Erastus Cornelius Benedict.

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

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Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 54 of 80)
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516 APPENDIX.

for, and the said master still refuses to deliver to him the said nine cases, and
each of them, which are of the value of two thousand dollars and upward, to
the great damage of the libellant.

Third. That all and singular the premises are true, and within the admiralty
and maritime jurisdiction of the United States, and of this Honorable Court.

Wherefore, the libellant prays that process in due form of law, according to
the course of this Honorable Court in causes of admiralty and maritime juris-
diction, may issue against the said nine cases of merchandise, and that the said
C. D. may be personally cited to appear and answer, on oath, all the matters
aforesaid, and that the said merchandise may be delivered to the libellant, and
that the said C. D. may be condemned to pay to the libellant his damages and
costs in the premises, and that he may have such other and further relief in the
premises as in law and justice he may be entitled to receive.

A. B. Pboctob, etc
{Vei'iflcation as in No, 1.)



No. 74. — ^A LIBEL IN REM BY THE OWNER TO RECOVER A VESSEL WITHHELD ON A

CLAIM OF TITLE.

To the Honorable Samuel ft. Betts, Judge of the District Court of the United

States, for the Southern District of New York.

The libel of Alfred Peabody, of Salem, in the Commonwealth of Massachusetts,
merchant, against Uie schooner Lucinda Snow, whereof

Stubbs, of now is or late was master, her tackle, apparel, and

furniture, and against the said Stubbs, master, and against

Rogers, of in the State of Maine, and against all

otlier persons ^awfully intervening for their interest in the said schooner, in a
cause of possession, civil and maritime, alleges as follows:

First. That the libellant is the true and lawful owner, absolutely of one half,
and the lawful owner by way of mortgage of the remaining half of the said
schooner Lucinda Snow, of ninety-nine tons burthen, now lying in the port of
New York, and had the possession and employment thereof as such owner, till
deprived of her as herein set forth.

Second. That the said schooner is wrongfully withheld from the libellant by
the said Stubbs and said Rogers, on an alleged ground of title, depending upon
a pretended sale by one Dawson Lincoln, now deceased, as master of said schooner
Lucinda Snow, which sale was unauthorized, without any necessity and without
any legal survey or condemnation of said schooner, in violation of the duty of
the said Dawson Lincoln as master, in fraud of tlie libellant, and is utterly void.

Third. That on or about the early part of the month of December last past,
the libellant and the said Dawson Lincoln purchased the said schooner then ly-
ing in tlie port of Boston, for the sum of $2,400, and the libellant paid the sum
of $600 on account of his half thereof, and the said Lincoln paid $600 on account
of his half, and for the remaining $1,200 the libellant became surety, and signed a
joint note for $1,200 with said Lincoln, for the balance of such purchase money.
That, u])on such purchase being made, a bill of sale was duly executed and de-
livered by the then owners of said schooner to the libellant and the said Lincoln,
whereby the libellant became the legal owner of one-half, and the said Lincoln
became tlie owner of the remaining half of said schooner, and said schooner waa



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PRACTICAL FORMS. 517

duly registered according to the act of Congress in such case made and provided,
as belonging, one-half to the libellant and one-half to said Lincoln.

That upon such purchase being made, as aforesaid, and before sailing from
Boston, the said schooner was thoroughly repaired at an expense of about $1,000,
and fitted for a three years' voyage, which said expense was wholly supplied by
the libellant; and to secure the libellant for the one-half of such expense, and
for one-half of said note, for a part of the said purchase money, and for one-half
of any loss that might arise on her voyage from Boston to Galveston, hereinafter
mentioned, the said Dawson Lincoln, on or about the twenty-first day of Decem-
ber, 1846, executed to the libellant a bill of sale of his one-half of said schooner,
a copy whereof is hereto annexed, marked B. That such schooner was, at that
time, six years old, in excellent condition, and worth at least the sum of $3,500.

Fourth. That the libellant purchased and supplied, from his own means, a
cargo on joint account with the said Dawson Lincoln, who was then appointed
master of said schooner, and with said cargo, and a freight of about $160, the
said schooner sailed from the port of Boston, on or about the t^/enty-sixth day
of December last past, with the said Lincoln as captain, bound to Galveston,
Texas, where she arrived on or about the twenty-seventh day of January last
past, in excellent order and condition, and discharged her cargo, and received a
full freight at Galveston, for the mouth of the Rio Gi*ande, where she arrived
on or about the latter part of February last, and discharged her cargo, for which
the said Captain Lincoln received the freight, amounting, as the libellant has
been informed and believes, to more than $500. That while said schooner was
so at the Rio Grande, in the eai-ly part of March last, she was chartered by the
Government of the United States for the sum of $1,200 a month, and proceeded
to Vera Cruz, and lay at or near Sacrificios, and the said Lincoln received from
the said Government the sum of about $1,500 and upwards on account of such
charter; tliaton or about the second day of April last, the said Captain Lincoln
wrote in substance, from Vei-aCruz to the libellant, that the first month's char-
ter of said schooner, amounting to $1,200, would be due on the tenth day of
April, and that he would remit that amount, together with $400, freight and pro-
ceeds of cargo sold by him to the agent of tlie libellant, at Salem, but the said
Lincoln, wholly failed to make any remittance whatever, and the libellant is
credibly informed, and believes and states that the said Captain Lincoln after
his arrival at Vera Cruz, in neglect of his duty as master of said schooner, and
of the interest of the libellant, embarked largely in the business of purchasing
wrecked vessels on the shore, and in getting them off, without the authority or
knowledge of the libellant, and had, some time before the said schooner ran on
shore, as hereinafter mentioned, actually purchased a brig for about $1,600,
stranded on the shore, and a barque for about $800, also stranded on the shore,
and was busily engaged in getting them off, up to the time the said schooner
went ashore. That no remittance whatever having been at any time made by
the said Captain Lincoln to the libellant or his agent, no reasonable doubt can
exist that the said Lincoln, who was a man of little or no means, converted the
proceeds of the cargo, freights, and charter, or the gi*eater part thereof, received
by him, amounting to at least $1,600, to purchase of said wrecks.

Fyth. That on or about Sunday, the second day of May last, the said Captain
Lincoln left the said schooner anchored at or near Sacrificios, with only the
mate on board, and with all of the crew of the said schooner went some ten
miles down the coast in the schooner's boat, for the purpose of wrecking, and



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618 APPENDIX.

while 80 absent, a squall from the northward came up in the early part of the
day, and pai*ted one of the schooner's chains, and was driving her towards the
shore directly on some old wrecks, when the mate, finding that she continued
dragging her remaining anchor, and that she would inevitably go ashore in the
vicinity of the old wi*ecks, slipped the remaining chain, and succeeded in run-
ning her on a smooth, clear beach, sustaining no injury to said schooner, except
the loss of a few sheets of copper from her bottom, and although the said Lin-
coln returned with his crew from the wrecking expedition on the evening of
the same day, he allowed said schooner to remain ashore, although only slightly
grounded, from Sunday until the Friday following, without making an effort
to relieve her, although she was uninjured, and could have been easily hove off
at a very trifling expense, and although he had a sufficient chain and anchor
convenient, on board of the brig he had purchased, to enable him to get her
off, and although he could have applied the said moneys in his hands, or could
have raised money on the said brig or barque, or by bottomry on said schooner,
more than sufficient to meet his expenses in getting her off. That on the said
Friday, as the libellant is informed and believes, the said Captain Lincoln
called a survey, and on the following day (Saturday), exposed said schooner for
sale at auction, and after considerable competition at said sale, the said Rogers
bid her in at such sale, at the sum of $1>750, and now alleges that he thereby
became the legal owner of said schooner, and tlie libellant is informed and be-
lieves that the said Lincoln authorized and requested a person to bid for him,
said Lincoln, at said auction sale, the sum of $1,700, or about that sum, for said
schooner, if she could not be purchased at a less sum; and the libellant states
that no necessity existed for said sale, and that the same was fraudulent, collu-
sive, illegal, and void, and conferred no title whatever on the said Rogers. That
on or about the third day after the alleged purchase at said sale, the said Rogers
hove off the said schooner, with anchors and chains, at a very trifling expense,
not to exceed, as the libellant believes, the sum of $.50 or $100, and when so
hove off, the said schooner had sustained no damage in her hull, spars, sails,
rigging, or otherwise, except the loss of a few sheets of copper off her bottom,
and a little caulking necessary on her wales, and a chain and anchor. That be-
ing supplied with this slight amount of caulking, and one chain and anchor, she
proceeded in a few days thereafter, without any other repairs, to New Orleans,
a distance of about 800 or 1000 miles, and there took in a full cargo of com and
proceeded to New York, where she arrived in safety after a quick passage of
fourteen days in a good and sound condition, on or about the sixth day of Au-
gust, instant, without receiving any repairs except as aforesaid. That a full
cargo of corn, from its dense weight, and liability to shift and great strain in a
vessel, could not be brought, and would not be entrusted in any vessel except
she were sound, staunch, and in good condition, and that, as the libellant is in-
formed and believes, the said Rogei*s now values said schooner at the sum of
$:),500, and the libellant states that it must have been quite apparent to the said
Rogers and to the said Lincoln, at the time of said pretended auction sale, that
said schooner was in no peril or danger, and no necessity existed for her sale,
and that she could have been easily got off, as the one bid the sum of $1,750,
and the other authorized a bid of $1,700 for said schooner (50 per cent of her
value when safely in port), which bids would not have been made, had any real
necessity for a sale existed.
8ixl?i, That after the said sale the said Lincoln continued his business of



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PRACTICAL FOUMS. 519

wrecking at Vera Cruz as aforesaid, and got off the said barque purchased by
him, and, as the libellant is informed and believes, also purchased another strand-
ed vessel and got her off. That the said Lincoln retained the entire proceeds of
said auction sale, as well as the said moneys so received, as aforesaid, from the
sale of cargo, freight, and charter, amounting together to at least the sum of
$3,900, no part of which has ever been received by the libellant, or by any per-
son for his account, although he has paid for the whole of said outfits at Bos-
ton, and has paid said note so given by said Lincoln on account of the purchase
money of one half of said schooner, and has paid insurance and other running
expenses of said schooner to the amount of about $300.

That the cargo shipped on joint account as aforesaid will barely reimburse
the libellant for its cost, freight, and expenses, and no profit has or will be
made thereon, and that the only freight received by the libellant since sai<^
schooner left Boston, in December, 1846, was about the sum of $60 received at
Galveston on account of freight, which sum was credited to the schooner, and
the balance of said freight from Boston, being the sum of $100, was received
by said Lincoln for his family.

Seventh* That the libellant first heard of his schooner being ashore on or about
the twenty-fifth day of May last, while he was at New Orleans, but he was in so
critical a state of health that he was unable to go to Vera Cruz to look after his
interests, and had to leave for the north on account of his bad health on or about
the third day of June last, and that up to the time of leaving for the north as
aforesaid, he had not received any letter, information, or communication what-
ever from the said Captain Lincoln, except the said letter of the second day of
April, hereinbefore mentioned. That the said Captain Lincoln died at Vera
Cruz on or about the 17th day of July last.

Wherefore the libellant prays that process in due form of law, according to
the course of this Honorable Court in causes of admiralty and maritime juris-
diction, may issue against the said schooner Lucinda Snow, her tackle, apparel,
and furniture, and that the said Stubbs and Rogers, and all other per-

sons having any interest in said schooner, may be cited to appear before this
Honorable Court, and to show cause why possession of the said schooner should
not be delivered to the libellant as having full title to the possession thereof,
against the said Stubbs and Rogere, and that this Honorable

Court would be pleased to decree the said schooner to be delivered to the libel-
lant, and that the said Stubbs and Rogers may be decreed to pay unto the libel-
lant all freight and freights earned by said schooner while in their possession,
or in the possession of either of them, with damages and costs, and that the
libellant may have such other and further relief in the premises as in law and
justice he may be entitled to receive.

Mabtin Strong A A. P. Smith, Proctors.
A. F. Smith, Advocate.
{Verification as in No, 1.)



No. 76. — LiBVL m BKM BY A MIKOBITY OWNEB TO OBTAIN 8ECUBITY FOB THE
SAFE BBTUBN OF A VESSEL, OB FOB A SALE.

To the Honorable Samuel R. Betts, District Judge of the United States for the
Southern District of New York.
The libel of A. B., of the city of New York, part owner of the brig Packet,



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520 APPENDIX.

against the said brig, her tackle, apparel, and furniture, and against all persons
intervening for their interest therein, and especially against C. D., part owner
of said brig, in a cause of possession, civil and maritime, alleges as follows:

First. That the libellant is the true and lawful owner of one-quarter of the
brig Packet, of the burthen of 200 tons, her tackle, apparel, and furniture, and
boats, and the said C. D. is owner of the remaining three-quarters of said brig,
and no other person is owner of said vessel or any portion thereof, and the said
brig is now lying in the port of Hudson, in the Southern District of New York.

Second. That the said C. D. has hitherto acted as ship^s husband of said
vessel, and has now the possession thereof, and declai-es his intention of dis-
patching said vessel on a sealing voyage to the Pacific Ocean. That the libel-
lant has expressed to said G. D. his dissent from said voyage, and has remon-
strated with liim on the subject, and still dissents from the same, but the said
C. D. persists in his determination to send her on said voyage, and is now pro-
curing her outfit and crew.

Third. That all and singular the premises are true, and within the admiralty
and maritime jurisdiction of the United States and of this Honorable Court

Wherefore the libellant prays that process in due form of law, according to
the course of this Honorable Court in cases of admiralty and maritime juris-
diction, may issue against the said vessel, her tackle, apparel, furniture, and
boats, and that aU persons claiming any right in said vessel, and especially the
said C. D., three-quarters owner as aforesaid, may be cited to appear and
answer the matters aforesaid, and to show cause why the said C. D. should
not be restrained from sending the said vessel on the said voyage until good
and sufficient security shall be given in this coui*t to the full value of the libel-
laut^s interest in said vessel, her tackle, apparel, furniture, and boats, for the
safe return of said vessel to the said port of Hudson, whei*e she belongs, and
that this Honorable Court will be pleased to decree that such secuiity be given
or the possession of said vessel, her tackle, etc., be delivered to tlie libellant,
with costs, or that the said vessel, her tackle, etc., may be sold under the
direction of this Honorable Court, and the proceeds of such sale brought into
this court, to be divided according to law; and that the libellant may have
such other and further relief in the premises as in law and justice he may be
entitled to receive. A. B. Proctor, etc.

{Verification as in No. 1.)



No. 76. — A LIBEL IN REM BY A PART OWNER FOR A SALE OF THE VESSEL.

[Address and statement of parties as in the la^t Form — then proceed] — in a
cause of licitation or partition, alleges as follows:

First. That he is two-fifths owner of the bi-igantine Red Rover, her tackle,
apparel, furniture, and boats; that C. D. is owner of two-fifths and E. F. is
owner of one-fifth, and is also master of said vessel, and she is now in the port
of New York.

Second. That in consequence of diversity of opinion and interest in relation
to the employment of said vessel, which is irreconcilable, the said owners are
unable to agree upon any voyage or business for said vessel. That the libellant
has named a reasonable price for said vessel, at which he is willing to sell his
share, or buy the shares of his co-owners, but they refuse either to buy or sell,



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* PRACTICAL FORMS. 521

and, in consequence of their impi*acticability and obstinacy, he is unable to sell
to any other person.

Third. That all and singular the premises are true, and within the admi-
ralty and maritime jurisdiction of the United States and of this Honorable
Court.

Wlierefore the libellant prays that process in due form of law, according to
the course of this Honorable Court in cases of admiralty and maritime jurisdic-
tion, may issue against the said brigantine, her tackle, apparel, furniture and
boats, and that all persons claiming any right in said vessel, and especially the
said C. D. and E. F., part owners and master as aforesaid, may be cited to ap-
pear and answer the matters aforesaid, and that the said vessel, her tackle, etc.,
may be sold under the direction of this Honorable Coui*t, and the proceeds
thereof brought into court to be divided and distributed according to law, and
that the libellant may have such other and further relief in the premises as in
law and justice he may be entitled to receive.

A. B., Proctor, etc.
(Verification as in No, 1.)



No. T7. — Libel in bem against a domestic vessel by a ship joinbb fob

LABOB AND MATEBIALS — TO ENFOBCE A STATE LIEN.

. To the Honorable Samuel R. Betts, Judge of the District Court of the United

States for the Southern Distinct of New York:

The libel of William Robinson, of said district, ship joiner, against the
barque Richai*d Alsop (whereof now is or late was master),

her tackle, apparel, and furniture, and against all persons intervening for
their interest in said barque, in a cause of contract, civil and maritime, aUeges
as follows:

First That the said barque Richard Alsop is a domestic ship, and is now
owned, or was, at the time hereinafter mentioned, owned by some persons who
are resident in the State of New York, who are to the libellant unknown, but
who, as he is informed and believes, reside in the city of New York.

Second. That the said barque, in the month of July last, being in the port of
New York, in the district aforesaid, the libellant furnished certain materials
and performed certain labor as a ship joiner (the particulars of which are men-
tioned and set forth in the schedule hereto annexed), towards the altering,
equipping, and furnishing the said barque, at the request of the said master, and
at the prices in the said schedule mentioned. That the charges in said account
are just and reasonable, and that said materials furnished, and such labor done
upon the said vessel, were necessary and proper, to the altering, equipping,
and furnishing the said barque.

Third, That the said labor was performed upon the said vessel, and that said
materials so furnished, have gone into the said barque, and have become part
thereof — and that the said repairs done, labor performed, and materials fur-
nished, amount to the sum of one hundred and eighty-eight dollars and
seventy-nine cents, and that the labor was done and materials furnished upon
the credit of said vessel, as well as of the master and owners thereof — and
that a specification of such lien has been duly filed, according to the statute of
the State of New York, in the office of the clerk of the city and county of New
York.



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522 APPENDIX.

Fourth. That the amount due for said labor performed upon the said vessel,
and such materials furnished to her, is by the law of the State of New York, a
lien upon the said vessel, her tackle, apparel, and furniture, — and the said ves-
sel is now in the Southern District of New York.

F{ftfi. That the libellant has repeatedly requested the said master to pay him
the said sum of one hundred and eighty-eight dollars and seventy-nine cents,
but that the said master has not paid the same, and still neglects and refuses so
to do, and that the said sum now remains entirely due and unpaid.

Sixth. That all and singular the premises are true, and within the admiralty
and maritime jurisdiction of the United States and of this Honorable Court.

Wherefore the libellant prays, that process in due form of law, according to
tlie course of this Honorable Court in cases of admiralty and maritime juris-
diction, may issue against the said barque, her tackle, apparel, and furniture;
and that the said master, and all persons claiming any right, title, or interest
in the said barque, may be cited to appear and answer upon oath all and sin-
gular the matters aforesaid, and that the said vessel may be condemned and
sold to pay the amount due to the libellant, with interest and costs, and that
the libellant may have such other and further relief as in law and justice he
may be entitled to receive.

BuBB & Benedict, Proctors.
E. BuBB, Advocate.
{Verification as in No. 1.)

SCHEDULE.

(A copy qf the bill qf items.)



No. 78. — Libel in personam by a ship chandleb against the owner for

SUPPLIES — WITH ATTACHMENT CLAUSE.

To the Honorable Samuel R. Betts, Judge of the District Court of the United

States for the Southern District of New York.

The libel of George W. Quintard, of said district, late ship chandler, against
Peter S. J. Talbot, now or late owner of the schooner Mary, in a cause of con-
ti-act, civil and maritime, alleges as follows:

First. That in the month of June, one thousand eight hundred and forty-
seven, said schooner then being owned by the said Peter S. J. Talbot, and lying
in the port of New York, and under the command of one Captain Chase, and
standing in need of provisions and stores — the libellant, at the request of the
said master, furnished to and for the use of the said schooner, the provisions
and stores contained in the schedule hereto annexed, amounting to the sum of
sixty-eight dollars thirty-five cents, and that the same were furnished at the
prices in said schedule stated.

Second. That said stores were necessary to enable said schooner to perform
her intended voyage or voyages, and were furnished on the credit of the said
schooner, as well as of the master and owners thereof.

Third. That the said owners have been requested to pay the said bill, but have
hitherto wholly neglected and refused to pay the same, and the sum of seventy-
three dollars and thirteen cents, including interest, is now justly due and owing
to the libellant for the same.

Fourth. That the libellant has been informed and believes that the respondent



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 54 of 80)