the return
day thereof.

20.

Whenever any libel shall be taken as confessed, for want of answer, there
shall be an order of reference to the clerk or a commissioner pro hoc vice to
take pi*oof of the material facts and circumstances stated in the libel, and to
examine the libelhuit on oath or afBrniation, in respect to payments or offsets,
and in the discretion of the referee in respect to any other matters pertaining
to his demand, and the referee shall report accordingly.

Upon sufficient cause shown, the couil will in the order of reference, or
otherwise, direct tliat the oath or affirmation of the libellant may be received
in support of the allegations of the libel, or will give such other special direc-
tions in respect to the proceedings upon the reference as the nature of the case
may require.

21.

In C!ises of I'eference under a decree pro confesso^ the libellant shall, unless
otherwise specially directed, proceed with^the reference within four days from
the date thereof; and upon a reference in cases in which an answer shall have
been interposed, or in which, for other reasons, notice of hearing on the refer-
ence shall be required, the hearing may proceed on any day appointed by the
referee, at the instance of either party ; provided, that eight days' notice shall
have been given of such hearing, to all adverse parties who have appeared in
the cause.

Such reference may be continued from day to day, or by adjournment, and
when adverse parties appear, the proofs shall be closed at the end of thirty
days from the date of the order of reference, unless the parties shall agree to
the closing of the same at an earlier day, or unless the time shall be extended
by the wi-itten order of the referee, or by the written stipulation of the parties,
or by the order of the court for that purpose obtained ; and the clerk or com-
missioner shall make and file his report within eight days after the testimony
shall have been closed.

22.

Exceptions to any report made by the clerk or a commissioner, nuist be filed
or served on the advei*se party within ten days after such report shall have



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468 APPENDIX.

beeo filed, unless the time shall be enlarged by the judge or by the written
stipulation of the parties ; and if exceptions are not so filed and served, the
party in whose favor the report may be, may, on tlie first special session there-
after, and without notice, move for the confirmation of the report, and a final
decree thereupon.

23.

When interrogatories are propounded by the defendant at the close of his
answer, touching any matters charged in the libel, or touching any matter of
defence set up in the answer (according to Rule 32, of the Rules of Prac-
tice prescribed by the Supreme Court), the libel lant shall answer the same
within twelve days, unless, for sufficient cause shown, he shall, by special
order, be allowed a longer period ; and the court may, in its discretion, require
such interrogatories to be answered within a shorter time, or instanler,

24.

When interrogatories are propounded to a garnishee (in pursuance of Rule
87 of the Rules of Practice prescribed by the Supreme Court), a copy thereof
shall be seiTed upon the garnishee personally, or, in ease of his absence from
his dwelling-house or usual place of abode, by leaving such copy with some
person of suitable age who is a member or resident of the family ; and the
garnishee shall be required to answer the interrogatories within twelve days
after such service, unless a longer period shall, for adequate cause shown,
be by special order allowed for that purpose ; and the court may also, in its
discretion, prescribe a shorter period.

25.

Exceptions to the libel (taken in pursuance of Rule 36, of the Rules of
Practice prescribed by the Supreme Court), for surplusage, irrelevancy, im-
peitinence, or scandal, may be taken ore tenus on the return day of the mesne
process ; and exceptions to the answer or other allegations given by the de-
fendant, taken for the like causes, in pursuance of the same rule, or in pursuance
of Rule 27, for want of sufficiency, fulness, or distinctness, may be taken in like
manner, when the answer or other allegation is put in in open court; and the
court will thereupon, in its discretion, either decide upon the sufficiency of the
exceptions so taken, instanler, or direct the same to be drawn up in writing,
and appoint a day to hear argument thereon, or refer the same to a com-
missioner.

26.

When, at the return of the mesn process, f urtlier time has been granted to
answer the libel, and the answer, instead of being produced and oflfered in open
court, in the presence and hearing of the advocate of the libellant, is simply
filed with the clerk, a copy thereof shall, without delay, be served on the proc-
tor for the libellant, personally, if he resides \vithin three miles of the proctor



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DISTRICT COURT RULES — NORTHERN DISTRICT. 469

for the defendant, otherwise either personally or by mail ; and the proctor for
the libellant may, within ten days after the service thereof, file and serve ex-
ceptions thereto. The defendant, within eight days after the service of such
exceptions, may give a written notice of his submission to any or all of them ;
and if any of them are not submitted to within the time prescnbed, the libellant
may bring the same to a hearing before the court, by giving, at any time within
six days, a notice of not less than six, nor more than ten days, of such hearing.
Every exception not submitted to, and which is not notified for healing within
the time specified, shall be considered as abandoned.

27.

When exceptions are refeired to a commissioner, if the party who obtained
the reference shall not procure and file the commissioner's report within four-
teen days from the date of the order of reference, unless further time shall be
allowed, for sufficient cause shown, by special order, the exceptions shall be
considered as abandoned. The paity by whom the reference was obtained
shall have eight days after filing the I'eport of the commissioner, to except
thereto. On filing the report, he shall give notice of filing the same to the ad-
verae proctor, who shall have eight days after such notice to except to the re-
port. Exceptions to a commissioner's report may be noticed for argument by
either party, and the notice shall be served at least six days before the day des-
ignated for the hearing.*

28.

All appeals to the Circuit Court must be interposed within ten days fi*om the
date of the decree, or within such other period as shall be designated by special
order made in the particular suit ; and in cases where the right of appeal is
allowed, no final process shall issue, befoi*e the expiration of the ten days, or
other period prescribed.

29.

The regulations presciibed by law relative to the mode of serving notices
and other papers, in suits prosecuted in the courts of the state of New York,
are hereby adopted, miUcUis mulandis, as rules of this court.

30.

The provisions in the foregoing rules contained, shall be held applicable, as
far as may be, to all proceedings by petition or otherwise, which may be insti-
tuted to enforce any lien or demand upon or against any property in the cus-
tody of the court, or any proceeds in the registry.

31.

It is ordered t That where several suits are instituted against one and the same
vessel, or the proceeds thereof, no more than one charge for mileage shall be

• See Roles 28 and 36 in Admiralty preeoribed by the Supreme Court.



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470 APPENDIX.

allowed for the service and return of mesne process in such suits, unless foi
special cause shown it shall be othei*wise specially ordered by the court.

32.

It is hereby ordered. That the rule heretofore made and entered, requiring the
office of the clerk of this court to be kept at the city of Auburn, be, and the
same is hereby abrogated, and it is ordered that the said office be henceforth
kept at the city of Buffalo.



ADDITIONAL RULES,

Adopted in 1860, and subsequently ^ in some respects, mod\fied.

1.

In order to prevent the commencement of suits upon small demands, and the
consequent accumulation of costs altogether dispropoilionate to the sum de-
manded, the clerk will issue no process for seamen^s wages, when the sum
swoi'n to be due to a sole libel lant is less than ten dollars, or to several joint
libellants is less than fifteen dollai*s, or for any other demand, when the amount
sworn to be due is less than twenty dollars, except when specially ordered by
tke court or the judge thereof, or such judge shall be absent fi-om his place of
residence. When the amount recovered shall be less than the sums above
named, no costs will, in ordinaiy cases, be decreed to the libellant unless it
shall be shown upon the hearing that such libellants could not have had a com-
plete and perfect remedy in a court of a justice of the peace.



In suits for seamen^s wages, the clerk shall insert in the waiTant of arrest
and monition, after the words ** in a cause of subti*action of wages, civil and
maritime," the words **and also to answer unto all other persons having de-
mands against the said vessel, for wages earned on board thereof, who may
choose to make themselves parties to the libel of the said (naming the libellant
or libellants), by way of amendment or supplement, without further process or
citation." And all mariners having claims against such vessels may, thei*e-
upon, so long as the vessel i*emains in custody, or any proceeds thereof remain
in the registiy, make themselves parties to such libel or suit, by a petition and
proper allegations, by way of amendment or supplement to such original libel,
and may have a decree for the payment of their demands, as though they were
named as parties to the original libel, and no newwan*ant of arrester monition
shall be issued in favor of any seaman, who, in respect to the demand on which
he seeks such process, is entitled to make himself a party to proceedings al-
ready commenced ; and no costs shall be allowed to any such seaman who shall,
without sufficient excuse, fail to apply to make himself a pai-tj^ to such a suit
on the retui-n day of such process, or the first court day thereafter. And in



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DISTKICT COUKT RULES — NORTHERN DISTRICT. 471

order to allow such seamen to make such application, no final order of refer-
ence in any case for seamen^s wages shall be made until the next couit day
after the return day of the process issued thereon.

3.

No warrant of arrest shall issue on behalf of a seaman for wages on board a
Biitish or Canadian vessel, where it shall appear that such seaman shipped and
was discharged in Canada or elsewhere out of the United States ; or in favor of
any subject of Great Britain against any British vessel until the written consent
Uiereto of the British consul, or an order of the judge therefor, shall have been
filed.

4.

All decrees for seamen^s wages shall direct the amount decreed for such
wages to be paid to the libellant in person ; and all checks or orders for the
payment of such wages shall be drawn, payable to the order of the seaman to
whom such wages shall have been decreed.



No allowance for the expenses of keeping any ship, or vessel, or other prop-
erty, beyond the sum of fifty cents per day, or fifteen dollars in the aggregate,
shall be allowed to the mai*shal, except upon the affidavit of the shipkeeper or
other custodian, stating his employment and sei'vice, and tlie amount he has
been actually paid therefor, and that such payment was received for such ser-
vice only, and was i*eceived wholly for his own benefit, and not for the benefit
of any ofiicer of the couit; and also, that there is no understanding or intention
that the whole, or any pait thereof shall be paid, or in any way disposed of or
allowed to the marshal or his deputy, or for his or their benefit ; and a copy of
such affidavit shall be served with the copy of bill of fees or statement of allow-
ance claimed.

6.

In collision causes, unless the libel and answer shall respectively state or ad-
mit, either positively or upon information and belief, and as fully and accurately
as practicable :

1 . The names of the vessels which came into collision, and of their respective
masters ;

2. The time of the collision, and whether in the night or daytime ;

3. The name of the officer or person in charge of the deck of the vessel of
the party ;

4. The place of the collision ;

6. The general course or direction of the vessel of the party, and her direction
at the time of the collision ;

6. The state of the weather, and, if in the night, the character of the night in
respect to darkness, rain, etc. ;



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472 APPENDIX.

7. The course and speed of the party^s vessel, when the other was first seen ;

8. The lights, if any, carried by her, and their position ;

9. The bearing and apparent distance of the other vessel when the vessel it-
self was first seen ;

10. The lights, if any, of the other vessel which were first seen, and their
bearing, and their estimated apparent distance at that time ;

11. Whether any lights of the otlier vessel other than those first seen came
into view before the collision, and the particalars thereof;

12. The names of the person or persons, if any, stationed and acting as look-
out on the vessel of the paity at the time the other vessel or her light was first
seen;

13. Wliat measures were taken, and when, to avoid the collision, and partic-
ularly, whether any and what change of helm or sails was made for that purpose ;

14. The paits of each vessel which first came into contact, and the manner m
which they struck ;

15. The character and extent of the injury, if any, to the party's vessel : —
The opposite party, on showing to the satisfaction of the court, by affidavit

or otherwise, that a more full and specific statement of the circumstances of the
collision mentioned in such libel or answer, in respect to some one or more of
the particulars above mentioned, is necessary to the proper preparation of an
answer to such libel, or the proper preparation, on his part, for the final hear-
ing of such cause, or will materially reduce the expenses of procuring testimony
for such hearing, may, on motion (duo notice of such motion, with copies of
affidavits and papers, other than the files of the court, on which such motion is
to be made, having been firat served on the opposite proctor at least four days
before the day for which such motion is noticed), obtain a special order of the
court for the amendment of such libel or answer, in regard to such particulars,
within such time, and upon such conditions, and with such consequences, in case
of a non-compliance with such order, as the court shall prescribe. And an
order staying proceedings on any defective libel, or striking out any defective
answer, may be made, on a further notice of motion for that purpose, in case
any amendment ordered by the court is not made and filed as required by such
order, unless some satisfactory cause for the non-compliance with such order
shall be shown.

March 20, 1869.
It is hereby ordered that in all cases in which the marshal is required to pub-
lish any notice of any process or proceeding, or any other notice, in any case
pending on the common law or admiralty side of this court (other than in cases
provided for by law, or in the Bankruptcy Rules), the marshal or his deputy
shall cause the same to be published as follows, viz. : In all cases in admiralty,
except seizure cases, the notice of, or under, or under the firat process served
or executed therein, shall be published in the county where such property was
arrested, under such process, and in the newspaper first named in the 38th Gen-
eral Rule in Bankruptcj-, heretofore adopted by this court, as one of the news-
papers in which notices in bankruptcy cases are, under said inile, to be published
in said county ; and in seizure cases, in admiralt\', such notice shall be so pub-
lished in the county where such seizure is alleged, in the information upon which



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DISTRICT COUBT BULBS — ^NOBTHBBN DISTEIOT. 478

such process was issued, to have been made, aud in the newspaper therein first
named in said Bankixiptcy Rule, as aforesaid ; and all subsequent notices re-
quired to be published by the marshal in either of such cases shall be published
in the same paper. In all other than admiralty and bankruptcy cases, and in
cases otherwise provided for by law, such notices of, or under the first process
or proceeding therein, and all subsequent notices in the same cause, shall be
published in the county in which the property was aiTested, or seized, as above
first provided for in admiralty cases, except that such notices shall be published
in the newspaper in such county secondly named in said 38th Bankruptcy Rule/
instead of the one firstly therein named. And in all cases where the first process
is an execution, or other process, or order for the sale of real or personal prop-
erty, or both, notices of sale, under the same, shall be published in the news-
paper secondly named in said Bankruptcy Rules for publication of notices in
the county in which such property may be seized under such execution, process,
or order.

In case any other newspaper has been, or shall hereafter be, substituted for
one of the newspapers named in said Bankruptcy Rule, the publications in this
rule referred to or provided for, shall, in such ca^e, be made in such substituted
newspaper, instead of the newspaper now mentioned in such Bankiniptcy Rule.

But notwithstanding the provisions hereinbefore contained, the judge of this
court may, in any case by writing under his hand, direct any additional or dif-
ferent publication of any such notice ; and whenever any such direction shall be
given, such notice shall be published according to such direction. And in all
cases not provided for by Uiis order, or the General Rules of this court, or by
law, all such notices shall be published in such newspaper, and in such manner
as said judge shall by writing direct ; and in all cases in which such provision
has not been made, the marahal, before publishing such notices, shall apply for
and obtain such direction.

All notices, unless othei'wise provided by law, by the rules of court, or the
special order of the court, or the judge thereof, shall be published three times,
and the first of such publications shall be made at as early a day as may be re-
quired by law, or the rules and practice of the court. And it is further ordered
that the clerk certify a copy of the above, and of this order, and deliver the
same to the marshal of this district, and that in all seizure cases the clerk shall
endorse on the first process issued therein, the name of the paper in which the
notices in such case are required to be published under the above order.



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COSTS AND FEES.

Sections qf the United States Revised Statutes Belatlng to Costs and
Fees in Admiralty.

Sec. 823. The following and no other compensation, shall be taxed and al-
lowed to attorneys, solicitors and proctors in the couits of the United States, to
disti-ict attorneys, clerks of the Circuit and District Courts, marshals, commis-
siunei-s, witnesses, jurors and printei-s in the seveml states and territories, ex-
cept in cases otherwise expressly provided by law. But nothing herein sliall
be consti'ued to prohibit attomeys, solicitoi's and pi*octors from charging to and
receiving from their clients, otlier than the Government, such reasonable com-
pensation for their services, in addition to the taxable costs, as may be in ac-
cordance with genei*al usage in their respective states, or may be agreed upon
between the parties.

FEES OF ATTORNEYS, SOLICITORS AND PROCTORS.

Sec. 824. On a trial before a jury, in civil or criminal causes or before i"ef-
erees, or on a final hearing in equity or admiralty, a docltet fee of twenty dol-
lars : ♦ Provided, That in cases of admiralty and maritime jurisdiction where the
libellant recovers less tlian fifty dollars, the docket fee of his proctor shall be
but ten dollars

For each deposition taken and admitted in evidence in a cause, two dollars
and fifty cents. f

For sei-vices rendered in cases removed fi*om a District to a Circuit Court by
writ of error or appeal, five dollars.

'« * « «« « « « •

CLERK'S FEES.t

Sec. 828. For issuing and entering every process, commission, summons,
capias, execution, warrant, attachment, or other writ, except a writ of venire,
or a summons or subpoena for a witness, one dollar.

* Cases In which docket fee was allowed: Partee v. Thomas, 27 Fed. Rep. 429; The Bay City, 3
Fed. Rep. 47; Price y. Coleman, 22 Fed. Bep. 694; Greener y. Steinway, 23 Blatch. 378; Andrews
y. Cole, 22 Blatch. 184; Hayford y. Griffith, 3 Blatch. 79; The Alert, 15 Fed. Bep. 621; Goodyear y.
Sawyer, 17 Fed. Rep. 2.

Cases in which docket fee not allowed: Ryan v. Gould, 32 Fed, Rep. 754; Wlgton y. Brainerd, 28
Fed. Rep. 29; Goose y. Parker, 3G Fed. Rep. 840; Cleaver y.lTraders Ins. Co., 40 Fed. Rep. 863;
Cons. Bung Co. v. Am. Proc. Co., 24 Fed. Rep. 658; Yale Lock Co. v. Colvin, 21 Blatch. 168; Cox y.
Perkins, 13 Fed. Rep. Ill, and elaborate note; Shafer y. Carr, 6 Fed. Rep. 466; Jans y. Schull, S
Blatch. 79; Doughty v. West etc. Co., 8 Blatch. 107; McLean v. Clark, 23 Fed. Rep. 861.

t Wooster y. Handy, 23 Fed. Rep. 49; American etc. Co. y. Sheldon, 28 Fed. Rep. 217; Windgar
V. Cohn, 29 Fed. Rep. 675; Jarman y. Stewart, 12 Fed. Rep. 271; Beckwith v. Fasten, 4 Ben. 367;
Hunter y. Ry. Co., 28 Fed. Rep. 842; The SalUe P. Lindeman, 22 Fed. Rep. 557. Not taxed in
Goose y. Parker, 36 Fed. Rep. 840; Stimson y. Brook, 3 Blatch. 456; The Daniel Kane, 31 Fed.
Rep. 746.

% For analysis of costs chargeable by clerk on filing claim, answer, appearance, preparing bonds,
jurats thereto, oaths, (cliarge for oath does not include jurat,) attendance on justification, F.
Merwin, 10 Ben. 403. A fee of f 1.00 chargeable by clerk on receiying note of issue. Also clerk

(474)



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COSTS AND FEES. 475

For issuing a writ of summons or subpcena, twenty-five cents.

For filing and entering every declaration, plea, or other paper, ten cents.

For administering an oath or affirmation, except to a juror, ten cents.

For taking an acknowledgment, twenty-five cents.

For taking and certifying depositions to file, twenty cents for each folio of
one hundred woixts.

For a copy of such deposition furnished to a party on request, ten cents a
folio.

For entering any retum. mile, order, continuance, judgment, decree, or recog-
nizance, or drawing any bond, or making any record, ceitificate, return or re-
poit, for each folio, fifteen cents.

For a copy of any entiy or record, or of any paper on file, for each folio, ten
cents.

For making dockets and indexes, issuing venire, taxing costs, and all other



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 48 of 80)