Erastus Cornelius Benedict.

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

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No. 181. — ^FlNAJL DECBEB FOB A SUM CEBTAIN, WITH COSTS.

{Caption a$ in Form No, 176.)

This case having been heard on the pleadings and proofs, and having been
argued by the advocates for the respective parties, and due deliberation being
had in the premises, it is now ordered, adjudged, and decreed, by the court,
that the defendant pay to the libellant the sum of two hundred dollars, with
his costs to be taxed.



No. 182.— Dbcbbb on thb icbbits, with befebbncb to a commissiokeb.

{Caption as in Form No, 176.)

This cause having been heard on the pleadings in the cause, and having been
argued by the advocates of the respective parties, and due deliberation being
had, it is now ordered, adjudged, and decreed, that the libellant recover against
the defendant the amount due by the charter party, [or bill of lading— or bot-
tomry—or respondentia bond — or for the materials — or for the supplies men-
tioned in the pleadings,] and that it be referred to a U. S. commissioner,
to ascertain the amount so due, after making all proper allowances, and that he
report the same to the court, with all convenient speed.



No. 183. — Final dbcbbe of fobfeitubb on a libbl of infobmation.
(Caption a« in Form No, 176.)

The monition issued in this cause, having been heretofore returned, and the
usual proclamation having been made, and the default of all persons being duly
entered, it is thereupon, on motion of Ogden Hoffman, Esq., attorney for the
United States, ordered, sentenced, and decreed, by the court now here, and his
Honor the District Judge, by virtue of the power and authority in him vested,
doth hereby order, sentence, and decree, that the four cases of broadcloUis, men-
tioned in tlie libel in this cause, be, and the same accordingly are condemned as
forfeited to the [Jnited States.

And upon like motion, it is further ordered, sentenced, and decreed, that the
clerk of this court issue a decree of venditioni exponas to the marshal of the dis-
trict, returnable upon the day of next. And that upon the return
thereof, the clerk distribute the proceeds according to law.



No. 184. — Final dbcbbb fob thb defendant in a possessoby and petttobt

SUIT.

{Caption as in Form No. 176.)

This cause having been heard on the pleadings and proofs, and argued by the
advocates of the respective parties, and due deliberation being had in the prem-
ises, and it appearing to the court that the claimant has made out a sufficient
and valid title to the vessel. It is now ordered, adjudged, and decreed by tlie



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PRACTICAL FORMS. 601

coart, that the libel filed in the oaoBebe dismissed with costs, to be taxed against
the libeUant. And on motion of the proctors for the claimant, it is further ordered,
that unless an appeal be taken to this decree, within the time limited and pre-
scribed by the rules of this court, the claimant's stipulations be cancelled*



No. 185. — ^FlNAIi DECBEB ON A PEBBMPTOBY EXCEPTION TO THE LIBEL.

{Caption as in Form No. 176.)

This cause having been heard on exceptions filed by the libellant to the plea
interposed by the resi>ondent, and having been argued by the advocates for the
respective parties, and on due deliberation, the couit doth now order, adjudge,
and decree, that tlie exceptions filed by the libellant to the plea of the respond-
ent of a former trial and decree, upon the subject-matter of this suit, be over-
ruled, with costs to be taxed, and that the libel of tlie libellant be decreed baiTed
and be dismissed, with costs to be taxed, unless tlie libellant shall elect to reply
to said plea, and in that case, that he have leav% to file a replication thereto,
within ten days, on payment of the costs created by such exception to be taxed.



No. 186. — INTEBLOCUTOBY PECBEE AGAINST TWO VESSELS.

{Caption as in Form No, 176.)

This cause having been heard on the pleadings and proofs, and argued and sub-
mitted by the advocates for the respective parties, and due deliberation having
been had in the premises, it is now ordered, adjudged and decreed by the court
that the libellant above named recover herein against the said steamboat Drew,
her engines, etc., and the said steam tug Coe F. Young, her engines, etc., each and
against their respective stipulators, severally,* one-half of the entire damages
sustained by the libellant by reason of the matters set forth in the libel herein,
and costs, and that any balance of said one-half which the libellant shall not be able
to collect from or enforce against either of said vessels or her stipulators be paid
by the other vessel or her stipulators, and that the said vessels be condemned
therefor.

And it is further ordered, that it be and it is hereby referred to Samuel H. Ly-
man, Esq., one of the commissioners of this court, to ascertain the amount of
such damages, and report thereon to this court with all convenient speed.

Addison Bbown.



No. 187.— Final decbee against two vessels both in fault.
{Caption as in Form No, 176.)

An interlocutory decree having been heretofore made and entered herein,
whereby, among other things, it was adjudged that the libellant recover the
damages by it sustained, by reason of the matters and things in its libel set
forth, against the steamboat Drew, her engines, etc., and the steamtug Coe F.
Young, her engines, etc. ;

And the amount of said damages, including interest, having been fixed by con-
sent at twenty-five hundred and seventeen 38-100 dollars, and the costs of the
libellant having been taxed at one hundred and forty-seven 19-100 dollars:

It is ordered, adjudged and decreed that the libellant, the Bi*ewers* Ice Oom-



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602 APPENDIX.

pany, recover herein against the steamboat Drew, her engines, etc., and the
steamtug Coe F. Young, her engines, etc., the sum of sixteen hundred and twen-
ty-six 38-100 dollars, their share of the damages awarded, and the further sum
of one hundred and forty-seven 19-100 dollars, costs as taxed, making in all the
sum of seventeen hundred and seventy-three 57-100 dollars.

That the co-libellants, the Providence Washington Insurance Company of
Providence, R. I., and the Security Insurance Company of New Haven, Connecti-
cut, recover herein against the steamboat Drew, her engines, etc., and the steam-
tug Coe F. Young, her engines, etc., the sum of eight hundred and ninety-one
dollars, their share, as underwriters, of the damages awarded.

And it is further ordered, adjudged and decreed that as between the claim-
ants of the said steamboat Drew, her engines, etc., and the claimants of the said
steamtug Coe F. Young, her engines, etc., the said amounts of damages and
costs so adjudged to the libellant and co-libellants, respectively, with the accru-
ing interest and charges, be paid by the said claimants, respectively, and their
sureties in equal parts, that ^ to say, one half of each of said sums, resi>ective-
ly by the claimant of the said steamboat Drew, or its sureties, and one half
thereof by the claimant of the said steamtug Coe F. Young, or its sureties ;
and that any balance of either of said halves which the libellant or co-libellants,
respectively, may not be able to collect from or enforce against either of said
vessels, or their respective claimants or sureties, be paid by the otlier vessel,
her claimant or sureties, and that the said vessels, their engines, etc., be con-
demned therefor.

And it is further ordered, adjudged and decreed, that on the payment of the
claimant of either vessel of the said one half of said damages and costs, and in-
terest thereon to the date of payment, the proceedings of the libellant be stayed
as to such vessel, and her claimant for the collection of the residue, unUl the
return of the marshal of an execution tmsatisfied against the claimant of the
other vessel for the other half part of said amount, or until it shall otherwise
appear that the said libellants are unable to enforce or collect the other part of
said damages, costs and interest against the claimants of the other vessel by
process from the court.

And it is further ordered, adjudged and decreed, that unless an appeal be
taken from this decree within the time provided by law, and the rules and prac-
tice of this court, the stipulators for costA and value on the part of the claim-
ant of said steamboat Drew, and on the part of the claimant of said steamtug
Coe F. Young, respectively, cause the engagement of their stipulations to be
performed, or show cause why execution should not issue against them to en-
force satisfaction of this decree.

[Signed] Addison Bbown.

No. 188. — ^FlNAL DBCBEE ON CROSS LIBSL8 WHEBE BOTH YESSELS WERE DAM-
AGED AND BOTH HELD IN FAULT.

(Caption as in Form No. 176.)
Geobge Cleugh ^

The Steamship Bbitannia, hbb En- I

GINES,ETC.; COMPAGNIE FbANCAISE |

DE Navigation A Vapeub, Cypbien
Fabbe et Cie., Claimants. j



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PRACTICAL F0BM8. 608

COMPAGNIS FBANCAISB DB NAVIGA-
TION A Yapeuu, Cypbien Fabbb

ET ClE.

VS.

The Steamship Beaconsfield, hbb

Engines, etc.; Geobge Cleugh,

Claimant.

An interlocutory decree having been entered in the first above entitled action
on the 23d day of April, 1887, and in the second above entitled action on the
23d day of April, 1887, whereby it was ordered, adjudged and decreed that the
collision mentioned in the pleadings herein was due to fault on the part of both
the steamship Britannia and the steamship Beaconsfield, and that the damages
arising therefrom be apportioned and the costs divided; and whereby it was
further ordered that it be referred to Francis Howland, Esq., Commissioner, to
ascertain and compute the damages sustained by each of the libellants by reason
of said collision;

And said commissioner having filed his report bearing date the 2d day of
July, 1889, whereby he reports the amount of the damages sustained by each of
the libellants as agreed upon and consented to by them ; it is

Ordered, that the repoi-ts of the commissioner be and the same hereby are
in all things confirmed; that the damages sustained by the libellant, George
Cleugh, by reason of said collision be and the same hereby are assessed as
follows:

For damages to the steamship Beaconsfield the sum of twenty-five thousand
five hundred and eighty-three 08-100 ($25,583.98) dollars, with interest thereon
from December Slst, 1886, to July 2d, 1889, the date of said report, amounting
to thirty-eight hundred and forty-six 12-100 ($3,840.12) dollars, together amount-
ing to twenty-nine thousand, four hundred and thirty 10-100 ($29,430.10) dol-
lars; and for demurrage on said steamship Beaconsfield the sum of fifty-four
hundred and twenty-one 50-100 ($5,421.50) dollars, with interest thereon from
January 12th, 1887, to July 2d, 1889, amounting to eight hundred and four
19-100 ($804.19) dollars, together amounting to sixty-two hundred and twenty-
five 69-100 ($6,225.69) dollars, and amounting in all to the sum of thirty-five
thousand six hundred and fifty-five 79-100 ($35,655.79) dollars.

That the damages sustained by the libellant Compagnie Francaise de Naviga-
tion a Yapeur, Cyprien Fabre et Cie., by reason of said collision be and the same
hereby are assessed as follows :

For damages to the steamship Britannia the sum of thirty-five hundred and
eighty-two 98-100 ($3,582.98) dollars, with interest thereon from December 14th,
1886, to July 2d, 1889, the date of said report, amounting to five hundred and
forty-one 25-100 ($541.25) dollars, and together amounting to forty-one hundred
and twenty-four 23-100 ($4,124.23) dollars; and for demurrage on said steamship
Britannia the sum of fifteen hundred and sixty ($1,560) dollars, with interest
thereon from December 1st, 1886, to July 2d, 1889, amounting to two hundred
and forty-two 23-100 ($242.23) dollars, together amounting to eighteen hundred
and two 23-100 ($1,802.23) dollars, and amounting in all to fifty-nine hundred
and twenty-six 46-100 ($5,926.46) dollars.

And the costs of the libellant, George Cleugh, having been taxed at the sum
of six hundred and one 68-100 ($601.68) dollars, and the costs of the libellant.



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604 APPENDIX.

Compagnie Francaise de Navigation a Vapeur, Cyprien Fabre et Cie., having
been taxed at the sum of three hundred and seventy-foar 81-100 ($374.81) dollars:

Now therefore, it is hereby ordered, adjudged and decreed that the libellant,
George Cleugh, recover against the steamship Britannia, her engines, etc., one
half of the excess of the amount of the damages sustidned by him, hereinbefore
assessed at $35,655.79, over tlie amount of the damages sustained by the libel-
lant, Compagnie Francaise de Navigation a Vapeur, Cyprien Fabre et Cie., here-
inbefore assessed at $5,926.46, to wit, the sum of fourteen thousand eight
hundred and sixty-four 66-100 ($14,864.66) dollars in addition to one half of the
difference between the amount of the costs taxed by the respective libellants,
amounting to one hundred and thirteen 43-100 ($113.43) dollars, and amounting
in all to the sum of fourteen thousand nine hundred and seventy-eight 9-100
($14,978.09) dollars, and that said steamship Britannia, her engines, etc., be
condemned to pay the same. And it is further

Ordered that, unless an appeal be taken from this decree within the time
limited by the rules and pi*actice of this coui't, that the stipulators for costs
and value on the part of the claimant of said steamship Britannia cause tlie
engagements of their said stipulations to be perfoi*med, or show cause within
four days after the expiration of said time to appeal, or on the first day of
jurisdiction thereafter, why execution should not issue against their goofls,
chattels and lands for the amount of their said stipulations.



No. 189. — ^Decbbb ovbbbuling excbptions to an answer.

{Caption aa in Form No, 176.)

This cause coming on to be heard on exceptions filed by the libellant to the
answer of the respondent, and having been argued by the advocates for the re-
spective parties, and due deliberation having been had in the premises, it is now
ordered and decreed by the court, that the exceptions of the libellant to the
answer of the respondent be disallowed and overruled, with costs to be taxed.



No. 190. — Degree settling priority in distribution or proceeds in

COURT, in several CAUSES.

(Caption as in Form No. 176.)
{Titles qfall the causes affecting the proceeds in court.)

No exception being taken to the clerk's reports in any of the above cases,
and the question being raised which, if any, of the parties is entitled to pri-
ority of payment, and also, whether costs are to have precedence in satisfaction,
where the debts are only entitled to pro rata payment, and the court having
been moved to decree a distribution of the proceeds of the brig Triumph, her
tackle, etc., now in the registry, and advocates for the respective parties having
been heard, and due deliberation had in the premises, it is ordered and decreed,
that the demand of Elisha B. Baker, for services rendered as pilot, togetlier with
his taxed costs, be first paid out of the fund in court; that then the amounts
reported due the several libellants in the suits on which the vessel was arrested,
be paid them respectively, together with their taxed costs, according to the or-
der in which their attachments were made on the vessel. And that the several
petitioners be afterwards paid ratably out of tlie surplus, after satisfaction of
the other suitors, together with their cost8 to be taxed.



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PRACTICAL FORMS. 605>

No. 191. — ^Dbcbeb for libbllant on a chabtbb pabtt.

{Caption as in Form No, 176.)

This cause haying been heard upon the pleadings and proofs, and the prem-
ises being considered, and it appearing to the court that the cargo of the brig
Virginia, was well and securely stowed, and was on her arrival at this port
delivered to the respondent, pursuant to the tenor and effect of the charter
party in the pleadings mentioned, and in good condition except 4,500 cigars, in-
jured by the dangers of the sea; and it further appearing to the court that the
libellant brought in the said vessel from Havana to New York, boxes of cigars
and bales of tobacco laden in the cabin of the said vessel, and not embraced
within the provisions of the charter party, it is therefore considered by the
court that the libellant recover his affreightment in this case due and stipu-
lated by the said charter party, and also the accustomed freight for the said
boxes of cigars and bales of tobacco, laden in the cabin of said vessel; and that
it be referred to the clerk to ascertain and compute the amount due according
to the tenor of this decree; and it is further ordered, that, in taking such ac-
count, the clerk allow the respondent all proper credits for payments made
pursuant to the charter party, and also credit for the value at Havana of one
quarter box of cigars, laden in the cabin, unless the respondent elects to take
the one quarter box delivered from the vessel to the public store, it not having
the proper mark of the respondent, corresponding with the bill of lading. It
is further ordered, that the libellant recover his costs to be taxed.



No. 192. — DeCBBB on special motion dismissing libel when PB00BS8 HAD
IMPBOVIDENTLY ISSUED.

{Caption as in Form No. 176.)

Mr. Burr, proctor for the claimants, reads and files affidavit of notice of mo-
tion, and affidavit of service, and moves that the vessel be discharged from
custody.

Mr. Zabriskie, proctor for the libellant, reads and files two affidavits, and ar-
gucH in opposition to the motion.

Ordered, that the libel be dismissed and the vessel discharged from custody
of the marshal forthwith.



No. 193. — ^Decbee fob wages and shobt allowance fob a pabt of thb

VOYAGE, AND rORFElTURE OF THE BE8IDUE.

{Caption as in Form No, 176.)

This cause having been reargued upon the merits, by consent of the counsel
for both the parties, and due deliberation being had in the premises, it is now or-
dered, adjudged and decreed, that the libellant recover for the eight months*
service on board the vessel, up to his payment in Hamburg, the sum of eighty
dollars, and for short allowance during that period, thirteen 3.S~100ths dollars —
in the whole, ninety-three ;>.V100th8 dollars, deducting therefrom his advance
of twelve dollars, and nine dollars paid him as per receipt, amounting to the
sum of twenty-one dollars, and that the defendant pay to the libellant the bal-
ance, amounting to seventy-two S3-100ths dollars, together with his costs to be
taxed. And that the libellant* s wages earned on the circuitous voyage from
Hamburg to Buenos Ayres, be decreed forfeited for desertion at the latter place.



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606 APPENDIX.

No. IW.— SUMMABY JUDGMENT AGAINST STIPULATORS.

(Caption as in Form No. 176.)

A final decree having been entered in the above entitled cause on the twenty-
third day of July, 1891, wherein it is ordered that unless said decree be satis-
fied, or an appeal intervene, the stipulators for value and for claimant's costs
cause the engagement of their stipulations to be performed, or show cause with-
in four days after the expiration of ten days from the date of the service of a
copy of said decree on claimants^ proctors, with notice of its entry, or on the
first day of jurisdiction thereafter, why execution should not issue against said
stipulatoi-s, tlieir goods, chattels and lands;

And the decree not having been satisfied, and no appeal having been taken by
the claimants, and more than ten days having elapsed since the service on their
proctors of a copy of said final decree, with notice of its entry, and no cause
having been shown by said stipulators, all of which appears by the affidavit,
hereto annexed, of A. B., one of the libellant's proctora, it is now, on motion of
B. <fe C, libellant's proctors.

Ordered, adjudged and decreed, that a summary judgment be and the same
is hereby entered against William Tisdale and Julius Rosendale, the stipulators
herein, for the sum uf five thousand dollars, the amount of their said stipula-
tion, and that the libellants have execution thereon to satisfy this decree.



No. 194 a.— Notice op Reference.

District Court of the United States for the Southern District of New York,
A. B. N

vs, > Notice of Rrference.
C. D. )

In conformity with the order entered in the above entitled cause, you will
please to take notice that the reference ordered therein will be proceeded with,
before me, at my office at the United States Court, on the day of

at o'clock in the noon of that day, at which time and place

you are hereby notified to attend with the testimony you may have to offer in
the matter referred.
Dated, New York, the day of A. d. 18 .

Yours, etc.,

George W. Mortok,

U. S. Commissioner.
To E. F., Proctor for Libellant.
G. H., Proctor for Defendant.



No. 195. — Report of commissioner on a general order to compute.

District Court of the United States for the Southern District qf New York.
A. B. N

vs, > Commissioner's Report,
CD.)

In pursuance of a decretal order made in the above entitled oaus^ on the
day of in the year of our Lord one thousand eight hundred and



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PRACTICAL FORMS. GOT

by which, among other things, it was referred to the undersigned, one of
the commissioners of this court, to ascertain and compute the amount due the
libellant for materials, [or other causBy] and to i*eport thereon to this court with
akll convenient speed:

I, Charles W. Newton, the commissioner to whom the matter was referred,
do report that I have been attended by the proctor for the libellant and the
proctor for the defendant, and have taken and examined the testimony offered
in support of the libellant's claim, and also that offered in reduction thereof,
and do And that there is due to the libellant the sum of

dollars.

All which is respectfully submitted.

Dated the day of a. d. 18



Chables W. Nbwton,
U. S. Commissioner.



E. F., Proctor for Libellant



No. 196. — ^Repqbt op a commissioitbb on an obdbb or bbfbbence to take

AND BEPOBT THE TESTIMONY AB TO THE AMOUNT OP DAMAGES.'

District Court cfthe United States for the Southern District cf Nev) York,
A. B. -^
vs. S
C. D. J

I, George W. Morton, a commissioner to whom it was referred to take and
report the testimony of the amount of damages in this cause, do report that I
have been attended by the proctors for the respective parties, and have exam-
ined all the witnesses who have been produced before me, and they gave the
following testimony :

John Jones, a witness for the libellant, being sworn, testified that, etc. — and
so on with the other witnesses.
All which is respectfully submitted.

Geoboe W. Mobton,

U. S. Commissioner.
E. F., Proctor for Libellant



No. 197. — ^Repobt op a commissioneb on a special obdeb op bepebence
— befobting the testimony.

United States District Court.

Valentine Laba )^CommisHoner's Report, under the

_ _ „ ^ **• C order of Court, of June, 1847.

The Bbig Henby Buck, heb tackle, etc. )

In pursuance of a decretal order made in the above entitled cause, by which,
among other things, it was referred to a commissioner to ascertain and report
the amount due the libellant, and it was ordered, that the claimant have leave
to strike the name of David Woodside from the claim and answer filed in the
cause, and also have leave to examine him as a witness on the reference in this
cause, before the commissioner, subject to all legal exceptions:

I, George W. Morton, the commissioner before whom the reference was had,
do report, that I have been attended by the proctors for the libellant and the



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608 APPENDIX.

claimant, and have taken and examined the testimony offered by the respecttve
parties, and do find, on the testimony of Dayid Woodside, that the claimants
are entitled to credits sufficient, with the amount paid into court by them, to
cover the amount deci*eed the libellant, and that there is nothing due the libel-
lant beyond the amount paid into court by the claimants.

At the request of the proctor for the claimants, I have annexed to this report
all the testimony taken under the orders of reference in the cause, toge^^
with a copy of the judge's minutes of testimony taken on the hearing.

All which is respectfully submitted.

Dated December 4th, 1847. Geobge W. Mobtok,

F. S. Commissioner.

A. Kash, Proctor for the Libellant



OO N

8. )



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 65 of 80)